Opinion
No. 336 C.D. 2014 No. 444 C.D. 2014
06-09-2015
Robert Carl, Sr., Petitioner v. Workers' Compensation Appeal Board (Catawissa Lumber and Specialty Company), Respondent Self-Insurance Guaranty Fund, as Successor to Catawissa Lumber and Specialty Company, Petitioner v. Workers' Compensation Appeal Board (Carl), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Robert Carl, Sr. (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) which reversed the Workers' Compensation Judge's (WCJ's) corrective amendment to the Notice of Compensation Payable (NCP), expanding the description of Claimant's injury to include an aggravation of his pre-existing degenerative disc disease. Additionally, Self-Insurance Guaranty Fund, as successor to Catawissa Lumber and Specialty Company (hereinafter, Employer), cross-petitions for review of the order of the Board which affirmed the decision of the WCJ granting Claimant's reinstatement petition and denying its termination petition. After review, we affirm.
Claimant was injured on July 25, 2007, sustaining a low back/lumbar sprain/strain. Employer accepted liability for the injury pursuant to an NCP filed August 9, 2007. Claimant returned to work as of September 5, 2007, after which Employer issued a notification of suspension in which it alleged that Claimant had returned to his pre-injury job at wages equal to his time of injury wages. Claimant challenged this notification and a hearing was held before the WCJ, who found:
Section 413(c) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 774.2, provides that an insurer "may suspend the compensation during the time the employe has returned to work at his prior or increased earnings upon written notification of suspension . . . to the employe and the department . . . The notification of suspension shall include an affidavit by the insurer that compensation has been suspended because the employe has returned to work at prior or increased earnings." This section further provides in subsection (1) that:
If the employe contests the averments of the insurer's affidavit, a special supersedeas hearing before a [WCJ] may be requested by the employe indicating by a checkoff on the notification form that the suspension of benefits is being challenged and filing the notification of challenge with the department within twenty days of receipt of the notification of suspension from the insurer. The special supersedeas hearing shall be held within twenty-one days of the employe's filing of the notification of challenge.77 P.S. § 774.2.
The Claimant returned to work on September 5, 2007, and has continued to work but is missing some time. The Claimant returned to work at his regular job on the straight line saw which was the job that he held at the
time of his injury. The Claimant missed some of his time because the entire plant was closed. The Claimant worked his regular scheduled shift the first two and half weeks that he returned to work. Then he was off work due to the plant shutdown the following week. The next Monday the Claimant took off because his back hurt but did not provide any kind of doctor's excuse for being off. The next week the Claimant was off due to the shutdown of the plant. The following week the Claimant was off because he thinks his back was hurting, but he did not have a doctor's excuse. The Claimant's testimony is found to be credible.WCJ's Decision, circulated August 18, 2008, Finding of Fact No. 2. The WCJ concluded that Employer had sustained its burden of proving that Claimant returned to work without a wage loss and that he continued to work without a wage loss due to his work-related injury. The WCJ accordingly denied Claimant's challenge petition and granted Employer's suspension petition effective September 5, 2007. No appeal was filed from this decision.
After Employer sold the business to another company in January 2010, Claimant was laid-off. Thereafter, Claimant filed a petition to reinstate compensation benefits averring that he had returned to light duty work in September 2007 and worked in that position until Employer no longer had work available to him after January 28, 2010. Employer filed a responsive answer denying the allegations of Claimant's petition, and, following an Independent Medical Examination (IME) of Claimant, filed a petition to terminate Claimant's benefits, alleging full recovery as of July 18, 2011. The petitions were consolidated by the WCJ.
Before the WCJ, Claimant provided his own testimony as well as the July 20, 2011, deposition testimony of his treating physician, Dr. Robert W. Mauthe, M.D. Employer submitted the October 3, 2011, deposition testimony of Dr. John A. Kline, M.D, who performed the IME of Claimant on July 18, 2011. The testimony may be summarized as follows.
Claimant testified that before he was injured, he worked on the straight line saw, where he would take wood of various sizes and weights, cut them and stack them on a pallet. After he returned to work following his injury, he testified Employer accommodated his injury by allowing him to sit and stand at his leisure. Claimant explained that he worked on a different saw where he only had to lift short pieces of lumber, mark them and slide them down a roller to be cut by a machine. Claimant testified that he performed this modified duty job until January 28, 2010, when Employer was sold to another company, and that despite filling out an application for the new company, he never heard anything and was told he was done. Claimant testified that he continued to treat for his work injury both after he returned to work and continuing up through the hearings on these petitions, treating with Dr. Wilson initially and then later with Dr. Mauthe. Finally, Claimant testified that he continued to have lower back pain that radiates down his leg and that while he remains willing to perform modified work, he feels that he can no longer perform his pre-injury duties, because it would require him to constantly bend, twist and pull, and that without a break from standing, his leg gets numb.
