S. Jones v. WCAB (SEPTA) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steve Jones, Petitioner v. Workers' Compensation Appeal Board (SEPTA), Respondent BEFORE: : : : : : : : No. 847 C.D. 2007 : Submitted: August 17, 2007 HONORABLE JAMES GARDNER COLINS, Judge* HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COLINS FILED: January 17, 2008 Steve Jones (Claimant) petitions for review of a decision and order of the Workers Compensation Appeal Board (Board) that affirmed a decision and order of a Workers Compensation Judge (WCJ), granting SEPTA s (Employer) termination petition in part. We affirm. On September 21, 2001, Claimant sustained work injuries to his right ankle, cervical spine region, lower back, and both shoulders while working for Employer. Employer issued a Temporary Notice of Compensation Payable (TNCP), which was converted into a Notice of Compensation Payable (NCP), and the work incident was accepted as compensable. Claimant returned to work in various light duty capacities, but is presently out of work. *The decision in this case was reached prior to the date that Judge Colins assumed the status of senior judge. Employer filed a termination petition on January 10, 2005, which the WCJ granted in part, based on Employer s medical evidence, the credited testimony of Arnold T. Berman, M.D. The WCJ concluded that all work-related disability to Claimant s right ankle, right knee, and low back resolved as of November 23, 2004, but all disability attributable to the cervical spine and shoulders remains. The Board affirmed the WCJ s decision, and Claimant filed the present petition for review with this Court.1 In this appeal, Claimant contends that the Board erred in affirming the WCJ's decision granting Employer's petition to terminate compensation benefits for the right ankle injury. In particular, Claimant asserts that Employer did not present sufficient evidence to establish that he fully recovered from his workrelated right ankle injury, or that his continued disability is unrelated to the right ankle injury. In a proceeding to terminate a claimant s workers compensation benefits, it is the employer s burden to prove that a claimant's disability has ceased, or that an existing disability is not the result of the work-related injury. Jones v. Workers Compensation Appeal Board (J.C. Penny Co.), 747 A.2d 430, 432 (Pa. Cmwlth.), petition for allowance of appeal denied, 564 Pa. 718, 764 A.2d 1074 (2000). Additionally, when the employer offers medical testimony to meet its burden of proof, the medical expert's opinion must be rendered unequivocally and to a reasonable degree of medical certainty in order to constitute substantial 1 Our standard of review in a workers compensation case is limited to determining whether necessary findings of fact are supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. 2 Pa. C.S. §704. Substantial evidence is any relevant evidence that a reasonable person would consider adequate to support a conclusion. City of Harrisburg v. Workers Compensation Appeal Board (Palmer), 877 A.2d 555, 559 (Pa. Cmwlth. 2006). 2 evidence of record. Id. (citing Broughton v. Workers Compensation Appeal Board (Disposal Corp. of America), 709 A.2d 443 (Pa. Cmwlth.), petition for allowance of appeal denied, 556 Pa. 680, 727 A.2d 133 (1998)). Claimant first argues that the medical testimony of Dr. Berman is insufficient to meet Employer s burden of proof. In support of this position, Claimant asserts that Dr. Berman testified that Claimant had recovered thirty to sixty days after the date of his injury, in contradiction to various supplemental agreements and stipulations of fact entered between the parties since November, 2001. Claimant contends that Dr. Berman s testimony is insufficient to support a termination of benefits under Lewis v. Workers Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007), wherein our Supreme Court recently held that in order to effect a termination of benefits, where there have been prior petitions to modify or terminate benefits, the employer must demonstrate a change in physical condition since the last disability determination. Id. at 926. In his deposition testimony, Dr. Berman stated that he examined Claimant on November 24, 2003, and based on that examination concluded that Claimant fully recovered from all work injuries. Dr. Berman s testimony, regarding Claimant s right ankle injury, is as follows: Then I went on to examine his right ankle where he had an ACE bandage which I removed. There was no swelling or tenderness. There s full range of motion. He s able to dorsiflex his ankle to 40 degrees, and plantar flex 30 degrees, inversion 30 degrees, eversion 30 degrees. That means pulling the foot up towards the ceiling and pointing it down toward the floor, turning it in and turning it out. They re all normal measurements. 3 There s no erythema, effusion, swelling or tenderness. The right foot examination is normal. Deposition transcript, Employer s exhibit E-1, p. 14. Thus, Dr. Berman s accepted testimony constitutes substantial, competent evidence to support the WCJ s determination that Claimant s ankle injury resolved as of November 24, 2003. Clearly, the WCJ did not accept Dr. Berman s testimony that Claimant may have recovered from all of his injuries within thirty to sixty days after the date of his accident. Moreover, Dr. Berman s examination demonstrates that Claimant s physical condition, regarding his right ankle injury, has changed since the last disability determination, thereby, rendering Lewis inapplicable. Next, Claimant argues that by filing a utilization review request on July 28, 2005, Employer admitted that Claimant had not recovered from the ankle injury as of November 24, 2003. However, as the Board correctly noted, our decision in Corcoran v. Workers Compensation Appeal Board (Capital Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999), clearly establishes that a utilization review determination that treatment is reasonable and necessary through a particular date does not preclude a termination of all benefits as of a prior date. (Board opinion, p. 6). Thus, we conclude this argument is without merit. Accordingly, the Board s order is affirmed. JAMES GARDNER COLINS, Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steve Jones, Petitioner v. Workers' Compensation Appeal Board (SEPTA), Respondent : : : : : : : No. 847 C.D. 2007 : ORDER AND NOW, this 17th day of January 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. JAMES GARDNER COLINS, Judge

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