Philadelphia Newspaper v. WCAB (Badame) (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philadelphia Newspapers, Inc., : : Petitioner : : v. : : Workers Compensation Appeal Board : (Badame), : : Respondent : BEFORE: No. 2273 C.D. 2007 Submitted: March 20, 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 JUDGE COHN JUBELIRER FILED: July 10, 2008 Philadelphia Newspapers, Inc. (Employer) petitions for review of an order of the Workers Compensation Appeal Board (Board) affirming a WCJ s decision, which: (1) granted Edward Badame s (Claimant) Petition to Review Compensation Benefits (Review Petition) and Petition to Reinstate Compensation Benefits (Reinstatement Petition); (2) granted the Petition to Review Utilization Review Determination (UR Petition) filed by Susan Edwards, LPT (Provider); (3) denied Claimant s Petition for Penalties (Penalty Petition); and (4) denied Employer s Petition to Terminate Compensation Benefits (Termination Petition). For the following reasons, we affirm. Claimant worked for Employer since July 1996 as a commercial truck driver. As part of his duties, Claimant had to pick up bundles of newspaper and load them onto trucks. On June 13, 1999, Claimant suffered a work-related injury (1999 injury) and began receiving total disability benefits pursuant to a Notice of Compensation Payable (NCP), which described Claimant s injury as a tear, and identified the type of injury as a Dip Joint Sprain Right 5th finger and MP Ucl. The NCP further described the affected body part as the right 5th finger. Benefits commenced at the rate of $273.61, based on an average weekly wage of $304.02. By Supplemental Agreement, Claimant s benefits were suspended on June 10, 2001, because Claimant returned to work at no loss of wages. On November 25, 2003, Employer issued a Notice of Temporary Compensation Payable (NTCP) for a November 9, 2003 work injury, which was described as a strained right 5th finger. Based on the NTCP, Claimant began receiving $177.38 in weekly wage loss benefits. On August 16, 2004, Claimant filed a Review/Reinstatement Petition, alleging that the NCP for his 1999 injury was materially incorrect, and should be amended to include an injury to both elbows in the nature of bilateral epicondylitis/cubital tunnel syndrome and right hand trigger finger. Claimant further alleged that the disability caused by the 1999 injury recurred on November 9, 2003 and that his compensation rate for the 1999 injury should be reinstated as of November 9, 2003. Claimant 2 asserted that Employer recognized the occurrence of a new injury on November 9, 2003, rather than reinstating benefits for his 1999 injury, in order to take advantage of his reduced earnings in 2003. On May 26, 2004, Employer requested utilization review of physical therapy administered by Provider to Claimant for the period of April 19, 2004 to April 23, 2004. A utilization review organization determined that physical therapy for that period was reasonable and necessary, but that any additional physical therapy beyond that period of time was not reasonable and necessary. On August 18, 2004, Provider filed a UR Petition seeking review of all physical therapy provided to Claimant for the period of June 7, 2004 onward. The petitions were consolidated before a WCJ. In support of Claimant s position, Claimant testified and submitted the deposition testimony of his medical expert, John S. Taras, M.D., who is a board certified orthopedic surgeon with the added certification in hand surgery. In defending against Claimant s petitions, Employer submitted documentary evidence, as well as the deposition testimony of its medical expert, William H. Kirkpatrick, M.D., who conducted an IME of Claimant. Further, Employer submitted the live testimony of William Rule, Employer s Transportation Manager, as well as the live testimony of Jonah Corbett, Employer s Safety and Workers Compensation Manager. With regard to the UR Petition, Employer submitted the UR report of David Truschel, an occupational therapist who reviewed the therapy being provided to Claimant by Provider from April 19, 2004 onward. 3 The WCJ credited the testimony of Claimant that the 2003 work injury was a recurrence of his 1999 injury and that Claimant still suffers residuals from the 1999 work injury. The WCJ also credited the testimony of Dr. Taras over that of Dr. Kirkpatrick because Dr. Taras s opinions were supported by the clinical findings and diagnostic studies. Further, Dr. Taras was Claimant s treating physician and surgeon and tracked Claimant s condition over time. Thus, the WCJ granted Claimant s Reinstatement Petition. The WCJ also granted Claimant s Review Petition finding that the NCP should be amended to include right cubital tunnel syndrome; inactive left cubital tunnel syndrome, and status post bilateral hand strains. (WCJ Decision, Conclusions of Law (COL) ¶ 5.) Further, the WCJ concluded that Employer did not satisfy its burden of proving that the physical therapy in question was unreasonable and unnecessary. To the contrary, the WCJ found Claimant credible that the physical therapy under utilization review aided his symptoms and, thus, rejected the testimony of Mr. Rule and Mr. Corbett where it conflicted with Claimant s testimony. (WCJ Decision, Findings of Fact (FOF) ¶ 21.) Accordingly, the WCJ granted the UR Petition. Employer appealed to the Board, which affirmed the WCJ s decision. Employer now petitions this Court for review.1 1 This Court s review of the Board s determination is limited by Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, to determining whether constitutional rights have been violated, an error of law committed, or whether there is substantial evidence in the record to support the findings of fact. Werner v. Workmen s Compensation Appeal Board (Bernardi Bros., Inc.), 518 A.2d 892, 894 (Pa. Cmwlth. 1986). Substantial evidence is relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Gibson v. Workers Compensation Appeal Board (Armco Stainless & Alloy Prods.), 580 Pa. 470, 479, 861 A.2d 938, 943 (2004). 4 On appeal, Employer essentially raises the same issues it did before the Board. First, Employer argues that the Board erred in concluding that Employer waived its argument that Claimant s Review Petition was barred by the three-year statute of limitations found in . . . Section 413(a) of the Workers Compensation Act (Act).2 (Board Op. at 5.) The Board relied on this Court s decision in Budd Baer, Inc. v. Workers Compensation Appeal Board (Butcher), 892 A.2d 64 (Pa. Cmwlth. 2006), appeal denied, 588 Pa. 784, 906 A.2d 544 (2006), and the Pennsylvania Supreme Court s decision in Westinghouse Electric Corp./CBS v. Workers Compensation Appeal Board (Korach), 584 Pa. 411, 883 A.2d 579 (2005) (Westinghouse II), in concluding that Section 413(a) requires that a review petition be filed within three years of the most recent payment of compensation to be considered timely. (Board Op. at 6.) The Board concluded that [t]he limitation found in Section 413(a) of the Act is not a statute of repose, capable of being raised for the first time on appeal, but, rather, operates in a way to extinguish a remedy. (Board Op. at 6.) Thus, the Board held that Employer waived the defense in Section 413(a) because it did not raise it in the proceedings before the WCJ. Employer argues that the Board erred in concluding that Employer waived the affirmative defense of the three-year statute of limitations because: during the active litigation of [this] case, the controlling case law was this . . . Court s ruling in [Westinghouse Electric Corp./CBS v. Workers Compensation Appeal Board (Korach), 829 A.2d 387 (Pa. Cmwlth. 2003) (Westinghouse I),] which held that an employer who paid for psychological expenses for a period of time following a commutation, 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. 5 was estopped from denying payments and arguing that the claim for psychological injuries was time barred. (Employer s Br. at 18.) Employer contends that after [it] submitted its legal brief [to the Board] on September 15, 2007, the PA Supreme Court on September 25, 2007 reversed this Court s decision in Westinghouse Electric Corp/CBS v. Workers Compensation Appeal Board (Korach), 584 Pa. 411, 883 A.2d 579 (2007). (Employer s Br. at 18.) For further support, Employer relies on this Court s decision in Budd Baer, claiming that in Budd Baer: [t]he employer was permitted to raise on appeal to the [Board] the legal argument that the Review Petition was time barred by the statute of limitations. The [Board] affirmed the Order of the WCJ, however, based upon the PA Supreme Court ruling in [Westinghouse II], this Commonwealth Court reversed the Order of the Board . . . . [Budd Baer] clearly illustrates how a change in case law occasioned by a Supreme Court ruling affects the cases in active litigation as well as those on appeal. (Employer s Br. at 21.) Thus, Employer submits that based upon the change in case law of Westinghouse II, the decisions of the WCJ and Board should be reversed and, if appropriate, be remanded back to the WCJ to make the requisite findings on the timeliness of Claimant s Review Petition in accordance with the change in controlling case law. (Employer s Br. at 21.) We disagree. Employer s arguments contain misstatements of the facts, as well as the law, and thus, its arguments are without merit. First, Employer argues that the Supreme Court decided Westinghouse II in 2007, after it submitted its brief to the Board. This is inaccurate. The Supreme Court decided Westinghouse II in September 2005, which was seven months before the WCJ issued his decision. Thus, during the 6 litigation of the instant case, Westinghouse II was the established law that governed the timing of the Review Petition. The Westinghouse II Court held that a petition for review of an NCP is governed by the statue of limitations, which provides that such petition must be filed within three years after the date of the most recent payment of compensation. The Court further explained that: when the employer has not accepted an initial work-related injury, a claim petition must be filed within three years of the date of injury. 77 P.S. § 602. That claim petition forms the basis for all injury claims that arise from the work incident, whether there was a material misstatement at the time that an NCP was issued or whether a subsequent emotional or physical condition flows from the original injury. 77 P.S. § 411 . . . . When a claimant sustains additional injuries that result from the original harm, a timely petition must be filed to add the injuries to those for which the employer is already responsible. 77 P.S. §§ 771, 772, 773. When such a petition is filed, the WCJ must treat the respective burdens of the parties as if the review petition were an original claim petition. 77 P.S. § 773. While a certain logic existed within the Commonwealth Court s line of cases . . . because the employer had not accepted liability for problems that are not included in the NCP, the provisions of the Act do not support this interpretation. Moreover, by limiting claimants, who need to add additional injuries, to the three-year period following the date of the compensable injury, the Commonwealth Court has fostered a harsh result that is inconsistent with the humanitarian objectives of the Act. Westinghouse II, 584 Pa. at 432, 883 A.2d at 592 (citations omitted). Thus, as stated by the Westinghouse II Court, in order to amend an NCP because of a material misstatement as of the time the NCP was issued or because of a subsequent injury which flows from the original injury, a timely petition must be filed to add the injuries to those for which the employer is already responsible. 7 77 P.S. §§ 771, 772, 773. Id. In accordance with Section 413(a) of the Act,3 such a petition must be filed within three years after the date of the most recent payment of compensation made prior to the filing of such petition . . . . Id. at 430, 883 A.2d at 591. Employer s allegation that Claimant s action is time-barred is an affirmative defense that can extinguish a remedy. Smith v. Workmen s Compensation Appeal Board (Concept Planners & Designers), 543 Pa. 295, 300, 670 A.2d 1146, 1148 (1996). As such, if not raised at the appropriate time, the statute of limitations defense under Section 413(a) can be waived. Id. In Smith, the employer did not raise the Section 413(a) limitations defense before the WCJ; rather, it waited until the matter reached the Supreme Court to raise the defense. Because the employer did not raise the issue before the fact-finder, the Supreme Court held the employer waived the issue. The Court specifically explained the distinctions between the limitations period set forth in Section 315 of the Act,4 which is a statute of repose, and that set forth in Section 413(a), which is a statute of limitations: While sections 315 and 413(a) contain similar statutes of limitations, each functions in a different context. Section 315 functions where no prior legal action has commenced; however, section 413(a) functions as a means to halt further legal action following prior legal action and the award of a remedy. Since section 413(a) operates to cut off future remedies in a case with a history rather than to halt initiation 3 4 77 P.S. § 772. 77 P.S. § 602. 8 of a new case with no history, it operates in a way that, practically speaking, extinguishes a remedy rather than a right. We therefore hold the defense of section 413(a) is one which, if not raised at the appropriate time, can be waived. Smith, 543 Pa. at 300, 670 A.2d at 1148-49 (emphasis added). The Court further explained the purpose of the waiver rule: [T]he purpose of the waiver rule . . . is to ensure that the tribunal with initial jurisdiction is presented with all cognizable issues so that the integrity, efficiency, and orderly administration of the workmen s compensation scheme of redress for work-related injury is preserved. Such purpose is not served where a party to proceedings that have spanned years can raise an issue late in the appellate process, long after it could have been raised and after much time and resources of the parties and the court have been expended, and where no record, especially the considered reasoning of the [WCJ], has been developed. Id. at 300 n.6, 670 A.2d at 1149 n.6 (citation omitted) (quoting DeMarco v. Jones & Laughlin Steel Corp., 513 Pa. 526, 532, 522 A.2d 26, 29 (1987)). Thus, failure to raise this defense, set forth in Section 413(a) of the Act, before the WCJ results in waiver. Id.5 In the case at bar, the Board was correct that Employer failed to raise this defense during the proceedings before the WCJ; Employer had almost seven full months to do so after the issuance of the Supreme Court s opinion in Westinghouse II and before the WCJ issued his decision granting the Review Petition. Accordingly, 5 But see Cytemp Specialty Steel v. Workers Compensation Appeal Board, 811 A.2d 114, 116 (Pa. Cmwlth. 2002), in which this Court refers to Section 413 of the Act as a statute of repose. 9 the Board properly found that Employer waived the defense of Section 413(a) of the Act, per Smith. Furthermore, Employer s reliance on Budd Baer for the proposition that a claimant may raise the Section 413(a) defense before the Board for the first time is misplaced. In Budd Baer, the issue of whether the review petition was barred by the statute of limitations was raised before the WCJ and addressed by the WCJ in the findings of fact. Budd Baer, 892 A.2d at 65. Thus, when the employer appealed to the Board and raised the issue of whether the claimant s review petition was barred by the statute of limitations, that issue was not waived. Accordingly, we do not agree with Employer s argument. Next, Employer argues that the WCJ failed to provide a reasoned decision pursuant to Section 422(a) of the Act6 because the WCJ did not make any factual findings about Claimant s uncontroverted insurance fraud. Employer contends that Claimant committed insurance fraud when he returned to work with new employers, Montgomery County, the United States Postal Service, and Radnor School District, while he was still collecting benefits from Employer. Further, Employer contends that when Claimant was examined by Dr. Kirkpatrick, he falsely denied experiencing neck symptoms and cervical radiculopathy. Similarly, Employer argues that the WCJ failed to render a reasoned decision because the WCJ did not give valid reasons for rejecting Dr. Kirkpatrick s opinion. 6 77 P.S. § 834. 10 To comply with Section 422(a) of the Act, a WCJ s decision must permit adequate appellate review. Dorsey v. Workers Compensation Appeal Board (Crossing Constr. Co.), 893 A.2d 191, 194 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). Section 422(a) does not require the WCJ to discuss all of the evidence presented. Id. at 194 n.4. The WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision. Id. [T]he purpose of a reasoned decision is to spare the reviewing court from having to imagine why the WCJ believed one witness over another. Id. at 196. In Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003), our Supreme Court noted that in regards to evidence/testimony presented at a hearing, a WCJ s decision does not need to explain inherently subjective credibility decisions according to some formulaic rubric or [be] detailed to the nth degree. Id. at 77, 828 A.2d at 1053 (emphasis added). However, with regard to the deposition testimony of medical experts, where a WCJ does not make personal observations relating to credibility, the Court held that a WCJ must articulate an objective basis for his or her credibility determination by identifying and evaluating certain relevant factors that affect credibility. Id. at 77-78, 828 A.2d at 1053. In other words, a WCJ s resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another. Dorsey, 893 A.2d at 194. However, Section 422(a) does not permit a party to challenge or second-guess the WCJ s reasons for credibility determinations. Dorsey, 893 A.2d at 195. Unless made arbitrarily or capriciously, a WCJ s credibility determinations will be upheld on 11 appeal. Id. Moreover, [a] reasoned decision does not require the WCJ to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision. Acme Mkts., Inc. v. Workers Compensation Appeal Board (Brown), 890 A.2d 21, 26 (Pa. Cmwlth. 2006). Further, the WCJ s authority to determine witness credibility and the weight to be accorded the evidence is not attenuated by the reasoned decision requirement in Section 422(a). Kasper v. Workers Compensation Appeal Board (Perloff Bros., Inc.), 769 A.2d 1243, 1246 (Pa. Cmwlth. 2001). Deciding credibility is the quintessential function of the fact-finder, particularly one who sees and hears the testimony. It is not an exact science, and the ultimate conclusion comprises far more than a tally sheet of its various components. Id. Here, we agree with the Board and find no error in the WCJ s credibility determinations because the WCJ s decision allows for adequate appellate review. The WCJ considered all of the evidence presented and the testimony from all of the witnesses. Even though Claimant admitted to fraudulent and deceptive conduct, the WCJ, nevertheless, accepted Claimant s testimony as credible, which the WCJ attributed to observing Claimant s demeanor at the hearing. Because the law does not require a WCJ to recite, line-by-line, a claimant s testimony, and because the WCJ made appropriate factual findings on all essential issues, we conclude that the WCJ s decision complied with Section 422(a) of the Act. Employer seeks to have the credibility determinations reversed, which this Court is powerless to do in this situation. 12 Similarly, we reject Employer s argument that the WCJ s decision is not reasoned because it failed to give valid reasons for rejecting Dr. Kirkpatrick s testimony. As the Board succinctly and accurately explained, the WCJ specifically credited the testimony of Claimant s expert witness, Dr. Taras, for numerous reasons. The WCJ credited Dr. Taras s testimony because his opinions were supported by objective medical evidence and because Dr. Taras was Claimant s treating physician and surgeon. To the extent that Dr. Kirkpatrick s opinions differed from those of Dr. Taras, the WCJ rejected Dr. Kirkpatrick s testimony. Even though there was evidence to support Dr. Kirkpatrick s opinions that there was no causal relationship between the 1999 injury and the 2003 injury and that Claimant had fully recovered as of the time the IME was conducted, such evidence is irrelevant because there was contrary evidence to support the WCJ s findings. Minicozzi v. Workers' Compensation Appeal Board (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005). Because the WCJ articulated an objective basis for crediting Dr. Taras s deposition testimony over that of Dr. Kirkpatrick s deposition testimony, we find no error in the WCJ s credibility findings. Next, Employer argues that the testimony of Dr. Taras, Claimant s expert witness, was neither competent nor sufficient to support the Review and Reinstatement Petitions. (Employer s Br. at 21.) Employer submits that the Board erred in finding Dr. Taras s testimony competent because Dr. Taras: (1) was unaware that Claimant had previously injured his right hand when it was smashed in a car door; (2) conceded that his causal opinion regarding a repetitive injury was premised upon the mistaken belief that Claimant s repetitive work activity involved a full-time, 40 hour work week; (3) admitted that there was no mention of elbow or left sided 13 complaints upon his initial examination of Claimant; and (4) recanted his testimony stating that any condition that Claimant had previously would have subsided so that the triggering event of Claimant s symptoms for which he was treated was indeed the November 9, 2003 episode. Such recanted testimony precludes the granting of the Reinstatement Petition. (Employer s Br. at 22-24.) Employer contends that the Board erroneously ruled that the flawed testimony of Dr. Taras went to its weight, instead of its competency, and that Dr. Taras s testimony on cross-examination did not destroy the effectiveness of his previous opinions on direct examination. Here, the WCJ specifically found the testimony of Dr. Taras and Claimant more credible than the testimony of Dr. Kirkpatrick. Dr. Taras opined to a reasonable degree of medical certainty that Claimant s 1999 work injury included bilateral strains of the small joint of the right hand and later developed into cubital tunnel syndrome and inactive left cubital tunnel syndrome due to his repetitive, vigorous employment activity involving the lifting of bundles of newspapers, as well as the November 9, 2003 work-related injury. (Taras Dep. at 15-17, 22-23.) Dr. Taras also credibly testified that Claimant is totally disabled from performing his pre-injury job. (Taras Dep. at 19-20, 22.) While it is true that Dr. Taras admitted to not reviewing or being made aware of a January 1999 incident in which Claimant s right hand was smashed inside an automobile door, this fact alone does not render Dr. Taras s testimony and opinions incompetent. [T]he mere fact that an expert does not have certain records before him or her or even all of the medical records on a given claimant in providing an expert opinion does not render the expert testimony incompetent but merely goes to the question of the weight to be accorded to such expert testimony, a question wholly entrusted to the factfinder. 14 Saville v. Workers Compensation Appeal Board (Pathmark Stores, Inc.), 756 A.2d 1214, 1220 (Pa. Cmwlth. 2000) (emphasis added). Here, Dr. Taras credibly testified that he reviewed medical reports of Claimant from numerous physicians who treated Claimant during the period of 1999 through 2004, as well as numerous diagnostic studies and hospital reports. (Taras Dep. at 10-12.) In addition, Dr. Taras did not testify that had he reviewed the medical report from the January 1999 incident, his opinion would have been different. Rather, Dr. Taras stated that having been aware of such information may [have] add[ed] to the picture. (Taras Dep. at 26 (emphasis added).) Thus, Dr. Taras s failure to review this particular piece of medical history does not, as a matter of law, render his opinion incompetent. Additionally, we disagree with Employer that Dr. Taras s opinion is incompetent because he was not aware that Claimant worked part-time for Employer, as opposed to full-time. Medical evidence is considered unequivocal if the medical expert, after providing a foundation, testifies that in his medical opinion, the facts show causation. Haddon Craftsmen, Inc. v. Workers Compensation Appeal Board (Krouchick), 809 A.2d 434, 439 (Pa. Cmwlth. 2002). Moreover, the law is well settled that a medical expert s opinion based upon assumptions contrary to the established facts is worthless and not competent. State Workmen s Insurance Fund v. Workmen s Compensation Appeal Board (Wagner), 677 A.2d 892, 895-96 (Pa. Cmwlth. 1996). In other words, expert medical testimony is incompetent if it lacks an adequate basis in fact. See Sears, Roebuck & Co. v. Workmen s Compensation Appeal Board (Moore), 409 A.2d 486, 490 (Pa. Cmwlth. 1979). In conducting our review, we examine the testimony as a whole and do not take words out of context. Haddon Craftsmen, 809 A.2d at 439. 15 We agree with Employer that Dr. Taras admitted on cross-examination that he was under the impression that Claimant was working a full-time position for Employer in rendering his medical opinion. However, we note that Dr. Taras further clarified his testimony on re-direct examination. Dr. Taras testified that, even if Claimant only worked one or two days per week, Claimant would still have difficulty with repetitive lifting of weights of 25, 30, 35 pounds, 40 ; Claimant would redevelop symptoms in his right elbow; and Claimant could redevelop symptoms in his left elbow. (Taras Dep. at 58.) Thus, we agree with the Board that this testimony was a factor to consider in weighing the testimony of Dr. Taras and did not render his testimony incompetent. When reviewing the testimony of Dr. Taras as a whole, the WCJ chose to credit his testimony, which is within the WCJ s sole province. Hoffmaster v. Workers Compensation Appeal Board (Senco Prods., Inc.), 721 A.2d 1152, 1155-56 (Pa. Cmwlth. 1998). Accordingly, we find no error with this portion of the Board s decision. Additionally, while Claimant did not make complaints about his left elbow at the time he initially was examined by Dr. Taras in November 2003, Dr. Taras credibly testified that Claimant complained of left elbow pain to physicians who treated him prior to Dr. Taras in 2000. (Taras Dep. at 13.) Further, Dr. Taras noted an EMG study dated November 14, 2003, which demonstrated bilateral ulnar neuropathy at the elbows. (Taras Dep. at 17.) Dr. Taras diagnosed Claimant with right cubital tunnel syndrome, inactive left cubital tunnel syndrome, [and] status post bilateral small joint of the hand strains. (Taras Dep. at 22 (emphasis added).) Dr. Taras opined that Claimant s condition was caused by or substantially aggravated by Claimant s two work-related injuries of June 13, 1999 and November 16 9, 2003, and Claimant s repetitive, vigorous lifting of newspaper bundles. (Taras Dep. at 22.) Just because Claimant s left cubital tunnel syndrome was asymptomatic at the time of his initial examination by Dr. Taras does not render the opinion of Dr. Taras incompetent. Furthermore, Employer substantially misinterpreted Dr. Taras s testimony when it stated that Dr. Taras testified that any condition that Claimant had previously would have subsided so that the triggering event of Claimant s symptoms for which he was treated was indeed the November 9, 2003 episode. (Employer s Br. at 24.) Dr. Taras did not state that the triggering event of Claimant s symptoms was the November 9, 2003 incident. Rather, Dr. Taras merely stated that between June 2001 and November 2003, the timeframe in which Claimant was not medically treated for pain in his elbows, I think it s reasonable to conclude that [the elbow symptoms] were not active or not impairing his . . . ability to perform [his job]. (Taras Dep. at 55.) Accordingly, we are not persuaded by Employer s arguments regarding the competency and sufficiency of Dr. Taras s testimony. Next, Employer argues that the WCJ erred in crediting Claimant s testimony that the newspaper bundles he had to lift were 50 pounds when Mr. Corbett and Mr. Rule testified that the newspaper bundles weighed between 17 and 30 pounds. Employer argues that the WCJ should have accepted the testimony of Mr. Corbett because he testified that he actually measured the weight of the newspaper bundles, whereas Claimant only estimated the weight of the bundles. Thus, Employer asserts that Claimant is able to return to medium work. 17 Essentially, Employer is attacking the credibility determinations of the WCJ. As we have previously stated, a fundamental principle in workers compensation law is that it is solely the role of the WCJ to assess credibility and . . . resolve conflicts in the evidence. Hoffmaster, 721 A.2d at 1155-56. The WCJ, alone, determines the weight of the evidence and, as such, may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted. Id. at 1156. [T]he appellate role is not to reweigh the evidence or to review the credibility of the witnesses. Rather . . . the reviewing court must simply determine whether, upon consideration of the evidence as a whole, the [WCJ] s findings have the requisite measure of support in the record. Bethenergy Mines, Inc. v. Workmen s Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992) (citations omitted). At the hearing before the WCJ, Mr. Rule testified that the newspaper bundles weighed between 24 and 30 pounds, that he did not know how many bundles Claimant would lift at one time, and that he never