Dr. Mauthe first examined Claimant for his July 2007 work injury on December 6, 2007, approximately three months after Claimant returned to work. Dr. Mauthe took Claimant's history, which indicated no reported back pain before the work injury and noted his current complaints of severe back pain, numbness in both legs, and an inability to sleep. Dr. Mauthe reviewed Claimant's MRI which revealed degenerative disc disease and performed a physical examination of Claimant. Dr. Mauthe testified that his impression was that Claimant had suffered an aggravation of his degenerative disc disease in addition to the accepted lumbar sprain and strain. Dr. Mauthe testified that he understood from Claimant that he was working light duty and recommended that Claimant continue working with those restrictions, which he described as frequent lifting up to 10 lbs., occasional lifting up to 20 lbs., limited bending and no limitations on sitting, standing or walking. Dr. Mauthe testified that he prescribed epidural injections for Claimant, which resolved Claimant's leg pain, but that Claimant remained symptomatic with regard to back pain, and that Claimant tested negative with respect to symptom magnification. Dr. Mauthe opined that as of 2011, Claimant had not fully recovered from his work-related injury; that Claimant continued to have residual functional impairment as a result; that while Claimant's prognosis was stable with appropriate medical care, his residual functional impairment was permanent, but he could work light duty.
In opposition to Claimant's reinstatement petition and in support of its termination petition, Employer presented the deposition testimony of Dr. Kline. Dr. Kline reviewed Claimant's medical records, x-rays, and MRI, and took a history of Claimant's work injury and subsequent treatment. Dr. Kline noted that Claimant reported that when he returned to work, he could sit or stand at his leisure and that he was currently reporting complaints of low back pain and numbness/tingling of his left leg. Dr. Kline agreed that the MRI revealed degenerative disc disease but disagreed with Dr. Mauthe that there was objective evidence of any ongoing aggravation of the same. Dr. Kline opined that Claimant sustained a lumbosacral sprain/strain as a result of the July 2007 work incident but that he had fully recovered from this injury and could return to work without restrictions as of July 18, 2011.
The WCJ found the Claimant, "on balance, credible." WCJ's Decision, circulated April 16, 2012, Finding of Fact No. 11(a). In particular, the WCJ found that Claimant's job duties changed when Employer "accommodated his limitations that allowed him to sit and stand at his convenience and only lift short pieces of lumber - lifting activities that are consistent with the restrictions Dr. Mauthe imposed on Claimant - is accepted as fact." Id. The WCJ also accepted as fact that this modified position ended on January 28, 2010, and that Claimant was willing to return to work within his restrictions. The WCJ credited Claimant's testimony that, as of the October 2011 hearing, he continued to experience lower back pain that he believed would prevent him from returning to his pre-injury job. Finally, the WCJ addressed the apparent inconsistency between Claimant's credited testimony before WCJ Dietrich on his challenge petition, that he returned to his regular job on the straight line saw that he held at the time of his injury, and his testimony in the hearings on the reinstatement and termination petitions, that his job had been modified upon his return to work. The WCJ found that the timing of the testimony was critical, as Claimant did not see Dr. Mauthe for the first time until December 6, 2007, approximately one month after the challenge hearing. The WCJ found:
[T]he credible inference is that when Claimant returned to work in September 2007, he did initially return to operating the straight line saw. Dr. Mauthe, as of his first visit with Claimant on December 6, 2007, however, imposed restrictions that included no lifting over ten pounds on a frequent basis or twenty pounds on an occasional basis. The credible inference is that these restrictions were then accommodated by [Employer] by
moving Claimant to the 'grigcon line' where Claimant was permitted to sit and stand, and simply lift short pieces of lumber to then slide them into the machine to be cut. Accordingly, this Judge finds that as of December 2007, Claimant was working under Dr. Mauthe's light duty restrictions that were accommodated by [Employer].Id. The WCJ found Dr. Mauthe credible and more persuasive than Dr. Kline, and accepted as fact Dr. Mauthe's opinion that Claimant has not recovered from his work-related injury and additionally suffers from an aggravation of his pre-existing degenerative disc disease. The WCJ also accepted as fact Dr. Mauthe's opinion that Claimant had reached maximum medical improvement as of January 2009 and that the light duty restrictions were permanent. The WCJ accordingly granted Claimant's reinstatement petition and denied Employer's termination petition.
