Rodriguezv.Workers' Comp. Appeal Bd.

COMMONWEALTH COURT OF PENNSYLVANIAMay 24, 2013
No. 1295 C.D. 2012 (Pa. Cmmw. Ct. May. 24, 2013)

No. 1295 C.D. 2012

05-24-2013

Lorie Rodriguez, Petitioner v. Workers' Compensation Appeal Board (Pitney Bowes, Inc.), Respondent


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH

Lorie Rodriguez (Claimant) petitions for review of the June 11, 2012 order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ), which granted the termination petition of Pitney Bowes, Inc. (Employer), denied Claimant's review petition, and dismissed Employer's suspension petition as moot. We vacate and remand for additional fact-finding.

Claimant worked for Employer as a pre-sorter. On March 3, 2009, Claimant sustained a work-related injury when she slipped and fell on cardboard, landing on both of her knees. On March 23, 2009, Employer issued a Notice of Temporary Compensation Payable. Subsequently, on May 4, 2009, Employer accepted liability pursuant to a Notice of Compensation Payable (NCP), which described Claimant's injury as a "Right Knee ACL Tear." On an intermittent basis, Claimant returned to work as a pre-sorter at wages equal to or greater than her pre-injury wage. From April 9, 2009, to August 17, 2009, Claimant executed various Supplemental Agreements evidencing periods of partial and total disability. The last agreement signed by Claimant provided that benefits were to be suspended as of August 10, 2009, and that her employment would be reviewed on a weekly basis to determine if there was any wage loss. On January 12, 2010, David Canner, M.D., performed arthroscopic surgery on Claimant's right knee. (WCJ's Findings of Fact Nos. 4-6.)

On November 15, 2010, Employer filed a termination petition, alleging that Claimant had fully recovered from her work-related injury as of July 13, 2010. Employer also filed a suspension petition, asserting that it offered Claimant her previous job as a pre-sorter beginning on October 4, 2010. In turn, Claimant filed a review petition on December 2, 2010, seeking to modify the description of her injury in the NCP to include additional injuries that she sustained subsequent to her March 3, 2009 fall. Particularly, Claimant averred that as result of her work-related injury, she developed an unsteady gait and ensuing pain in her left knee, lower back, and both hips.

The petitions were consolidated and assigned to a WCJ. During the course of the proceedings, Employer sought, through oral motion, to amend the description of Claimant's work-related injury in the NCP, contending that Dr. Canner's operative note reflects that Claimant never sustained an ACL tear to her right knee.

The parties do not dispute that Employer's oral motion to amend the NCP was procedurally improper. In any event, we note that where, as here, an employer challenges the NCP based upon an inaccuracy in the identification of an existing injury, the employer may do so "at any time and in any procedural context." Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 601 Pa. 524, 527, 975 A.2d 577, 581 (2009).

Before the WCJ, Claimant testified that following the March 3, 2009 incident, she has had difficulty walking and uses a walker that was prescribed by one of her treating physicians, Robert Cook, M.D., in May 2009. Claimant stated that her condition has not changed since November 2010 and that she experiences a lot of pain in both of her knees, hip, and lower back. Claimant acknowledged that she was under Dr. Cook's care prior to her work-related injury because she was having knee pain for which she took medication and received corticosteroid injections. Claimant acknowledged that Employer sent her a Notice of Ability to Return to Work and an offer to return to work at her position as a pre-sorter beginning on October 4, 2010. Claimant said she responded and informed Employer that she was not physically able or medically cleared to return to work at that time. (WCJ's Finding of Fact No. 10.)

Claimant also presented the deposition testimony of Joseph Guagliardo, M.D., a board certified orthopedic surgeon, who testified that he evaluated Claimant on October 4, 2010, upon referral of Claimant's counsel. Dr. Guagliardo opined that as result of the slip and fall on March 3, 2009, Claimant sustained a menisci tear to her right knee, i.e., a rupturing of one or more of the fibrocartilage strips in the knee. Dr. Guagliardo further opined that Claimant injured her left knee as a result of the fall, and he diagnosed her with patellofemoral chondritis. According to Dr. Guagliardo, Claimant's slip and fall either aggravated the pre-existing conditions in her knees or independently caused the above injuries. Dr. Guagliardo acknowledged that Dr. Canner did not find any tears in Claimant's knees, including an ACL tear during surgery; that an MRI taken in 2008 indicated a menisci tear of Claimant's right knee; and that Claimant's obesity could have accelerated the degenerative conditions of her knees even in the absence of any acute or repetitive trauma. However, Dr. Guagliardo found that Claimant has difficulty walking and suffers from pain in her knees, and he opined that, due to her work-related injury, Claimant is unable to perform any type of work. (WCJ's Finding of Fact No. 11.)

Employer presented the deposition testimony of John Perry, M.D., a board certified orthopedic surgeon. Dr. Perry testified that he performed an independent medical examination of Claimant on July 13, 2010. As part of his evaluation, Dr. Perry reviewed Dr. Canner's operative report, and he testified that the report confirmed that Claimant's ACL was completely intact. Dr. Perry also noted that an MRI taken shortly after the incident demonstrated marked degenerative changes to Claimant's knees and no meniscal tear. Dr. Perry opined that Claimant has osteoarthritis of the right knee and that there was nothing in her medical records to suggest that Claimant's injury was the result of trauma. Instead, Dr. Perry stated that Claimant's osteoarthritis was primarily related to her obesity. Dr. Perry opined that based solely upon the work-related injury suffered by Claimant and given the surgical repair to her knee, Claimant does not require physical restrictions at work or any further medical treatment. Ultimately, Dr. Perry concluded that Claimant could perform her pre-sorter job, albeit with some difficulty. (WCJ's Finding of Fact No. 7.)

Employer also offered the deposition testimony of Robert Mauthe, M.D., who is board certified in physical medicine, rehabilitation medicine, and electrodiagnostic medicine. Dr. Mauthe testified that he performed an independent medical examination of Claimant on February 9, 2011. Dr. Mauthe testified that Claimant began seeing Dr. Cook prior to her work-related injury and routinely received corticosteroid injections into her knees and anti-inflammatory medications to treat arthritis/arthrochondrosis. Examining MRIs taken before and after Claimant's work-related injury, Dr. Mauthe noted that there was degeneration in Claimant's knees and observed that there was no substantial change from her pre-to-post injury MRIs. In addition, Dr. Mauthe reviewed the operative report of Dr. Canner and noted that Claimant's ACL was intact and that there was no finding of acute trauma. Based upon Claimant's medical records and his physical examination, Dr. Mauthe stated that Claimant's work-related injury was a contusion of the right knee; Claimant did not sustain any injury to her left knee as a result of the March 3, 2009 fall; the fall did not aggravate Claimant's pre-existing degenerative arthritis in both knees or cause any tears in the menisci of both knees; and Claimant did not suffer an injury to her back or hips that would be related to the fall. From these premises, Dr. Mauthe opined that Claimant made a full and complete recovery from the right knee contusion; Claimant's current complaints are the direct result of her pre-existing and longstanding arthritic condition; Claimant requires neither medical treatment nor any restrictions due to the March 3, 2009 injury; and Claimant is capable of performing her time of injury job as a pre-sorter. (WCJ's Finding of Fact No. 9.)

Valarie Klingaman, Employer's human resources specialist, testified that based upon a report prepared by Dr. Perry in July 2010, she understood that Claimant had been released to return to work without restrictions. Consequently, Klingaman sent Claimant a Notice of Ability to Return to Work and an offer to return to work at her position as a pre-sorter beginning on October 4, 2010. Klingaman testified that the pre-sorter job offered to Claimant was the same as her pre-injury job in terms of wages and shift time. Klingaman stated that Claimant informed her that she was not medically cleared to return to work and that Claimant did not return to work as requested. According to Klingaman, the job offer remains available to Claimant. (WCJ's Finding of Fact No. 8.)

At the close of the record, the WCJ accepted Claimant's testimony as credible but only insofar as Claimant testified that she sustained a slip and fall at work on March 3, 2009, and has ongoing knee problems. The WCJ found that despite this credible aspect of Claimant's testimony, the expert medical testimony of Dr. Perry and Dr. Mauthe was competent, credible, and persuasive. In so ruling, the WCJ explained:

When viewing the combined testimony of Dr. Mauthe and Dr. Perry, this [WCJ] accepts the testimony of Dr. Mauthe and the testimony of Dr. Perry on the issue of the correct and limited nature of the March 3, 2009 injury, i.e., a knee contusion, and the fact that Claimant has recovered from the same. This [WCJ] also notes that all of the medical evidence presented in this case, including the testimony of Claimant's own medical expert as well as an operative report referred to by all of the medical experts who testified, clearly establishes that the description of injury on the [NCP], i.e., "Right Knee ACL Tear," was factually wrong. All of the experts testified that this condition was not found upon arthroscopic surgery. This [WCJ] accepts the testimony of Dr. Perry that given the injury sustained by Claimant on March 3, 2009, and based solely upon that injury, Claimant was able to return to work as a pre-sorter. Likewise, this [WCJ] credits the testimony of Dr. Mauthe that as of the date he evaluated Claimant, and given the limited nature of the injury that Claimant sustained on March 3, 2009, she was capable of returning to work.

(WCJ's Finding of Fact No. 12.)

In addition, the WCJ found the testimony of Dr. Guagliardo competent but less credible and/or persuasive than the testimony of either Dr. Perry or Dr. Mauthe. Accordingly, the WCJ rejected Dr. Guagliardo's testimony that Claimant suffered an aggravation of her pre-existing condition or that Claimant sustained a menisci tear to her right knee or any damage to her left knee as a result of the March 3, 2009 fall. Finally, the WCJ found the testimony of Klingaman to be credible and persuasive. (WCJ's Finding of Fact No. 12.)

Based upon these credibility determinations, the WCJ found as fact that the description of the injury in the NCP was materially incorrect and that Claimant sustained a contusion to her right knee rather than an ACL tear. The WCJ further found that Claimant had fully recovered from her work-related injury as of July 13, 2010, and was capable of performing the pre-sorter job Employer offered her. In addition, the WCJ found that Claimant's pre-existing, arthritic condition is the reason she continues to experience pain in her knees and that Claimant did not present any credible evidence to establish that she suffered an injury to her lower back or hips as a result of the work-related injury. (WCJ's Findings of Fact Nos. 13-17.) Accordingly, the WCJ granted Employer's termination petition and amended the NCP to reflect Claimant's injury as being a right knee contusion. Although the WCJ concluded that Employer met its burden of proving its entitlement to a suspension of benefits, the WCJ dismissed Employer's suspension petition as moot. The WCJ denied Claimant's review petition. (WCJ's Conclusions of Law Nos. 2-9.) Claimant appealed the WCJ's decision, and the Board affirmed.

Claimant now appeals to this Court, contending that the Board erred in affirming the WCJ's decision to amend the NCP's description of her work-related injury. Citing Beissel v. Workmen's Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983), and County of Schuylkill v. Workmen's Compensation Appeal Board (Lawlor), 617 A.2d 46 (Pa. Cmwlth. 1992), Claimant argues that Employer is precluded from amending the NCP because Employer had a sufficient opportunity to complete its investigation and discover the correct nature of her injury prior to issuing the NCP. To support her contention, Claimant points to the fact that an MRI was taken shortly after the March 3, 2009 fall and prior to the NCP, and that Employer should have discerned whether she sustained an ACL tear based upon this diagnostic image.

Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.

In relevant part, section 413(a) of the Workers' Compensation Act (Act) states that a WCJ "may, at any time, review and modify or set aside a [NCP] ... upon petition filed by either party ..., or in the course of the proceedings under any petition pending before [a] workers' compensation judge, if it be proved that such [NCP] ... was in any material respect incorrect." 77 P.S. §771. Our courts have held that section 413(a) of the Act applies only in circumstances where there is an inaccuracy in the identification of an existing injury, and it is the burden of the party seeking to correct a NCP to prove that it was materially incorrect when it was issued. Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 601 Pa. 524, 975 A.2d 577 (2009); City of Pittsburgh and UPMC, Benefit Management Services, Inc. v. Workers' Compensation Appeal Board (Wilson), 11 A.3d 1071 (Pa. Cmwlth. 2011). Further, when an employer seeks to correct a NCP, the employer must also meet the requirements enunciated in Beissel, Barna v. Workmen's Compensation Appeal Board (Jones and Laughlin Steel Corp.), 513 Pa. 518, 522 A.2d 22 (1987), and County of Schuylkill.

