R. Barnoski v. WCAB (PPL & PMA Group) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Barnoski, : Petitioner : : v. : : Workers' Compensation Appeal Board : (PPL and PMA Group), : Respondents : BEFORE: No. 1107 C.D. 2007 Submitted: October 26, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: February 8, 2008 Richard Barnoski (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of Workers' Compensation Judge (WCJ) J. Joseph Grady denying the petition that Claimant filed to reinstate his benefits after exhausting the allowable 500 weeks of partial disability benefits. Claimant questions whether WCJ Grady's decision is supported by substantial, competent evidence of record. Claimant sustained a work-related injury on August 3, 1992 in an automobile accident while employed as a serviceman by Pennsylvania Power and Light (Employer). Pursuant to a notice of compensation payable, which described the injury as a back and right shoulder strain, Claimant received weekly total disability benefits of $455 based on his average weekly wage of $782.05. His weekly benefits were modified to $304.30 pursuant to a supplemental agreement dated November 17, 1992 based on his return to a modified meter reader position on October 15, 1992. Claimant stopped working in January 1993 when he suffered a non-work-related grand mal seizure. His benefits were commuted in August 2001, and he was paid $11,867.70 for his remaining thirty-nine weeks of partial disability benefits. In February 2002 Claimant filed a reinstatement petition alleging that his condition had worsened. WCJ William J. Hall denied the petition in June 2003, rejecting testimony from Robert T. O'Leary, D.O., who is boardcertified in physical medicine and rehabilitation and treated Claimant since June 2000. WCJ Hall determined that Claimant could perform the modified-duty position that was available in January 1993, and the Board affirmed in July 2004. On December 15, 2004, Claimant filed another reinstatement petition alleging that his condition had worsened as of October 10, 2004. He testified before WCJ Grady that the modified position performed before suffering the grand mal seizure in January 1993 involved getting in and out of a vehicle driven by a serviceman, handing out past-due notices to customers, rechecking meters and writing on a clipboard using both hands. Claimant described the deteriorating condition of his shoulder, neck, back and right arm with more atrophy and pain. He stated that he could not lift his right arm up or to the side, that he could not use the right arm to button a shirt and needed to use the left arm to lather himself, wash his hair and shave and that he continued to have seizures two to three times a week, was unable to drive or to perform the duties of the modified position. Dr. O'Leary testified that Claimant's work injury consisted of myoligamentous strain of the cervical spine and right shoulder and cranial nerve palsy of the spinal accessory nerve No. 11; that he had decreased range of motion, increased atrophy, only ten degrees of flexion and some crepitus in the AC joints; and that as of his October 20, 2004 exam Claimant had a worsening condition of the work injury and was completely disabled from working in any capacity. 2 Employer's medical witness, Michael H.O. Dawson, M.D., a boardcertified orthopedic surgeon, performed an independent medical examination on September 29, 2005. At that time, Claimant complained of pain in the neck, back, right shoulder and forearm, numbness in the fingers and weakness in the right wrist. Dr. Dawson noted Claimant's symptom exaggeration and found no objective abnormal findings, but he could not assess Claimant's muscle strength because he held the right shoulder rigid and resisted any passive movement. Dr. Dawson opined that Claimant had recovered fully from the work-related myoligamentous strain of the cervical spine and right shoulder, although he could not render an opinion as to whether Claimant had recovered fully from the eleventh cranial nerve palsy of the spinal accessory nerve due to the lack of further EMG or nerve conduction studies performed since the first diagnosis in 1996. Assuming that such condition was part of the work injury, the doctor opined that Claimant was not totally disabled and could return to medium-duty work eight hours per day. WCJ Grady rejected Dr. O'Leary's opinion as not credible, and he accepted Dr. Dawson's opinion. He noted WCJ Hall's rejection of Dr. O'Leary's previous "same exact opinion" rendered in July 2002 regarding Claimant's worsening condition and restrictions and his disability from engaging in any work activity as of November 6, 2001. WCJ Grady found it "difficult to use Dr. O'Leary's testimony herein to make any finding that the claimant suffered from a worsening of his work related injury to the point of a total disability of October 20, 2004." WCJ Grady's Decision, Findings of Fact No. 8. Finding that Claimant remained capable of performing modified-duty work with Employer, WCJ Grady denied the reinstatement petition. The Board affirmed, determining that the 500week period for Claimant's partial disability benefits expired in May 2002 and that 3 he failed to meet his burden of proof set forth in Stanek v. Worker's Compensation Appeal Board (Greenwich Collieries), 562 Pa. 411, 756 A.2d 661 (2000), to establish entitlement to reinstate benefits after expiration of the 500-week period.1 Exhaustion of the total 500 weeks of partial disability benefits under Section 306(b)(1) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(1), "forecloses claims for increased compensation for partial disability short of a claim for total disability." Keystone Coal Mining Corp. v. Workers' Compensation Appeal Board (Fink), 896 A.2d 691, 696 (Pa. Cmwlth.), appeal denied, 589 Pa. 733, 909 A.2d 306 (2006). A claimant seeking to reinstate benefits after exhausting partial disability benefits "must establish his total disability by precise and credible evidence of a more definite and specific nature than that required to obtain compensation initially or modification within the 500-week period." Stanek, 562 Pa. at 425, 756 A.2d at 668. In order to meet that burden the post-500-week claimant must demonstrate "a worsening of the ¦ medical condition" and must also establish "no ability to generate earnings (or a 'zero earning capacity'), since partial disability benefits are no longer available to that claimant." Id. See also Keystone Coal; Williams v. Workers' Compensation Appeal Board (Hahnemann Univ. Hosp.), 834 A.2d 679 (Pa. Cmwlth. 