Specifically, the WCJ found that, "Dr. Mauthe's testimony concerning the medical conditions Claimant currently carries - a lumbar strain and aggravation of pre-existing asymptomatic degenerative disc disease - and their relation to Claimant's July 25, 2007, work injury event is accepted as fact for this Decision." WCJ's Finding of Fact No. 11(b) (emphasis added).
Employer appealed and the Board issued an Opinion and Order reversing the expansion of the injury description and affirming the reinstatement of Claimant's benefits and the denial of Employer's termination petition. Both Claimant and Employer filed petitions for review with this court. The sole issue presented by Claimant is whether the Board erred in reversing the WCJ's corrective amendment to the NCP expanding the description of Claimant's injury to include an aggravation of his pre-existing degenerative disc disease. Employer, in turn, argues that the Board erred in affirming the WCJ's grant of the reinstatement petition where the WCJ imposed the wrong burden of proof when he found Claimant was entitled to the presumption that his loss of earning power was causally related to his work injury, despite his having returned to his pre-injury position without restriction. We will address each of these issues in turn.
With respect to the Board's decision to reverse the corrective amendment to the NCP, Claimant contends that Section 413(a) of the Act authorizes a WCJ to amend an incorrect NCP in the course of the proceedings under any petition pending before the WCJ. Cinram Mfg., Inc. v. Workers' Comp. Appeal Bd. (Hill), 975 A.2d 577, 581 (Pa. 2009) (stating that 77 P.S. § 771 specifies that amendments under its terms may be made in the course of the proceedings under any petition pending before the WCJ). Claimant argues that because he established that he suffered an aggravation of his pre-existing degenerative disc disease at the time the NCP was issued, the WCJ was authorized to correct the NCP to include the additional injury. Westmoreland Cty. v. Workers' Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). Finally, Claimant argues that because his benefits were reinstated back to January 28, 2010, well within the three year limitation provision in Section 413(a), the Board erred in concluding that the WCJ's corrective amendment was time-barred. We disagree.
Section 413(a) of the Act provides, in pertinent part, that:
A workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before a workers' compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.
A workers' compensation judge . . . may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable . . . upon petition filed by either
party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased . . . Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased . . . Provided, That . . . no notice of compensation payable, agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition . . . .77 P.S. §§ 771-772 (emphasis added). In Cinram, the specific issue before the court was whether the claimant was required to file a review petition to support a corrective amendment to the NCP, and had nothing to do with the time limitation imposed in the statute. There is nothing in the statute itself nor in any case law that we could find which would support the interpretation Claimant suggests. Regardless of whether an amendment is sought under the first or second paragraph of Section 413(a), we have held that the statute clearly dictates that "where a party does not present or raise such an issue in either a discrete correctional action or in another pending action 'within three years of the most recent payment of compensation made prior to the filing of such petition[,]'" the WCJ's power to amend an NCP is constrained by the limitation contained in the statute. Fitzgibbons v. Workers' Comp. Appeal Bd. (City of Phila.), 999 A.2d 659, 662 (Pa. Cmwlth. 2010). Here, there is no dispute that Claimant's benefits were suspended as of September 5, 2007. Neither Claimant's reinstatement petition filed March 18, 2011, nor Employer's termination petition filed August 2, 2011, were filed within the statutory limitation period. Accordingly, the Board did not err in reversing the WCJ's corrective amendment to the NCP as untimely.
Next, we address Employer's argument that the Board erred in granting Claimant's reinstatement petition where it was previously established that Claimant returned to his pre-injury job without restrictions, and therefore he was required to affirmatively establish that it was his work-related injury which was causing his present loss of earnings. Employer avers that only when a claimant returns under a suspension to his pre-injury job with restrictions is he entitled to the presumption that his present disability, i.e., loss of earnings, is causally related to the work injury. Employer's argument is two-fold: first, it argues that the issue of the nature of the job Claimant returned to after his work-related injury was finally and conclusively established by the WCJ in the challenge petition, therefore, collateral estoppel bars re-litigation of this issue in any later action, including the proceedings herein. Second, even if collateral estoppel does not foreclose consideration of this issue in this proceeding, Employer argues that Claimant did not offer competent evidence that work restrictions were issued, that his job description changed, or that other accommodations were required by his work injury after August 18, 2008, when the WCJ denied Claimant's challenge petition and granted Employer's suspension petition. In that regard, Employer argues that Claimant's "self-serving statements" that work restrictions were issued and that his job duties were changed to accommodate his limitations, are not competent evidence that work restrictions were actually issued. Employer's Brief at 17. Further, Dr. Mauthe's opinion is not competent because it was based on the erroneous assumption that Claimant returned to light-duty work, which is contrary to Claimant's testimony at the challenge hearing that he returned to his regular job and also contrary to Dr. Mauthe's own notes stating that Claimant told him he went back to his regular job. Employer further avers that Claimant did not offer any medical evidence that his work injury worsened or new conditions developed after August 18, 2008, or that his wage loss was due to his work injury and not due to the sale and closure of its facility. We disagree.
