Westmoreland County v. W.C.A.B. (Fuller)

• Decision Date: 24 January 2008
• Docket Number: No. 1277 C.D. 2007,1277 C.D. 2007
• Citation: 942 A.2d 213
• Parties: WESTMORELAND COUNTY, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (FULLER), Respondent.
• Court: Pennsylvania Commonwealth Court

942 A.2d 213

WESTMORELAND COUNTY, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (FULLER), Respondent.

No. 1277 C.D. 2007

Commonwealth Court of Pennsylvania.

Submitted on Briefs November 9, 2007.

Decided January 24, 2008.

William C. Gallishen, Sr., Greensburg, for petitioner.

Neil J. Marcus, Monongahela, for respondent.

Before LEADBETTER, President Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.

OPINION BY Judge SIMPSON.

In this workers' compensation appeal, Westmoreland County (Employer) asks whether the Workers' Compensation Appeal Board (Board) erred in affirming a Workers' Compensation Judge's decision (WCJ), which, following a remand, denied its termination petition. Employer contends the WCJ erred in determining the testimony of its medical expert was incompetent to support a termination of benefits. It also argues the Board erred in initially remanding this matter after a WCJ granted its termination petition. Discerning no merit in these assertions, we affirm.

Mary Fuller (Claimant) worked for Employer as a certified nurses' aide. In September 1994, she sustained a work injury while moving a patient. Employer issued a notice of compensation payable (NCP) accepting liability for a lumbar strain.

In December 1998, Employer filed a termination petition alleging Claimant fully recovered from her work injury. In September 2000, WCJ Ada Guyton denied the petition. In so doing, WCJ Guyton credited Claimants medical experts testimony that Claimant had not fully recovered from her work injury and could not return to work at her pre-injury position. Within her finding crediting Claimants doctors testimony, WCJ Guyton indicated Claimants doctor diagnosed a herniated L4-5 disc and post-traumatic lumbar radiculopathy at the L-5 level that were caused or aggravated by her September 1994 work injury. While noting the NCP described the injury as a lumbar strain, WCJ Guyton did not formally amend the NCP to include a herniated L4-5 disc and lumbar radiculopathy.¹ Employer did not appeal this decision.

In November 2003, Employer filed a second termination petition alleging Claimant fully recovered from her work injury as of October 30, 2003. In support of its termination petition, Employer presented the testimony of a medical expert who opined Claimants work injury consisted of a back strain, but did not include a herniated L4-5 disc or lumbar radiculopathy. Nevertheless, Employers medical expert opined Claimant fully recovered from her September 1994 work injury and could return to work without restrictions. Ultimately, WCJ Irving Bloom issued a decision in which he determined Employer met its burden of proving Claimant fully recovered from her work injury as of October 30, 2003. Thus, WCJ Bloom granted Employers termination petition. Notably, WCJ Bloom drew an adverse inference based on Claimants failure to testify or to present the deposition testimony of her treating physician.

Claimant appealed to the Board, asserting, among other things, WCJ Bloom erred in drawing an adverse inference based on her failure to testify or present the testimony of her treating physician. She argued WCJ Bloom's off the record actions led her to believe it was not necessary to testify or present the testimony of her treating physician. Specifically, Claimant asserted WCJ Bloom stated off the record that he considered the testimony of Claimant's chiropractor very credible, that Employer should consider this, and that it would not be necessary for Claimant to testify. In support of these assertions, Claimant submitted sworn affidavits by herself and her counsel. Thus, Claimant sought a remand to present further testimony.

Ultimately, the Board vacated WCJ Bloom's decision granting the termination petition and remanded the matter to afford Claimant the opportunity to present further testimony.²

On remand, the Bureau of Workers Compensation reassigned the termination petition to WCJ Guyton. WCJ Guyton allowed Claimant to present additional testimony,³ reevaluated the evidence and made entirely new findings of fact and conclusions of law. Based on the findings in her prior decision on Employers first termination petition, WCJ Guyton determined Claimants work injury included a herniated L4-5 disc and post-traumatic lumbar radiculopathy at L-5. She further determined the testimony of Employers medical expert was insufficient to support a termination of benefits. Specifically, WCJ Guyton determined Employers medical expert opined Claimants work injury did not include a herniated L4-5 disc or lumbar radiculopathy, did not testify she fully recovered from a herniated L4-5 disc and radiculopathy, and did not testify she no longer exhibited clinical findings consistent with a herniated L4-5 disc or radiculopathy. Thus, WCJ Guyton denied Employers termination petition.⁴

Employer appealed, and the Board affirmed. This appeal followed.