2003). Medical testimony that the post-500-week claimant retains a physical ability to perform light-duty work "will be deemed fatal to the claim." Stanek, 562 Pa. at 426, 756 A.2d at 669. 1 The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a practice or procedure of the Board was not followed or the findings of fact are not supported by substantial evidence in the record. Helvetia Coal Co. v. Workers' Compensation Appeal Board (Learn), 913 A.2d 326 (Pa. Cmwlth. 2006). 4 Claimant acknowledges that the Stanek burden applies to his petition but nonetheless argues that WCJ Grady's decision is not supported by substantial, competent evidence. Claimant maintains that Dr. O'Leary's opinion supports a worsening condition of his work injury and his total disability; that Dr. Dawson did not mention the eleventh cranial nerve palsy of the spinal accessory nerve in his report; and that Dr. Dawson's testimony is biased and unsupported by substantial evidence in the record.2 Employer counters that Claimant improperly challenges WCJ Grady's credibility determinations. After he testified on December 11, 2002 in the previous reinstatement proceeding, Dr. O'Leary examined Claimant every six months until April 2005. While rendering his opinion regarding Claimant's worsening condition of the work injury and inability to work in any capacity, Dr. O'Leary conceded that Claimant denied any new motor weakness during the examinations, that his reflexes, sensation, motor strength of the upper extremities remained unchanged since December 2002 and that his treatment plan remained the same. See Dr. O'Leary's July 20, 2005 Deposition, pp. 29 - 34; Reproduced Record (R.R.) at 54a - 59a. Michael D. Wolk, M.D., who evaluated Claimant on September 24, 2004, found that the MRIs of Claimant's shoulder were unremarkable, that an MRI of his cervical spine showed minimal degenerative disease but it otherwise was unremarkable and that there were "no neurologic deficits or musculoskeletal deficits except perhaps at the right shoulder area for shoulder elevation." 2 Contrary to Claimant's argument, WCJ Grady did consider Dr. O'Leary's testimony regarding an increased atrophy and a new onset of adhesive capsulitis. See WCJ Grady's May 5, 2006 Decision, Findings of Fact No. 5. The Court also notes that Claimant does not challenge the Board's rejection of his argument that WCJ Grady erred in refusing to permit him to present evidence of unavailability of the modified position with Employer. 5 Dr. Wolk's September 24, 2004 Report, pp. 1 - 2; R.R. at 214a - 215a. Dr. O'Leary agreed with Dr. Wolk's findings. See Dr. O'Leary's July 20, 2005 Deposition, pp. 34 - 35; R.R. at 59a - 60a. Dr. Dawson opined that Claimant had recovered fully from the myoligamentous strain of the cervical spine and right shoulder and that he was capable of performing light-duty work with restrictions of lifting and carrying up to 20 pounds occasionally and no overhead, out-stretched use of arms, even assuming that the work injury includes the eleventh cranial nerve palsy of the spinal accessory nerve. Dr. Dawson described the eleventh cranial nerve palsy of the spinal accessory nerve as "an injury to the accessory nerve ¦ number eleven" which "supplies, amongst other muscles, the trapezius muscle." Dr. Dawson's Deposition, p. 28; R.R. at 147a. Dr. Dawson explained: "[T]here's [sic] 28 other muscles that operate the shoulder and shoulder girdle. Accessory is just one of them, and also the trapezius is just one of them. So [j]ust one muscle operating a multi-muscle joint, such as shoulder girdle, cannot render you totally disabled." Dr. Dawson's Deposition, p. 30; R.R. at 149a. In a workers' compensation case, credibility determinations and the evaluation of the weight of evidence are within the province of the WCJ as factfinder, and the WCJ may accept or reject the testimony of any witness, including medical testimony, in whole or in part. Canavan v. Workers' Compensation Appeal Board (B & D Mining Co.), 769 A.2d 1250 (Pa. Cmwlth. 2001). WCJ Grady did not credit Dr. O'Leary's testimony, and he found that Claimant remained capable of performing modified-duty work. As a result, Claimant failed to meet his burden under Stanek to establish by precise and credible evidence that the condition of his work injury worsened to the point where he was unable to generate 6 any earnings. It is irrelevant that the record contains evidence to support findings that may differ from those made by the WCJ. Minicozzi v. Workers' Compensation Appeal Board (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). Claimant failed to establish "that there are no jobs available in which he could work consistent with his physical limitations[.]" Stanek, 562 Pa. at 426, 756 A.2d at 669 (emphasis in original). The Court accordingly affirms the Board's order. DORIS A. SMITH-RIBNER, Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Barnoski, : Petitioner : : v. : : Workers' Compensation Appeal Board : (PPL and PMA Group), : Respondents : No. 1107 C.D. 2007 ORDER AND NOW, this 8th day of February, 2008, the Court affirms the order of the Workers' Compensation Appeal Board. DORIS A. SMITH-RIBNER, Judge

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