F. Kopy v. WCAB (St. Luke's Hospital) - 436 & (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frances Kopy, : Petitioner : : v. : : Workers' Compensation Appeal Board : (St. Luke's Hospital), : Respondent : : Petitioner : : v. : : Workers' Compensation Appeal Board : (Kopy), : Respondent : No. 436 C.D. 2007 St. Luke's Hospital, BEFORE: No. 511 C.D. 2007 Submitted: January 18, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: April 14, 2008 Claimant petitions for review of the Workers' Compensation Appeal Board's (Board) February 20, 2007 order that affirmed the remand decision of the Workers' Compensation Judge (WCJ) awarding Claimant disability benefits for a closed period and then terminating her benefits. St. Luke's Hospital (Employer) seeks review of a separate order issued by the Board on February 20, 2007 that affirmed the WCJ's decision to reinstate Claimant's terminated benefits due to a recurrence of her work injury and that modified the WCJ's award of disfigurement benefits from thirty-five weeks to forty-five weeks. In these consolidated appeals, Claimant argues that the termination of her benefits is contrary to the evidence accepted by the WCJ and that the WCJ erred in limiting the description of Claimant's work injury to a herniated disc at C5-6. Employer argues that Claimant waived her argument regarding her work injury description and that the Board's disfigurement award is outside of the range that other WCJs would award. Claimant filed a claim petition on May 7, 2003, alleging that while employed as Employer's registered nurse she sustained a work injury on October 9, 2001, when patient's legs that she was transferring gave out. Claimant testified that she felt pain at that time but continued to work, that she developed right elbow stiffness on October 13 and neck stiffness between October 22 and 26, that she told the nurse manager about the work incident on October 29 and sought medical treatment from her family physician and that she worked with a five-pound lifting restriction until November 20, 2001. Claimant's medical witness, Eric Zager, M.D., a board-certified neurosurgeon, first examined Claimant on July 3, 2002. Claimant's complaints at that time included neck pain, right upper extremity discomfort and tingling and numbness in all extremities. Dr. Zager's review of Claimant's cervical MRI revealed degenerative changes with a herniated disc at C5-6, a smaller disc protrusion at C6-7 with some degree of cord compression and hydromyelia. He explained that hydromyelia is a fluid cavity or cyst within a spinal cord and is also called cervical syrinx. On August 6, 2002, Dr. Zager performed cervical surgery and fusion at C5-6. He opined that Claimant's neck pain and right upper extremity symptoms were attributable to the herniated disc at C5-6; that symptoms improved significantly after the surgery; that her ongoing symptoms were related to her 2 herniated disc at C6-7, which he was unable to relate to the October 2001 work incident; that Claimant did not need further medical treatment and could return to work without restrictions as far as her work-related herniated disc at C5-6 was concerned; and that she recovered fully from any work-related low back injury. Employer presented the deposition testimony of Thomas DiBenedetto, M.D., a board-certified orthopedic surgeon, who examined Claimant on August 22, 2003. Dr. DiBenedetto testified that Claimant worked for six weeks after the October 9, 2003 work incident and did not seek treatment until October 30, when he would expect her to develop symptoms within a day if they were related to the work injury. He opined that Claimant's herniated discs were not work-related and that she recovered fully from any work-related low back injury. In a decision circulated July 30, 2004, the WCJ accepted testimony of Claimant and Dr. Zager as credible and rejected Dr. DiBenedetto's testimony. The WCJ found that Claimant sustained a work-related herniated disc at C5-6; that her herniated disc at C6-7 and cervical syrinx were not work-related; and that as of Dr. Zager's last examination on June 4, 2003 Claimant had recovered fully from the herniated disc at C5-6 and from any work-related low back injury and was capable of returning to work without restrictions. The WCJ granted the claim petition and ordered Employer to pay disability benefits from November 20, 2001 to June 3, 2003 and terminated her benefits as of June 4, 2003. The Board affirmed the award of benefits for Claimant's herniated disc at C5-6 beginning November 20, 2001 and the WCJ's determination that Claimant's herniated disc at C6-7 was not work-related. As to Claimant's cervical syrinx, the Board concluded that the WCJ made inconsistent findings. It pointed out the WCJ's finding that Claimant failed to present any medical evidence linking 3 her cervical syrinx to her work injury, when Dr. Zager's testimony as a whole clearly included the cervical syrinx as part of his diagnosis of her work injury. It remanded directing the WCJ to make new findings of fact and conclusions of law to determine whether Claimant's work injury included the cervical syrinx and, if so, to consider whether medical evidence of record still warranted a termination. The WCJ was permitted to make new credibility determinations on remand. In her April 28, 2006 remand decision, the WCJ noted Dr. Zager's testimony that it was impossible to determine whether Claimant's cervical syrinx was caused by trauma or by other possibilities and that he was unsure of its etiology. The WCJ rejected Dr. Zager's testimony as equivocal to the extent that it could be construed as identifying the cervical syrinx as work-related. The WCJ accepted as credible Dr. DiBenedetto's testimony that Claimant's cervical syrinx was a congenital development and unrelated to her work activities. Concluding that Claimant failed to prove that her cervical syrinx was work-related, the WCJ again awarded disability benefits from November 20, 2001 to June 3, 2003 and terminated benefits as of June 4, 2003. On February 20, 2007, the Board affirmed the WCJ's remand decision, rejecting Claimant's argument that the WCJ exceeded the scope of the remand order by making different credibility determinations. On October 12, 2004, while her appeal from the WCJ's July 30, 2004 initial decision was pending before the Board, Claimant filed a petition to reinstate her benefits alleging that her condition had worsened. On March 12, 2005, Claimant also filed a petition to review her compensation benefits, alleging that the description of her work injury should include a scar from the August 2002 cervical surgery. A claim petition filed by Claimant for her herniated disc at C6-7 was withdrawn. 4 Claimant testified that she developed a chronic pain syndrome in her arms after June 3, 2003, was forced to discontinue keyboarding activities at a church in November 2003 and could not return to her pre-injury job. Larry H. Chou, M.D., board-certified in physical medicine, rehabilitation and pain management, and Dr. Burke provided Claimant's postoperative care. Dr. Burke's December 2003 examination showed diminished sensation at C5-6 dermatomes. Dr. Chou testified that a February 2003 EMG of Claimant's upper extremities yielded a normal result while a May 2004 EMG revealed bilateral chronic radiculopathy at C5-6, worse on the left. Dr. Chou opined that the differences indicated a worsening condition at C5-6 and that Claimant had not recovered fully from the disc abnormality and was incapable of returning to her pre-injury job. Employer presented the deposition testimony of Paul M. Shipkin, M.D., a board-certified neurologist, who examined Claimant on July 11, 2005 and diagnosed her with a severe cervical spondylotic disease, disc herniations at C5-6 and C6-7 and cervical syrinx. He opined that Claimant's complaints were consistent with the significant herniated disc disease in her neck, that she had progressive decompensation of her long-standing cervical spondylotic disease and that her conditions could not be related to the October 2001 work injury. In her August 31, 2006 decision, the WCJ accepted testimony from Claimant and Dr. Chou and rejected Dr. Shipkin's testimony. Concluding that Claimant established a recurrence of her work-related herniated disc at C5-6 with associated radiculopathy, the WCJ reinstated her benefits as of May 3, 2004. The WCJ viewed Claimant's scar on the front of her neck and found that it was unsightly and disfiguring and resulted from the August 2002 cervical surgery. The WCJ awarded Claimant thirty-five weeks of disfigurement benefits. 5 In its February 20, 2007 decision, the Board rejected Employer's argument that Dr. Chou failed to accept the WCJ's previous finding of Claimant's full recovery from the work injury as of June 4, 2003 and that Dr. Chou's testimony was insufficient to reinstate Claimant's benefits. It concluded that the testimony of Claimant and Dr. Chou established a recurrence of her work-related disability. Based on its own view of Claimant's scar, the Board determined that the WCJ's disfigurement award for thirty-five weeks was outside the range of forty-five to sixty weeks that most WCJs would select. The Board accordingly modified the WCJ's disfigurement award to forty-five weeks and otherwise affirmed the WCJ.1 In her appeal from the Board's order affirming the WCJ's April 2006 remand decision, Claimant argues that the WCJ's termination of her benefits as of June 4, 2003 is contrary to Dr. Zager's testimony that the WCJ accepted. Claimant argues that Dr. Zager never testified that she fully recovered from the herniated disc at C5-6 and that his testimony that her symptoms related to the herniated disc at C5-6 improved after the August 2002 cervical surgery is not tantamount to her full recovery from that condition. Employer argues that Dr. Zager's testimony, as a whole, supports the termination. 1 The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a Board practice or procedure was not followed or the findings of fact are not supported by substantial evidence in the record. Clear Channel Broadcasting v. Workers' Compensation Appeal Board (Perry), 938 A.2d 1150 (Pa. Cmwlth. 2007). Credibility determinations and evaluation of the weight of evidence are within the province of the WCJ, and the WCJ may accept or reject the testimony of any witness, including medical testimony, in whole or in part. Canavan v. Workers' Compensation Appeal Board (B & D Mining Co.), 769 A.2d 1250 (Pa. Cmwlth. 2001). In reviewing the WCJ's decision, the Court must view the evidence in a light most favorable to the party who prevailed before the WCJ. Shop Vac Corp. v. Workers' Compensation Appeal Board (Thomas), 929 A.2d 1236 (Pa. Cmwlth. 2007). 6 The claimant has the burden of proving all of the requirements for an award of compensation benefits. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The burden remains with the claimant throughout the claim petition proceeding to establish the duration of disability. Teter v. Workers' Compensation Appeal Board (Pinnacle Health Sys.), 886 A.2d 721 (Pa. Cmwlth. 2005). Benefits may be awarded for only a closed period and then terminated if the evidence so warrants. Thomas v. Workmen's Compensation Appeal Board (George's Painting Contractors), 629 A.2d 251 (Pa. Cmwlth. 1993). Benefits may be terminated when it is demonstrated that disability has ceased or that any remaining disability no longer results from the work-related injury. Jackson v. Workers' Compensation Appeal Board (Res. for Human Dev.), 877 A.2d 498 (Pa. Cmwlth. 2005); see also Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). Language in a medical report that the claimant was discharged from medical care and released to work without restrictions because the work injury resolved is "synonymous with full recovery" and supports a termination. Callahan v. Workmen's Compensation Appeal Board (Bethlehem Steel Corp.), 571 A.2d 1108, 1111 (Pa. Cmwlth. 1990). Claimant contends that her testimony regarding her inability to work as a nurse supports a presumption that her disability continued beyond June 4, 2003 until benefits were reinstated as of May 3, 2004. She relies on MacNeill v. Workmen's Compensation Appeal Board (Denny's, Inc.), 548 A.2d 680 (Pa. Cmwlth. 1988), which held that total disability is presumed to continue unless and until competent testimony indicates otherwise. In so arguing, Claimant ignores that she had the burden of proving the duration of her work-related disability. 7 Relying upon Inglis House, the Court stated in Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994), that in deciding a claim petition the WCJ (then referee) must be free to determine the chronological length of the claimant's disability. The Court concluded that the WCJ properly awarded disability benefits for a closed period and terminated benefits as of June 6, 1988 where the claimant's medical witness admitted that his medical records on the claimant ended June 6, 1988 and that he could not render an opinion as to the claimant's condition after that date. As previously summarized, Dr. Zager testified among other things that Claimant's neck pain related to her work-related herniated disc at C5, that her ongoing symptoms related to her herniated disc at C6-7 and that she no longer needed treatment and could return to work without restrictions as of the doctor's last examination as far as the work-related herniated disc at C5-6 was concerned. As in Innovative Spaces, Dr. Zager's testimony, when considered in its entirety, fails to satisfy Claimant's burden to show that her work-related disability continued beyond June 4, 2003. The record thus supports a termination as of June 4, 2003.2 Claimant next argues that the WCJ's determination that her work injury included only the herniated disc at C5-6 is not supported by substantial evidence. Claimant refers to Dr. Zager's testimony that the trauma at work caused cervical radiculopathy and aggravation of a preexisting degenerative disc disease. 2 Claimant asserts that the WCJ misconstrued Dr. Zager's testimony as indicating her ability to return to work without restrictions. Dr. Zager attributed Claimant's ongoing neurological symptoms to her herniated disc at C6-7. When asked if he would impose any restrictions at all, Dr. Zager stated that "this is theoretical because we know that she is still having ongoing symptoms." N.T., October 9, 2003 Hearing, p. 17; Reproduced Record at 57a. Contrary to Claimant's assertion, Dr. Zager did not testify that he would impose restrictions for her work-related condition. 8 Employer counters that Claimant waived her argument because she did not seek to include those conditions as part of the work injury before the WCJ and the Board. An issue is waived unless it is preserved at every stage of the proceeding. Wheeler v. Workers' Compensation Appeal Board (Reading Hosp. & Med. Ctr.), 829 A.2d 730 (Pa. Cmwlth. 2003). An appeal from the WCJ's decision must contain "[a] statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged." 34 Pa. Code §111.11(a)(2). Claimant appealed the WCJ's July 30, 2004 initial decision, stating in the appeal form that findings of fact 4, 11, 12, 13, 14 are not supported by substantial evidence and that conclusions of law 4 and 5 do not conform to the Workers' Compensation Act. She attached the WCJ's decision. Simply listing findings of fact and conclusions of law in an appeal form and attaching the WCJ's decision to the form are insufficient to preserve an issue for appellate review. Matticks v. Workers' Compensation Appeal Board (Thomas J. O'Hora Co., Inc), 872 A.2d 196 (Pa. Cmwlth. 2005). Claimant failed to raise whether her cervical radiculopathy and aggravation of preexisting degenerative disc disease should be included in her work injury description and, as a result, the Board did not address it. She raised the issue in the appeal from the WCJ's remand decision but her failure to raise the issue at every stage resulted in a waiver of the issue. Wheeler. In its appeal, Employer argues that the Board's disfigurement award of forty-five weeks for Claimant's surgical scar, which is barely noticeable from ten feet away, is excessive and outside the scope of what other WCJs would award and that the Board did not sufficiently explain its award. Employer suggests that an appropriate range would be between fifteen to twenty-five weeks. 9 Section 306(c)(22) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(22), provides for compensation of sixtysix and two-thirds per centum of wages up to 275 weeks "[f]or serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment[.]" Relevant evidence is a claimant's physical appearance and the unsightliness of the disfigurement. Hastings Indus. v. Workmen's Compensation Appeal Board (Hyatt), 531 Pa. 186, 611 A.2d 1187 (1992). If the Board decides upon viewing a claimant's disfigurement that the WCJ capriciously disregarded competent evidence by entering an award significantly outside the range that most WCJs would select, the Board may modify the award as justice requires. Id. The WCJ described Claimant's scar on the front of her neck as a horizontal indentation with slight discoloration extending slightly over an inch, noting that the incision appeared to be made tracking the natural lines of Claimant's neck and that the scar on her fair skin was discernible from six feet away but less discernible from ten feet away. After conducting its own view, the Board accepted the WCJ's description but concluded that the disfigurement benefit award was outside the range that most WCJs would select. It determined that based on the location, length, width and overall severity of the scar, most WCJs would award between forty-five and sixty weeks. This explanation is sufficient. Because the Board properly affirmed the WCJ's April 28, 2006 remand order and August 31, 2006 order, as modified, the Court accordingly affirms the orders under review. DORIS A. SMITH-RIBNER, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frances Kopy, : Petitioner : : v. : : Workers' Compensation Appeal Board : (St. Luke's Hospital), : Respondent : : Petitioner : : v. : : Workers' Compensation Appeal Board : (Kopy), : Respondent : No. 436 C.D. 2007 St. Luke's Hospital, No. 511 C.D. 2007 ORDER AND NOW, this 14th day of April, 2008, the Court affirms the orders of the Workers' Compensation Appeal Board. DORIS A. SMITH-RIBNER, Judge

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