SEPTA v. WCAB (Klahr) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA SEPTA, : Petitioner : : v. : : Workers Compensation Appeal Board : (Klahr), : Respondent : BEFORE: No. 1420 C.D. 2007 Submitted: January 18, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: March 20, 2008 SEPTA (Employer) petitions for review from an order of the Workers Compensation Appeal Board (Board) that affirmed the decision of a Workers Compensation Judge (WCJ) denying its Review, Termination, and Modification/Suspension Petitions. We affirm. William Klahr (Claimant) sustained an injury in the course and scope of his employment on April 11, 2003 while moving large bus batteries. He received benefits pursuant to a Notice of Compensation Payable (NCP) issued May 5, 2003 that described his injury as a lower back disc disorder. On August 5, 2004, Employer filed a Modification/Suspension Petition alleging that as of June 13, 2004, it offered Claimant a specific job, a vehicle readiness coordinator position, that he was physically capable of performing and that he failed to pursue in good faith. On that same date, Employer filed a Termination Petition alleging that Claimant was fully recovered from his work-related injury of April 11, 2003 as of July 14, 2004. On November 1, 2004, Employer filed a Review Petition seeking to modify the 2003 NCP to reflect that the work injury of April 11, 2003 was not a new injury, but rather a recurrence of an August 9, 1993 work injury. Employer further sought to change the description of the work injury in the more recent NCP from disc disorder to lower back strain/sprain. Employer presented the testimony of Lawrence S. Axelrod, M.D., board certified in family practice, who first saw Claimant on April 11, 2003. Claimant informed Dr. Axelrod of the incident that happened on that day and discussed his prior back problems. Dr. Axelrod explained that Claimant had long standing chronic intermittent back problems with pre-existing herniated discs and spondylolisthesis. Nonetheless, he believed Claimant sustained a new injury on April 11, 2003. He opined that as a result of the incident in question, Claimant possibly aggravated his pre-existing condition and developed a left-sided radiculopathy. He agreed that Claimant most likely sustained a soft tissue injury, i.e. a lumbar strain and sprain, as well. Dr. Axelrod noted Claimant s radiculopathy abated and as of June 2, 2003, it was non-existent. According to Dr. Axelrod, Claimant has reached maximum medical improvement for his chronic underlying condition. He believed Claimant could return to work at the vehicle readiness coordinator position. Employer further presented the testimony of Anthony W. Salem, M.D., board certified orthopedic surgeon, who examined Claimant on July 14, 2004. Dr. Salem did not believe Claimant sustained any new injury on April 11, 2003. He conceded Claimant may have strained his lumbosacral spine, but noted that Claimant s numerous MRIs showed no changes. According to Dr. Salem, if 2 Claimant sustained a lumbar strain as a result of lifting the batteries, he was fully recovered from this injury by the date he saw him. Dr. Salem noted that Claimant s underlying degenerative condition and spondylolisthesis were not worsened in any way on April 13, 2003. Moreover, he would not relate the findings at disc levels L4-5 or L5-S1 to Claimant s employment. Claimant testified that he was working as a preventive maintenance mechanic for Employer on April 11, 2003. Claimant stated that on that date, he injured his lower back and pain radiated down into his legs. Claimant acknowledged that he had previously injured his back in August of 1993. He further agreed that he had the same pain, in the same parts of his body, after the 2003 injury as he had at the time of his 1993 work injury. Claimant explained that he also injured his back in April of 2000. He testified that the herniated discs in his low back at L4-5 and L5-S1 existed before his April 11, 2003 injury. Claimant presented the testimony of Evelyn Witkin, M.D., boardcertified in orthopedic surgery, who first examined him on June 3, 2004. Claimant s complaints at that time were of low back pain and right leg pain. Dr. Witkin s initial diagnosis was a herniation at L5-S1 with spondylolisthesis grade one and another disc protrusion at L4-5 with degenerative disease. Dr. Witkin acknowledged that Claimant had a work injury in 1993 that resulted mainly in low back pain. She believed, however, that Claimant sustained a new injury on April 11, 2003. Dr. Witkin recommended surgery that Claimant ultimately underwent in February 2005. She acknowledged that the herniated discs at levels L4-5 and L5S1 as well as the spondylolisthesis pre-dated Claimant's April 11, 2003 work injury. Dr. Witkin testified, however, that Claimant s prior back problems were in remission prior to April 11, 2003 but that following the incident on that date he 3 developed severe pain in his leg that necessitated surgery. According to Dr. Witkin, the surgery addressed his pre-injury problems in addition to his back pain and leg pain. Dr. Witkin did not believe Claimant was fully recovered from his April 11, 2003 work injury. On May 31, 2006, the WCJ issued a decision denying Employer s Petitions. He concluded that Employer failed to meet its burden of proof to establish that Claimant was fully recovered from his April 11, 2003 work injury or that Claimant was physically capable of performing the vehicle readiness coordinator position. The WCJ further found that Employer failed to establish that Claimant s 2003 work injury was not a new injury, but rather a recurrence of a previous injury. He concluded that Employer did not establish that the injury description contained in the NCP should be changed from disc disorder to lower back strain/sprain. The Board affirmed in an Order dated June 28, 2007. This appeal followed.1 Employer argues on appeal that the WCJ erred in denying its Review Petition and in failing to change Claimant s injury description in the NCP from disc disorder to lower back sprain and strain. 2 Employer contends that this is 1 Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. DeGraw v. Workers Compensation Appeal Board (Redner's Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). On appeal, the prevailing party below is entitled to all inferences that can be reasonably drawn from the evidence. Krumins Roofing & Siding Co. v. Workmen s Compensation Appeal Board (Libby), 575 A.2d 656 (Pa. Cmwlth. 1990). 2 The courts have struggled with the issue of the extent of an employer s rights to modify/set aside an NCP issued following a claimant s work-related injury. See Barna v. Workers Compensation Appeal Board (Jones & Laughlin Steel Corp.), 513 Pa. 518, 522 A.2d 22 (1987)(holding that when an employer promptly begins payment of compensation prior to commencement or completion of an investigation into the cause of the claimant s injuries and (Footnote continued on next page ¦) 4 inconsistent with the WCJ s acknowledgement that Claimant s disc problems preexisted the work-related injury. Moreover, Employer asserts the WCJ erred in failing to recognize that Claimant s 2003 injury was really a recurrence of his 1993 work injury. Employer contends that had the WCJ granted its Review Petition, he would have been compelled to recognize that Claimant s disc surgery of 2005 was unrelated to his 2003 work injury. Moreover he would have no other choice but to credit the opinions of Drs. Axelrod and Salem with respect to Claimant s recovery from his 2003 work injury. Alternatively, Employer asserts the WCJ would have found Claimant was physically capable of returning to work. Section 413(a) of the Pennsylvania Workers Compensation Act (Act), 77 P.S. §771, provides, in pertinent part: (continued ¦) later determines that the claimant s disability was never work-related, an employer may seek to set aside the NCP in the absence of evidence of repeated contests of the cause of disability,); Beissel v. Workmen s Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983)(holding that if, after having full opportunity to investigate a claim, an employer recognizes a specific injury in an NCP, it may not assert at a later date that the claimant s injury was not causally related to his employment because liability has already been admitted); Mahon v. Workers Compensation Appeal Board (Expert Window Cleaning), 835 A.2d 420 (Pa. Cmwlth. 2003)(holding that an employer may set aside an NCP admitting liability for injuries if it acts promptly after receiving information that the claimant s injuries were actually the result of voluntary intoxication); County of Schuylkill v. Workmen s Compensation Appeal Board (Lawlor), 617 A.2d 46 (Pa. Cmwlth. 1992)(holding that notwithstanding the fact that an insurer did not obtain a claimant s medical records, it had completed its investigation of the alleged injury upon issuing an NCP, and could not later deny liability for a myocardial infarction). Therefore, we are troubled with the fact that Employer seeks to disavow any liability for a disc disorder that it acknowledged in an NCP a year and a half prior to the filing of its Review Petition. This is particularly true when Employer presumably had full opportunity to investigate Claimant s injury. Nonetheless, it does not appear that Claimant, who did not file a brief with this Court, raised similar concerns before the WCJ. Thus we will not concern ourselves with the issue of whether Employer should be precluded from seeking to set aside or modify the NCP any further. 5 A workers compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect. The burden rests on the party seeking modification of an NCP to prove that a material mistake of law or fact was made at the time it was issued. Waugh v. Workers Compensation Appeal Board (Blue Grass Steel), 558 Pa. 400, 737 A.2d 733 (1999). In workers compensation matters, an aggravation of a preexisting condition is considered an injury under the Act. City of Phila. v. Workers Compensation Appeal Board (Williams), 578 Pa. 207, 851 A.2d 838 (2004). If a compensable disability results directly from a prior injury but manifests itself on the occasion of an intervening incident that does not materially contribute to the physical disability, then the claimant has suffered a recurrence. South Abington Twp. v. Workers Compensation Appeal Board (Becker), 831 A.2d 175 (Pa. Cmwlth. 2003). Conversely, where the intervening incident does materially contribute to the renewed physical disability, a new injury or aggravation has occurred. Id. at 181. Upon review, we do not believe the WCJ erred in denying Employer s Review Petition and in declining to change Claimant s injury description from lower back disc disorder to lower back strain/sprain. Section 413(a) of the Act indicates that an NCP can be modified when it is materially incorrect. Pursuant to Waugh, because Employer alleged the injury description was incorrect, it had the burden to establish that fact. Dr. Salem, who testified on Employer s behalf, 6 opined that if Claimant sustained any injury on April 11, 2003, such injury was limited to a lumbar strain. Dr. Axelrod agreed that Claimant most likely sustained a lumbar strain upon injuring himself on the date in question and added that Claimant possibly aggravated his pre-existing condition and developed a left-sided radiculopathy. Drawing all reasonable inferences from Claimant s medical expert testimony as we are required to do in light of the fact that Claimant prevailed below, Libby, Claimant s medical expert did not believe Claimant s 2003 work injury was limited to a lumbar strain and sprain, but rather was an aggravation of his pre-existing back problems including spondylolisthesis and herniated discs. Dr. Witkin added that the battery incident caused Claimant s right leg pain. The WCJ rejected the testimony of Drs. Salem and Axelrod to the extent it conflicted with the testimony of Dr. Witkin.3 The WCJ noted, however, that the testimony of Dr. Axelrod was consistent with the opinion of Dr. Witkin to the extent they both believed Claimant sustained a new injury on April 11, 2003. Because Employer s medical expert testimony was rejected where inconsistent with that of Dr. Witkin, it could not meet its burden of proof to modify the injury description contained in the NCP.4 This is true regardless of whether the WCJ acknowledged Claimant had pre-existing back problems. 3 The WCJ is the final arbiter of witness credibility and the weight to be accorded evidence and may accept or reject the testimony of any witness in whole or in part. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). 4 Employer argues that the WCJ failed to make any determination as to the nature of Claimant s 2003 injury rendering all of his findings fatally flawed. We reject Employer s argument. The WCJ was not required to make any findings as to the exact nature of Claimant s injury. The nature of Claimant work-related injur(ies) was defined in the May 5, 2003 NCP that acknowledged a lower back disc disorder. This may be a poorly drafted injury description and (Footnote continued on next page ¦) 7 We further reject Employer s argument that the WCJ failed to find that Claimant did not sustain a new injury in 2003, but rather a recurrence of his 1993 injury. As explained above, Dr. Witkin, whom the WCJ credited over Employer s medical experts, testified that Claimant sustained a new or additional injury following the incident at work when he was moving large batteries. Furthermore, Dr. Witkin indicated that although she was aware of Claimant s preexisting back problems, she believed he was in remission prior to April 11, 2003. As a result of the incident in question, Dr. Witkin opined Claimant s condition deteriorated, he developed severe pain in his leg, and surgery became necessary. As indicated in Becker, a new injury or aggravation occurs when an incident materially contributes to a renewed physical disability. The credible evidence of record supports a finding that a new injury did occur. Therefore, the WCJ did not err in finding that Employer did not prove that Claimant sustained a recurrence of his 1993 injury as a result of the incident in question as opposed to a new injury. We also reject Employer s contention that the WCJ erred in denying its Termination Petition. As explained above, in making this argument, Employer presumes Claimant s injury is limited to a lower back sprain and strain. Claimant s work injury, however, was not so limited. We note that in a termination proceeding, the burden of proof is on the employer to establish that the claimant s (continued ¦) may be interpreted to mean many things. Pointedly, it can be read to include an aggravation of pre-existing herniated discs at L4-5 and L5-S1 and spondylolisthesis as testified to by Dr. Witkin. The onus to further clarify or modify the nature of Claimant s injury was on Employer, not the WCJ. Employer failed to present credible evidence sufficient to modify Claimant s injury description and therefore the document in its original form remains static. 8 work-related injury has ceased. Udvari v. Workmen s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). The employer meets this burden when its medical expert(s) unequivocally testify, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Id. at 327, 705 A.2d at 1293. Dr. Witkin credibly opined that Claimant was not fully recovered from his April 11, 2003 injury and that he is incapable of working. The WCJ rejected Employer s medical experts to the extent that their testimony was inconsistent with that of Dr. Witkin. Consequently, Employer was unable to satisfy its burden of proof and the WCJ did not err in denying its Termination Petition.5 After a review of the record, we conclude that the Board did not err in affirming the WCJ s Order as all findings are supported by substantial evidence. Accordingly, the Decision of the Board is affirmed. ___________________________ JIM FLAHERTY, Senior Judge 5 We further reject Employer s alternative assertion that the WCJ erred in denying its Modification/Suspension Petition. In general, when an employer seeks to modify or suspend a claimant s benefits, it must produce evidence of a referral to an available job that is within the limitations of the claimant s disability. Kachinski v. Workmen s Compensation Appeal Board (Vepco Constr. Co.), 516 Pa. 240, 532 A.2d 374 (1987). We reiterate that the WCJ credited Dr. Witkin s testimony that the Claimant was incapable of working. Consequently, the WCJ did not err in denying this Petition. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA SEPTA, : Petitioner : : v. : : Workers Compensation Appeal Board : (Klahr), : Respondent : No. 1420 C.D. 2007 ORDER AND NOW, March 20, 2008, the Order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge

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