Opinion
No. 1253 C.D. 2014
05-15-2015
Edward L. Ransom, Petitioner v. Workers' Compensation Appeal Board (Rolling Frito-Lay Sales LP), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Edward L. Ransom (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) which reversed the decision of the Workers' Compensation Judge (WCJ) that granted Claimant's review petition and penalty petitions.
Claimant was employed with Rolling Frito-Lay Sales LP (Employer) as a salesman/truck driver for over thirty-five years. On October 23, 2004, he suffered a work-related injury to his right knee when he stepped on a railing that gave way on the loading dock behind his truck. As a result, Claimant injured his right knee which required surgery. Claimant returned to full duty work in 2005. Claimant returned to his physician on August 19, 2010, concerning his knee. Employer did not pay any medical expenses for any treatment received in 2010 or later.
On April 18, 2011, Claimant petitioned to review medical treatment and billing and alleged that as of August 19, 2010, he had unpaid medical bills and a worsening of his condition. Also, on April 18, 2011, Claimant petitioned for penalties and alleged that Employer refused payment for ongoing treatment without a notice or hearing in violation of the Workers' Compensation Act (Act) despite verification from the treating physician that the treatment was reasonable, necessary, appropriate, and work-related.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
On September 2, 2011, Claimant again petitioned for penalties and alleged:
Despite the fact that all medical treatment rendered was at the direction of the employer's own panel physician, the fact that the said employer panel physician opined that said treatment was work related back on 2/25/2011. . . the fact that defendant's counsel made representations to Claimant and the Court at the initial hearing in this matter back on 5/24/2011 that said bills would be paid and that he was only seeking clarification of the amounts . . . and that the defendant has made multiple requests for continuance of the mediation they requested and the second hearing in this matter, the bills remain unpaid and the collection efforts against Claimant progress. Insurer is subject to §435 penalties and attorney fees.Penalty Petition, September 2, 2011, at 1; Reproduced Record (R.R.) at 13a.
Employer denied the allegations in all three petitions. Employer argued that the review petition was time-barred under Section 413(a) of the Act, 77 P.S. §772. The petitions were consolidated before the WCJ.
Before the WCJ, Claimant testified that he was a route salesperson for Employer. Notes of Testimony, May 24, 2011, (N.T.) at 13. Claimant described his original work injury:
I was coming out of the back of the truck, the cargo area. And I stepped onto a railing behind the truck at the loading dock. And the support that I was stepping on broke. And I dropped down. It was like a dead fall of maybe a foot or so. And that was the impact is what caused my injury.N.T. at 15.
Claimant underwent knee surgery and treatment for nine months before returning to work with no restrictions. N.T. at 17. Claimant explained that he returned for treatment on August 13, 2010, because his knee bothered him in the spring and summer of 2010. N.T. at 20.
Claimant presented the report of Dennis J. Phillips, M.D. (Dr. Phillips), an orthopedic surgeon and Claimant's treating physician. Dr. Phillips described his treatment of Claimant. Specifically, following the 2004 injury he diagnosed Claimant with a medial collateral ligament sprain, very mild degenerative changes of the knee, and a medial meniscus tear. Claimant underwent surgery on November 16, 2004, for a partial medial meniscectomy, microfracture of the medial femoral condyle, and a chondroplasty of the lateral femoral condyle. Dr. Phillips's post-operative diagnosis was medial meniscal tear, medial femoral condyle defect, and a lateral femoral condyle defect grade III. Report of Dr. Dennis J. Phillips, February 25, 2011, (Dr. Phillips Report) at 1; R.R. at 21a. After he examined Claimant on July 28, 2005, Dr. Phillips released Claimant to his time of injury job. Dr. Phillips Report at 3; R.R. at 23a.
Dr. Phillips explained his more recent diagnosis of Claimant:
At this point, the patient has had an injury and a partial medial meniscectomy and microfracture were performed six years ago. He subsequently developed degenerative changes on the medial side of the knee where he had the surgery. This is causally related to his injury in October of 2004. We are still questioning whether this person is disabled from the usual employment. I believe that he may have problems with his knee and may be having problems right now. I do not know what he was doing as far as work. At this point, the patient has degenerative changes and arthrosis on the medial side of his knee, which is causally related to the accident that he had in 2004. I believe that he may have significant difficulties getting in and out of a truck with his current knee condition. He may need further treatment by way of knee arthroplasty in the future.Dr. Phillips Report at 4-5; R.R. at 24a-25a.