Employer does not challenge the Board's denial of its termination petition, and therefore that issue is not before us.
[W]here a claimant returns to work with restrictions related to the injury (a modified position), and is subsequently laid off, a claimant is entitled to the presumption that the loss of earning power is causally related to the work injury. Stated differently, when a claimant does not return to his pre-injury job, and is then laid off from the modified duty job, the law presumes the layoff and attendant loss of earnings is attributable to the continued injury, shifting the burden to an employer to rebut the presumption.Dougherty v. Workers' Comp. Appeal Bd. (QVC, Inc.), 102 A.3d 591, 595 (Pa. Cmwlth. 2014) (citations and footnote omitted).
Conversely, where a claimant returns to his pre-injury position, and works under a suspension without restrictions, and is then laid off, a claimant must affirmatively establish the work injury caused the loss of earnings.
Turning now to Employer's first argument, we disagree that collateral estoppel precluded Claimant from re-litigating the issue of job modification in the current proceedings. An employee challenge under Section 413(c) and a reinstatement petition "serve entirely different purposes and require different proofs." Patterson v. Workers' Comp. Appeal Bd. (BRCT), Pa. Cmwlth., No. 7 C.D. 2012, filed May 21, 2012, at *13. In a Section 413(c) challenge, upon receipt of a notice of suspension issued by an insurer, a claimant may challenge the suspension and once he does so, a special supersedeas hearing is held before the WCJ at which the only issues to be determined are whether the claimant has returned to work without a wage loss; whether the claimant returned on the date the insurer has averred; and whether the claimant is currently still working without a wage loss. U.S. Airways v. Workers' Comp. Appeal Bd. (Rumbaugh), 854 A.2d 411, 420 (Pa. 2004). Accordingly, the only determination that was made in Claimant's challenge petition was whether he had returned to work without a wage loss on September 5, 2007, and whether he was currently (as of the time of that proceeding) still working without a wage loss. While the WCJ found that Claimant returned to his regular job without a wage loss, whether or not Claimant had limitations due to his work injury which Employer accommodated by modifying his job duties was not at issue in that proceeding nor was it necessary to the WCJ's final determination.
Collateral estoppel forecloses litigation in a later action of issues of law or fact that were actually litigated and necessary to a previous final judgment. Huynh v. Workers' Comp. Appeal Bd. (Hatfield Quality Meats), 924 A.2d 717, 722 (Pa. Cmwlth. 2007). In order for collateral estoppel to apply, the following factors must be demonstrated: 1) the legal or factual issues are identical; 2) they were actually litigated; 3) they were essential to the judgment; and 4) they were material to the adjudication. PMA Ins. Group v. Workmen's Comp. Appeal Bd. (Kelley), 665 A.2d 538, 541 (Pa. Cmwlth. 1995). --------
Accordingly, because the issue of whether Claimant returned to his pre-injury job with or without restrictions was not necessary to the WCJ's August 18, 2008 decision, we reject Employer's contention that the WCJ was barred from determining this issue in the reinstatement/termination proceeding.
Employer avers however, that Claimant is not entitled to the presumption of continuing disability, arguing that "[i]t was Claimant's burden to show, through competent medical evidence, that his disability increased or recurred since his return to regular duty, and that restrictions or modifications were required between the time he returned to regular duty and the time he was laid off." Employer's Brief at 16. We disagree.
We do not believe that Claimant's brief initial attempt to return to his pre-injury job before he consulted his doctor, who imposed the restrictions which were accommodated in his modified duty job, nullifies the presumption that his loss of earnings is attributable to his continuing injury.
Because the Employer failed to rebut this presumption or establish the availability of work within Claimant's restrictions, we hold that the Board did not err in affirming the reinstatement of Claimant's benefits.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of June, 2015, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge