Zebrowski
v.
Workers' Comp. Appeal Bd.

COMMONWEALTH COURT OF PENNSYLVANIAJul 11, 2013
No. 2326 C.D. 2012 (Pa. Cmmw. Ct. Jul. 11, 2013)

No. 2326 C.D. 2012

07-11-2013

Mary Zebrowski, Petitioner v. Workers' Compensation Appeal Board (Federal Express Corp.), Respondent


BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN

Mary Zebrowski (Claimant) petitions for review of the December 17, 2012, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of a workers' compensation judge (WCJ) granting Federal Express Corporation's (Employer) termination petition. We affirm.

On April 4, 2003, Claimant injured her lower back while working for Employer as a cargo handler. Employer issued a Notice of Compensation Payable (NCP) recognizing a low back area lumbar sprain, and Claimant began receiving benefits in accordance with the Workers' Compensation Act (Act). (WCJ's Decision, 4/29/10, Findings of Fact, Nos. 1-3.)

Additionally, the parties stipulated that the work-related injury was a sprain, notwithstanding that some medical evidence described the work-related injury as a sprain and strain. (WCJ's Decision, 4/29/10, Findings of Fact, No. 4.)

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.

On April 2, 2007, Employer filed a termination petition alleging that as of February 26, 2007, Claimant had fully recovered from her work-related injury. (WCJ's Decision, 4/29/10, Procedural History, ¶ 3.) In support of its termination petition, Employer presented the deposition testimony of Armand Mendez, M.D., who is board-certified in orthopedic surgery. Dr. Mendez examined Claimant on February 26, 2007, and reviewed extensive medical records. Dr. Mendez opined that Claimant sustained a lumbar sprain in the course of her job, she had recovered from the lumbar sprain, and her continued back pain could be explained on the basis of disc disease. Dr. Mendez opined that Claimant could return to her pre-injury position. (WCJ's Decision, 4/29/10, Findings of Fact, Nos. 4, 4b, 4d, and 4f.)

Claimant testified and also presented the deposition testimony of her treating chiropractor, Dr. Marc Cohen. Dr. Cohen initially examined Claimant on February 2, 2005. Dr. Cohen diagnosed Claimant with multi-level disc protrusions, degenerative disc disease, and chronic right L4 radiculopathy. Dr. Cohen did not render an opinion as to whether Claimant remained disabled due to her work-related injury. (Id., Nos. 6, 6a, 6d, and 6e.)

On May 28, 2008, the WCJ denied Employer's termination petition. Notably, in resolving the conflicting medical evidence, the WCJ found Dr. Cohen's medical opinions more credible and persuasive than Dr. Mendez's regarding the issues of a full recovery and Claimant's ability to return to her pre-injury duties. Accordingly, the WCJ found that Employer had not proved that Claimant's disability had ceased. (WCJ's Decision, 5/28/08, Findings of Fact, Nos. 10, 11.) Employer appealed to the WCAB.

On June 24, 2009, the WCAB vacated the WCJ's decision and remanded the case. The WCAB noted that Dr. Cohen's testimony was incompetent because it relied on assumptions different from previously established facts. Specifically, Dr. Cohen opined that Claimant sustained discogenic disease including disc pathology, polyphasic changes, and a chronic condition of the lower back. However, Claimant's established work-related disability was a lumbar sprain. (WCAB Op., 6/24/09, at 6, 7.)

Thus, the WCAB concluded that the WCJ erred in finding Dr. Cohen's testimony more credible than Dr. Mendez's testimony on the issue of full recovery. The WCAB remanded the matter for the WCJ to re-evaluate all of the competent evidence of record and to issue new credibility determinations, findings of fact, and conclusions of law. (Id.)

On April 29, 2010, the WCJ issued a decision terminating Claimant's benefits because Employer proved that Claimant had fully recovered from the work- related injury as of February 26, 2007. (WCJ's Decision, 4/29/10, Conclusions of Law, No. 1.) The WCJ found Dr. Mendez's testimony that Claimant had fully recovered from her work-related injury to be credible and persuasive. The WCJ discredited Dr. Cohen's testimony where it was inconsistent with Dr. Mendez's testimony. (WCJ's Decision, 4/29/10, Findings of Fact, Nos. 7, 8.)

Claimant appealed to the WCAB. On December 17, 2012, the WCAB affirmed the WCJ's decision. Claimant now petitions this court for review.

Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.

Claimant contends that the WCAB erred in vacating the WCJ's May 28, 2008, order and remanding for further consideration. We disagree.

Claimant could not immediately appeal the WCAB's June 24, 2009, order because it was interlocutory. See Macaluso v. Workmen's Compensation Appeal Board (Philadelphia College of Osteopathic Medicine), 597 A.2d 730, 731 (Pa. Cmwlth. 1991); Pa. R.A.P. 311. --------

The WCAB determined that Dr. Cohen's medical testimony was incompetent. This court has consistently held that a failure to recognize the work-related injury can render a medical expert's testimony incompetent. See, e.g., Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth. 2007) (finding medical testimony incompetent because the doctor failed to recognize the accepted work-related injury); Lookout Volunteer Fire Company v. Workmen's Compensation Appeal Board, 418 A.2d 802, 805 (Pa. Cmwlth. 1980) ("Where an expert opinion is contrary to the established facts or is based on assumptions not in the record, it is valueless.").

Here, Dr. Cohen opined that Claimant sustained discogenic disease including disc pathology, polyphasic changes, and a chronic condition of the lower back (WCJ's Decision, 4/29/10, Findings of Fact, No. 6d), while Claimant's established work-related disability was a lumbar sprain. (Id., No. 3.) Therefore, the WCAB appropriately deemed Dr. Cohen's testimony incompetent.

Next, Claimant contends that the incompetence of Dr. Cohen's testimony is irrelevant because Employer had the burden of proving that Claimant had fully recovered from the work-related injury. We disagree.

In a termination petition, Employer has the burden of proving that the claimant's disability has ceased. Shepherd v. Workmen's Compensation Appeal Board, 443 A.2d 862, 863 (Pa. Cmwlth. 1982) (finding a doctor's testimony recognizing the work injury and opinion that claimant had fully recovered sufficient to meet this burden). Moreover, medical evidence presented by the unburdened party can be irrelevant when the burdened party's medical evidence fails to meet this burden of proof. Association of Retarded Citizens v. Workmen's Compensation Appeal Board (Golden), 640 A.2d 1387, 1393 (Pa. Cmwlth. 1994) (rejecting the employer's argument that a claimant's medical testimony was equivocal). However, when the reliance upon incompetent medical evidence plainly cannot be severed from a credibility determination, then the unburdened party's medical evidence remains relevant. See United States Steel Mining Company, LLC v. Workers' Compensation Appeal Board (Sullivan), 859 A.2d 877, 883 (Pa. Cmwlth. 2004) (noting that reliance upon a claimant's incompetent medical evidence is not a harmless error when determining the credibility of employer's medical evidence).

Here, the medical experts presented conflicting testimony on the issue of recovery. In the May 28, 2008, decision, the WCJ credited the testimony of Dr. Cohen over Dr. Mendez's. However, because Dr. Cohen's testimony was incompetent, the WCAB did not err in subsequently remanding to the WCJ to reconsider all the medical evidence.

Finally, Claimant argues that Dr. Mendez's testimony was equivocal and insufficient to prove that Claimant's disability had ceased. However, "if the referee accepts evidence which a reasonable mind might accept as adequate to support the conclusion reached, then we are precluded from disturbing the referee's findings even though there is evidence to the contrary and even though we might have resolved the conflict differently." Grabish v. Workmen's Compensation Appeal Board (Trueform Foundations, Inc.), 453 A.2d 710, 713 (Pa. Cmwlth. 1982). Here, Dr. Mendez competently testified that Claimant's disability, the lumbar sprain, had ceased. This testimony provides sufficient evidence for the WCJ to conclude that Claimant had recovered from her work-related injury.

Accordingly, we affirm.

/s/_________


ROCHELLE S. FRIEDMAN, Senior Judge

ORDER

AND NOW, this 11th day of July, 2013, we hereby affirm the December 17, 2012, order of the Workers' Compensation Appeal Board.

/s/_________


ROCHELLE S. FRIEDMAN, Senior Judge