Employer submitted two reports from Yram J. Groff, M.D. (Dr. Groff), a board-certified orthopedic surgeon. In the first report dated February 23, 2005, Dr. Groff reported that he performed an independent medical evaluation of Claimant on February 23, 2005, took a history, and reviewed medical records. He opined that the medical meniscus tear of Claimant's right knee was incurred at the time of the October 23, 2004, injury and that the arthroscopic surgery was appropriate and necessary. Dr. Groff also opined that degenerative changes in the knee were not caused by the October 23, 2004, work injury. Report of Yram J. Groff, M.D., February 23, 2005, at 7.
In the second report dated October 5, 2011, Dr. Groff stated that he conducted an independent medical evaluation of Claimant on October 5, 2011, took a history, and reviewed medical records. Dr. Groff provided the following diagnosis within a reasonable degree of medical certainty:
Mr. Ranson's [sic] current right knee condition is directly related to the advanced degenerative change that is present in his right knee. The presence of this degenerative change is clearly documented on radiographs today and supported by the physical examination. The presence of this degenerative condition was arthroscopically documented on 11/16/2004.
The progression of the degenerative condition in the right knee is the normal natural history of that pathology. The arthritic condition and its progression were not materially or substantially influenced by either the meniscus tear that occurred as a result of the work injury of 10/23/2004 or the arthroscopic surgery that was performed on 11/26/2004.
The treatment that Mr. Ranson [sic] is undergoing under the care of his orthopedic surgeon, Dr. D.J. Philips [sic], is reasonable and appropriate. It is standard treatment for arthritis of the knee. The need for this treatment is the result of the degenerative condition and is unrelated to the occupational injury of 10/23/2004.
At present, Mr. Ranson [sic] is working full time, full duty and tolerating that relatively well. I see no need to impose work restrictions given his demonstrated ability to satisfy the requirements of the job. Any restrictions that may be required based on his level of pain and/or dysfunction are the result of the degenerative condition of the knee and are not related to the occupational injury of 10/23/2004.
. . . . The need for any further treatment of Mr. Ranson's [sic] right knee is the result of the degenerative condition
itself and unrelated to the occupational injury of 10/23/2004.Report of Yram J. Groff, M.D., October 5, 2011, at 4-5.
In summary, Mr. Ranson [sic] has advanced arthritis of his right knee. This condition is degenerative in nature. It has no material or substantial connection to the occupational injury of 10/23/2004.
The WCJ granted the penalty petitions and the review petition and ordered Employer to pay for the medical bills of $4,147.00, after repricing pursuant to the Act. The WCJ also assessed a penalty of fifty percent on the repriced amount of the medical bills and costs of $840.83 to be paid by Employer. The WCJ found Claimant and Dr. Phillips credible. The WCJ made the following relevant findings of fact and conclusions of law:
17. This Judge finds that the claimant's right knee degenerative condition was medically related to his October 23, 2004 injury and his subsequent surgery. This Judge further understands the opinions of Dr. Phillips to indicate that the degenerative right knee condition was a natural medical progression from his original injury condition and surgery rather than being a new injury. However, Dr. Phillips has used more technical language than the more general language used by this Judge to explain the claimant's condition and treatment.
Conclusions of Law
. . . .
9. This Judge also concludes that the medical treatment for the claimant would not violate the Statute of Limitations noted in Section 413(a) of the Workers' Compensation Act.
. . . .
11. The case at issue does not involve a claim for any weekly disability compensation which was a significant
matter in the prior cases. In addition, there was not a clear ending date of the claimant's weekly disability compensation or his medical treatment payments prior to the recent treatment in 2010.WCJ Decision, February 22, 2012, Findings of Fact No. 17 and Conclusions of Law Nos. 9 and 11-13 at 7-9; R.R. at 58a-60a.
12. Section 413(a) does not bar treatment for a medical condition noted on a Notice of Compensation Payable even if there was a gap of over three years from the last date of treatment.
13. This Judge also concludes that it is significant in the case at issue that the claimant's new problems in 2010 and 2011 were concerning the same body part of the accepted injury, his right knee, rather than a separate body part noted in the cases cited by the defendants.
Employer appealed to the Board which reversed:
After careful review, we must conclude that the WCJ erred in concluding that Defendant [Employer] is liable for Claimant's medical treatment related to his right knee problems beginning in 2010. Claimant credibly testified that he stopped receiving treatment for his right knee in 2005 but began having problems with that knee again around 2010. If his new right knee symptoms are related to the accepted meniscal tear injury, Defendant [Employer] is liable for that treatment regardless of the passage of time since Claimant's last payment of benefits. . . .
However, the WCJ accepted Dr. Phillips's opinion that Claimant's condition as of 2010 was attributable to 'subsequently developed degenerative changes on the medial side of the knee where he had the surgery.' Because Dr. Phillips specifically related Claimant's renewed right knee pain to subsequently developed degenerative changes, his opinion cannot support a
finding that Claimant's treatment for his renewed symptoms is attributable to his accepted meniscal tear.
Nonetheless, the WCJ concluded that because the degenerative condition arose in the same body part as the accepted right meniscal tear and was a natural medical progression from that original injury and related surgery, it is not a new injury, and Defendant [Employer] was therefore liable for medical treatment related to that degenerative condition even though Defendant [Employer] did not accept a degenerative condition in the NCP [Notice of Compensation Payable]. We cannot agree with the WCJ in that regard.
We acknowledge that the right knee symptoms beginning in 2010 arose in the same body part as the accepted right knee meniscal tear. However, that fact is relevant only to the question of which party bore the burden of establishing the causal relationship between the symptoms and the work injury. . . . Here, Claimant benefitted from a presumption that the new symptoms are related to the accepted right meniscal tear injury, and Defendant [Employer] bore the burden of proving otherwise. Where Dr. Phillips clarified that Claimant's recent knee pain is related to the degenerative condition, his opinion is sufficient to rebut any presumption that the new right knee symptoms are related to the accepted meniscal tear. . . .
Where the credible evidence of record established that the right knee pain as of 2010 is not attributable to the accepted meniscus tear, and is instead related to a subsequently developing degenerative condition, Claimant bore the burden of establishing that the NCP should be expanded to include the degenerative condition. . . .
The courts have held that additionally diagnosed conditions in the same body part as recognized work injuries are nonetheless treated as separate injuries for the purposes of expanding an NCP to include them. . . .
Where Dr. Phillips credibly opined that the degenerative condition was diagnosed separately from, and developed subsequent to, the accepted meniscal tear, his opinion cannot support a finding that the degenerative condition is the same injury as the originally accepted meniscal tear rather than a new injury. Instead, the new degenerative condition must be considered a different type of condition than his meniscal tear.
Where a claimant seeks benefits for an additional consequential condition that has not been acknowledged or established as work-related, he or she must file a petition to expand the injury description to include the additional condition. . . . Here, Claimant asserted the work-relatedness of his degenerative condition in the context of his present Review Medical and Penalty Petitions.
However, pursuant to Section 413 of the Act, the claimant must file a petition to establish the compensability of a consequential injury within three years of the last payment of disability compensation to expand a work injury description to include a subsequent condition. . . . Claimant bore the burden of proving that he filed a timely petition regarding the consequential degenerative condition. He therefore bore the burden of establishing the last date he received compensation related to his accepted work injury so a determination may be made as to whether the petition was timely filed within three years of that date.
Claimant acknowledged in his credible, uncontradicted testimony that he 'went off of workers' compensation' in 2005 when he returned to work without restrictions, that he has been working without restrictions since that time, and he did not receive any medical treatment for his work injury from 2005 to 2010. While there is no evidence establishing a specific last date of disability compensation, we observe that it is undisputed based on Claimant's credible and unrebutted testimony that his workers' compensation benefits stopped in 2005. As noted, the record does not contain any evidence that any petitions were filed until April 18, 2011, which was well
beyond three years from 2005. As a result, Claimant did not file a timely petition as required by Section 413 and is now barred from attempting to add his degenerative condition to the injury description. . . . (Footnotes and citations omitted.)Board Opinion, July 11, 2014, at 6-9; R.R. at 104a-107a. The Board also reversed the grant of the penalty petitions.
Claimant contends that the Board erred when it substituted its own finding for that of the WCJ who found Dr. Phillips credible when he opined that the treatment in question was causally related to the original injury and treatment. Claimant also contends that the Board erred when it substituted its own opinion for that of the WCJ regarding whether the credible testimony of Dr. Phillips indicated a worsening of Claimant's condition causally related to the 2004 work-related accident, where Claimant's symptoms arose in the same body part as his established work injury.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
Initially, Claimant contends that there is no case law, statute, theory, rule of law or legal precedent which interprets Section 413(a) of the Act, 77 P.S. §772, to bar medical benefits for work-related injury treatment after some time period.
However, Section 413(a) of the Act, 77 P.S. §772, provides in pertinent part:
A workers' compensation judge designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its workers' compensation judge, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. 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, or upon which it is shown that the status of any dependent has changed: Provided, That, except in the case of eye injuries, 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. (Emphasis added.)
In Fitzgibbons v. Workers' Compensation Appeal Board (City of Philadelphia), 999 A.2d 659 (Pa. Cmwlth. 2010), petition for allowance of appeal denied, 20 A.3d 1213 (Pa. 2011), this Court addressed the application of Section 413(a). On May 4, 1997, Margaret Mary Fitzgibbons (Fitzgibbons) worked as a recreation leader for the City of Philadelphia (City) when she suffered a work-related injury that was identified on the notice of compensation payable as epicondylitis of the left elbow when a tent and stakes fell on her. The City and Fitzgibbons entered into supplemental agreement on July 24, 1998, by which Fitzgibbons's benefits were suspended as of July 13, 1998, when she returned to work at no loss of earnings. On August 26, 2002, Fitzgibbons filed a review/reinstatement petition and sought a review of the notice of compensation payable to add neck, low back, left hip, leg, and knee injuries to her identified work-related injuries. The Workers' Compensation Judge dismissed the petition because it was not filed within three years from the date of Fitzgibbons's injury. Fitzgibbons appealed to the Board which vacated and remanded to the Workers' Compensation Judge to make factual findings as to whether the new injuries which Fitzgibbons sought to add to the notice of compensation payable arose consequentially from her work injuries or were injuries which existed at the time of the work injury. Fitzgibbons, 999 A.2d at 659-660.
The Workers' Compensation Judge made factual findings and concluded that Fitzgibbons's petition was time-barred because she did not file it within three years of her injury. Fitzgibbons appealed to the Board which affirmed. Fitzgibbons petitioned for review with this Court and argued that the Board erred when it determined that Fitzgibbons's review petition was untimely. Fitzgibbons, 999 A.2d at 660-661. This Court affirmed:
In summary, the General Assembly intended that, when a party is seeking either to obtain relief through the correction of an NCP under paragraph one of Section 413 of the Act, or is seeking to add additional consequential injuries to a claimant's compensable, work-related injuries under paragraph two of Section 413 of the Act, the party must file the petition within three years of the date of the most recent payment of compensation.Fitzgibbons, 999 A.2d at 663-664.
Further, in Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577 (Pa. 2009), our Pennsylvania Supreme Court stated that amendments to a notice of compensation payable which seek to add consequential injuries are subject to the requirements of the second paragraph of Section 413(a) of the Act, 77 P.S. §772, which includes the requirement that the petition be filed within three years of the last receipt of compensation benefits.
Here, Claimant returned to unrestricted full duty work on June 12, 2005. He did not receive any workers' compensation benefits of any kind after that date. No further medical treatment was sought in relation to his right knee until August 19, 2010. Claimant did not file his review petition until April 13, 2011, which was more than three years after he ceased receiving Workers' Compensation benefits. Dr. Phillips's credible testimony established that the right knee pain as of 2010 was not attributable to the accepted meniscus tear, and was instead related to a subsequently developed degenerative condition. Claimant then bore the burden of expanding or amending the Notice of Compensation Payable to include the degenerative condition. Claimant had to do this within three years of the most recent date of compensation paid under Section 413(a) and failed to do so. While Claimant asserts that there is a distinction between the receipt of payment for medical expenses and disability workers' compensation benefits in terms of the three year limitation, Fitzgibbons and Cinram do not make such a distinction.
While the WCJ found Dr. Phillips credible, the Board determined that his testimony that Claimant's degenerative knee condition developed subsequent to the original tear of the meniscus could not support a finding that Claimant suffered from the same, original injury. As a result, Claimant was required to meet the requirements of Section 413(a) of the Act as he had a consequential injury. Even though the credible testimony indicated that the same body part was injured, this Court has held that additionally diagnosed conditions in the same body parts as accepted work injuries may be treated as separate injuries for the purpose of expanding the Notice of Compensation Payable to include them, if the claimant fails to establish that new symptoms are related to the original work-related injury. See Cinram.
Claimant argues that the medical bills were related to the work injury and should be paid by Employer. However, because this Court agrees with the Board that Claimant's petition was not timely filed, this Court need not address this issue. --------
Accordingly, this Court must affirm.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 15th day of May, 2015, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge