M. Beatty v. WCAB (Walmart) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Megan Krepp Beatty, Petitioner v. Workers Compensation Appeal Board (Walmart), Respondent BEFORE: : : : : : : : : No. 307 C.D. 2008 Submitted: May 16, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: July 10, 2008 Megan Krepp Beatty (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board), affirming the decision of the Workers Compensation Judge (WCJ), which granted the petition to suspend compensation benefits filed on behalf of Walmart (Employer).1 We now affirm. Claimant was employed as a cashier at Employer s store located in Cranberry, Venango County, Pennsylvania. In the course and scope of her employment on February 18, 2004, Claimant suffered an injury to her right great toe when a tenpound dumbbell she was checking out for a customer rolled off the register area and landed on her foot. Pursuant to a notice of compensation payable issued on May 6, 1 At the same time, the WCJ denied a petition filed by Employer seeking to modify Claimant s status from total to partial disability based upon an impairment rating evaluation (IRE). 2004, Claimant received total disability benefits for the injury, described as a right foot contusion. After the injury, Claimant went to the emergency room of a local hospital complaining of extreme pain in her right foot. The physical examination revealed tenderness on the dorsum of the first toe which was diagnosed as a contusion. An x-ray of the foot was interpreted as negative for a fracture. Claimant was given an orthopedic shoe, crutches, a prescription for pain medication and was told to take several days off of work because of the injury. Approximately one month later, on March 20, 2004, as Claimant was still complaining of pain, she saw Richard D. DiBacco, D.P.M. Dr. DiBacco recommended that she have an MRI of her right foot as he believed that she was suffering from capsulitis/tendonitis of the first metatarsophalangeal joint. Claimant also had x-rays, a bone scan, gait analysis, EMG/NCV testing and a diagnostic ultrasound performed. Subsequently, on May 5, 2004, Dr. DiBacco performed arthroscopic surgery on Claimant s first metatarsophalangeal joint on her right great toe. On June 16, 2004, Claimant attended an independent medical examination (IME) performed by Michael W. Bowman, M.D. Following this examination, Dr. Bowman concluded that Claimant could return to her pre-injury position with Employer. Employer filed two separate notices of ability to return to work, the first on July 27, 2004, and the second on August 20, 2004. Employer thereafter filed a petition to terminate benefits. About the same time, Claimant filed a petition to review compensation benefits in which she averred that the description of her work injury should be revised to include complex regional pain syndrome (CRPS) and/or reflex sympathetic dystrophy (RSD) of her right lower extremity. Claimant also filed a claim 2 petition alleging new injuries in the nature of CRPS and/or RSD.2 The WCJ consolidated the multiple petitions and conducted a hearing on October 5, 2004.3 After hearing, the WCJ issued an opinion and order denying Employer s petition to terminate compensation benefits, finding that Claimant had not fully recovered from her work injury nor had she sufficiently recovered so as to be capable of returning to her pre-injury job. The WCJ granted Claimant s review petition and expanded the nature of her injury to include CRPS, RSD, traumatic neuropathy and synovitis. Further, because the WCJ found that Employer had not established a reasonable basis for the filing of its petition to terminate benefits, he awarded attorney s fees of $9,720.00 to Claimant s counsel.4 Claimant thereafter continued to treat with Dr. Colantonio for her CRPS, utilizing pain medications and nerve blocks. Dr. Colantonio then referred Claimant to Todd Pepper, D.O. Dr. Colantonio sought Dr. Pepper s opinion as to the implantation of a spinal cord stimulator to help alleviate Claimant s pain. Following an examination and review of Claimant s medical records, Dr. Pepper agreed that such a device may be beneficial to Claimant and recommended the same on a temporary, trial basis. In the fall of 2005, Employer filed another petition to terminate compensation benefits alleging that Claimant had fully recovered from her work injury 2 Additionally, Claimant sought attorney fees for Employer s allegedly unreasonable contest. 3 At this hearing, Employer submitted the deposition testimony of its IME physician, Dr. Bowman. Claimant testified on her own behalf and also submitted the deposition testimony of Anthony Colantonio, M.D. Dr. Colantonio specializes in pain management and had been treating Claimant since September of 2004. 4 The WCJ noted that Dr. Bowman s report, upon which Employer s termination petition was based, indicated that Claimant was not fully recovered and not capable of returning to her pre-injury job. 3 as of September 29, 2005. Employer also filed a petition for review of utilization review determination.5 The WCJ consolidated the petitions and held hearings on December 13, 2005, and March 21, 2006. At these hearings, Employer submitted the deposition testimony of John Wyatt, M.D, who had performed an IME of Claimant on September 29, 2005, and opined that Claimant had fully recovered from any CRPS or RSD and was capable of returning to work without restrictions. Claimant testified on her own behalf and also submitted the deposition testimony of Dr. Colantonio. Following the hearings, the WCJ issued an opinion and order finding that Claimant had not fully recovered from her work injury. The WCJ also found that the permanent implantation of a spinal cord stimulator was a reasonable and necessary medical treatment for Claimant s CRPS and/or RSD.6 Hence, the WCJ denied both Employer s termination and utilization review petitions. On October 19, 2006, Claimant underwent another IME by Stephen F. Conti, M.D. Based upon Dr. Conti s report, wherein Dr. Conti concluded that Claimant could return to work with certain restrictions,7 Employer sent Claimant an alternative job offer on December 7, 2006, for modified duty work as a cashier at the self check-out register. Dr. Conti specifically approved this position for Claimant. Employer had 5 Claimant filed an answer denying that she had made a full recovery and averring that she still suffered from CRPS. She alleged that she was unable to undergo the treatment prescribed by her treating physician, the implantation of a dorsal spine stimulator, because Employer indicated that it would not pay for such treatment. Claimant had therefore filed a request for a prospective utilization review. The utilization review determined that the stimulator was reasonable and necessary treatment for Claimant s CRPS. 6 The spinal cord stimulator was implanted in Claimant on June 12, 2006. 7 These restrictions included, inter alia, standing and walking a maximum of four hours during an eight-hour day, no more than two hours of continuous standing and the availability of frequent breaks for Claimant to sit down. 4 initially indicated that the deadline for accepting its offer was December 17, 2006. Nevertheless, on December 13, 2006, Employer electronically filed a petition to modify/suspend Claimant s benefits as of December 7, 2006, alleging that Claimant had acted in bad faith by refusing to accept the offered job. Claimant filed an answer denying that the job offer was within the functional limitations imposed by her work-related injury. Specifically, Claimant asserted that the CRPS impaired her ability to drive, stand and walk for extended periods of time. On December 22, 2006, Employer issued a notice of ability to return to work based on the IME performed by Dr. Conti on October 19, 2006. By letter dated December 22, 2006, Employer once again offered Claimant the modified job at the self check-out registers. This letter contained a deadline for acceptance of the job offer of January 3, 2007. Claimant, however, did not accept the offer. On January 19, 2007, Employer filed a second petition for modification requesting a change in Claimant s disability status from total to partial as of January 16, 2007, based upon an IRE of three percent as opined by Jeffrey M. Moldovan, D.O. Claimant filed an answer to this petition alleging that Dr. Moldovan had failed to determine her degree of impairment due to her compensable injuries, particularly her CRPS. The WCJ consolidated Employer s petitions and the case proceeded with hearings. At these hearings, Employer presented the testimony of Donald Stover, store manager at its Cranberry location. Mr. Stover described the job duties associated with the position offered to Claimant, i.e., a cashier at the self check-out registers. Mr. Stover noted that Claimant would be provided with a stool and that she could sit as needed. Employer also presented the deposition testimony of Dr. Conti. Dr. Conti opined that Claimant could return to work with the restrictions noted above. Dr. Conti 5 also opined that Claimant was capable of performing the duties of the offered job on a full-time basis. Employer further presented the deposition testimony of Dr. Moldovan. Dr. Moldovan noted that he was an approved IRE physician since 2004. Dr. Moldovan testified that, following his examination and review of medical records, he determined Claimant s percentage of whole person impairment as three percent under the AMA Guidelines, Fifth Edition. Dr. Moldovan noted that there were no objective criteria permitting him to rate Claimant s CRPS or RSD. Dr. Moldovan explained that despite the findings of the WCJ that Claimant suffered from CRPS and RSD, the AMA Guidelines requires that eight criterion exist in order to rate these conditions and that these criterion were not evident in Claimant s case. Hence, Dr. Moldovan indicated that he simply rated Claimant based upon her pain, which the AMA Guidelines set at a maximum impairment rate of three percent. In opposition to Employer s petitions, Claimant testified on her own behalf, relating a history of her work injury, her subsequent surgeries and her ongoing complaints of pain. Claimant also presented the deposition testimony of Richard Bonfiglio, M.D. Dr. Bonfiglio noted that he routinely treats patients suffering from CRPS or RSD in the lower extremities. Dr. Bonfiglio performed an IME of Claimant on March 8, 2007, at the request of Claimant s own counsel. Following his examination of Claimant and review of medical records, Dr. Bonfiglio diagnosed Claimant as suffering from CRPS, synovitis of the right great toe, right foot traumatic neuropathy and right foot osteopenia. Dr. Bonfiglio opined that Claimant s CRPS alone limited her ability to walk, stand or drive. Dr. Bonfiglio did not believe that Claimant was capable of performing the offered job. 6 As to the IRE performed by Dr. Moldovan, Dr. Bonfiglio testified that it was not appropriate to simply disregard the clinical findings noted in Claimant s medical records. Rather, Dr. Bonfiglio indicated that the AMA Guidelines look for permanent conditions, conditions which are repeated in medical evaluations. Dr. Bonfiglio explained that since Claimant suffered from CRPS, Dr. Moldovan should have used a specific table listing station and gait impairment criteria under the AMA Guidelines. As to the eight criterion necessary to rate CRPS or RSD, Dr. Bonfiglio testified that he found six present during his examination and a review of Claimant s medical records confirms at least an additional two. Ultimately, the WCJ issued a decision and order granting Employer s suspension petition and denying Employer s modification petition relating to the IRE. In rendering his decision, the WCJ accepted the testimony of Mr. Stover and Dr. Conti as credible and convincing regarding the duties of the offered job and Claimant s ability to perform the same. The WCJ rejected the testimony of Claimant and Dr. Bonfiglio in this regard. However, the WCJ accepted the testimony of Dr. Bonfiglio as credible with respect to Employer s second modification petition and the IRE. In fact, the WCJ specifically rejected the testimony of Dr. Moldovan as to the IRE. Based upon this credible testimony, the WCJ found that Employer had offered Claimant suitable alternative duty work as a self check-out cashier, which would have resulted in no loss of earnings. However, the WCJ found that Claimant had failed to respond to this job offer in good faith. While the WCJ noted that the job offer letters and job description did not fully convey Employer s willingness to accommodate Claimant, as of the second hearing on March 20, 2007, the WCJ indicated that there could be no question as to Employer s willingness. Claimant s benefits as of that date. 7 Hence, the WCJ suspended With respect to Employer s modification petition involving the IRE, the WCJ found that Dr. Moldovan had failed to rate Claimant s impairment based upon her accepted work injuries. Further, despite this failure by Dr. Moldovan, the WCJ found that Employer had established a reasonable basis to contest each petition and, hence, Claimant was not entitled to an award of attorney fees. Claimant appealed to the Board, but the Board affirmed the decision and order of the WCJ. Claimant now appeals to this Court. On appeal,8 Claimant argues that the Board erred as a matter of law in affirming the decision of the WCJ, as the WCJ erred in: (1) failing to conclude that Employer did not establish a reasonable contest with respect to its modification petition involving the IRE; (2) concluding that she lacked good faith with respect to the offered job; (3) failing to conclude that Employer did not comply with Section 306(b)(3) of the Pennsylvania Workers Compensation Act (Act)9; and (4) failing to conclude that the testimony of Dr. Conti was equivocal. We disagree with each of these arguments by Claimant. First, Claimant argues that the WCJ/Board erred in failing to conclude that Employer did not establish a reasonable contest with respect to its modification petition involving the IRE. 8 Our scope of review in a workers compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. Further, in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), our Supreme Court held that review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. Wintermyer, 571 Pa. at 203, 812 A.2d at 487. 9 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(3). 8 A reasonable contest exists when medical evidence is conflicting or is susceptible to contrary inferences, and there is no evidence that the employer s contest was frivolous or filed to harass the claimant. Schachter v. Workers Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa. Cmwlth. 2006). The question of whether a contest is reasonable is a question of law fully reviewable by this Court. Id. In the present case, the evidence does not reflect, nor does Claimant allege, that the filing of the modification petition by Employer was frivolous or that it was intended to simply harass her. Employer sent Claimant to Dr. Moldovan for an IRE. The Act provides that the degree of impairment due to the compensable injury shall be determined based upon an evaluation by a physician. See Section 306(a.2)(1) of the Act, added by Act of June 24, 1996, P.L. 350, 77 P.S. §511.2(1). Dr. Moldovan rated Claimant at three percent, only accounting for her complaints of pain. Since the Act requires a rating due to the compensable injury, the WCJ rejected Dr. Moldovan s rate of impairment of Claimant and likewise rejected his testimony in that regard. Instead, the WCJ credited the testimony of Claimant s IME physician, Dr. Bonfiglio, that the actions of Dr. Moldovan in arriving at this impairment rating were improper. Hence, the WCJ was faced with conflicting medical testimony relating to this petition by Employer. Even though the WCJ ultimately agreed with Dr. Bonfiglio, such determination by the WCJ does not render Employer s contest unreasonable.10 Thus, we cannot say that the WCJ or the Board erred in failing to conclude that Employer did not establish a reasonable contest with respect to its modification petition involving the IRE. 10 As the WCJ stated, the testimony of Dr. Moldovan was not so utterly incredible that he could not even establish a reasonable basis for the contest concerning the IRE. (WCJ Decision, Finding of Fact No. 13). 9 Next, Claimant argues that the WCJ/Board erred in concluding that she lacked good faith with respect to the offered job. 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 claimant s disability. Kachinski v. Workmen s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). If the employer produces this evidence, then the claimant must show that he/she acted in good faith in following through on the job referral. Id. If the claimant fails to make such a showing, then his/her benefits can be modified. Id. In the present case, Claimant was offered an alternative duty position of a cashier at the self check-out registers. Pursuant to the job description and the testimony of Mr. Stover, the job duties for this position included watching a monitor while either sitting or standing to ensure that a customer scans all items at the self check-out register and occasionally walking over to assist customers at these registers. Mr. Stover noted in his testimony before the WCJ that a stool was available to Claimant to sit at the monitor. Additionally, Mr. Stover noted that several customer service managers were available to perform a task that Claimant was not comfortable performing and that she could reach one of these managers via a phone at the monitor station. Mr. Stover further noted that Claimant could sit, stand or walk as needed and would have the option to use one of the motorized carts located at the front of the store. Nevertheless, Claimant maintained that she was incapable of performing this position with Employer and she did not attempt the same. However, the WCJ rejected the testimony of Claimant and Dr. Bonfiglio as to her inability to return to work and, specifically, to this offered job. To the contrary, the WCJ accepted the testimony of Mr. Stover and Dr. Conti as credible and convincing. This testimony constitutes 10 substantial evidence in support of the WCJ s finding that Claimant failed to exhibit good faith with respect to the offered job. Thus, we cannot say that the Board erred in affirming the decision of the WCJ in this regard. Next, Claimant argues that the WCJ/Board erred in failing to conclude that Employer did not comply with Section 306(b)(3) of the Act, which requires an employer, upon receipt of medical evidence that Claimant is capable of returning to work in any capacity, to provide prompt written notice to the claimant on a notice of ability to return to work form. Employer contends that Claimant waived this argument by failing to raise the same before the WCJ. See Allied Products and Services v. Workers Compensation Appeal Board (Click), 823 A.2d 284 (Pa. Cmwlth. 2003) (issues not raised before the WCJ are deemed waived). While Claimant raised this issue in its appeal to the Board, it does not appear that Claimant raised and preserved this issue before the WCJ. Hence, this issue is waived. Even if this issue were not waived, we would be inclined to reject Claimant s argument in this regard. Claimant correctly points out that Employer s first job offer letter was dated December 7, 2006, and did not include a notice of ability to return to work. However, after Employer apparently realized its mistake, it sent Claimant a second job offer letter, with an accompanying notice of ability to return to work, both dated December 22, 2006. In other words, Employer complied with the requirements of Section 306(b)(3) of the Act. Thus, we see no error on the part of the WCJ or the Board in this regard. Finally, Claimant argues that the WCJ/Board erred in failing to conclude that the testimony of Dr. Conti was equivocal. 11 In order for medical testimony to constitute competent medical evidence, such testimony must be unequivocal. Moore v. Workers Compensation Appeal Board (American Sintered Technologies, Inc.), 759 A.2d 945 (Pa. Cmwlth. 2000), petition for allowance of appeal denied, 566 Pa. 653, 781 A.2d 150 (2001). Whether medical testimony is equivocal is a question of law, fully reviewable by this court, and is to be determined by reviewing the entire testimony of the medical witness. Id. In the present case, Claimant compares a report of Dr. Conti dated October 19, 2006, wherein he states that Claimant s CRPS has completely resolved, to a subsequent report dated November 15, 2006, as well as his deposition testimony, wherein he concedes that Claimant still suffers from CRPS. (R.R. at 81a). These contradictory statements, Claimant argues, renders his entire testimony equivocal and not sufficient to support a suspension of her benefits. We cannot agree with Claimant. While there can be no doubt as to Dr. Conti s opinion in his October report, he attempted to clarify this opinion in the subsequent November report and in his deposition testimony. Dr. Conti explained that since Claimant s original foot contusion and surgery were accepted as compensable injuries, and the surgery resulted in her development of CRPS, the CRPS must also be considered a compensable injury.11 Nevertheless, as a result of medications and the spinal cord stimulator, Dr. Conti indicated that he found little if any evidence of ongoing [CRPS] ¦. (R.R. at 74a). Moreover, following his physical examination of Claimant and review of her medical records, Dr. Conti opined that Claimant was capable of returning to work, albeit with several restrictions. Dr. Conti specifically testified that Claimant was capable of performing the offered job as a cashier at the self check-out registers. Dr. 11 Indeed, in his earlier decision in this matter, the WCJ specifically found that Claimant s conditions of CRPS and RSD were work related. 12 Conti s opinion in this regard was consistent throughout his reports and his deposition testimony. Based upon our review of Dr. Conti s testimony in its entirety, we cannot say that the WCJ or the Board erred in failing to conclude that said testimony was equivocal. Accordingly, the order of the Board is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Megan Krepp Beatty, Petitioner v. Workers' Compensation Appeal Board (Walmart), Respondent : : : : : : : : No. 307 C.D. 2008 ORDER AND NOW, this 10th day of July, 2008, the order of the Workers Compensation Appeal Board is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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