C. Norton v. WCAB (Northern Tier Solid Waste Authority)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clayton Norton, :
Petitioner :
:
v. : No. 411 C.D. 2019
: Submitted: August 23, 2019
Workers’ Compensation Appeal Board :
(Northern Tier Solid Waste Authority), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 20, 2020
Clayton Norton (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), dated March 8, 2019. The Board
affirmed the decision of a Workers’ Compensation Judge (WCJ), granting
Claimant’s review petition.1 For the reasons set forth below, we affirm the Board’s
order.
Claimant worked for Employer as a garbage truck driver. On
January 9, 2014, Claimant sustained a work-related injury in the nature of fractures
to his left femur and fourth and fifth ribs when he was involved in a work-related
1
The WCJ also denied two modification petitions filed by Northern Tier Solid Waste
Authority (Employer). Employer’s modification petitions are not relevant to this appeal, and,
therefore, we do not address them in this opinion.
motor vehicle accident. Employer accepted liability for Claimant’s work-related
injury by issuing a notice of temporary compensation payable, which subsequently
converted to a notice of compensation payable (NCP) by operation of law. On
December 27, 2016, Claimant filed a review petition, seeking to amend the
description of his work-related injury set forth in the NCP to include, inter alia,
depression and the loss of use of his left leg.
Before the WCJ, Claimant testified that, on January 9, 2014, he was
driving a garbage truck for Employer along his regular route when the garbage truck
slid on the ice- and snow-covered road, causing him to lose control of the garbage
truck. (Supplemental Reproduced Record (S.R.R.) at 110b-11b.) The garbage truck
slid off the road, crashed into some trees, and caught fire. (Id. at 111b.) Claimant’s
boss, who lives near the location of the accident, extinguished the fire before the first
responders arrived at the scene. (Id. at 112b-14b.) Upon their arrival, the first
responders extricated Claimant from the garbage truck and transported him to the
hospital by medical helicopter. (Id. at 113b-14b.) Following the accident, Claimant
underwent various medical treatments for the injury to his left leg, including multiple
surgeries, physical therapy, in-home wound care, and skin grafts. (Id. at 114b-16b.)
At some point following the accident, Claimant returned to work for
Employer in a light-duty position that Employer had created for him in the
maintenance shop keeping track of parts and work orders. (Id. at 117b-18b.)
Claimant performs this position for two hours per day and is able to stand and sit as
needed. (Id. at 118b, 124b-25b.) Claimant explained that he returned to work
because he was depressed and felt like he had nothing to offer. (Id. at 116b-17b.)
Claimant also indicated that, prior to the January 9, 2014 work-related accident, he
enjoyed hunting, fishing, and working on classic cars, but he no longer enjoys these
2
activities. (Id. at 120b-21b, 130b.) Claimant further explained that he continues to
experience “snapping” and “grinding” in his left knee, neuropathy in his left foot,
and a loss of feeling from the front of his left knee down into his foot. (Id. at 122b.)
Claimant admitted, however, that he is able to drive a vehicle; walk on both legs,
most of the time with the assistance of a cane; and travel up and down steps, but not
very easily. (Id. at 125b-26b.)
Claimant presented the deposition testimony of Anthony Grippo, M.D.,
who is board certified in internal medicine and occupational medicine. (Id. at 32b.)
Dr. Grippo began treating Claimant on January 15, 2015. (Id. at 33b.) Based on
Claimant’s injury and treatment history, Claimant’s complaints, and his physical
examination and evaluation of Claimant, Dr. Grippo opined that Claimant sustained
and/or suffers from a crush injury to the distal femur with a fracture, compartment
syndrome, pulmonary emboli, deep venous thrombosis, and sensory motor tibial
neuropathy with respect to the left lower extremity, as well as depression.
(Id. at 33b-37b, 47b.) Dr. Grippo recommended, inter alia, that Claimant seek
psychological treatment for his depression and post-traumatic stress relative to the
work-related incident. (Id. at 38b.) Dr. Grippo believed that Claimant thereafter
treated with Dr. Lichtenstein, a clinical psychologist. (Id. at 39b.) Dr. Grippo also
indicated that Claimant began taking antidepressant medication, which appeared to
help Claimant with his depression. (Id. at 39b-40b.)
Dr. Grippo described Claimant’s current condition as serious with a
poor prognosis for improvement. (Id. at 44b.) He explained that Claimant continues
to suffer from chronic pain and muscle weakness in the left lower extremity and has
minimal to no use of his leg. (Id. at 44b, 92b-93b.) Dr. Grippo indicated that
Claimant is permanently restricted to sedentary work limited to two hours per day,
3
five days per week. (Id. at 44b-45b, 49b, 92b.) Dr. Grippo nevertheless admitted
that Claimant is able to ambulate with the assistance of a cane, use his left leg for
balance, drive his personal vehicle, and climb stairs on a limited basis.
(Id. at 49b-50b.) Dr. Grippo indicated that he continues to treat Claimant primarily
for the crush injury to his left leg. (Id. at 47b.) He believed that Claimant also
continues to treat with his primary care physician for depression. (Id. at 48b.)
Dr. Grippo further testified that he has not placed any occupational restrictions on
Claimant relative to his depression and that Claimant’s current work restrictions
relate solely to the crush injury to Claimant’s left leg. (Id. at 50b.)
Claimant also submitted the deposition testimony of Richard
Husband, D.O., who is board certified in family practice. (Id. at 4b.) Dr. Husband
testified that he has been treating Claimant for over 20 years. (Id. at 5b.) With
respect to Claimant’s January 9, 2014 work-related incident, Dr. Husband indicated
that Claimant continues to suffer from generalized weakness with muscle atrophy of
the upper and lower left leg and loss of range of motion in the knee and ankle area,
which causes Claimant to experience chronic pain with ambulation. (Id. at 5b-6b.)
Dr. Husband believed that Claimant has reached maximum medical improvement
with respect to the condition of his left leg and that Claimant has lost the functional
use of his left leg. (Id. at 6b-7b.) Dr. Husband nevertheless admitted that Claimant
is capable of walking with the use of a cane, driving a motor vehicle, climbing stairs
on a limited basis, and using his left leg for balance. (Id. at 15b.) Dr. Husband
recommended that Claimant continue with both physical therapy for maintenance of
strength and evaluation by orthopedics to monitor for deterioration of the joints and
neuromuscular aspect of the left leg. (Id. at 12b.) Dr. Husband also agreed with the
4
work restrictions placed upon Claimant by Dr. Grippo with respect to the injury to
Claimant’s left leg. (Id. at 7b-8b, 11b-13b, 16b.)
Dr. Husband testified that he has also treated and continues to treat
Claimant for anxiety and mild to moderate depression that resulted directly from the
trauma associated with Claimant’s January 9, 2014 work-related injury and his
resulting chronic disability. (Id. at 6b, 8b, 17b-19b.) In order to treat Claimant’s
depression, Dr. Husband prescribed medication. (Id. at 19b.) Dr. Husband did not
refer Claimant to a psychologist or psychiatrist, and he was not aware, prior to
Claimant telling him at the time of his deposition, that Claimant had treated with
Dr. Lichtenstein. (Id. at 19b-20b.) Dr. Husband did not place Claimant under any
work restrictions relative to his depression.2 (Id. at 21b.)
At the final hearing conducted before the WCJ on November 16, 2017,
the parties noted for the record that Employer’s counsel had presented Claimant’s
counsel with a stipulation, wherein Employer acknowledged liability for most of the
injuries set forth in Claimant’s review petition, including depression. (Certified
Record (C.R.) at Item No. 20; Notes of Testimony, 11/16/2017, at 11.) Claimant’s
counsel, however, refused to sign the stipulation, because Employer continued to
contest, inter alia, the specific loss of use of Claimant’s left leg. (Id. at 11-12.)
On March 21, 2018, the WCJ issued a decision and order, granting
Claimant’s Review Petition. Based upon Employer’s express admissions as set forth
2
Claimant also offered the narrative reports of David Cooper, M.D., who performed
independent medical examinations of Claimant on two separate occasions. Dr. Cooper’s findings
and opinions are not relevant to this appeal, and, therefore, we do not address Dr. Cooper’s
narrative reports in this opinion.
Employer offered the deposition testimony of Roger M. Componovo, M.D., a
board-certified orthopedic surgeon, and Jessa Nolte, a vocational rehabilitation specialist. The
testimonies of Dr. Componovo and Ms. Nolte are not relevant to this appeal, and, therefore we do
not address them in this opinion.
5
in the proposed stipulation and certain unrefuted medical evidence, the WCJ
concluded that Claimant met his burden of proving that, in addition to the fractures
of his left femur and fourth and fifth ribs, Claimant also sustained the following
injuries as a result of the January 9, 2014 work-related incident: (1) mild anxiety
and depression; (2) a crush injury to his left leg, including a skin graft and muscle
atrophy; (3) deep vein thrombosis of the right leg with bilateral pulmonary emboli;
(4) compartment syndrome, including five compartment fasciotomies; (5) a vascular
injury (ischemia); (6) a left calf laceration of the gastrocnemius muscle; (7) a leg
vein transplant; and (8) mild sensorimotor tibial neuropathy. As a result, the WCJ
amended the description of Claimant’s January 9, 2014 work-related injury to
include these injuries. The WCJ also concluded that Claimant met his burden of
proving that he sustained the loss of use of his left leg for all practical intents and
purposes and awarded Claimant specific loss benefits for a period of 410 weeks. The
WCJ determined, however, that Claimant failed to establish that any of his injuries
constituted independent sources of disability separate and apart from the specific
loss of use of his left leg. As a result, the WCJ awarded Employer a credit against
Claimant’s specific loss award for all disability benefits that Employer had
previously made to Claimant. Claimant appealed to the Board, which affirmed the
WCJ’s decision. Claimant now petitions this Court for review.
On appeal,3 Claimant essentially argues that the WCJ and the Board
committed an error of law by concluding that Claimant did not sustain a psychic
injury that was separate and apart from the loss of use of his left leg. More
3
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence, and whether constitutional rights
were violated. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.),
954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).
6
specifically, Claimant contends that, because Employer agreed to a stipulation that
would have amended the description of his work injury to include a psychic injury
and the WCJ’s decision and order thereafter amended the NCP to include mild
anxiety and depression, Employer had the burden of proving that Claimant was no
longer disabled as a result of his mild anxiety and depression. Claimant further
contends that Employer failed to meet its burden and, therefore, the WCJ should not
have granted Employer a credit against his specific loss award for the disability
payments that Employer had already paid to Claimant. In response, Employer
argues that the WCJ and the Board properly concluded that Claimant failed to prove
that he sustained a work-related disability due to his psychic injury that was separate
and distinct from his specific loss. More specifically, Employer contends that
Claimant, as the party who is seeking to amend the NCP and obtain both specific
loss and disability benefits, had the burden of proving that his mild anxiety and
depression caused him to suffer a disability separate and distinct from the loss of use
of his left leg. Employer further contends that the Board properly affirmed the
WCJ’s decision and order because the WCJ’s finding that Claimant did not sustain
a work-related disability separate and distinct from the specific loss of his left leg is
supported by substantial evidence of record—i.e., Claimant presented absolutely “no
medical evidence as to any separate or additional disability preventing [him] from
working, aside from the disability caused by his left leg.” (Employer’s Br. at 29.)
Pursuant to Section 413(a) of the Workers’ Compensation Act (Act),4
“the WCJ may amend [or correct] the NCP at any time during litigation of any
petition if the evidence shows that the injury sustained in the original work incident
is different or more expansive than that listed in the NCP.” Harrison v. Workers’
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771.
7
Comp. Appeal Bd. (Auto Truck Transp. Corp.), 78 A.3d 699, 703 (Pa.
Cmwlth. 2013), appeal denied, 92 A.3d 812 (Pa. 2014) (citing Cinram Mfg., Inc. v.
Workers’ Comp. Appeal Bd. (Hill), 975 A.2d 577, 580-81 (Pa. 2009)). A WCJ may
also amend the NCP “if the claimant files a review petition and proves that another
injury subsequently arose as a consequence of the original injury.” Id. “The party
seeking to amend the NCP has the burden of proving that the NCP is materially
incorrect.” Id.
Section 306(c) of the Act5 authorizes the WCJ to award 410 weeks of
compensation for the specific loss of a leg. A specific loss of a leg occurs when:
(1) the claimant’s leg is amputated; or (2) the claimant suffers a permanent loss of
use of his leg for all practical intents and purposes. Crews v. Workers’ Comp. Appeal
Bd. (Ripkin), 767 A.2d 626, 630 (Pa. Cmwlth. 2001). A claimant “who sustains a
specific loss compensable under Section 306(c) of the Act is not entitled to
additional compensation even though he may be totally disabled by the permanent
injury.” Richardson v. Workers’ Comp. Appeal Bd. (Am. Surfpak), 703 A.2d 1069,
1071 (Pa. Cmwlth. 1997). Section 306(d) of the Act6 provides an exception to this
general rule, which permits a claimant who has sustained “multiple injuries from a
single work incident” to receive both specific loss and disability benefits if the
claimant can prove that he “suffers a disability separate and apart from the specific
loss, i.e., notwithstanding the specific loss, [the] claimant suffers a loss of earning
capacity in order to merit continuing disability benefits.” Crews, 767 A.2d at 632.
5
77 P.S. § 513.
6
77 P.S. § 513. Section 306(d) of the Act provides, in pertinent part:
Where, at the time of the injury the employe receives other injuries, separate from
these which result in permanent injuries . . . the number of weeks for which
compensation is specified for the permanent injuries shall begin at the end of the
period of temporary total disability which results from the other separate injuries.
8
Here, Claimant appears to be confusing the burden of proof applicable
to a suspension, modification, or termination petition with the burden of proof
applicable to a review or claim petition, wherein a claimant is seeking an award of
specific loss benefits. Contrary to Claimant’s assertions, in the specific loss context,
when a claimant is seeking to obtain both specific loss benefits and disability
benefits, it is irrelevant whether an employer has accepted liability for or whether
the WCJ has amended an injury description to include injuries that are separate and
distinct from the specific loss. Under those circumstances, the burden of proof is
always on the claimant to establish that any continued disability—i.e., loss of
earning power—is the result of an injury that is separate and distinct from the
specific loss. See Crews, 767 A.2d at 632. While it is undisputed that Claimant
sustained a work-related psychic injury, Claimant did not prove that he continues to
suffer a loss of earning power relative to such psychic injury. Both Dr. Husband and
Dr. Grippo specifically indicated that they did not place Claimant under any work
restrictions with respect to Claimant’s depression. (See S.R.R. at 21b, 50b.) For
these reasons, we conclude that the WCJ and the Board did not commit an error of
law by concluding that Claimant failed to meet his burden of proving that he
sustained a work-related disability due to his mild depression and anxiety that was
separate and distinct from the specific loss of use of his left leg.7
7
Claimant also appears to suggest that Employer’s willingness to stipulate that Claimant
sustained additional injuries, including mild anxiety and depression, somehow shifts the burden to
Employer to prove that Claimant is no longer disabled as a result of such injuries. We disagree.
Just because an employer may be willing to stipulate to the amendment of the injury description
to add additional injuries does not mean that the employer also agrees that any such additional
injuries are disabling. An employer may choose to issue a “medical only” NCP, a notice of
compensation denial, or a temporary notice of compensation payable, accepting that an injury
occurred but disputing that there was a loss of earning power. See Armstrong v. Workers’ Comp.
Appeal Bd. (Haines & Kibblehouse, Inc.), 931 A.2d 827, 831-32 (Pa. Cmwlth. 2007).
9
Accordingly, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clayton Norton, :
Petitioner :
:
v. : No. 411 C.D. 2019
:
Workers’ Compensation Appeal Board :
(Northern Tier Solid Waste Authority), :
Respondent :
ORDER
AND NOW, this 20th day of February, 2020, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge