L. Haluska v. WCAB (Beverly Healthcare) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lori Haluska, Petitioner v. Workers Compensation Appeal Board (Beverly Healthcare), Respondent BEFORE: : : : : : : : : No. 1315 C.D. 2007 Submitted: December 14, 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 LEAVITT FILED: January 24, 2008 Lori Haluska (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) denying her claim petition. In doing so, the Board affirmed the decision of the Workers Compensation Judge (WCJ) that Claimant failed to prove she sustained a work-related injury. In this case we consider whether the WCJ abused his discretion by not reopening the record to receive additional medical evidence from Claimant. Finding no such abuse of discretion, we affirm. Claimant worked as a certified nursing assistant for Beverly Healthcare (Employer) at its York Terrace nursing home facility. On April 28, 2005, Claimant filed a claim petition alleging that on April 15, 2005, she sustained an injury to her left knee while assisting a patient into a wheelchair. Employer denied Claimant s allegation, and the matter was assigned to the WCJ. At a hearing on November 9, 2005, Claimant submitted the August 18, 2005, report of Employer s independent medical examiner, Alexander Sapega, M.D. In his report, Dr. Sapega described the history given to him by Claimant, including that she had injured her left knee in 1988 or 1989 while performing volunteer work for Good Samaritan Hospital. According to Claimant, her treating physician diagnosed her with an injury to her posterior cruciate ligament (PCL), as opposed to her anterior cruciate ligament (ACL). Claimant believed that she had completely recovered from this injury. Dr. Sapega concluded, based upon Claimant s statements and the records then available to him, that there does appear to be reasonable evidence present to support a claim for a work-related injury to [Claimant s] left knee. Reproduced Record at 63 (R.R. __). Dr. Sapega explained that Claimant suffered an anterior, tibio-femoral joint subluxation episode ¦ as she was turning the corner around the back of her resident s wheelchair. Id.1 Dr. Sapega noted that the more important question in [Claimant s] case is whether or not she had an intact [ACL] that ruptured at the same time, or whether it was already chronically torn, leaving her knee inherently loose and vulnerable to a spontaneous joint subluxation episode during a routine turning or pivoting maneuver. Id. Dr. Sapega surmised that Claimant had torn her ACL during the incident in 1988 or 1989 and, therefore, concluded that unless quite convincing evidence to 1 Dr. Sapega explained that a joint subluxation is a transient, partial dislocation, and in [Claimant s] case her tibia shifted forward, suddenly and unexpectedly, in relation to her femur, causing these two bones to forcibly butt up against one another in an abnormal fashion, producing the sub-articular bone bruises described by the radiologist in the MRI report. R.R. 63. 2 the contrary emerges, [Claimant s] ACL deficiency (torn ACL) should be considered chronic and pre-existing, not having been caused by the 4/15/05 subluxation episode. R.R. 65. Before the WCJ, Employer s counsel acknowledged that the IME could be construed as favorable to Claimant, but reiterated that Dr. Sapega still needed to review additional records pertaining to Claimant s prior left knee injury, including an MRI film. At the conclusion of the hearing the WCJ allowed Employer 30 days to either obtain the necessary medical records or request an extension. Employer did not do so. In a letter to the parties dated January 25, 2006, the WCJ stated: My notes indicate that [Employer] was to submit its medical records by on or about December 9, 2005, or request an extension. To date, I have not received the records or any objection to the failure to submit them within the 30-day period of time. I will hold the record open until February 13, 2006, for the submission of [Employer s] medical evidence. R.R. 68. Dr. Sapega issued a supplemental report on February 12, 2006, confirming his suspicion that Claimant actually had chronic left ACL deficiency all along, and had simply compensated fairly well for it with good muscle control, at least up until 04/15/05 when she suffered a [tibio-femoral joint subluxation] episode. R.R. 73. Dr. Sapega concluded that Claimant was fully recovered from her work-related injury, and that any current limitations on her ability to work are due to the injury that damaged her ACL in the first place. R.R. 74. Employer s counsel faxed Dr. Sapega s supplemental report to the WCJ on February 23, 2006, followed by a hard copy on February 27, 2006. Claimant did not object to the admission of the report. 3 On March 17, 2006, the WCJ notified both parties in writing that the record was closed and that if counsel for any party believes that any substantive evidence is not referenced on the docket sheet, counsel shall advise [the WCJ] within 10 days. WCJ Exhibit 4; see also WCJ Opinion at 2, Finding of Fact No. 8. Nearly three months later, on June 28, 2006, Claimant sent a letter to the WCJ requesting that he reopen the record to receive a report from Claimant s treating orthopedic surgeon, Myron D. Haas, D.O. Employer objected. The WCJ denied Claimant s request, which he concluded was untimely. On August 17, 2006, the WCJ circulated a decision denying Claimant s claim petition. The WCJ rejected as not credible Claimant s testimony that she sustained a work-related injury to her left knee. The WCJ acknowledged the credible portions of Dr. Sapega s report that indicated a left knee problem, but rejected as not persuasive Dr. Sapega s opinion that the condition was workrelated, because that opinion was based on a medical history provided to him by Claimant, who was found not credible by the WCJ. Claimant appealed to the Board, and the Board affirmed. Claimant now petitions this Court for review. Before this Court,2 Claimant argues that the WCJ erred by refusing to reopen the record to receive Dr. Haas report. Claimant suggests that Dr. Haas report was after-discovered evidence that the WCJ was required to consider. Claimant also contends that the WCJ s ruling was inherently unfair and prejudicial because the WCJ accepted Dr. Sapega s supplemental report after the record was closed on December 9, 2005. Claimant s Brief at 11. 