W. Trenchfield v. WCAB (Dushoff) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Winston Trenchfield, Petitioner v. Workers' Compensation Appeal Board (Dushoff), Respondent BEFORE: : : : : : : : : No. 1247 C.D. 2007 Submitted: November 16, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: February 13, 2008 Winston Trenchfield (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board), which affirmed in part the decision of a workers compensation judge (WCJ) granting Claimant s Claim Petition for a closed period and reversed insofar as it awarded Claimant unreasonable contest fees. We affirm. Claimant filed a Claim Petition alleging that he sustained an injury to his right elbow and back on February 18, 2005 during the course and scope of his employment with Doris Dushoff (Employer). In response, Employer filed an answer denying the material allegations contained therein. A hearing on the Claim Petition then ensued before the WCJ. Before the WCJ, Claimant testified and presented the testimony of Jonathan Levyn, D.O., who is board-certified in family practice. Employer presented the testimony of Richard J. Levenberg, M.D., who is board-certified in orthopedic surgery, and the records of Disston Manor Personal Care Home, where Claimant was employed from July 11, 2005 to July 25, 2005. Based upon the testimony and evidence presented, the WCJ summarized the testimony as follows. Claimant, a citizen of Jamaica, testified that he slipped and fell on his back on Friday, February 18, 2005, while pulling orders for customers. Claimant immediately advised Employer that he had fallen; Employer noted his injury. Claimant missed two days of work before going to the emergency room on February 22, 2005. Claimant was given a prescription for hydrocortisone. Claimant returned to work. Despite worsening pain, Claimant continued to work. Claimant did not work his full 40 hours per week between February 18, 2005 and April 2005. On April 28, 2005, Claimant began seeing Dr. Levyn and related that he had also injured his elbow during the fall. Dr. Levyn recommended physical therapy, prescribed medication and wrote a note removing Claimant from work. Claimant testified that he stopped working because of the pain in his back. Claimant continued to treat with Dr. Levyn until January 2006, but ceased treatment due to transportation problems and an inability to get out of bed due to pain. Claimant testified that he is in severe pain and has been unable to return to his pre-injury position because of the pain. Claimant testified that he did have his Green Card while working for Employer. Claimant was incarcerated in state prison on February 6, 2006 on immigration charges. Dr. Levyn testified that he initially saw Claimant on April 28, 2005. Claimant presented with complaints of lower back pain, neck pain, pain into his legs and right elbow pain. Claimant described that he slipped and landed on his back and 2. elbow while working for Employer. Dr. Levyn referred Claimant for an MRI, which showed multilevel lumbar disc disease and bulging at the L2-L3, L3-L4, and L4-L5 disc levels. Dr. Levyn restricted Claimant to light duty work. Dr. Levyn saw Claimant a total of eight times prior to his deposition. Claimant s physical examinations remained the same; however, Claimant s elbow pain resolved and his neck pain diminished. Claimant s lower back pain and leg pain had persisted. During his course of treatment, Claimant had secured alternate employment working as a custodian for three weeks. Dr. Levyn diagnosed that, as a result of the February 18, 2005 accident, Claimant suffered an acute cervical and lumbar sprain and strain; lumbar radiculitis with radiculopathy; epicondylitis of the right elbow; and aggravation of previously asymptomatic multilevel lumbar disc disease. Dr. Levyn opined that Claimant would be unable to return to his pre-injury job at this time. Dr. Levyn opined that Claimant could return to a modified job with restrictions in his lifting, carrying, bending and stooping. In opposition to the Claim Petition, Dr. Levenberg testified that he performed an IME of Claimant on August 11, 2005. At the time of the examination, Claimant complained of back pain and elbow pain. Dr. Levenberg testified that his physical examination revealed multiple signs of symptom exaggeration. Dr. Levenberg reviewed Claimant s medical records. Dr. Levenberg found it significant that Claimant was allowed to work light duty as early as April 29, 2005 per Dr. Levyn; the emergency room records indicated that Claimant could return to work in two days. Dr. Levenberg opined that Claimant sustained a sprain to the spine on February 18, 2005. He further opined that as of the date of his examination, Claimant s sprain had resolved. Dr. Levenberg opined that Claimant was able to return to his pre-injury position and required no additional medical treatment for the February 18, 2005 injury. 