Bailey v. Workers' Compensation Appeal Board , 2005 Pa. Commw. LEXIS 8 ( 2005 )

OPINION BY President

Judge COLINS.

Stephen Bailey (Bailey) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) affirming Workers’ Compensation Judge Carl Lo-rine’s (WCJ Lorine) denial of Bailey’s reinstatement petition. We affirm the Board.

Bailey sustained a work-related injury to his left knee on October 20, 1999. US Airways (USAir) issued a notice of compensation payable and Bailey began receiving benefits pursuant to the Provisions of the Pennsylvania Workers’ Compensation Act (Act)¹ as of January 18, 2000.

In response to a review petition and a penalty petition filed by Bailey, USAir agreed to pay partial disability benefits from October 20, 1999. USAir filed a petition to terminate/suspend benefits, on October 4, 2000, alleging that Bailey was fully recovered and capable of returning to work without restrictions. Bailey returned to work with USAir on October 10, 2000 in a different position in which he packed soda carts for international flights.

At the hearing on USAir’s petition, WCJ Makin determined that USAir had not sustained its burden of proving that Bailey was fully recovered and capable of returning to his pre-injury position but that Bailey had sustained his burden of proving that he returned to work with restrictions and still suffered from limitations due to his work injury. WCJ Makin suspended benefits as of October 10, 2000, the date of Bailey’s return to work.

On January 7, 2002, Bailey filed a reinstatement petition requesting partial disability benefits as of March 12, 2001, alleging that he had routinely worked overtime prior to his injury but that he could no longer because of the pain in his knee. He testified that when he tried to work overtime he experienced much more pain and that it was impossible for him to return to the level of work he had been capable of prior to his knee injury.

Bailey offered the deposition testimony of Dr. Paul Liebert in support of his reinstatement petition, the same deposition testimony that was offered at the hearing before WCJ Makin. In that deposition Dr. Liebert had testified that Bailey had not recovered from his work-related injury and that his prognosis for a full recovery was poor. He opined that Bailey would always require work restrictions in his use of the knee and that he restricted Bailey to no more than forty hours of work per week.

USAir presented the deposition testimony of Dr. Eugene Elia taken following his examination of Bailey on November 6, 2002. Dr. Elia opined that Bailey was not in need of ongoing restrictions and could perform his job requirements. However, Dr. Elia did find that Bailey had discomfort in his knee that would continue to progress throughout the day.

WCJ Lorine found as follows in his Findings of Fact 8 and 9:

8. In arriving at her decision of October 18, 2001 Judge Makin had before her, and obviously considered, the May 8, 2001 deposition testimony of Dr. Paul L. Liebert. Based on all evidence of record Judge Makin, as noted in Findings of Fact #8 supra, found in part, that ‘when he (Claimant) returned to work (October, 2000) it was at full duty with overtime because Claimant was trying to save some of his [knee] for [his] own personal activities he stopped working overtime.” Said another way, Judge Makin found that the Claimant was capable of working overtime when he returned to work in October, 2000, but at some point thereafter he elected to stop working overtime for reasons not related to his work injury. Subsumed in the aforesaid finding by Judge Makin is her rejection of any testimony from Dr. Lie-bert that the Claimant was not capable of working overtime because of the work injury.

9. In the matter before this Judge the Claimant, based in part on the same May 8, 2001 testimony of Dr. Liebert, is asking this Judge to find that on or after March 12, 2001 his loss in earnings is no longer due to his election not to work overtime for personal reasons, but due to residuals of the work injury. This Judge believes that the Claimant cannot meet his burden under the present Petition without current medical testimony showing á change in his work-related condition. This he did not do and, thus, his Reinstatement Petition must be dismissed.

WCJ Lorine, considering both the testimony presented to WCJ Makin and the subsequent testimony of Dr. Elia, based on an examination done one year later, denied Bailey’s reinstatement petition upon finding that he had failed to present medical evidence that his work-related condition had changed since the October 18,■ 2001, decision of WCJ Makin. Bailey appealed to the Board.

The Board concluded that Bailey had not carried his burden of showing that his condition had changed because he offered only the medical testimony introduced in a prior proceeding and USAir had offered new medical testimony that it had not worsened and had in fact improved. The Board determined that it was proper for WCJ Lorine to find as a matter of law that Bailey’s condition had not changed. This appeal followed.²

The questions we are asked to consider are whether WCJ Lorine- applied the proper burden of proof to Bailey’s petition for reinstatement and whether WCJ Lorine or the Board misstated the findings of WCJ Makin.

Bailey’s reinstatement petition requested reinstatement following a suspension of benefits as WCJ Makin concluded that Bailey had returned to work with restrictions and suffered from limitations due to a work-related injury. A claimant requesting reinstatement following a suspension of benefits must establish that:

(1) through no fault of his or her own, the claimant’s disability, i.e., earning power, is again adversely affected by the work-related injury, and

(2) the disability which gave rise to the original injury continues.

Hinton v. Workers’ Compensation Appeal Board, (City of Philadelphia), 787 A.2d 458, 456 (Pa.Cmwlth.2001). The causal connection between the work-related injury and the disability that gives rise to compensation is presumed. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). “Moreover, a claimant is not required to produce unequivocal medical evidence to establish continuing disability, but rather, the testimony of the claimant alone can be sufficient to satisfy his burden of establishing that his disability continues.” Abraxas Foundation, Inc. v. Workers’ Compensation Appeal Board (Datemasch), 755 A.2d 789, 743 (Pa.Cmwlth.2000).

Bailey, by his own words, fails to meet the first prong of the test enunciated in Hinton. WCJ Lorine, in reviewing the findings of WCJ MaMn, quoted above, noted that WCJ Makin found that Bailey “elected” not to work overtime and that he could not demonstrate that his loss of earning power was “no longer due to his election not to work overtime for personal reasons ...” unless he presented current medical testimony to support such a conclusion. As noted above, Bailey failed to present current medical testimony, relying instead on the testimony of Dr. Liebert from a previous hearing that was countered by USAir’s subsequent testimony of Dr. Elia. We conclude that WCJ Lorine applied the proper burden of proof in considering Bailey’s petition.

Bailey further alleges that both the Board and WCJ Lorine erred in interpreting the opinion of WCJ Makin and in support of that position offers the fact that WCJ Makin accepted the testimony of Bailey’s medical expert, Dr. Liebert, and rejected that testimony of USAir’s medical expert, Dr. Rubinstein. In doing so, Bailey ignores the testimony of USAir’s medical expert, Dr. Elia, who examined Bailey on November 6, 2002, fully one year after WCJ Makin rendered her decision. Dr. Elia opined that Bailey was fully recovered and could return to work without restriction. In response, Bailey offered only the testimony of Dr. Liebert that had been offered before WCJ Makin. Thus, in rejecting Dr. Liebert’s testimony, WCJ Lo-rine was not misinterpreting WCJ Makin’s findings but was making an independent finding based upon newly introduced expert medical evidence of Bailey’s physical condition.

Bailey also alleges that WCJ Lorine misstated the findings made by WCJ Ma-kin in regard to his own testimony. In his findings of fact WCJ Lorine notes that WCJ Makin found that “[bjecause Bailey was .‘trying to save some of his knee for [his] own personal activities,’ he stopped working overtime.” ' (R.R. at 35a). Bailey claims that WCJ Lorine erred when he characterized this testimony as Bailey’s “election not to work overtime for personal reasons.” (WCJ Lorine’s Finding of Fact No. 9). Our review of the record convinces us that neither WCJ Lorine nor the Board erred in interpreting WCJ Makin’s finding or in interpreting Bailey’s testimony and WCJ Makin’s finding that Bailey elected not to work overtime is supported by substantial evidence of record.

Accordingly, the order of the Board in this matter is affirmed.

ORDER

AND NOW, this 6th day of January 2005, the order of the Workers’ Compensation Appeal Board in this matter is AFFIRMED.

1 . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626.

2 . Our standard of review is limited to determining whether there has been a violation of constitutional rights, an error of law or whether necessary findings of fact are supported by substantial evidence. Tri-Union Express v. Workers' Compensation Appeal Board (Hickle), 703 A.2d 558 (Pa.Cmwlth.1997). We also acknowledge our Supreme Court's decision in Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002), wherein the 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."