T. Bartee v. WCAB (Pocono Mountain SD) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Todd Bartee, :
: No. 2019 C.D. 2015
Petitioner : Submitted: April 15, 2016
:
v. :
:
Workers’ Compensation Appeal :
Board (Pocono Mountain School :
District), :
:
Respondent :
Pocono Mountain School District :
and Inservco Insurance Services, : No. 2087 C.D. 2015
: Submitted: April 15, 2016
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Bartee), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: July 6, 2016
Todd Bartee (Claimant) petitions for review and Pocono Mountain
School District (Employer) cross petitions for review from an order of the Workers’
Compensation Appeal Board (WCAB) affirming a Workers’ Compensation Judge’s
decision to deny Claimant’s petition to reinstate compensation benefits (reinstatement
petition) and to deny Employer’s petitions to review compensation benefits (review
petition) and to terminate benefits (termination petition).1 We affirm.
Claimant worked for Employer as a school bus driver. (WCJ’s Findings
of Fact, No. 7.) On April 21, 2011, Claimant felt a pop in his shoulder when he
turned the steering wheel on the bus. (Id.) Employer issued a notice of workers’
compensation denial, indicating that although Claimant suffered a right shoulder
strain on April 12, 2011, Claimant was not disabled as a result of the injury. (Id., No.
1.) On July 6, 2011, Employer issued a temporary notice of compensation payable
(NCP) accepting that Claimant suffered a “right shoulder rotator cuff tear” on April
12, 2011. (Id., No. 2.) Employer suspended Claimant’s benefits on January 3, 2012.
(Id.)
On May 28, 2013, Claimant filed a claim petition alleging that on
February 13, 2013, he tore his right rotator cuff when he forcefully turned the school
bus steering wheel. (Id., No. 3.) Claimant subsequently amended the injury date to
January 30, 2013. (Id.) Claimant also filed a penalty petition alleging that Employer
violated the Workers Compensation Act2 (Act) by failing to issue required
documents. (Id.)
1
The WCJ also denied Claimant’s claim and penalty petitions. Claimant did not appeal
those denials.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
On September 9, 2013, Claimant filed a reinstatement petition alleging a
worsening of his April 12, 2011, work injury, and seeking reinstatement of indemnity
benefits as of January 30, 2013. (Id., No. 5.) Employer filed an answer denying the
allegations. (Id.)
On October 31, 2013, Employer filed a review petition, alleging that as
of July 6, 2011, the NCP contained an incorrect injury description. (Id., No. 6.)
Employer also filed a termination petition, alleging that Claimant had fully recovered
from his April 12, 2011, injury as of April 26, 2013. (Id.)
At the WCJ’s hearing, Claimant testified that on January 30, 2013, he
was driving the school bus and, as he was turning left, he felt pain in his upper right
shoulder. (Id., No. 8.) Claimant testified that after his shift he reported his injury to
Dora LaBarre, Claimant’s supervisor and Employer’s bus dispatcher. (Id.)
Claimant also presented the testimony of Gregory Menio, M.D., who is
board certified in orthopedics and has treated Claimant since 1999 for a variety of
orthopedic conditions. (Id., No. 11.) Dr. Menio saw Claimant on May 26, 2011, for
his April 12, 2011, injury. (Id.) A magnetic resolution imaging (MRI) revealed a
rotator cuff tear. (Id.) Dr. Menio performed surgery on July 20, 2011, to repair the
tear. (Id., No. 12.) During the surgery, Dr. Menio found that Claimant’s labrum was
torn below the biceps tendon and there was a full thickness rotator cuff tear. (Id.) Dr.
Menio acknowledged that by December 2011, Claimant had full range of motion and,
on January 3, 2012, Dr. Menio released Claimant to full duty. (Id., No. 13.)
3
Claimant saw Dr. Menio again on February 8, 2013, where Claimant
complained of right shoulder pain with overhead activity. (Id., No. 14.) Dr. Menio
diagnosed Claimant with shoulder pain, arthritis, and a possible recurrent rotator cuff
tear. (Id.) According to Dr. Menio, Claimant did not mention a January 30, 2013,
work injury. (Id.)
A subsequent MRI confirmed that Claimant had a recurrent rotator cuff
tear. (Id., No. 15.) Dr. Menio opined that Claimant’s recurrent tear was either
directly or indirectly related to his April 12, 2011, injury. (Id.) Dr. Menio referred
Claimant to a surgeon for a hemiarthroplasty, the replacement of the ball and socket
with an implant, which surgery Claimant underwent on August 20, 2013. (Id., No.
16.)
LaBarre testified that Claimant did not report a work-related injury to
her on or after January 30, 2013. (Id., No. 8.) LaBarre specifically stated that
Claimant did not report a sharp pain in his arm after his shift on January 30, 2013.
(Id.) On that day, Claimant was on a bus trip and did not return until 8:00 p.m., and
LaBarre had already left for the day. (Id.) LaBarre testified that Claimant did not
complete or request an incident investigation report. (Id.) Claimant never
complained to LaBarre about any problems performing his job and did not miss any
work after January 30, 2013. (Id., No. 9.)
Employer also presented the testimony of Richard Schmidt, M.D., a
board certified orthopedic surgeon, who examined Claimant on April 26, 2013. (Id.,
No. 17.) Dr. Schmidt opined that Claimant suffered a transient type of injury on
4
April 12, 2011, and that Claimant had fully recovered as of April 26, 2013. (Id., No.
21.) Dr. Schmidt opined that Claimant did not suffer a torn rotator cuff on April 12,
2011, and surgery was not necessary. (Id.)
The WCJ credited Claimant regarding his complaints of pain and further
credited the testimony of LaBarre that Claimant did not provide her notice of a new
injury in 2013. (Id., Nos. 22, 23.) The WCJ also credited the testimony of Dr. Menio
that Claimant sustained a work injury on April 12, 2011, in the form of a right rotator
cuff tear, which necessitated surgery, and a recurrent rotator cuff tear in 2013. (Id.,
No. 24.)
Based on his credibility determinations, the WCJ concluded that
Claimant failed to meet his burden of proving that he sustained a new work-related
injury on January 30, 2013, and therefore, denied Claimant’s claim petition. The
WCJ also determined that Claimant was not entitled to a reinstatement of benefits as
of January 30, 2013. The evidence established that Claimant continued to work until
the summer of 2013, noting that Claimant does not work for Employer in the
summer. Further, claimant was not entitled to a reinstatement following the August
20, 2013, surgery, because there was no evidence that Claimant missed any time from
work. The WCJ also denied and dismissed Claimant’s penalty petition. Finally,
based upon his credibility determinations, the WCJ denied and dismissed Employer’s
review and termination petitions. Claimant appealed the denial of the reinstatement
5
petition to the WCAB and Employer appealed the denial of its review and
termination petitions. The WCAB affirmed and this appeal followed.3
Claimant initially argues that the WCJ erred in denying his reinstatement
petition. A claimant seeking reinstatement of benefits bears the burden of proving
that his earning power is once again adversely affected by his work-related disability
and that the disability that gave rise to the original claim continues. Bufford v.
Workers’ Compensation Appeal Board (North American Telecom), 2 A.3d 548, 552
(Pa. 2010).
Here, the WCJ correctly concluded that Claimant failed to meet his
burden to prove that his earning power was adversely affected as of January 30, 2013,
by the April 12, 2011, work injury. Specifically, as of January 30, 2013, Claimant
continued to perform his job without restrictions, accommodation, or loss of earnings.
Claimant continued to perform his duties until the end of the school year in June
2013. Claimant does not work in the summer months. Thus, Claimant failed to
prove a loss of earning power.
Claimant also argues that in denying his reinstatement petition, the WCJ
erred in failing to address his November 4, 2013, testimony. Specifically, Claimant
testified that he could not work due to the August 20, 2013, surgery on his right
shoulder, which was performed by Dr. Lazarus. Citing Latta v. Workers’
3
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law, and whether necessary findings of facts are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
6
Compensation Appeal Board (Latrobe Die Casting Company), 642 A.2d 1083 (Pa.
1994), Claimant maintains that his testimony alone was sufficient to establish
disability.
In Latta, the claimant testified that he was still experiencing the effects
of a 1977 work injury during March 1983 to June 1987, for which he sought a
reinstatement of benefits. The Pennsylvania Supreme Court stated that the claimant’s
testimony alone, that he continued to suffer the effects of his original work injury, if
believed, was sufficient to support a reinstatement.
Here, unlike Latta, as discussed by the WCAB, Claimant did not testify
that the effects of his original injury continued. Rather, Claimant testified that he had
surgery on August 20, 2013, and that he could not work because of the surgery. The
WCJ did not find that the August 20, 2013, surgery was related to the original work
injury. Thus, Claimant did not meet his burden of proving that his earning power is
adversely affected by the same disability for which Claimant initially received
benefits.
Finally, Claimant argues that the WCAB erred in failing to address the
issue of whether the WCJ failed to address Claimant’s November 4, 2013, testimony.
The WCAB, however, specifically addressed this issue in its opinion (WCAB Op. at
9-10). The WCAB stated that “[a] WCJ is not required to make findings of fact on all
the evidence presented, but only on such matters as necessary to resolve all essential
issues so that the [WCAB] has an opportunity to exercise meaningful review.
Pistella v. W[orkers’] C[ompensation] A[ppeal] B[oard] (Samson Buick Body Shop),
7
633 A.2d 230 (Pa. Cmwlth. 1993).” (WCAB Op. at 9.) Further, the WCAB noted
that Claimant did not submit any evidence that his August 2013 injury was related to
his 2011 work injury.
We next address Employer’s contention that the WCJ erred in denying
Employer’s petition to review. Section 413(a) of the Act states that a WCJ may, at
any time, modify an NCP if it is proven that the NCP was in any material respect
incorrect. 77 P.S. §771. An employer can challenge an NCP based on a material
mistake where the claimant was not forthcoming with information. See Phillips v.
Workmen’s Compensation Appeal Board (Edgar Construction Company), 545 A.2d
869, 872 (Pa. 1988) (willful concealment of relevant medical evidence resulted in
voiding of compensation agreement).
Here, Employer argues that Claimant provided an inaccurate and
incomplete medical history to Dr. Menio and that because of this faulty medical
history, Dr. Menio’s opinion regarding causation is incompetent. Thus, Employer
argues that the injury on the July 6, 2011, NCP, a right rotator cuff tear, which was
based on Dr. Menio’s testimony, constitutes a material mistake of fact. We disagree.
The WCJ determines the weight and credibility of the evidence and may
accept or reject the testimony of any witness. Lombardo v. Workers’ Compensation
Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997).
Also, the failure of a medical witness to review all of a claimant’s medical records
goes to the weight of the expert’s testimony, not its competency. Huddy v. Workers’
8
Compensation Appeal Board (U.S. Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006)
(en banc).
Finally, Employer argues that the WCJ erred in denying its petition to
terminate benefits. Termination is proper where the medical expert testifies that the
claimant is fully recovered, can return to work without restriction, and there are no
objective medical findings that either substantiate the claims of pain or connect them
to the work injury. See Udvari v. Workers Compensation Appeal Board (USAir), 705
A.2d 1290, 1293 (Pa. 1997).
Here, Employer argues that Dr. Schmidt testified that Claimant fully
recovered from his April 12, 2011, injury as of April 26, 2013, and that Claimant’s
current condition is unrelated to the April 12, 2011, injury. Dr. Schmidt further
opined that Claimant does not require any further medical treatment and can work
without restriction.
The WCJ, however, did not credit Dr. Schmidt’s testimony. The WCJ is
the ultimate determiner of credibility. Universal Cyclops Steel Corporation v.
Workers’ Compensation Appeal Board (Krawczynski), 305 A.2d 757 (Pa. Cmwlth.
1973).
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Todd Bartee, :
: No. 2019 C.D. 2015
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Pocono Mountain School :
District), :
:
Respondent :
Pocono Mountain School District :
and Inservco Insurance Services, : No. 2087 C.D. 2015
:
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Bartee), :
:
Respondent :
ORDER
AND NOW, this 6th day of July, 2016, we hereby affirm the September
18, 2015, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge