J. Costella v. WCAB (Allfirst Bank) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Janet Costella, Petitioner v. Workers Compensation Appeal Board (Allfirst Bank), Respondent BEFORE: : : : : No. 337 C.D. 2008 : Submitted: July 3, 2008 : : : HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: July 29, 2008 Janet Costella (Claimant) appeals from an order of the Workers Compensation Appeal Board (Board) affirming the decision of the Workers Compensation Judge (WCJ) denying her reinstatement and claim petitions filed against Allfirst Bank (Employer) because she failed to provide unequivocal, competent and persuasive medical evidence to prove that the surgery she underwent over three years after her work injury was causally related to that work injury. She also appeals the WCJ s decision denying her review petition because she failed to prove that her weekly wages were improperly calculated. For the following reasons, we affirm the Board. Claimant sustained a work-related cervical strain1 on February 2, 1999, while moving files. The injury was accepted by Employer by a Notice of Compensation Payable (NCP). In September 1999, Employer filed a petition for termination/suspension alleging that Claimant returned to work at no loss of earnings on June 30, 1999, and she had a full recovery as of August 2, 1999. Claimant filed a petition to review the NCP alleging that there was an incorrect description of the injury. Based on the medical evidence presented, the WCJ granted Employer s suspension petition, denied its termination petition and granted Claimant s petition to review in part concluding that Claimant had aggravated a pre-existing cervical degenerative disc disease as a result of the work injury, but had not sustained rotator cuff tendinitis with chronic myofascial pain syndrome.2 Subsequently, on June 21, 2002, Claimant underwent a discectomy fusion at C5-6 and C6-7. Approximately nine months later, she filed a claim petition alleging that she suffered disfigurement on her neck as a result of her fusion surgery which was related to her work injury. Claimant later filed a reinstatement petition on June 6, 2003, seeking payment of temporary total indemnity benefits from June 21, 2002, through September 30, 2003, when she 1 The NCP actually stated that Claimant suffered a cerival strain. 2 Although the original record does not include a copy of Claimant s petition to review or the NCP for our review, and we do not know what illness or injury Claimant alleged she suffered from as a result of her work injury causing her to require surgery, we may take judicial notice that it included both cervical degenerative disc disease and rotator cuff tendonitis with chronic myofascial pain syndrome based on the WCJ s decision. 2 was out of work as a result of the surgery.3 Claimant also filed a review petition alleging that her average weekly wage was incorrectly calculated. All of her petitions were consolidated for hearing before a WCJ. Claimant presented the expert medical testimony of Joel Winer, M.D. (Dr. Winer), the neurosurgeon who performed her fusion surgery. He opined that the cause of Claimant s cervical disc disease and the need for her surgery was her work injury of February 2, 1999, but also claimed that a jarring incident greatly exacerbated her previous condition.4 Employer presented the expert testimony of Perry Eagle, M.D. (Dr. Eagle), who concluded that Claimant sustained a cervical strain secondary to the work incident, that contemporaneous medical records and imaging studies did not reveal any evidence to support a disc herniation, and that there was no convincing evidence in the medical records or imaging studies that the surgery was causally related to the work injury. The WCJ denied all of Claimant s petitions, finding: 18. The opinions of Dr. Winer are accepted as competent, but are rejected as equivocal and not persuasive. 3 She also sought payment of partial indemnity benefits for work she missed on August 30, 1999, through September 7, 1999; January 18, 2000; October 12, 2000 (three hours) through October 15, 2000; November 20, 2000 (1/2 day) through November 27, 2000; December 20, 2001 (1/2 day) through December 21, 2001; and May 1, 2002 (four hours) through May 6, 2002. Claimant also filed a penalty petition seeking a penalty for Employer s failure to pay her medical bills. 4 Claimant had testified that on December 18, 2001, she was attempting to cross a street when someone grabbed her to pull her away from oncoming traffic, causing a jarring to her neck which greatly exacerbated her previous symptoms from her work injury. 