E. Casaldi v. WCAB (Certainteed Corporation) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward Casaldi, Petitioner v. Workers' Compensation Appeal Board (Certainteed Corporation), Respondent BEFORE: : : : : : : : : No. 1932 C.D. 2007 Submitted: January 25, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: April 18, 2008 Edward Casaldi (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board), which reversed the decision of a workers compensation judge (WCJ) granting Claimant s Review Petition and dismissing Certainteed Corporation s (Employer) Termination Petition. We affirm. On June 5, 1989, Claimant sustained a work-related injury in the nature of a cervical strain while in the course and scope of his employment with Employer. Pursuant to a Notice of Compensation Payable (NCP), which described Claimant s injury as a cervical strain, Claimant received benefits in the amount of $399.00 per week. Claimant s indemnity benefits were commuted in either 1991 or 1992.1 1 While Claimant has attached a copy of the commutation to his brief, the commutation is not part of the certified record before us. Claimant testified that his indemnity benefits were (Continued....) On January 31, 2006, Employer filed a Termination Petition alleging that as of October 11, 2005, Claimant had fully recovered from his work injury. Claimant filed an answer denying the allegations. On May 18, 2006, Claimant filed a Review Petition alleging that there was an incorrect description of his injury in the NCP and that the NCP should be expanded to include multiple cervical disc herniations, cervical radiculopathy, depression and anxiety. Employer filed an answer denying the allegations contained therein. The petitions were consolidated for hearing before the WCJ. At the hearing, Claimant testified and presented the deposition testimony of Raymond Joseph, M.D. Employer presented the deposition testimony of Thomas DiBenedetto, M.D. Based upon the testimony and evidence presented, the WCJ granted Claimant s Review Petition, amending the NCP to include multiple cervical disc herniations, cervical radiculopathy, depression and anxiety, and denied Employer s Termination Petition. Employer appealed to the Board, which reversed. The Board determined that Claimant s Review Petition was time-barred and that Employer established that Claimant had fully recovered from the injury identified on the NCP. Claimant then petitioned for review with this Court. Claimant presents the following issues for our review: 1. Whether the Board erred in reversing the WCJ s finding that the Statute of Limitations was tolled regarding the filing of Claimant s Review Petition based upon the principles of equitable estoppel because the evidence of record established that Claimant was lulled into a false sense of security by Employer s actions and omissions. commuted in 1991 or 1992. Reproduced Record (R.R.) at 52a. Under the terms of the commutation, Employer would remain liable for Claimant s medical expenses associated with his work injury. Id. 2. 2. Whether the Board erred by granting Employer s Termination Petition because the recognized injuries set forth in the commutation entered into between the parties is described as chronic cervical strain syndrome and concussion and the Board granted termination based upon the description of injury on the NCP limiting the recognized injury to a cervical strain. First, Claimant contends that the Board s determination that Claimant s Review Petition was barred by the statute of limitations is erroneous because Claimant was lulled into a false sense of security by Employer s actions and omissions and has satisfied the principles of equitable estoppel. We disagree. A commutation of workers' compensation benefits generally settles the obligations of the parties regarding the disability at issue. Indiana Floral Co. v. Workers' Compensation Appeal Board (Brown), 793 A.2d 984 (Pa. Cmwlth. 2002). Thus, a claimant who chooses to commute benefits faces an earlier limitations deadline than a claimant who continues to receive partial disability benefits on a weekly basis. Stock v. Workers Compensation Appeal Board (Food Chek Shopping Bag), 938 A.2d 1187, 1190 n.5 (Pa. Cmwlth. 2007). In the latter case, the timer is reset upon the receipt of each new benefit payment; whereas, in the former situation, the timer begins to count down immediately after payment and is not reset again because there are no more compensation benefits to be paid. Id.; Sena v. Workers' Compensation Appeal Board (Maps, Inc.), 813 A.2d 32 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 573 Pa. 706, 827 A.2d 432 (2003). Pursuant to Section 413(a) of the Workers' Compensation Act (Act),2 a petition to modify, reinstate, suspend, or terminate a notice of 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772. Section 413 provides, in (Continued....) 3. compensation payable must be filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition. In Westinghouse Electric Corporation/CBS v. Workers Compensation Appeal Board (Korach), 584 Pa. 411, 883 A.2d 579 (2005), the claimant sustained a work-related injury in the nature of a back sprain and began receiving benefits pursuant to an NCP. The claimant subsequently commuted his partial disability payments, with the employer remaining liable for payment of medical benefits. The employer paid the claimant s psychiatric bills from 1989 to 1998, but then ceased paying after it discovered that the psychiatric injury was not included in the NCP. The claimant then filed a claim petition alleging that he suffered a psychiatric injury that was precipitated by his 1984 back injury and relevant part: A workers' compensation judge designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its workers' compensation judge, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or upon which it is shown that the status of any dependent has changed: Provided, That ... no notice of compensation payable, agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition. (Emphasis added). 4. seeking payment of related medical bills. The employer asserted that the claim petition was time-barred under the Act. The WCJ granted the claim petition. The Board and this Court affirmed.3 However, our Supreme Court determined that the employer s actions in paying the psychiatric bills did not establish that the employer had a continuing obligation to do so. Westinghouse. It also concluded that the employer could only be estopped from challenging the payments if it was established that the employer committed fraud, concealment or misrepresentation. Id. Merely paying the bills submitted by the claimant did not establish wrongdoing and thus, these payments did not toll the statute of limitations. Id. The Supreme Court explained that equitable estoppel arises in the workers' compensation arena when an employer, by [its] acts, representations, or admissions, or by [its] silence when [it] ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. Id. at 422, 883 A.2d at 586 (quoting In re Estate of Tallarico, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967)). The essential elements of estoppel are an inducement by the party sought to be estopped to the party who asserts the estoppel to believe certain facts to exist-and the party asserting the estoppel acts in reliance on that belief. Id. (quoting Blofsen v. Cutaiar, 460 Pa. 411, 418 333 A.2d 841, 844 (1975) (emphasis in original)). It is well established that in order for the Claimant to avail [himself] of estoppel under the Act, [he] must prove that the [actions] relied on must have 3 The WCJ also awarded attorneys fees, but the Board reversed this portion of the decision. Westinghouse. 5. reasonably lulled [him] into a false sense of security ¦ . Id. at 423, 883 A.2d at 586 (quoting Workmen's Compensation Appeal Board v. Niemann, 356 A.2d 370, 373 (Pa. Cmwlth. 1976)). [I]n the absence of expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with honest purpose and with absence of negligence as with their opposites. Id. (quoting Tallarico, 425 Pa. at 288, 228 A.2d at 741). Where there is no concealment, misrepresentation, or other inequitable conduct by the [employer], a [claimant] may not properly claim that an estoppel arises in his favor from his own omission or mistake. Id. Claimant bears the burden of proving the elements of equitable estoppel. Id. Additionally, the Supreme Court held that the appropriate procedure to amend an NCP to add related injuries is to file a review petition, not a claim petition. Id. Pursuant to Section 413(a) of the Act, the NCP cannot be reviewed, or modified, or reinstated, unless a petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition. Section 306(f.1)(9) of the Act, 77 P.S. §531(9), provides that payment by an employer for medical services after any statute of limitations provided for in this act shall have expired shall not act to reopen or revive the compensation rights for purposes of such limitation. Thereafter, in Budd Baer, Inc. v. Workers Compensation Appeal Board (Butcher), 892 A.2d 64 (Pa. Cmwlth.), petition for allowance of appeal denied, 588 Pa. 784, 906 A.2d 544 (2006), we likewise held that the three-year statute of limitations to file a review petition to amend an NCP was not tolled by the employer's payment of medical bills for treatment of a psychological injury, which was not included in the NCP. We explained: 6. While the result in the instant action appears harsh, this Court has warned claimants that commuting benefits can pose a danger. A claimant who commutes benefits runs the risk of being beyond the statute of limitations when their injury worsens or their disease progresses. Chester Upland School District v. Workers' Compensation Appeal Board (Lee), 820 A.2d 836 (Pa. Cmwlth. 2003). However, the employer runs the risk of a claimant recovering and returning to work after the three-year statute of limitations has run but prior to the end of the commutation period. Chester Upland School District, 820 A.2d at 838. As such, [c]ommutation of benefits is a gamble for both parties and when gambling, sometimes you lose. Id. Budd Baer, 892 A.2d at 67. In this case, Claimant s benefits were commuted in either 1991 or 1992. Claimant did not file a review petition until 2006, nearly fifteen years after he received his last payment of indemnity benefits. Claimant argues that the instant matter is distinguishable from Westinghouse and Baer because the evidence of record establishes equitable estoppel. Although Claimant alleges he was lulled into a false sense of security by Employer s actions and omissions, there is no evidence that Employer committed fraud, concealment or misrepresentation, which would establish grounds for estoppel. Just as in Westinghouse and Baer, Employer s act of paying Claimant s medical bills for injuries not included on the NCP did not establish wrongdoing on the part of Employer in order to toll the statute of limitations. There was no evidence that Employer paid those medical bills, for approximately 15 years, in an attempt to induce Claimant to omit filing a petition to add these other injuries to the NCP and no evidence that Employer attempted to lure Claimant into thinking that his other injuries were included within the sphere of its responsibility under the commutation award. Therefore, 7. we conclude that the Board did not err in its determination that Employer s payments did not toll the running of the statute of limitations. Claimant further contends that the Board erred by granting Employer s Termination Petition because the recognized injuries set forth in the commutation entered into between the parties is described as chronic cervical strain syndrome and concussion and the Board granted termination based upon the description of injury on the NCP limiting the recognized injury to a cervical strain. We disagree. An employer seeking to terminate a claimant's benefits must prove that the claimant's disability has ceased or that any existing injury is not a result of the work-related injury. Jaskiewicz v. Workmen's Compensation Appeal Board (James D. Morrissey, Inc.), 651 A.2d 623 (Pa. Cmwlth. 1994), petition for allowance of appeal denied, 541 Pa. 628, 661 A.2d 875 (1995). An employer may satisfy this burden by presenting unequivocal and competent medical evidence of claimant's full recovery from the work-related injury. Koszowski v. Workmen's Compensation Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697 (Pa. Cmwlth. 1991). Here, the NCP described Claimant s work injury as a cervical strain. R.R. at 1a. According to the parties, the commutation entered into between Claimant and Employer described Claimant s injury as chronic cervical strain syndrome and concussion. 4 While the NCP should have been amended,5 even if we 4 While the commutation has not been made a part of the certified record in this matter, Employer does not dispute that this is the description of the injury contained therein. Employer s Brief, p. 6. 5 We note that Claimant s Review Petition sought to expand the description of the injury in the NCP to include multiple cervical disc herniations, cervical radiculopathy, depression and anxiety, but not concussion or chronic cervical strain. 8. accept the description of the injury as agreed to by the parties in the commutation as controlling, a review of the record reveals that this disability has ceased. Employer s expert, Dr. DiBenedetto, primarily focused on Claimant s cervical strain injury. Dr. DiBenedetto testified that Claimant could resume work without restrictions because he could find no specific diagnosis that would prevent him from working. R.R. at 26a, 33a. Dr. DiBenedetto further testified, based upon his examination of Claimant, review of Claimant s medical records, and the history provided by Claimant, that Claimant needed no further medical treatment. R.R. at 33a. Dr. DiBenedetto testified that he was unable to identify any objective findings that would have supported Claimant s subjective complaints. R.R. at 32a. Dr. DiBenedetto testified that he could not diagnose Claimant with any condition . R.R. at 30a. Dr. DiBenedetto s testimony was not discredited by the WCJ. However, the WCJ specifically credited the testimony of Claimant s expert, Dr. Joseph, that Claimant s problems are related to the 1989 work injury and continue to require medical attention. While Dr. Joseph testified that Claimant s work-related injury had expanded to include cervical disc herniations, cervical radiculopathy, brain stem injury, depression and anxiety, these injuries were not accepted by Employer in the NCP or commutation. Dr. Joseph did not testify that Claimant continues to suffer from a concussion. With regard to the cervical strain, Dr. Joseph testified that if the only injury sustained by Claimant was a cervical strain, Claimant would have been fully recovered from that injury. R.R. at 114a. Based upon our review, we conclude that the Board did not err in granting Employer s Termination Petition. 9. Accordingly, the order of the Board is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge 10. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward Casaldi, Petitioner v. Workers' Compensation Appeal Board (Certainteed Corporation), Respondent : : : : : : : : No. 1932 C.D. 2007 ORDER AND NOW, this 18th day of April, 2008, the order of the Workers' Compensation Appeal Board, at No. A07-0235, dated September 18, 2007, is AFFIRMED. _________________________________ JAMES R. KELLEY, Senior Judge

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