J. Britton v. WCAB (Polish National Union) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Britton, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Polish National Union), : Respondent : BEFORE: No. 1501 C.D. 2007 Submitted: November 9, 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: January 30, 2008 James Britton petitions the Court for review of the order entered by the Workers' Compensation Appeal Board (Board) that reversed the decision of a Workers' Compensation Judge (WCJ) to the extent that he ordered payment of attorney's fees due to the unreasonable contest of Britton's petition to review his medical treatment seeking to expand the description of his work injury. Britton questions whether the Board erred in reversing the WCJ and determining that Polish National Union (Employer) did not engage in an unreasonable contest. The WCJ credited Britton's testimony that he sustained an injury on April 22, 2004 while working for Employer when he stepped in a hole that was filled with water in Employer's parking lot. He underwent surgery on April 27, 2004, and then he was off his feet for three or four weeks. After he started trying to move around again, he developed symptoms in his lower back and upper mid back. At the suggestion of another physician that he see someone about his back, Britton began treating with Charles M. Webb, D.C. about two and one-half months after surgery. At the fourth hearing Britton stated that he was seeing Dr. Webb once or twice per week, that he still has stinging and burning around his tailbone area and that he gets a lot of spasms and stiffness. He was awarded Social Security Disability benefits as of the date of his work injury. On cross-examination, Britton clarified that his symptoms are in his lower back and lower mid back down to the tailbone area and in his hip. Employer issued a notice of compensation payable that described the injury as a left ankle fracture. Britton filed his review petition on December 3, 2004, in which he sought to amend the description of the injury to include reflex sympathetic dystrophy of the left lower extremity, an injury to the neck and upper back and an injury of the lower back. Employer denied allegations of the review petition. Dr. Webb's credited deposition testimony was that he first saw Britton after this injury on July 22, 2004 (he had treated Britton once in April 2000, twice in March 2002 and once in April 2003 for neck pain). His diagnosis after examination was cervical, thoracic, lumbar and sacroiliac strain/sprain and piriformis syndrome of the left hip, which conditions were caused by the fall and complicated by Britton's altered ambulation. He agreed on cross-examination that the cervical strain/sprain had resolved. Employer offered the deposition of Paul S. Lieber, M.D., boardcertified in physical medicine and rehabilitation and in electrodiagnostic medicine. He examined Britton on April 25, 2005, at which time he complained of pain in the left foot to the knee and some minor aching in the low back. He diagnosed complex regional pain syndrome I (the new term for reflex sympathetic dystrophy) of the left foot and ankle, related to the work injury. He did not examine the 2 cervical or upper back regions because Britton had no complaints there. He stated that no findings supported the complaints in the lumbar spine. In the course of the litigation, the parties executed a supplemental agreement dated October 10, 2005 stating that the description of the injury was amended to include complex regional pain syndrome I of the left foot and ankle. In connection with the claim for attorney's fees, Britton's counsel submitted a quantum meruit statement listing forty hours of work at $150 per hour for a total of $6000. The WCJ accepted Dr. Webb's testimony as credible concerning injuries to Britton's neck, upper back and lower back and stated that Dr. Webb's testimony was essentially uncontradicted. Because Dr. Lieber did not examine Britton's neck and upper back, he could not give an opinion regarding those areas. As for the lower back, Dr. Lieber opined that he made no objective findings, but he did not opine that Britton did not sustain a work-related injury to that area. The WCJ credited the opinion that Britton developed back problems due to his altered ambulation from the serious nature of the ankle injury. He found that the injury of April 22, 2004 includes an injury to the neck and upper back and an injury to the lower back, although Britton had recovered from the neck and upper back injury as of the date of Dr. Webb's deposition on September 13, 2005. He ordered that the description of Britton's injury be amended to include injury to the neck and upper back and injury to the lower back, and he awarded attorney's fees of $6000 as Employer did not have a reasonable basis to contest the claim. Employer appealed solely on the award of attorney's fees. The Board noted that under Section 440(a) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §996(a), the award of attorney's fees is the rule in workers' 3 compensation cases, and their exclusion is the exception, to be applied only in cases where an employer's contest is reasonably based, citing Essroc Materials v. Workers' Compensation Appeal Board (Braho), 741 A.2d 820 (Pa. Cmwlth. 1999). In Elite Carpentry Contractors v. Workmen's Compensation Appeal Board (Dempsey), 636 A.2d 250 (Pa. Cmwlth. 1993), the Court held that the reasonableness of the employer's contest depends upon whether it was prompted to resolve a genuinely disputed issue or merely to harass the claimant. The Board noted that whether an employer's contest of a claim is reasonable is a question of law fully reviewable on appeal. Lewistown Hosp. v. Workmen's Compensation Appeal Board (Kuhns), 683 A.2d 702 (Pa. Cmwlth. 1996). Upon review, the Board concluded that the WCJ erred in determining that Employer presented an unreasonable contest. Britton bore the burden of demonstrating that the description of his work injury should be amended. Dr. Lieber found no objective reason for Britton's lower back complaints, and he also stated that Britton did not complain about his neck or upper back during the independent medical examination. Dr. Webb acknowledged that he had treated Britton sporadically for years prior to the work incident for a cervical sprain/strain. That evidence, the Board said, at the very least created a question as to whether Britton actually suffered an injury to his neck and his lower and upper back and showed that the contest was not solely to harass Britton.1 Britton first quotes North Philadelphia Aviation Center v. Workmen's Compensation Appeal Board (Regan), 551 A.2d 609, 613 (Pa. Cmwlth. 1988): "A 1 The Court's review is to determine whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed and whether the necessary findings of fact are supported by substantial evidence in the record. See Helvetia Coal Co. v. Workers' Compensation Appeal Board (Learn), 913 A.2d 326 (Pa. Cmwlth. 2006). 4 reasonable contest is established when medical evidence is conflicting or susceptible to contrary inferences and there is an absence of evidence that an employer's contest was frivolous or filed to harass a claimant." Here, Dr. Webb testified that as a result of the work injury Britton walked with a limp and that this gait caused him to develop pain and stiffness in his upper back and neck and lower back. This testimony was consistent with Britton's testimony and was accepted as credible. Dr. Lieber admitted that he did not examine Britton's upper back or neck, although he acknowledged Britton's antalgic gait, which can cause back problems. Dr. Lieber examined Britton's lower back and stated that there were no objective findings to support his symptoms, but he did not testify that Britton never sustained a work-related back injury, despite the fact that the review petition asserted injury to the neck, upper back and lower back. Based on Dr. Lieber's failure to examine all parts of the body at issue and to render a complete and competent opinion regarding Britton's low back, the contest was unreasonable and the award of attorney's fees was appropriate because Employer failed to present adequate evidence to contradict that of Dr. Webb. The Board's reference to prior treatment of Britton by Dr. Webb for neck problems does not support the contest but rather makes the failure to examine the neck that much more unreasonable. The Board usurped the authority of the WCJ by changing findings and conclusions without a proper basis. Finally, an award of attorney's fees would be appropriate in any event given the contest of the complex regional pain syndrome diagnosis. Employer initially denied that allegation of the review petition and then its own medical expert supported the suggested diagnosis, but it took nearly six months of litigation before Employer acknowledged the diagnosis and agreed to amend the description of the work injury. 5 Employer responds by asserting that Dr. Lieber did render an opinion concerning Britton's neck and upper back by stating that Britton had no complaints in those areas and therefore they were not examined and that no findings supported his lower back complaints. Based upon the independent medical examination, Employer continued to contest the allegation of cervical and back injury. It quotes David B. Torrey and Andrew E. Greenberg, Workers' Compensation Law and Practice §13:40 (2002) (footnotes omitted): The usual test of whether a case was brought to resolve a genuinely disputed issue of fact consists of determining whether the evidence presented, based upon the record as a whole, gave rise to such inferences that the evidence, if believed, would have sustained an award in favor of the employer. Employer asserts that Dr. Lieber's testimony supports its contest of the allegation of injury to Britton's neck, upper and lower back and was sufficient conflicting evidence to dispute a material fact essential to a finding in Britton's favor. Had the WCJ credited Dr. Lieber, he would not have amended the NCP to include cervical and upper and lower back injuries. Therefore, Employer's contest was reasonable. The Court concludes that Britton's position is correct. Another statement of the test for reasonable contest appears in Landis v. Workmen's Compensation Appeal Board, 402 A.2d 723, 724 (Pa. Cmwlth. 1979): "[W]here the evidence lends itself to contrary inferences or where there is conflicting evidence as to material facts, the contest may be adjudged 'reasonable.' " Dr. Lieber testified that he reviewed the records of Dr. Webb from July 26, 2004 until November 3, 2004 and so indicated in the report of his examination. Deposition of Dr. Lieber, p. 26; Reproduced Record (R.R.) 69. Thus Dr. Lieber was aware of Dr. Webb's diagnosis. Dr. Webb testified that his diagnosis as of the 6 time of his initial evaluation of July 22, 2004 was a "left ankle fracture, as well as cervical, thoracic, lumbar and sacroiliac strain sprain, and what's known as piriformis syndrome of the left hip." Deposition of Dr. Webb, p. 19; R.R. 48. The strain and sprain "was affecting, at that point in time, mainly his thoracic region, his lumbar region, and into his sacroiliac region ¦." Id. He stated that the cause of Britton's cervical, thoracic, lumbar and sacroiliac sprain and strain obviously was the fall that he experienced and that it was further complicated by his altered ambulation. Id. at 20; R.R. 48. Dr. Lieber failed to examine Britton's neck and upper back despite the express allegations of Britton's review petition regarding injury to his neck and upper back and to the lower back. Moreover, the doctor's statement of no objective findings to support Britton's lower back complaints did not constitute evidence that there was no low-back injury, and he did not offer such an opinion.2 The burden of proving a reasonable contest is on the employer. Elite Carpentry Contractors. In this case, Employer failed to present evidence to create a factual dispute regarding Britton's neck and back injuries. Therefore, the contest was unreasonable, Landis, and the Board's decision reversing the award of fees must be reversed. DORIS A. SMITH-RIBNER, Judge 2 Dr. Lieber admitted that pain may be present without any objective manifestations of abnormality. Dr. Lieber's Deposition, pp. 25 - 26; R.R. 68 - 69. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Britton, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Polish National Union), : Respondent : No. 1501 C.D. 2007 ORDER AND NOW, this 30th day of January, 2008, the order of the Workers' Compensation Appeal Board is reversed, and the decision of the Workers' Compensation Judge is reinstated. DORIS A. SMITH-RIBNER, Judge
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