W. Carmack v. WCAB (PJ Dick, Inc./Trumbull Corp.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Carmack, :
Petitioner :
:
v. : No. 1093 C.D. 2015
:
Workers’ Compensation Appeal :
Board (PJ Dick, Inc./Trumbull :
Corporation), :
Respondent :
:
:
PJ Dick, Inc./Trumbull Corporation :
and Zurich American Insurance, :
Petitioners :
:
v. : No. 1172 C.D. 2015
: Submitted: November 25, 2015
Workers’ Compensation Appeal :
Board (Carmack), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: March 15, 2016
William Carmack (Claimant) and PJ Dick, Inc./Trumbull Corporation
(Employer) have each petitioned for this Court’s review of an adjudication of the
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
Workers’ Compensation Appeal Board (Board). The Board amended Claimant’s
work injury to include an aggravation injury and suspended benefits upon
Claimant’s medical release to return to his pre-injury job. In doing so, the Board
affirmed the decision of the Workers’ Compensation Judge (WCJ) in all respects
except for the WCJ’s termination of Claimant’s compensation; the Board replaced
the termination with an ongoing suspension. Employer challenges the amendment
to the accepted work injury and denial of the termination; Claimant challenges the
suspension of his disability benefits. We affirm.2
Claimant worked as an elevator operator at a site where Employer was
constructing a hospital. On October 29, 2011, the elevator suddenly fell 10 to 15
feet and stopped abruptly, jamming Claimant’s knees. Claimant sought medical
treatment but continued working. On February 2, 2012, Claimant had surgery to
his left knee and returned to work four days later. Claimant continued working at
the construction site until May 3, 2012, when his job ended. On August 13, 2012,
Claimant had surgery to his right knee.
On August 17, 2012, Claimant filed a claim petition alleging that he
injured both knees in the October 29, 2011, incident. Claimant sought payment of
his medical expenses and total disability benefits as of August 13, 2012, and
ongoing. In response, Employer issued a medical-only Notice of Compensation
Payable (NCP) that described the work injury as a bilateral knee strain. Employer
agreed to pay medical compensation but not wage loss benefits.
Employer filed a termination petition alleging that Claimant had fully
recovered from his work injury as of January 7, 2013, the date of an independent
2
By order dated July 28, 2015, this Court consolidated the cross-petitions for review and
designated Claimant as petitioner.
2
medical examination (IME). Claimant denied Employer’s allegation that he had
fully recovered and filed a petition to review, alleging that the work injury listed on
the NCP was incorrect. The petitions were consolidated and assigned to a WCJ.
Both Claimant and Employer presented evidence.
Claimant testified that Employer hired him from the hiring hall of the
union in which he has been a member for 40 years. Claimant’s position required
him to operate a freight elevator, taking workers and equipment to different floors
in the hospital building under construction. Claimant could do the job sitting on a
stool if he wished. When the elevator malfunctioned, jolting Claimant’s knees,
Claimant went to MedExpress, which did x-rays and an MRI. Gregory Altman,
M.D., treated Claimant and on February 2, 2012, did surgery on his left knee.
Claimant returned to his regular job four days later3 and continued to work until the
job ended on May 3, 2012. Claimant then treated with Michael B. Gaffney, M.D.,
who did surgery on his right knee on August 13, 2012. Claimant testified that the
surgeries improved his knees, but both knees were still painful, particularly the
right knee. Given this continued pain, Claimant was not sure he could do his pre-
injury job. Claimant stated that he would defer to his doctor’s opinion on the
matter, and he expressed the desire to return to work.
Claimant’s case included medical evidence. In the record of
Claimant’s February 2012 surgery, Dr. Altman reported cartilage changes in the
left knee joint and a meniscus tear. Dr. Altman opined that these articular cartilage
changes resulted from Claimant’s pre-existing arthritis that was likely aggravated
3
Claimant stated that his surgery was on a Thursday and he returned to work on Monday.
3
by the work injury. Reproduced Record at 68a (R.R. ___). Dr. Altman treated the
meniscus tear in the surgery.
Claimant also presented the deposition of Dr. Gaffney, the orthopedic
surgeon who began treating Claimant on May 11, 2012. Claimant reported
persistent bilateral knee pain that began with the elevator incident. Dr. Gaffney did
not see swelling in either knee; however, he noted that the left knee had limited
range of motion. Dr. Gaffney diagnosed arthritis in both knees, which he treated
with injections, medication and physical therapy. Claimant’s left knee improved
over time, but the right knee did not. Accordingly, on August 13, 2012, Dr.
Gaffney did arthroscopic surgery on the right knee. Dr. Gaffney observed worn
articular cartilage, loose fragments of cartilage and a meniscus tear. Dr. Gaffney
debrided the loose cartilage and removed the torn portion of the meniscus.
Dr. Gaffney opined that the elevator incident aggravated Claimant’s
pre-existing arthritis by making it more painful and likely doing more damage to
the articular cartilage. Dr. Gaffney based his opinion on Claimant’s statement that
his knees had not bothered him before the accident but did so afterward. Dr.
Gaffney had to rely on Claimant’s subjective reports of pain to diagnose an
aggravation because he had no pre-injury x-rays or MRIs available for a post-
injury comparison.
Dr. Gaffney characterized Claimant’s pre-injury job as sedentary,
which Claimant was able to do in May 2012. After his surgery in August 2012,
Claimant was totally disabled for a time. On November 9, 2012, Dr. Gaffney
released Claimant to do a sedentary job with no lifting over ten pounds. His pre-
injury job fit those restrictions. When Dr. Gaffney last saw Claimant on February
4
1, 2013, his knee pain had improved but continued to persist. For this reason, Dr.
Gaffney felt that Claimant continued to suffer from the aggravation of his arthritis.
Employer presented the deposition testimony of Jeffrey N. Kann,
M.D., a board certified orthopedic surgeon who did an IME of Claimant on
January 7, 2013. Claimant complained of pain in both knees, and Dr. Kann
observed grinding in the knees that was consistent with arthritis. X-rays and an
MRI done after the elevator incident showed moderately advanced osteoarthritis in
both knees, which was a long-standing, pre-existing condition. Dr. Kann opined
that the work injury consisted of a minor strain or contusion of both knees from
which Claimant had fully recovered. Dr. Kann opined that the elevator incident
had not been severe enough to aggravate or materially affect Claimant’s pre-
existing osteoarthritis. Accordingly, Dr. Kann opined that Claimant’s knee
surgeries were not related to the work injury.
The WCJ credited the testimony of Claimant, Dr. Gaffney and Dr.
Altman.4 Based on their testimony, the WCJ found that the elevator incident on
October 29, 2011, caused an aggravation of Claimant’s pre-existing osteoarthritis,
necessitating surgery. The WCJ also found that Claimant was totally disabled
from August 13, 2012, until November 9, 2012, when Dr. Gaffney released him to
do his pre-injury job. The WCJ rejected Dr. Kann’s opinion that Claimant did not
sustain an aggravation but did credit his opinion that Claimant had fully recovered
as of the date of the IME. Accordingly, the WCJ amended the NCP by deleting the
strain and adding an aggravation of Claimant’s pre-existing osteoarthritis. The
4
The WCJ has complete authority over questions of credibility, conflicting medical evidence and
evidentiary weight. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995).
5
WCJ awarded Claimant total disability benefits for the period of August 13, 2012,
to November 9, 2012; suspended disability benefits as of November 10, 2012; and
terminated benefits effective January 7, 2013.
Both Claimant and Employer appealed. The Board affirmed the
WCJ’s amendment to the NCP and suspension of benefits. However, the Board
reversed the termination because Dr. Kann did not opine that Claimant had fully
recovered from the adjudicated work injury, namely Claimant’s aggravation of his
pre-existing osteoarthritis. Accordingly, the Board ordered Claimant’s disability
benefits suspended but not terminated. Claimant and Employer then petitioned for
this Court’s review.5
On appeal, Employer argues that Claimant’s medical evidence did not
establish an aggravation of his pre-existing arthritic condition. Employer also
argues that the Board erred in reversing the termination because the record
contains substantial and competent evidence that Claimant was fully recovered
from the work injury as of January 7, 2013. For his part, Claimant argues that his
benefits should not have been suspended as of November 10, 2012, because he is
not fully recovered from his work injury and his time-of-injury employment was
no longer available.
We first address the description of the work injury. Under Section
413(a) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as
5
This Court’s review of an order of the Board is to determine whether the necessary findings of
fact are supported by substantial evidence, Board procedures were violated, constitutional rights
were violated or an error of law was committed. Cytemp Specialty Steel v. Workers’
Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth. 2012).
Substantial evidence has been defined as such relevant evidence that a reasonable mind might
accept as adequate to support a finding. Mrs. Smith’s Frozen Foods Company v. Workmen’s
Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
6
amended, 77 P.S. §771, the WCJ may amend an NCP if it is shown that the NCP is
in any material respect incorrect, including the injury description.6 The party
seeking to modify the NCP has the burden to prove that it was materially incorrect
when it was issued. Cinram Manufacturing, Inc. v. Workers’ Compensation
Appeal Board (Hill), 975 A.2d 577, 582 (Pa. 2009).
A claimant must prove through unequivocal medical evidence that his
injury is work-related. Cromie v. Workmen’s Compensation Appeal Board
(Anchor Hocking Corporation), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). An
aggravation of a pre-existing degenerative condition constitutes a compensable
work injury. SKF USA, Inc. v. Workers’ Compensation Appeal Board (Smalls),
728 A.2d 385, 387 (Pa. Cmwlth. 1999). To establish a compensable aggravation
“the medical evidence [must] establish that the injury materially contributed to the
disability rather than the disability resulted from the natural progress[ion] of a pre-
existing condition.” Miller v. Workmen’s Compensation Appeal Board (Pocono
Hospital), 539 A.2d 18, 20-21 (Pa. Cmwlth. 1988) (citing Halaski v. Hilton Hotel,
409 A.2d 367 (Pa. 1979)). Whether an incident has materially contributed to the
disabling injury “is a question of fact to be determined by the WCJ.” SKF, 728
A.2d at 388.
Employer argues that Dr. Gaffney did not prove an aggravation
because there was no objective medical evidence that the underlying pathology of
6
Section 413(a) states, in relevant part, as follows:
A workers’ compensation judge of the department may, at any time, review and
modify or set aside a notice of compensation payable and an original or
supplemental agreement … if it be proved that such notice of compensation
payable or agreement was in any material respect incorrect.
77 P.S. §771.
7
Claimant’s knees was changed by the work injury. By contrast, Dr. Kann’s
testimony, which was consistent with Claimant’s medical records, proved that the
injury was limited to bilateral knee strains. Claimant responds that the WCJ’s
finding that Claimant sustained an aggravation of his arthritis is supported by the
record. We agree with Claimant.
The WCJ credited Dr. Gaffney’s testimony that the elevator incident
aggravated Claimant’s underlying osteoarthritis by making it more painful. Dr.
Gaffney based his opinion on Claimant’s statement to him that the incident
increased his knee pain and decreased his function. In finding that Claimant’s
work injury caused an aggravation, the WCJ explained:
Dr. Gaffney is of the opinion that, while the claimant had a
significant pre-existing osteoarthritis in both knees, the elevator
drop of October 29, 2011, which was not insignificant, caused
an aggravation of the claimant’s pre-existing osteoarthritis. The
fact that the claimant suffered an aggravation at that time is
supported by the claimant’s testimony that he had significant
pain and discomfort in his right and left knee following the
incident of October 29, 201[1]. The pain was so significant that
the claimant sought treatment at Med-Express Urgent Care in
Monroeville, a few days following the incident…. I also find as
a fact that the need for the surgeries performed by Dr. Altman
and Dr. Gaffney, surgeries that may have been necessary at
some later time under the normal course of claimant’s
advancing osteoarthritis[,] were accelerated by this incident in
that the significant pain triggered by the October 29, 2011
incident did not alleviate until Dr. Altman’s surgery on the
claimant’s left knee on February 2, 2012 and, upon Dr.
Gaffney’s surgery on August 13, 2012. Specifically notable is
the need for Dr. Altman’s surgery which was performed
slightly over 3 months after the work injury. Certainly nothing
has been presented to the undersigned to show that the claimant
was going to have arthroscopic surgery in the normal course of
8
the degenerative condition only 3 months subsequent to this
incident.
The undersigned is not unaware of Dr. Kann’s opinion that the
claimant did not suffer an acceleration or aggravation of his
underlying osteoarthritis as a result of the October 29, 2011
work injury. … However, I cannot accept Dr. Kann’s opinion
given the claimant’s credible testimony that the pain in his right
and left knee was significantly aggravated by the drop in the
elevator on October 29, 2011[,] testimony[] which is supported
by the claimant’s treatment soon after on November 2, 2011 [at
Med-Express].
WCJ Decision, 2/27/14, at 11-12; Finding of Fact No. 12.7
The WCJ’s finding is supported by the record. Dr. Gaffney
acknowledged that he had to rely on Claimant’s subjective reports of pain in his
diagnosis because there were no pre-injury diagnostic tests. However, pre-injury
and post-injury diagnostic tests are not necessary to an aggravation diagnosis.
Were this the case, then a claimant whose pre-existing condition did not necessitate
diagnostic tests prior to the work injury could never prove an aggravation. In
short, the WCJ’s finding that the elevator incident materially aggravated
Claimant’s pre-existing condition is supported by competent medical testimony.
Employer also argues that the Board erred in reversing the termination
of Claimant’s disability benefits. Dr. Kann opined that Claimant fully recovered as
of the IME date, and his opinion is supported by Dr. Gaffney’s testimony that
Claimant could perform his pre-injury job. Employer asserts that these opinions
warrant a termination.
7
This Court may not disturb this determination because the WCJ is the ultimate fact finder and
has complete authority over questions of credibility. Davis v. Workers’ Compensation Appeal
Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000).
9
A termination of benefits requires the employer to prove that the
claimant is fully recovered from the work injury or that any remaining disability is
not related to the work injury. Campbell v. Workers’ Compensation Appeal Board
(Antietam Valley Animal Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998). An
employer does this by presenting unequivocal, competent medical evidence that
the claimant has fully recovered from the work injury. Koszowski v. Workmen’s
Compensation Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697, 699 (Pa.
Cmwlth. 1991). An employer does not satisfy this burden with a medical opinion
that the injury was not actually work-related. GA & FC Wagman, Inc. v. Workers’
Compensation Appeal Board (Aucker), 785 A.2d 1087, 1091 (Pa. Cmwlth. 2001).
If the employer’s medical expert fails to acknowledge the work injury, then his
opinion will not support a termination of benefits. Gillyard v. Workers’
Compensation Appeal Board (Pennsylvania Liquor Control Board), 865 A.2d 991
(Pa. Cmwlth. 2005). A medical expert need not believe that the work injury
actually occurred, but he must opine that, assuming an injury existed, it had
resolved by the time of the IME. To v. Workers’ Compensation Appeal Board
(Insaco, Inc.), 819 A.2d 1222, 1225 (Pa. Cmwlth. 2003).
Employer argues that Claimant “sustained only bilateral knee strain as
a result of the October 29, 2011 work injury.” Employer’s Brief at 21. However,
the WCJ found that Claimant suffered an aggravation of his pre-existing
osteoarthritis. Dr. Kann, who did not accept this diagnosis, opined that Claimant
had fully recovered from bilateral knee strain, but not from the aggravation. His
testimony did not establish a full recovery from the adjudicated work injury. Nor
did Dr. Gaffney’s testimony support a termination. Although Dr. Gaffney
10
acknowledged Claimant could do his pre-injury job, he specifically opined that
Claimant had not fully recovered from the aggravation of arthritis in his knees.
We turn next to Claimant’s appeal of the suspension of his benefits.
Claimant argues that even though Dr. Gaffney opined that Claimant could perform
his pre-injury job as of November 9, 2012, there was no job available for Claimant.
Employer rejoins that a suspension was warranted because Claimant’s job had
ended and Claimant could not prove his work injury caused his loss of earnings
through the pendency of the litigation. We agree with Employer.
Under workers’ compensation law, the term “disability” is
synonymous with “the loss of earning power attributable to the work-related
injury.” Landmark Constructors, Inc. v. Workers’ Compensation Appeal Board
(Costello), 747 A.2d 850, 854 (Pa. 2000) (emphasis added). Employer issued a
medical only NCP, but it did not accept liability for wage loss. Accordingly,
Claimant had the burden to prove a connection between his work injury and a loss
of earning power. Ingrassia v. Workers’ Compensation Appeal Board (Universal
Health Services, Inc.), 126 A.3d 394, 401-02 (Pa. Cmwlth. 2015). Claimant also
had to show that his work injury continued to cause disability throughout the
pendency of the claim petition proceeding. Innovative Spaces v. Workmen’s
Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994).
Where the claimant is not fully recovered from his work injury, the
employer must show job availability in order to obtain a suspension, even if the
claimant has been medically cleared to return to his pre-injury job without
restrictions. Landmark Constructors, 747 A.2d at 855, 858. However, there are
unique factual circumstances where job availability need not be shown. Id. at 855.
11
Claimant testified that he obtained the elevator operator job with
Employer out of the union hall and performed that job until it ended in May 2012.
His job was one of limited duration, entitling Claimant to unemployment
compensation when the job ended. Claimant was totally disabled by his August
2012 knee surgery, however, his surgeon released him to do the elevator operator
job on November 9, 2012. At that point, his position with Employer had ended, as
scheduled, six months earlier. After November 9, 2012, Claimant’s loss of
earnings was not attributable to his work injury but to the fact that his job with
Employer had ended and he had not yet obtained another job through the union
hall. The award of a closed period of disability benefits made Claimant whole and
left him in the same position he would have been in had he not been injured.
Because Claimant did not establish that his work injury caused a loss of earnings
throughout the pendency of the litigation, the Board correctly suspended his
disability benefits as of November 10, 2012.
For the above-stated reasons, we affirm the order of the Board.
______________________________
MARY HANNAH LEAVITT, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Carmack, :
Petitioner :
:
v. : No. 1093 C.D. 2015
:
Workers’ Compensation Appeal :
Board (PJ Dick, Inc./Trumbull :
Corporation), :
Respondent :
:
:
PJ Dick, Inc./Trumbull Corporation :
and Zurich American Insurance, :
Petitioners :
:
v. : No. 1172 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Carmack), :
Respondent :
ORDER
AND NOW, this 15th day of March, 2016, the order of the Workers’
Compensation Appeal Board dated May 28, 2015, in the above-captioned matter is
hereby AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge