Peter J. McNamara, Philadelphia, for petitioner.
Martin J. Fallon, Jr., Philadelphia, for respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE COHN JUBELIRER
Lourdes Sarmiento–Hernandez (Claimant) petitions for review of an October 12, 2016 Order of the Workers' Compensation Appeal Board (Board), which reversed a Workers' Compensation Judge's (WCJ) Decision to award Claimant unreasonable contest attorney's fees.1 On June 27, 2014, Ace American Insurance Company (Employer) filed a Petition to Terminate Compensation Benefits (Termination Petition), asserting Claimant fully recovered from her work injury and was able to return to work without restriction as of June 2, 2014. Claimant denied that she fully recovered and filed a Petition to Review Compensation Benefits (Review Petition) on September 8, 2014, alleging the description of her injury was incorrect. Whether Employer's actions related to these two petitions were reasonable is the sole issue on appeal. We conclude they were and, accordingly, affirm.
I. Procedural and Factual History
Claimant sustained an injury to her right wrist at work on June 25, 2012. Employer issued a Notice of Compensation Payable (NCP), accepting the injury as a right wrist sprain, on October 18, 2012.
In 2013, prior to the filing of the instant petitions, Employer filed a Petition to Suspend Compensation Benefits (Suspension Petition). The Suspension Petition was resolved via a stipulation by the parties, which was adopted by a WCJ on May 22, 2014.2 Prior to the entry of the stipulation, Employer deposed Thomas J. Gillon, M.D., Claimant's treating physician. Dr. Gillon diagnosed Claimant with right wrist symptomatic ulnar impaction,3 triangular fibrocartilage complex (TFCC) tear, and extensor carpi ulnaris (ECU) tendinitis, which required surgery. Although the Suspension Petition was resolved via stipulation and Dr. Gillon's testimony was never admitted as part of that proceeding,4 in her Review Petition, Claimant sought to have the NCP amended to include the conditions to which Dr. Gillon testified.
A number of hearings were held on the Termination Petition and Review Petition, at which Employer presented the deposition and report of Pedro Beredjiklian, M.D. The WCJ summarized Dr. Beredjiklian's testimony as follows:
[ ] On June 2, 2014, Dr. Beredjiklian performed an evaluation of Claimant at the request of the Employer/carrier. Claimant dated her symptoms back to June 25, 2012 with no specific traumatic episode. [Dr. Beredjiklian] understood that Claimant was working packing umbrellas and leather-bound portfolios and making boxes. Over the course of several days at work [Claimant] developed pain in the wrist. Dr. Beredjiklian opined that there was no causal relationship between the diagnoses of right wrist ulnar impaction, right wrist TFCC tear and tendinitis with painful hardware with any work activity on June 25, 2012. [Dr. Beredjiklian] related these diagnoses to a congenital condition that does not occur as a result of repetitive activities.
[ ] Assuming that the accepted work injury was a right wrist sprain due to the repetitive nature of the job occurring on June 25, 2012, Dr. Beredjiklian opined that Claimant was fully recovered from that injury. Claimant's employment was not a substantial contributing factor in bringing about the diagnosis made by Dr. Gillon.
[ ] On cross-examination, Dr. Beredjiklian related Claimant's condition to wear and tear of daily life of which work would be a part. He did not see a history from any other doctor indicating that Claimant developed her wrist pain outside of work. He opined that her work activities had "no causal role or no material causal role" in creating the aggravation of her pre-existing condition. The repetitive nature of her job had a very minor role in the development of her symptoms.
[ ] Although Dr. Beredjiklian's report indicates a diagnosis of TFCC tear, status post-debridement, ulnar shortening osteotomy and hardware removal, when questioned on cross-examination regarding his diagnosis[,] he initially stated "I don't think I have a specific diagnosis." [ (R.R. at 55a.) ] [Dr. Beredjiklian] was not aware of the fact that the NCP indicated wrist sprain due to repetitive nature of the job until the day of his deposition. When asked from what work injury he felt she had recovered, Dr. Beredjiklian indicated that he did not see a work injury. He specifically stated that[,] based on the records he reviewed, he did not see any work injury.
(WCJ Decision, Finding of Fact (FOF) ¶ 1(a)-(d) (emphasis added).)
Claimant presented the deposition of David Bozentka, M.D., who began treating Claimant after Dr. Gillon performed a wrist arthroscopy and ulnar shortening osteotomy of her right wrist for treatment of the symptomatic ulnar impaction syndrome. His testimony was summarized by the WCJ as follows:
[ ] Dr. Bozentka opined that Claimant initially developed the ulnar wrist pain as a result of moving some boxes at work. Claimant had a pre-existing ulnar positive variance with resulting ulnar impaction syndrome with degeneration of the TFCC. As a result of her work activities, Claimant developed an aggravation of her preexisting ulnar impaction syndrome. Her ulnar impaction became symptomatic as a result of her work activity.
[ ] Dr. Bozentka understood that[,] ultimately, Claimant had an ECU synovectomy and plate removal due to tend[i]nitis of the tissues and tendon adjacent to the plate. This procedure was related to the initial surgery in which the plate was inserted.
* * *
[ ] Dr. Bozentka related Claimant's aggravation of her ulnar impaction syndrome requiring arthroscopy, ulnar shortening osteotomy, and ultimately plate removal, therapy and treatment by Dr. Gillon[,] as well as himself[,] to her work activities moving boxes. She has not fully recovered from her condition. To his knowledge, she has not developed similar symptoms in her left hand. Claimant had an ulnar positive variance of the left side as well. She is right hand dominant.
(WCJ Decision, FOF ¶¶ 2–3, 6.)
As stated above, Claimant also submitted the deposition testimony of Dr. Gillon, which was taken in support of the prior Suspension Petition and was admitted for the limited purpose of supporting the unreasonable contest claim. The WCJ summarized Dr. Gillon's testimony as follows:
[Dr. Gillon] first treated Claimant on August 30, 2012 for the work injury of June 25, 2012. Claimant presented for a second opinion regarding ongoing pain on the ulnar side of her right wrist and surgical recommendation by Dr. [Mark] Rekant [of the Philadelphia Hand Center]. Claimant first noticed the pain on June 25, 2012 after working all day. On that particular day, in addition to her duties as administrative assistant, [Claimant] was helping to put a cubic[le] together for a new employee.
[ ] X-rays revealed right and left wrist ulna lengthening known as ulnar impaction. [Dr. Gillon] diagnosed Claimant with right wrist symptomatic ulnar impaction. The MRI revealed a tear/hole in the triangular fibrocartilage complex (TFCC) with a small effusion into the distal radioulnar joint consistent with ulnar impaction.
[ ] On October 9, 2012, Dr. Gillon performed surgery in the nature of a right arthroscopic TFCC debridement and a right wrist ulnar shortening osteotomy. [Claimant] was restricted from work following the surgery. ... On April 23, 2013, Claimant had residual swelling and probably extensor carpi ulnaris (ECU) tendinitis. [Dr. Gillon] saw Claimant again on May 2, 2013 and July 2, 2013. At that time, Claimant had a second opinion by Dr. Bozentka who agreed with the recommendation of hardware removal.
[ ] As of July 2, 2013, Dr. Gillon diagnosed Claimant with right wrist stiffness, right ECU tendinitis, and right wrist painful hardware. On August 12, 2013, Dr. Gillon performed surgery for hardware removal and ECU tenolysis to free up the tendon from the ulna and take away any inflammation around the tendon. Thereafter, he saw Claimant on August 20, 2013, September 19, 2013, [and] October 16, 2013[,] at which time he released Claimant to full duty work.
[ ] When asked to assume that the accepted injury is a right wrist sprain and provide an opinion as to whether or not she was fully recovered from that injury as of October 16, 2013, Dr. Gillon replied: "It's difficult to say because I didn't treat her ... for a right wrist sprain." When the question was asked again, he stated "I can't say fully and completely only because of the decreased—somewhat decreased motion and decreased pain. ..."
[ ] Dr. Gillon diagnosed Claimant with right wrist ulnar impaction, TFCC tear, and ECU tend[i]nitis. The wrist ulnar impaction and TFCC tear he related to her congenital condition of an ulna being longer than her radius and wear and tear over time causing the tear. The ECU tend[i]nitis he related to the surgery and placement of the hardware. When asked if any of these conditions are related to her employment, Dr. Gillon stated: "What she related from the incident on June 25, 2012, was putting together a cubic[le]. She could have put more stress on her wrist at that point, and I consider it a potential exacerbation, but not a cause. "
[ ] On cross-examination, however, Dr. Gillon stated that he believed the work [constructing the cubicle] was the "main cause" of her wrist becoming symptomatic to the point that he performed surgery. Dr. Gillon submitted bills for his treatment[,] including two surgeries[,] to the Workers' Compensation carrier because he believed that he was treating her for work-related
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