On appeal,⁵ Employer raises two issues. First, it asserts the WCJ erred in determining its medical experts testimony was insufficient to support a termination of benefits. In addition, Employer argues the Board erred in initially remanding this matter following WCJ Blooms decision granting its termination petition.⁶

Employer first contends the WCJ erred in determining the testimony of its medical expert, Dr. D. Kelly Agnew (Employer's Physician) was legally insufficient to support a termination. Employer's argument is two-fold.

First, Employer asserts WCJ Guyton erred in determining her prior decision denying its first termination petition expanded the scope of the recognized work injury to include a herniated L4-5 disc and lumbar radiculopathy. It argues this Court's recent decisions make clear, in the context of a termination petition, a WCJ's "comments" about an injury being different from the description of the injury in an NCP is irrelevant to the issue of whether a claimant fully recovered from a recognized work injury. See Temple Univ. Hosp. v. Workers' Comp. Appeal Bd. (Sinnott), 866 A.2d 489 (Pa.Cmwlth.2005); City of Phila. v. Workers' Comp. Appeal Bd. (Smith), 860 A.2d 215 (Pa.Cmwlth.2004). Employer asserts such comments do not expand the description of the injury, and do not change an employer's burden of proving a full recovery from the acknowledged injury. See Commercial Credit Claims v. Workmen's Comp. Appeal Bd. (Lancaster), 556 Pa. 325, 728 A.2d 902 (1999).

In any event, Employer maintains, even if the WCJ's earlier decision expanded the description of the injury, its Physician's testimony is still legally sufficient to support a termination. More specifically, Employer points to its Physician's opinion that Claimant fully recovered from "any low back injury sustained on September 17, 1994." It maintains this testimony is sufficient to support a determination that Claimant fully recovered. See Jackson v. Workers' Comp. Appeal Bd. (Res. for Human Dev.), 877 A.2d 498 (Pa.Cmwlth. 2005); To v. Workers' Comp. Appeal Bd. (Insaco, Inc.), 819 A.2d 1222 (Pa.Cmwlth. 2003).

To succeed in a termination petition, an employer bears the burden of proving by substantial evidence that a claimant's disability ceased, or any remaining conditions are unrelated to the work injury. Gillyard v. Workers' Comp. Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa.Crnwlth.) (en banc), appeal denied, 584 Pa. 703, 882 A.2d 1007 (2005). An employer may satisfy this burden by presenting unequivocal and competent medical evidence of the claimant's full recovery from her work-related injuries. Id.

We first consider whether the WCJ Guyton's decision denying Employer's first termination petition operated to expand the scope of the NCP to include a herniated L4-5 disc and lumbar radiculopathy. Under Section 413(a) of the Act, an NCP can be amended in two ways. One way is for a claimant who is claiming benefits should not be terminated based on injuries that are related to, but distinct from a recognized injury, to file a petition to modify the NCP pursuant to 77 P.S. § 772, which is treated the same "as if such petition were an original claim petition." 77 P.S. § 773; see also Jeanes Hosp. v. Workers' Comp. Appeal Bd. (Hass), 582 Pa. 405, 872 A.2d 159 (2005).

The second way to modify, an NCP does not require a petition to modify be filed; rather, a WCJ is authorized to modify an NCP in the course of proceedings under any petition pending if it is established the NCP was materially incorrect when issued and the claimant, who has the burden, establishes she suffered additional work-related injuries. 77 P.S. § 771. Samson Paper Co. & Fidelity Engraving v. Workers' Comp. Appeal Bd. (Digiannantonio), 834 A.2d 1221 (Pa.Cmwlth. 2003). However, the WCJ does not have the authority under this approach to include injuries that developed over time as a result of the injury; instead, only injuries that existed at the time the NCP was issued may be addressed. Smith.⁷

However, even though the NCP was not formally amended, once the WCJ found in the first termination petition that Claimant suffered a herniated L4-5 disc and lumbar radiculopathy, those became accepted injuries. Indeed, in Gillyard, we held that where the WCJ's findings in a termination petition were based on nonrecovery from work injuries not accepted in the NCP, those injuries became part of the accepted injury. To prevail in a later termination petition the employer had to establish the claimant recovered from those injuries. Essentially, we held that by denying a termination petition based on injuries not accepted in the NCP, the WCJ implicitly amended the notice under Section 413 of the Act to include the injuries as part of the NCP.

That is what occurred here. In denying Employer's first termination petition, when the WCJ accepted the herniated L4-5 disc and lumbar radiculopathy as caused or aggravated by the work injury, she implicitly amended the NCP to include those injuries. As such, entitlement to a termination of benefits required Employer to...