J. Matusic v. WCAB (Allegheny City Electric, Inc.) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Matusic, Petitioner v. Workers Compensation Appeal Board (Allegheny City Electric, Inc.), Respondent BEFORE: : : : : : : : : No. 1207 C.D. 2007 SUBMITTED: November 30, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: February 1, 2008 Claimant John Matusic petitions for review of the order of the Workers Compensation Appeal Board (Board) that affirmed the order of the Workers Compensation Judge (WCJ) granting the claim petition and expanding the scope of the injuries stated in the Temporary Notice of Compensation Payable (TNCP) but also granting employer s modification petition, in pertinent part, directing only partial disability benefits as of August 26, 2004. The sole issue before us is whether the WCJ abused his discretion in closing the record and refusing to accept additional medical evidence in support of claimant s contention that he remained totally disabled after the injury and particularly after surgery performed in August 2005. We affirm. In August 2002, claimant, while working as an electrician for Allegheny City Electric, Inc., suffered contusions to multiple body parts and a concussion when an explosion caused him to be thrown backward off of a ladder for approximately twenty feet. He landed on his back and struck his head. Employer filed a TNCP pursuant to which claimant received total disability benefits. In April 2003, claimant filed a claim petition therein seeking to expand the nature of the injuries described in the TNCP to include postconcussion syndrome and migraine headaches, cervical strain, lumbar strain, right S-1 radiculopathy, closed head injury, electrical injury, and a herniated disc at L5S1. WCJ s Decision at 1. Additionally, claimant averred that from the date of the accident to the present, he has been fully disabled. The WCJ agreed that claimant suffered from injuries in addition to those listed in the TNCP. Specifically, the WCJ determined that claimant sustained a herniated disc at L5-S1 as well as post-traumatic stress disorder and depression. Thus, the WCJ granted the claim petition to the extent of including those additional injuries, but denied it in all other respects. Also before the WCJ was employer s April 2003 modification petition wherein it alleged that it made a specific job available to claimant within his physical limitations on April 14, 2003. This modified-duty job involved claimant s taking inventory at employer s shop five days per week, four hours per day. Employer s representative acknowledged that employer created the job for claimant, but noted that having someone specific to check inventory would allow 2 her to maintain at full capacity the work crews from which she occasionally culled inventory takers. Claimant acknowledged both the receipt of employer s job offer and his failure to respond thereto. The WCJ granted employer s modification petition, determining that claimant was capable of performing the job. In so ruling, the WCJ ordered periods of modification, reinstatement and suspension consistent with his findings that claimant became totally disabled again as a result of an October 6, 2003 surgery, but was incarcerated from December 23, 2003 to April 28, 2004, and then was able to resume work in the modified position as of August 26, 2004 and continuing. In rendering his decision on the two petitions, the WCJ made numerous credibility determinations. With regard to post-traumatic stress disorder and depression, the WCJ accepted as credible the opinions of Joseph G. Lalonde, M.D. and James P. Reardon, Ph.D., respectively, claimant s psychiatrist and psychologist. The WCJ rejected the contrary testimony of Stuart S. Burstein, M.D., the psychiatrist testifying on behalf of employer. With regard to claimant s ability to perform the modified-duty position, the WCJ accepted as credible the testimony of employer s medical experts Richard P. Bonfiglio, M.D. and James L. Cosgrove, M.D., both boardcertified in physical medicine and rehabilitation. The WCJ rejected claimant s testimony that he was unable to perform the modified duty job, noting that it was inconsistent with what he reported to his treating physicians, Melvin C. Alberts, M.D. and Matt El-Kadi, M.D. The WCJ also rejected the testimony of Dr. Lalonde and Dr. Reardon to the extent that they opined that claimant was psychologically disabled from performing the job. Further, citing his own observations of claimant s demeanor, particularly claimant s ability to sit and give a detailed 3 history, the WCJ found that claimant demonstrated an ability to perform at some level. Finally, the WCJ credited Dr. Burstein s testimony to the extent that he indicated that claimant tended to exaggerate and embellish his conditions. At issue in the present case is the new medical evidence that counsel for claimant sought to introduce at an October 2005 hearing: the reports and opinions of William C. Welch, M.D. concerning claimant s physical status following August 2005 surgery. At that final hearing, claimant s counsel offered into evidence and the WCJ accepted the rebuttal depositions of Dr. Lalonde and Dr. Reardon concerning claimant s mental status. When claimant s counsel also attempted to introduce a July 26, 2005 report from Dr. Welch and indicated that he wished to submit additional evidence in the future of claimant s physical progress under Dr. Welch s care, the WCJ reiterated his intention to close the record. The WCJ noted that the first hearing occurred in May 2003 and that he had afforded claimant sixty days in which to present rebuttal testimony. Further, the WCJ stated that if claimant had another petition to file based on the August 2005 surgery and a change in condition, that petition would have to be the subject of a new case. The Board affirmed the WCJ s decision and order, inter alia, rejecting claimant s argument that the WCJ erred in closing the record without accepting the additional evidence from Dr. Welch. Claimant s petition for review to this court followed. The pertinent Bureau of Workers Compensation s regulation provides as follows: (e) A judge may close the evidentiary record on the judge s own motion even if all parties have not rested when the judge determines that the parties have had reasonable opportunity to present their case, provided 4 that reasonable notice of the closing of the evidentiary record has been given to all parties. 34 Pa. Code § 131.101(e). Claimant argues that the WCJ erred in refusing to consider the medical evidence from Dr. Welch because it would have discredited the testimony of employer s experts and demonstrated his ongoing total disability and necessary post-surgical care and treatment related to the work injury. He further alleges that the WCJ had already considered evidence of Dr. Welch s surgery in the context of a utilization review petition and determined that the surgery was work-related, reasonable and necessary. Thus, claimant contends that this court should reverse and remand the case to the WCJ for submission of the evidence from Dr. Welch. In response, employer points out that at a June 2004 hearing, claimant accepted the opinion of employer s medical expert, Dr. Bonfiglio, regarding claimant s physical status. To wit, counsel for claimant represented that he was inclined not to pursue the deposition of claimant s doctor regarding claimant s back, [t]he reason being that, our doctor [Dr. El-Kadi] does not essentially disagree with their doctor [Dr. Bonfiglio], and therefore, we are in a position pretty much to accept the physical findings established by the deposition that the Employer s counsel is going to present. June 23, 2004 Hearing, N.T. 4; R.R. 77a. Also at that hearing, counsel for claimant represented that he was not inclined to pursue physical status claims, asserting that [t]he Case is moving in a different direction, and that may or may not give rise to an amendment of the claim. What we are dealing with here is, what appears to be a very serious psychological disturbance, which is much more significant than the present physical findings, and we are presently in the process of exploring that. We don t know, to be very honest, if we re talking about the effects of closed head injury manifesting those effects in 5 psychological terms, or whether we re talking about something else, such as post-traumatic stress disorder, or possibly even a severe aggravation of a previous psychological condition, and possibly even some kind of psychotic state, which could represent either something new or an aggravation. These are the issues that we re presently exploring, and we ve got to have some answers in this direction, before we know whether we re dealing with what has already been claimed . . . or whether we re talking about severe psychological stress, from the fact that he was subjected to a severe electric shock, which threw him across the room and was a very traumatic and frightening event. Id. at 4-5; R.R. 78a. Moreover, employer points out that the WCJ reminded claimant s counsel at several of the hearings that claimant bore the burden of presenting medical evidence to support his claim and that, if he failed to do so, the WCJ would dismiss the claim petition. Indeed, after counsel for claimant stated that the case was moving in a different direction and that claimant was seeking to answer the question of whether there was more of a psychological component to the case, the WCJ advised counsel that he should have had the answer to that question before filing the claim petition. Finally, employer urges this court to reject claimant s argument that a utilization review of Dr. Welch s treatment is relevant to claimant s disability. Employer points out that such a petition was not consolidated with the claim petition and that, in any event, it would only address the reasonableness and necessity of medical treatment and not a person s disability status. After careful consideration, we agree that the WCJ did not abuse his discretion in closing the record without receiving the evidence from Dr. Welch. Claimant filed his claim petition in April 2003. As employer represented, counsel 6 for claimant in June 2004 indicated that claimant s doctor essentially agreed with the physical findings of employer s doctor. Also at that hearing, counsel for claimant indicated a probable plan to abandon any physical claims and to pursue psychological ones. It was not until October 2005 that claimant proposed to introduce both current and future physical findings of Dr. Welch. The WCJ properly noted that this new evidence of a change in condition could be the subject of a future reinstatement petition. As the Board noted in its decision, a WCJ is empowered to enforce time deadlines for the submission of evidence. See 34 Pa. Code § 131.63(c) (moving party must take the deposition of its medical expert within ninety days of the first hearing scheduled unless the time is extended or shortened by the WCJ for good cause shown). Indeed, in City of Phila. v. Workers Comp. Appeal Bd. (Rooney), 730 A.2d 1051 (Pa. Cmwlth. 1999), this court considered the issue of whether a WCJ abused his discretion in closing the record when the City failed to depose its medical witnesses within the WCJ-imposed deadlines. We concluded that the WCJ did not abuse his discretion, noting that the City was warned that failure to depose its medical witnesses within the WCJ imposed deadline would result in the closing of the case. Id. at 1053. The present case is not one where the claimant had no opportunity to present evidence of his physical disability thereby resulting in a denial of due process. Compare Essi Int l, Inc. v. Workmen s Comp. Appeal Bd. (Bowman), 573 A.2d 677 (Pa. Cmwlth. 1990) (court found abuse of discretion where the referee closed the record before admitting all of the evidence from both sides thereby resulting in a prejudicial and premature close of the record). To the contrary, counsel for claimant stated on the record his intention to forego opportunities to 7 present evidence of physical disability in light of the fact that claimant s doctor agreed with employer s doctor. This is also not a case where the WCJ failed to impose deadlines or to state clearly on the record that claimant was in danger of having his claim petition denied for failure to present medical evidence. Finally, we find no support for claimant s argument that evidence of Dr. Welch s surgery was already before the WCJ in the form of a utilization review petition. Although the WCJ in his April 21, 2006 decision considered and denied several utilization review petitions, none of them referenced Dr. Welch.1 For the above reasons, we affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 1 In its decision, the Board indicated that the WCJ may have issued an August 17, 2006 decision concerning Dr. Welch. The Board opined that any issue concerning that decision should be the subject of separate proceedings. We agree. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Matusic, Petitioner v. Workers Compensation Appeal Board (Allegheny City Electric, Inc.), Respondent : : : : : : : : No. 1207 C.D. 2007 ORDER AND NOW, this 1st day of February, 2008, the order of the Workers Compensation Appeal Board in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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