3. The WCJ accepted the testimony and opinion of Dr. Levenberg finding such to be credible and persuasive. The WCJ accepted Dr. Levenberg s testimony over that of Dr. Levyn and resolved all conflicts in testimony in favor of Dr. Levenberg. The WCJ accepted the testimony of Claimant to the extent it was consistent with the credible testimony of Dr. Levenberg. The WCJ credited Claimant s testimony that he slipped and injured his back at work, but rejected Claimant s claims of ongoing disability. The WCJ further credited Claimant s testimony that he did have a valid Green Card and was eligible for work until his incarceration on February 6, 2006. Based upon these findings and credibility determinations, the WCJ determined that Claimant was entitled to workers compensation benefits for the closed periods of April 28, 2005 to July 11, 2005 and August 5, 2005 to August 11, 2005, at which time Claimant had fully recovered. The WCJ found that Claimant s immigrant status does not serve as a bar to the receipt of workers compensation benefits. The WCJ further found that Employer had engaged in an unreasonable contest as Employer s medical expert conceded the occurrence of an injury and resulting disability. By order dated October 18, 2006, the WCJ granted Claimant s Claim Petition for two closed periods April 28, 2005 to July 11, 2005 and August 5, 2005 to August 11, 2005 and terminated benefits as of August 11, 2005. The WCJ also ordered Employer to pay Claimant s counsel fees due to its unreasonable contest. From this decision, Claimant and Employer both filed appeals with the Board. The Board determined Employer s contest was reasonable. The Board 4. reversed the award of unreasonable contest fees and affirmed in all other respects. This appeal now follows.1 Claimant raises the following issues for our review: 1. Did the Board err in affirming the decision of the WCJ terminating benefits as of August 11, 2005, when the expert found credible never expressed any opinion about the work-related elbow injury and the WCJ and the Board ignored evidence of ongoing back pathology. 2. Did the Board err in reversing the grant of counsel fees where there was no reasonable basis for the contest through the date of the termination order. First, Claimant contends that the WCJ erred in terminating benefits because Employer s expert did not testify that Claimant s elbow injury had completely resolved. We disagree. With respect to a claim petition, a claimant bears the burden of establishing a right to compensation and proving all necessary elements to support an award. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). This includes a claimant s burden of proving that his or her injury arose in the course of employment and was related thereto. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981). Generally, if there is no obvious relationship between the disability and the work-related cause, unequivocal medical testimony is required to meet this burden of proof. Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985). A claimant must also prove that the work-related injury caused a loss of earning power. Bissland v. Workmen's Compensation Appeal Board (Boyertown Auto Body Works), 638 A.2d 493 1 This Court s scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen s Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). 5. (Pa. Cmwlth. 1994). Although a claimant may suffer work-related physical disability, it is only if that disability occasions loss of earnings that the claimant will be "disabled" and entitled to receive compensation. Id. The WCJ, as fact finder, has exclusive province over questions of credibility and evidentiary weight, and the WCJ s findings will not be disturbed when they are supported by substantial, competent evidence. Northeastern Hospital v. Workmen s Compensation Appeal Board (Turiano), 578 A.2d 83 (Pa. Cmwlth. 1990). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith s Frozen Foods Co. v. Workmen s Compensation Appeal Board (Clouser), 539 A.2d 11 (Pa. Cmwlth. 1988). The WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen s Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). It is not the function of this Court to reweigh evidence and to substitute its judgment for that of the WCJ. Vitelli v. Workmen s Compensation Appeal Board (St. Johnsbury Trucking Co.), 630 A.2d 923 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 537 Pa. 627, 641 A.2d 591 (1994). Rather, the function of the Board and this Court is to determine, upon consideration of the evidence as a whole, whether the WCJ s findings have the requisite measure of support in the record. Bethenergy Mines v. Workmen s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). Here, Claimant was the burdened party, not Employer. It was Claimant s burden to prove that he suffered an injury during the course and scope of his employment and that this injury caused, and continues to cause, disability. In addition to the back injury, Claimant alleged an elbow injury and presented medical 6. evidence in support thereof. However, Claimant s own expert, Dr. Levyn, opined that Claimant had fully recovered from the elbow injury. Dr. Levyn testified that he referred Claimant to Dr. Okin for his elbow and back complaints. Reproduced Record (R.R.) at 18a. Dr. Okin s focus of care was Claimant s elbow, which Dr. Okin reported had resolved as of June 15, 2005. R.R. at 50a. Dr. Levyn testified that during the course of treatment, Claimant s elbow pains have decreased and actually had resolved. R.R. at 21a. Thus, while Claimant was able to prove that he sustained a disabling back injury for closed periods, Claimant was not able to prove an ongoing disability related to his elbow injury. The fact that Employer s witness never expressed an opinion about the elbow injury is of no moment as the burden was upon Claimant to prove an ongoing disability caused by the elbow injury. The credible evidence of record supports a finding that Claimant sustained a back injury on February 18, 2005, from which he was fully recovered as of August 11, 2005. We, therefore, conclude that the WCJ did not err in terminating benefits as of August 11, 2005. Claimant also contends that the Board erred in reversing the grant of counsel fees as there was no reasonable basis for the contest through the date of the termination order. We disagree. Section 440 of the Workers' Compensation Act (Act)2 provides, in pertinent part, as follows: (a) In any contested case where the insurer has contested liability in whole or in part, ¦ the employe ¦ in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum 2 Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996. 7. for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That costs for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. Whether an employer presents a reasonable basis for its contest is a question of law fully reviewable by this Court. Lemansky v. Workers Compensation Appeal Board (Hagan Ice Cream Co.), 738 A.2d 498 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 668, 759 A.2d 389 (2000); Cunningham v. Workmen s Compensation Appeal Board (Franklin Steel Company), 634 A.2d 267 (Pa. Cmwlth. 1993). A reasonable contest is one brought to resolve a genuinely disputed issue and not merely for the purpose of harassment. Elite Carpentry Contractors v. Workmen s Compensation Appeal Board (Dempsey), 636 A.2d 250, 252 (Pa. Cmwlth. 1993); City of Scranton v. Workmen s Compensation Appeal Board (Cimoch), 488 A.2d 648 (Pa. Cmwlth. 1985). A reasonable contest is established where the evidence is conflicting or subject to contrary inferences. Lemansky; Penczkowski v. Workmen s Compensation Appeal Board (Foster Wheeler Energy Corp. & The Hartford), 509 A.2d 964 (Pa. Cmwlth. 1986). In the case before us, the WCJ found that Employer s contest was unreasonable, but on appeal the Board reversed. The Board found that Employer had successfully litigated the duration of Claimant s disability. The Board explained that Claimant continued to work following his injury and that, other than a visit to the emergency room days after his injury, Claimant received no medical treatment until his visit with Dr. Levyn on April 28, 2005, approximately two months after the injury. Following this visit, Dr. Levyn restricted Claimant to light duty work but did not remove him from work entirely. Additionally, there was a question regarding 8. Claimant s employability due to his immigration status.3 We, therefore, conclude that the Board did not err in determining that Claimant s actions following the injury provided a reasonable basis upon which to challenge the extent and duration of claimant's disability, i.e. loss of earning power. Accordingly, the order of the Board is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge 3 Illegal aliens are not barred from obtaining workers' compensation benefits. Reinforced Earth Co. v. Workers Compensation Appeal Board (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002). However, as an unauthorized alien, the claimant cannot apply for or accept lawful employment, and as such, the claimant's loss of earning power is caused by his immigration status, not his workrelated injury. Id. When an employer seeks to suspend the workers' compensation benefits that have been granted to an employee who is an unauthorized alien, a showing of job availability by the employer is not required. Id. 9. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Winston Trenchfield, Petitioner v. Workers' Compensation Appeal Board (Dushoff), Respondent : : : : : : : : No. 1247 C.D. 2007 ORDER AND NOW, this 13th day of February, 2008, the order of the Workers' Compensation Appeal Board, at No. A06-2445, dated June 19, 2007, is AFFIRMED. _________________________________ JAMES R. KELLEY, Senior Judge

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