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §771.

In Beissel, the claimant slipped and fell while working as a waitress in 1975 and later sustained a lower back injury in 1976. The claimant's medical physician and three of the employer's insurance carrier's physicians filled out written medical reports indicating that the claimant's 1976 back injury was related to her fall in 1975. After the physicians issued their reports, the employer filed a NCP providing for the payment of compensation to the claimant for her lower back injury. Thereafter, the employer filed a termination petition, contending that the claimant's lower back injury was unrelated to her slip and fall in 1975. The WCJ granted the termination petition, and the Board and this Court affirmed.

On further appeal, our Supreme Court reversed. In doing so, the Beissel court noted that the employer had an opportunity to and did in fact investigate the cause of the claimant's injury before issuing a NCP. The court explained that a NCP "amounts to an admission by the employer of the claimant's employment, the occurrence of the accident, and the nature of the injuries caused by the accident while the claimant was in the employ of the employer." Id. at 183 n.6, 465 A.2d at 972 n.6. On this basis, the Beissel court concluded that the employer could not "come into court and use the favorable testimony of [its medical expert] to contradict precisely that which it admitted in its [NCP], namely that [the claimant's] disability at the time the [NCP] was filed was related to her 1975 fall at work." Id. at 183, 465 A.2d 971-72. Therefore, our Supreme Court concluded that the WCJ erred in vacating the employer's "admission of liability" in the NCP and granting the employer's termination petition. Id.

In Barna, the claimant injured his back at work and the employer promptly issued a NCP without first investigating whether the claimant's injury was work-related. Afterwards, the employer requested claimant's hospital records and the employer's physician opined that the claimant's injury was not work-related. The employer then filed a petition for review, contending that the claimant's disability was unrelated to his work. The WCJ granted the petition and modified the NCP accordingly. The Board affirmed the WCJ's decision, but this Court reversed on the basis of Beissel.

Our Supreme Court in Barna reversed this Court and distinguished Beissel on its facts. Specifically, the Supreme Court noted that unlike the situation in Beissel, the employer in Barna issued a NCP prior to investigating the claimant's disability. The Barna court further differentiated Beissel because in the latter case, three physicians assessed the claimant's injury on behalf of the employer before the employer filed the NCP. For these reasons, the Barna court concluded that the WCJ properly corrected the NCP, stating as follows:

[I]n short, we cannot ignore the clear provision of [section 413] that compensation may be terminated where it is paid under a [NCP] which is materially incorrect. The Act imposes upon employers the duty to promptly commence payment of compensation and the cause of an employee's disability may not always be obvious. Where, as here, an employer promptly commences payment of compensation prior to commencement or completion of investigation into the cause of the claimant's injuries and later determines that the claimant's disability was never work-related, in the absence of evidence of repeated contests of the cause of the disability such as occurred in Beissel [i.e., the various

physician's reports], the employer must be permitted to seek relief.

Barna
, 513 Pa. at 522-23, 522 A.2d at 24.

In County of Schuylkill, the claimant sustained a myocardial infarction at work. The employer's insurance carrier issued a NCP approximately a month and a half later, based solely on a claims examiner's investigation into the circumstances surrounding the claimant's heart attack and the claimant's statement that he was in good health. In making the decision to issue the NCP, the claims examiner did not request the claimant's medical records. Subsequently, the insurer made inquiries to the claimant's health care providers, and the insurer's physician opined that the claimant's myocardial infarction was the result of coronary artery disease. The employer filed a review petition, asserting that the claimant did not sustain a work-related injury. The WCJ granted the employer's review petition and set aside the NCP. However, the Board reversed, concluding that the employer or its insurer had an opportunity to investigate the claim, did in fact investigate the claim, and nothing in the record indicated that the employer was precluded from further investigating the claim.

On appeal, this Court affirmed the Board. In doing so, we rejected the employer's argument that the WCJ correctly modified the NCP because the employer did not possess all the claimant's pertinent medical records and, thus, did not complete its investigation at the time of the NCP. Instead, this Court in County of Schuylkill concluded that the employer had a sufficient opportunity to complete its investigation. We explained:

[T]he fact that there were no medical records in [the claimant's] file at the time the [NCP] was issued is not sufficient justification for finding that the insurer had not completed its investigation, because the insurer had the

opportunity to have [the claimant's] file forwarded from [his physician's] office and failed to do so....