actually weighed the bundles. (WCJ Hr g Tr. at 11, 17-18, April 19, 2005.) Mr. Corbett testified that he personally weighed the newspaper bundles and found them to be between 17.5 and 26 pounds. (WCJ Hr g Tr. at 39, April 19, 2005.) Mr. Corbett also conceded that some drivers lift more than one bundle at one time. (WCJ Hr g Tr. 44-45, April 19, 2005.) However, contrary to the testimony of Mr. Rule and Mr. Corbett, Claimant testified on direct examination that the newspaper bundles weighed between 50-60 pounds and that he would pick up two bundles at one time. (FOF ¶ 1(a); WCJ Hr g Tr. at 10, October 19, 2004.) On cross-examination, Claimant admitted that although he did not personally weigh the bundles, he would not agree that the bundles weighed 18 between 22 and 23 pounds. (WCJ Hr g Tr. at 46, October 19, 2004.) Further, Claimant made clear during cross-examination that he was not exaggerating his statement that the newspaper bundles weighed between 50-60 pounds. (WCJ Hr g Tr. at 45, October 19, 2004.) Based on this evidence, the WCJ specifically found Claimant s testimony credible, which included the statement that the weight of the newspaper bundles ranged between 50-60 pounds, and discredited the testimony of Mr. Rule and Mr. Corbett where it conflicted with that of Claimant s testimony. Because the testimony of Mr. Rule and Mr. Corbett regarding the weight of the bundles was not found credible, it is not legally sufficient to support a finding that Claimant is able to return to work. Thus, this argument fails. Finally, Employer contends that the Board committed reversible error by granting the UR Petition and holding that lay testimony could overcome the uncontroverted medical evidence of Dr. Taras, which showed that further physical therapy would be unreasonable and not necessary. The Board, in affirming the WCJ s decision, cited this Court s decision in Trafalgar House v. Workers Compensation Appeal Board (Green), 784 A.2d 232, 234 (Pa. Cmwlth. 2001), for the proposition that [m]edical treatment may be reasonable and necessary, even if it does not cure the underlying injury, as long as it acts to relieve pain and treats the symptoms. (Board Op. at 18.) The Board noted that Claimant credibly testified that the physical therapy he received helped him by reducing his pain. (Board Op. at 18.) Thus, the Board concluded that Claimant s testimony was substantial, competent evidence to support a finding that the treatment reviewed was palliative in nature. (Board Op. at 18.) 19 In all stages of a utilization review proceeding, the employer, seeking to avoid the payment of medical services, carries the never-shifting burden of proof in demonstrating the treatment in question is unnecessary or unreasonable. Cruz v. Workers Compensation Appeal Board (Philadelphia Club), 728 A.2d 413, 417 (Pa. Cmwlth. 1999); Jackson v. Workers Compensation Appeal Board (Boeing), 825 A.2d 766, 771 (Pa. Cmwlth. 2003). Treatment may still be reasonable and necessary even when it is designed to manage the claimant's symptoms rather than to cure or permanently improve the underlying condition. Jackson, 825 A.2d at 771. Here, we note that contrary to Employer s assertion, Dr. Taras did not testify that further physical therapy would be unreasonable and not necessary. (Taras Dep. at 37.) Rather, Dr. Taras testified that Claimant was plateauing in his recovery or maximum medical improvement. (Taras Dep. at 37.) Further, Claimant credibly testified that he received physical therapy for his elbows, wrists, and fingers and that Claimant felt this therapy helped his symptoms because he got a little relief. (WCJ Hr g Tr. at 37.) Thus, pursuant to Jackson and Trafalgar House, we conclude that the Board did not err in affirming the WCJ s decision to grant the UR Petition. Accordingly, the order of the Board is affirmed. ________________________________ RENÃ E COHN JUBELIRER, Judge 20 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philadelphia Newspapers, Inc., : : Petitioner : : v. : : Workers Compensation Appeal Board : (Badame), : : Respondent : No. 2273 C.D. 2007 ORDER NOW, July 10, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is hereby affirmed. ________________________________ RENÃ E COHN JUBELIRER, Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.