3 19. The opinions of Dr. Eagle are accepted as competent, unequivocal, and persuasive only in part. Dr. Eagle s opinion that the contemporaneously recorded medical records and imaging studies did not reveal any evidence supportive of a disc herniation is accepted. The remainder of Dr. Eagle s opinions are rejected. The WCJ explained that Claimant s medical evidence was not believable because Dr. Winer s opinion was ever changing and coupled with Claimant s 16-month break in treatment from August 2000 to December 2001, that was further proof that her surgery was not related to the 1999 work injury. Regarding the issue of Claimant s calculation of her average weekly wage, the WCJ stated that Claimant s counsel submitted copies of wage records, i.e., Statement of Wages, but they were virtually illegible. Those that were legible were impossible to break out on a day-to-day basis, and Claimant s counsel only argued that his calculations were right and Employer s were wrong and failed to offer any basis for his claim that his interpretation of the wage data was correct. On appeal to the Board, Claimant argued that the WCJ failed to issue a reasoned decision in denying her petition to review her average weekly wage because payroll records to calculate the average weekly wage were in the record. She also erred in concluding that the reports of Dr. Winer were equivocal. The Board affirmed that the WCJ issued a reasoned decision regarding the average weekly wage based on the payroll records because she noted both that there were wage statements that were illegible and for those that were not, there were not dayto-day breakdowns of the calculations. However, it vacated that portion of the WCJ s decision regarding Dr. Winer s testimony and remanded the matter to the 4 WCJ because the Board concluded that Dr. Winer never equivocated regarding his testimony that Claimant s post-traumatic degenerative disc disease resulted from her work injury and that her surgery was causally related to that injury. The Board stated that his testimony had to be considered as a whole and remanded to the WCJ to make a credibility determination of his testimony with articulation of the actual objective basis for the determination. 5 5 The Board concluded: The WCJ found Dr. Winer s testimony to be equivocal because he opined in his January 21, 2002 letter that the Claimant s December, 2001 jarring incident greatly exacerbated her previous condition. However, this is only partially correct. While Dr. Winer indicated in his January 21, 2002 letter that the December 18, 2001 jarring incident greatly exacerbated the symptoms of the February 2, 1999 injury, he also opined in the same report, just as he had consistently done in his April 1, 2003 and January 9, 2004 letters, that the December 18, 2001 injury was not a new injury. Dr. Winer opined in his August 26, 2002 and March 2, 2004 letters that Claimant s post-traumatic degenerative disc disease resulted from her February 2, 1999 injury and that her June 21, 2002 surgery was causally related to the same work injury (Claimant s Exhibits 6-9, 11). Clearly Dr. Winer never equivocated, and his medical opinion constitutes unequivocal medical testimony that there is a relationship between Claimant s degenerative disc disease and her February 2, 1999 work injury and resulting surgery. His testimony must be considered as a whole and complete medical certainty is not required. Because Dr. Winer s medical testimony is unequivocal, this finding is vacated and remanded for the WCJ to make a credibility determination of his testimony with articulation of the actual objective basis for the determination. [R. 312a-13a]. 5 On remand, the WCJ found that the opinions of Dr. Winer were competent and unequivocal, but rejected them as not persuasive explaining her reasoning as follows: ¢ At the time Dr. Winer initially evaluated Claimant on April 17, 2000, she had been seen by numerous orthopedic surgeons and a physiatrist. In his April 17, 2000 report he claimed that the May 1999 MRI showed significant disc herniation and stated he was going to order a repeat MRI. However, at Claimant s visit on May 4, 2000, Dr. Winer indicated the MRI of April 24, 2000 showed no change from the prior study which only reported degenerative findings. ¢ After her May, 2000 visit, Claimant did not return again to see Dr. Winer until January 21, 2002, at which time she reported an exacerbation of her symptoms after the jarring incident. The WCJ pointed out that if Claimant had a significant disc herniation, one of the other specialists she saw would have recommended surgery, but they did not. Also, the May 2000 MRI showed no change from the 1999 study which only showed degenerative findings. The WCJ believed that if Claimant had a significant disc herniation, she would not have had a three-year break in treatment, and would not have waited until the jarring incident to return to Dr. Winer for treatment. The WCJ also found inconsistencies in Dr. Winer s opinions. Dr. Winer wrote several letters to Claimant and her counsel in which he indicated in one letter that he believed Claimant s injury was the result of her trauma of 6 February 2, 1999;6 in another, it was not a new injury, but an aggravation of her injury from 1999 because there were no radiographic findings and clinical symptomatology;7 and yet, in a third letter, that it was an aggravation to preexisting symptoms with no new symptoms when she was grabbed when crossing the street.8 Dr. Winer also stated in his February 2, 2004 report that there was no true disparity regarding his interpretation of the MRI findings and Dr. Eagle s findings. Because Dr. Winer initially diagnosed a significant disc herniation but later stated that there was only degenerative findings, the WCJ found that his opinions were untenable, internally contradictory and at odds with all of the diagnostic studies that had been performed since the 1999 injury. For this reason, his opinions are rejected as not credible. On appeal, the Board affirmed, and this appeal followed.9 Claimant contends that the WCJ went beyond the scope of the Board s remand order to deny her petitions by finding that Dr. Eagle was credible. Specifically, she argues that the credibility of Dr. Eagle s testimony was not within the parameters of the remand order, and the WCJ is now using Dr. Eagle s testimony to discredit Dr. Winer s testimony. 6 Dr. Winer s August 26, 2002 report. 7 Dr. Winer s letter dated April 1, 2003. 8 Dr. Winer s letter dated January 19, 2004. 9 Our scope of review of the Board s decision is limited to determining whether constitutional rights have been violated, whether an error of law was committed, or whether findings of fact are supported by substantial evidence. Morella v. Workers Compensation Appeal Board (Mayfield Foundry, Inc.), 935 A.2d 598 (Pa. Cmwlth. 2007). 7 When the Board remands a matter to the WCJ, the WCJ must confine the proceedings on remand solely to the issues presented. Clark v. Workers Compensation Appeal Board (Wonder Bread Company), 703 A.2d 740 (Pa. Cmwlth. 1997). Our review of the records indicates that the WCJ did not focus on Dr. Eagle in her decision, did not make a new credibility regarding Dr. Eagle, and did not go beyond the scope of the Board s remand order.10 After going through a thorough recounting of the evidence provided by Dr. Winer, the only time the WCJ mentioned credibility regarding Dr. Eagle was when the WCJ stated: The objective findings on MRI, when coupled with Dr. Eagle s credible opinion that the contemporaneously recorded medical records and studies failed to reveal evidence of a disc herniation, provide ample evidence that Dr. Winer s conclusions were not credible. (WCJ s February 21, 2007 decision at 14.) That does not amount to a credibility determination. Even if it were a credibility determination, it was the same credibility determination the WCJ made previously in her July 15, 2005 decision: that the opinions of Dr. Eagle are accepted as competent, unequivocal and persuasive only in part. Dr. Eagle s opinion that the contemporaneously recorded medical records and imaging studies did not reveal any evidence supportive of a disc herniation is accepted. The remainder of Dr. Eagle s opinions are rejected. Because the WCJ s finding regarding Dr. Winer was not outside the scope of the remand order, Claimant s argument is without merit. 10 In her 16 page decision, the WCJ noted: Strangely, Claimant s counsel focused his attention on Dr. Eagle, when Dr. Eagle s opinions are not under review in this Remand proceeding. (WCJ s February 21, 2007 decision at 8.) 8 Claimant also contends that the Board erred in concluding that she bore the burden of proof on her reinstatement petition to show that her original disability continued and her earning power was once again adversely affected by her disability. She contends that because her benefits were in a suspended status per the WCJ s February 26, 2002 decision, it is presumed that her loss of earnings between June 21, 2002, to October 7, 2002, is due to her injury, and her testimony alone was legally sufficient to meet her burden of proof on the reinstatement petition. Contrary to Claimant s contention, the only presumption that exists is that the original injury was work-related. Ignoring that the accepted injury was a cervical strain and not a disc herniation, to reinstate benefits, Claimant has the burden of proving 1) that the disability which gave rise to the original work claim continues; and 2) that through no fault of her own, her earning power is once again adversely affected by the disability. Pieper v. Workmen s Compensation Appeal Board (Ametek-Thermox), 526 Pa. 25, 584 A.2d 301 (1990). Expert testimony is not required to establish that a prior work-related injury persists because the testimony of the claimant alone, if believed, is sufficient to support a reinstatement of benefits. Latta v. Workmen s Compensation Appeal Board (Latrobe Die Casting Company), 537 Pa. 223, 642 A.2d 1083 (1994). (Emphasis added.) Where the claimant s testimony is insufficient to establish a connection between her work injury and the current disability claim, the claimant may still establish her right to reinstatement of benefits by presenting credible medical evidence to make that connection. Bailey v. Workers Compensation Appeal Board (U.S. Airways), 865 A.2d 319 (Pa. Cmwlth. 