2 Our scope of review is limited to determining whether there has been a violation of constitutional rights, an error of law, or whether necessary facts are supported by substantial evidence. Cipollini v. Workmen s Compensation Appeal Board (Philadelphia Elec. Co.), 647 A.2d 608, 609 n.4 (Pa. Cmwlth. 1994). 4 It is axiomatic that a WCJ s duty is to resolve claims before him in a fair and efficient manner. Sherrill v. Workmen s Compensation Appeal Board (School District of Philadelphia), 624 A.2d 240, 244 (Pa. Cmwlth. 1993). To this end, the Special Rules of Administrative Practice and Procedure (Special Rules) vest considerable discretion in a WCJ to manage and administer the docket. The Special Rules state, pertinently, that the evidentiary record is closed when the parties have submitted all of their evidence and rested or when the [WCJ] has closed the evidentiary record on a party s motion or the judge s own motion. 34 Pa. Code §131.101(c). If the WCJ determines that additional evidence needs to be submitted, he may hold the evidentiary record open. Id. Likewise, [a WCJ] 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 that reasonable notice of the closing of the evidentiary record has been given to all parties. 34 Pa. Code §131.101(e) (emphasis added). A WCJ s reopening of, or failure to reopen, the record will not be reversed absent an abuse of discretion. Sherrill, 624 A.2d at 244 (citing Hammerle v. Workmen s Compensation Appeal Board (Department of Agriculture), 490 A.2d 494 (Pa. Cmwlth. 1985)). We begin with Claimant s contention that the WCJ s acceptance of Dr. Sapega s supplemental report after the record was closed was unfair and prejudicial. This argument rests upon a false premise that the record was closed before Employer submitted the report. While it is true that the WCJ gave Employer 30 days from the November 9, 2005, hearing to either submit additional medical evidence or request an extension, he did not formally close the record on 5 December 9, 2005.3 The record was still open on that date, as it was on January 25, 2006, when the WCJ stated, in writing, to both parties, I will hold the record open until February 13, 2006, for the submission of [Employer s] medical evidence. R.R. 68. Subsequently, the WCJ closed the record on March 17, 2006. The WCJ acted well within his discretion under the Special Rules by keeping the record open during this time period since he anticipated the submission of additional medical evidence by Employer. Claimant herself was also well aware that Dr. Sapega was likely to issue a supplemental report, and she did not object to its submission into the record. Claimant also asserts that the WCJ erred or abused his discretion by not reopening the record to receive Dr. Haas report, which Claimant contends would have rebutted Dr. Sapega s supplemental report. This argument is without merit.4 The WCJ notified the parties, in writing, that the record was formally closed on March 17, 2006, and that the parties had ten days from that date within which to advise the WCJ of additional substantive evidence. Claimant waited nearly three months to offer Dr. Haas report, even though he had been her physician since 2005.5 Claimant made a tactical decision to rely on Dr. Sapega s 3 Notably, Claimant did not even object to Employer s failure to act within the 30 days. 4 We agree with Employer and the Board that this argument is also futile. In denying Claimant s claim petition, the WCJ rejected as not credible Claimant s testimony that she sustained a workrelated injury. WCJ Opinion at 10. Thus, even if Dr. Haas report had been admitted and was favorable to Claimant, it could not have been outcome determinative. 5 Claimant s suggestion that Dr. Haas report was after-discovered evidence is unavailing, as is her reliance on Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988). In Cudo, which involved a fatal claim petition, appellant alleged in a petition for rehearing to the Board that after-discovered medical evidence had become available which would show unequivocally that decedent s death was work-related. The Board granted appellant s petition for rehearing, in the interests of justice and in consideration of the difficult burden on a claimant in a death case. Id. at 557, 539 A.2d at 793. The Supreme Court upheld the Board s decision because it (Footnote continued on the next page . . . ) 6 preliminary report instead of obtaining rebuttal evidence from her own physician. Even so, she had nearly a month from the date she received Dr. Sapega s supplemental report to supplement the record or to advise the WCJ that she would be taking additional medical evidence. Claimant simply failed to comply with the deadlines set by the WCJ. See also Fremont Farms v. Workmen s Compensation Appeal Board (Phillips), 608 A.2d 603 (Pa. Cmwlth. 1992) (employer precluded by closing of record from offering evidence where WCJ warned employer that record would be closed if it failed to meet a deadline). For the foregoing reasons, we affirm the Board s order. ______________________________ MARY HANNAH LEAVITT, Judge Judge Smith-Ribner concurs in the result only. (continued . . . ) comported with the humanitarian purposes of the Act and the relaxed rules of procedure in workers compensation cases. The Court also noted that the Board would have abused its discretion by not granting a rehearing because the medical testimony presented at the first hearing was equivocal, and the circumstances surrounding decedent s death necessitated a full and complete medical inquiry. Cudo is readily distinguishable from the case sub judice. The present case does not involve a claimant facing the difficult burden of a fatal claim petition with equivocal medical testimony on the record. Claimant in this case simply regretted relying upon the preliminary report submitted by Employer s IME physician, and attempted to strengthen a weak case with new medical evidence months after the record was closed. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lori Haluska, Petitioner v. Workers Compensation Appeal Board (Beverly Healthcare), Respondent : : : : : : : : No. 1315 C.D. 2007 ORDER AND NOW, this 24th day of January, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter, dated June 13, 2007, is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge
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