The claims examiner's testimony indicates that no effort was made to ensure that [the claimant's] authorization was received so [the physician's] office could forward his medical files. Moreover, no effort was made to have [the claimant] independently examined.

Consequently, because the insurer made little attempt to determine by medical evaluation whether [the claimant's] heart attack was work-related before issuing benefits and clearly had the opportunity to do so, the insurer's investigation regarding [the claimant's] heart attack was completed prior to issuing the [NCP].

Id.
at 47-48. Based upon this reasoning, we concluded that the WCJ erred in correcting the NCP pursuant to section 413 of the Act.

In this case, Employer contends that Beissel and County of Schuylkill are distinguishable because they involved the correction of a NCP to reflect that a claimant did not sustain a work-related injury, while in this case Employer concedes that Claimant suffered a work-related injury and is only challenging the description or nature of Claimant's work-related injury. We find Employer's perceived distinction to be one without a difference because Beissel makes clear that a NCP constitutes an admission by an employer not only that the injury is work-related, but also that the employee sustained a specific type of injury. Id. at 183 n.6, 465 A.2d at 972 n.6 (stating that an NCP "amounts to an admission by the employer of ... the nature of the injuries caused by the accident while the claimant was in the employ of the employer.").

Employer also asserts that Beissel and County of Schuylkill are inapplicable because in contrast to those cases, Employer and Claimant's medical experts agree that Claimant did not sustain an ACL tear to her right knee. However, the fact that Claimant's expert conceded that the operative note indicated that Claimant's ACL was intact merely confirms that Employer carried its burden of proving that the NCP was materially incorrect. It does not establish that Employer has the legal right to contest and alter the NCP's description of Claimant's injury in the first instance. In other words, before an employer can challenge or amend a NCP's injury description, the employer must first prove that it promptly paid compensation prior to commencing or completing its investigation into the nature of the claimant's injuries. Barna, 513 Pa. at 522-23, 522 A.2d at 24. If the employer does not carry this burden, the description of the claimant's injury in the NCP is binding. See Beissel; County of Schuylkill. Therefore, we conclude that the rationale espoused in Beissel and its progeny is fully applicable to the present matter.

Here, the WCJ did not make any findings regarding Employer's investigation, if any, into Claimant's injury at the time Employer issued the NCP or how Employer decided that Claimant sustained an ACL tear to her right knee. Pursuant to Beissel, Barna, and County of Schuylkill, such findings are necessary for this Court to conduct meaningful appellate review and determine whether the WCJ corrected the NCP within the confines of the case law interpreting section 413(a) of the Act. Where the WCJ fails to make findings necessary for the proper application of the law, the appropriate course of action is to remand the matter to the WCJ to make those findings. Sears Logistic Services v. Workers' Compensation Appeal Board (Preston), 937 A.2d 1151 (Pa. Cmwlth. 2007). Accordingly, we vacate the Board's order with instruction to remand this matter to the WCJ to make additional findings of fact, based on the existing record, and to issue a new decision in light of those findings. On remand, the WCJ may enter a ruling and accompanying decision on Employer's suspension petition, which the WCJ decided to dismiss as moot because he granted Employer's termination petition.

For the above-stated reasons, we vacate the Board's order and remand for further proceedings.

Due to our disposition, we need not address Claimant's other argument that Employer failed to produce unequivocal medical testimony that Claimant's ongoing right knee problems are not causally connected to her right knee contusion because the definition of Claimant's work-related injury may change upon remand. For instance, if the WCJ decides on remand that Employer is precluded from challenging the NCP, then Employer's medical experts are obligated to accept as true the injury described in the NCP (an ACL tear) as Claimant's work-related injury and cannot opine that Claimant's work-related injury was a right knee contusion. Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007). --------

/s/_________


PATRICIA A. McCULLOUGH, Judge ORDER

AND NOW, this 24th day of May, 2013, the June 11, 2012 order of the Workers' Compensation Appeal Board (Board) is hereby vacated. The case is remanded to the Board with instruction to remand to the Worker's Compensation Judge for further proceedings consistent with this opinion.

Jurisdiction relinquished.

/s/_________


PATRICIA A. McCULLOUGH, Judge