2005). 9 In this case, Claimant failed to establish her right to reinstatement of benefits (and, similarly, the right to payment for her scar under her claim petition) because the WCJ accepted Claimant s testimony as competent and credible to the extent it is corroborated by contemporaneously recorded medical records. However, there were no contemporaneously recorded medical records that corroborated Claimant s testimony because the WCJ found Dr. Eagle persuasive stating that Dr. Eagle s opinion that the contemporaneously recorded medical records and imaging studies did not reveal any evidence supportive of a disc herniation is accepted. (WCJ s July 15, 2005 decision at 11.) Consequently, Claimant failed to meet her burden of proof.11 Finally, Claimant argues that the Board erred by not reversing the WCJ s finding that her average weekly wage was $417.32 because the only evidence of record showed that it was $469.63. Claimant argues that Employer s payroll records were entered into evidence on two separate occasions, and neither the WCJ nor Employer s counsel alleged they were illegible. Further, Claimant also submitted some of her own paystubs into evidence for the same pay periods, along with Employer s payroll ledgers, all of which were entirely legible and contained the same wage information. Even if they were not legible, the WCJ 11 Claimant also argues that the WCJ erred in denying her attorneys fees and reimbursement of reasonable litigation costs. Pursuant to Section 440 of the Pennsylvania Workers Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §996(a), only a prevailing claimant is entitled to an award of attorneys fees unless the record supports the conclusion that the employer had a reasonable basis for contesting liability. Because Claimant was not successful on any of her petitions, she is not entitled to attorneys fees and costs of litigation. 10 should have remanded the matter so that legible copies of those records could be obtained. Further, there was nothing more that Claimant could have argued to prove the actual wage data was incorrect other than the paystubs themselves. The numbers spoke for themselves. Even though some of the wage records were illegible, the WCJ found that even those that were legible were not properly presented by Claimant because they are impossible to break out, as they are apparently separated in 13-day intervals, with no day-to-day breakdown. The WCJ also noted that Claimant did not provide any explanation as to how the calculations were made or why they were more accurate than Employer s calculations. Claimant still argues that the numbers speak for themselves, but provides no further reasoning as to how she arrived at her calculations. While Section 309(d) of the Act, 77 P.S. §582, sets forth the guidelines for calculating a claimant s average weekly wage, which are fairly complicated,12 the WCJ found that Claimant s statement of wages was deficient on its face because Claimant s date of injury was February 2, 1999, but she presented with a date of February 1, 1998, which gave her two extra days in the calculation. It would have been impossible for the WCJ to come up with a calculation with information missing and with no explanation from Claimant. For this reason, this argument fails as well. 12 Section 309(d) of the Act provides that the average weekly wage shall be calculated by dividing by 13 the total wages earned in each of the highest three of the last four consecutive periods of 13 calendar weeks in the 52 weeks immediately preceding the injury and by averaging the total amounts earned during the three periods. 11 Accordingly, the order of the Board is affirmed. ____________________________ DAN PELLEGRINI, JUDGE 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Janet Costella, Petitioner v. Workers Compensation Appeal Board (Allfirst Bank), Respondent : : : : No. 337 C.D. 2008 : : : : ORDER AND NOW, this 29th day of July, 2008, the order of the Workers Compensation Appeal Board, dated January 29, 2008, is affirmed. ____________________________ DAN PELLEGRINI, JUDGE

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