IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Total Entertainment Restaurant, No C.D Petitioner Submitted February 21, 2014 v. Workers Compensation Appeal Board (Coppola), Respondent BEFORE HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED April 9, 2014 Total Entertainment Restaurant (Employer) petitions for review of the August 6, 2013, order of the Workers Compensation Appeal Board (WCAB) that affirmed the decision of a workers compensation judge (WCJ), granting the reinstatement petition filed by Peter Coppola (Claimant). We affirm. Claimant, whose duties with Employer required extensive driving and flying, was involved in a work-related, motor vehicle accident on January 24, 2002, and, thereafter, filed a claim petition. After a hearing, the WCJ found that Claimant suffered a tight iliotibial band, greater trochanteric bursitis, and a right sacroiliac joint strain due to the work injury. The WCJ concluded that the surgery performed by Gary S. Gruen, M.D., successfully treated the tight iliotibial band and greater

2 trochanteric bursitis. The WCJ awarded Claimant benefits from March 26, 2004, until October 4, Thereafter, the WCJ terminated Claimant s benefits based on an independent medical examination performed by Jeffrey Kann, M.D., who concluded that Claimant had fully recovered from his work-related injuries. Dr. Kann noted that Claimant did not exhibit any evidence of sacroiliac joint dysfunction. (WCJ s Findings of Fact, 7/26/05, Nos. 1, 11, 16.) On May 29, 2008, Claimant filed the reinstatement petition at issue, alleging that his work injuries recurred, resulting in total disability. At the WCJ s hearing, Claimant testified that since the finding of full recovery in October 2004, his symptoms have recurred. Claimant testified that he has constant pain in his sacroiliac joint that gets progressively worse during the day. Claimant stated that he can only stand for 20 to 30 minutes and can only drive for 30 minutes before the pain becomes too severe. (WCJ s Findings of Fact, 1/24/11, No. 3.) Dr. Gruen, who previously performed surgery related to Claimant s work-related injury, evaluated Claimant on March 3, Dr. Gruen testified that he provides Claimant injection therapy. Dr. Gruen noted that Claimant s condition had worsened and Claimant had difficulty performing daily tasks. Claimant tested positive for S1 joint dysfunction, where the joint is too loose because the ligaments that bind it together have been damaged from a traumatic injury. (Id., No. 5.) On May 8, 2008, Dr. Gruen again examined Claimant, noted that Claimant s greater trochanteric bursitis had recurred, and injected the bursa with cortisone. Dr. Gruen opined that the recurrence of trochanteric bursitis resulted from 2

3 the S1 joint dysfunction exacerbation. Dr. Gruen opined that Claimant was totally disabled from his previous employment as a result of his worsening condition. (Id.) Next, Claimant presented the deposition testimony of Cheryl D. Bernstein, M.D., Claimant s pain management specialist. 1 In February 2007, Dr. Bernstein diagnosed Claimant with S1 joint dysfunction and piriformis muscle syndrome, which can wax and wane depending on Claimant s level of activity. Dr. Bernstein opined that Claimant s injuries resulted from the work-related, motor vehicle accident in Dr. Bernstein further opined that Claimant is disabled from performing his previous job. (Id., No. 4.) Employer presented the testimony of Dr. Kann, who examined Claimant on October 6, Dr. Kann performed numerous tests on Claimant s right hip, which were all normal. Examinations of the lumbar spine and right leg were normal. Dr. Kann did not find any evidence of ongoing pathology with respect to Claimant s sacroiliac joints, iliotibial band, or greater trochanteric bursa. Although Dr. Kann agreed that Claimant s bursa had grown back as of his 2008 evaluation, Dr. Kann denied that Claimant complained of pain on palpitation of the bursa. Dr. Kann concluded, as he did in the litigation before the first WCJ in 2004, that Claimant had recovered from all of his work-related injuries connected to his 2002 accident. (Id., No. 6.) The WCJ credited the testimony of Claimant, Dr. Bernstein, and Dr. Gruen, concluded that Claimant s work-related injury recurred, and granted 1 Claimant takes Percocet on a daily basis. (WCJ s Finding of Fact, 1/24/11, No. 3.) 3

4 Claimant s reinstatement petition. Employer appealed to the WCAB, which affirmed. This appeal followed. 2 A claimant seeking reinstatement of benefits following a termination carries a heavy burden because the claimant has been adjudicated to be fully recovered. National Fiberstock Corporation (Greater New York Mutual Insurance Company) v. Workers Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008). A claimant must prove that since the previous adjudication, his disability has increased or recurred and his physical condition has changed. Taylor v. Workers Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). [A] claimant can show a change in physical condition by showing a return of symptoms previously found to have ceased. National Fiberstock, 955 A.2d at Employer argues that the medical opinions of Dr. Gruen and Dr. Bernstein, which the WCJ credited in granting Claimant s reinstatement petition, are neither competent nor credible. We disagree. Initially, as to Dr. Gruen, Employer argues that because Dr. Gruen testified in the 2004 litigation that Claimant had not recovered from his work-related injury and admitted in his testimony on the termination petition that he never found Claimant to be fully recovered, Dr. Gruen s testimony defies the law of the case that 2 This court s review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. 2 Pa. C.S

5 Claimant was fully recovered. See Namani v. Workers Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, (Pa. Cmwlth. 2011) (holding that a medical opinion based on an assumption that is contrary to the evidence of record is incompetent). We observe, however, that in his testimony, Dr. Gruen specifically assumed that Claimant had fully recovered from his injuries as of October (Gruen Dep. at 8.) Dr. Gruen then testified that when he saw Claimant in March 2005, Claimant s condition had worsened and Claimant was no longer getting any relief. Claimant s symptoms were characteristic of an S1 joint dysfunction exacerbation. In addition, Claimant s bursitis had exacerbated as of March 8, 2008, and was markedly symptomatic. Thus, having assumed that Claimant had fully recovered from his work injury, Dr. Gruen competently opined that Claimant experienced an exacerbation in S1 joint dysfunction, recurrence of trochanteric bursitis, and iliotibial band tightness. Employer argues that Dr. Bernstein s testimony is also flawed because she too attempts to establish that [C]laimant somehow experienced an exacerbation of his injury. (Employer s Br. at 15.) Indeed, Dr. Bernstein did testify that based on her examination and subjective findings, Claimant suffered an exacerbation of his S1 joint dysfunction. The WCJ found Dr. Bernstein s testimony credible and convincing. The WCJ is the ultimate fact finder and the sole arbiter of credibility. Rissi v. Workers Compensation Appeal Board (Tony DePaul & Son), 808 A.2d 274, (Pa. Cmwlth. 2002). Thus, the WCJ did not err in crediting Dr. Bernstein s testimony that Claimant suffered a recurrence of his work-related injuries. 5

6 Finally, Employer argues that the WCJ failed to issue a reasoned decision as is required by section 422(a) of the Workers Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S [A] decision is reasoned for purposes of [s]ection 422(a) if it allows for adequate review by the WCAB without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). Here, the WCJ addressed all of the evidence and the credibility of the witnesses in his decision. Specifically, the WCJ explained that he credited Claimant s testimony after personally observing his demeanor. Further, he credited the testimony of Dr. Bernstein, noting that she is Claimant s treating physician and has examined Claimant on numerous occasions. Additionally, the WCJ noted that Dr. Bernstein s opinion regarding Claimant s worsening condition was supported by objective findings. Similarly, in determining that Dr. Gruen s testimony was credible and persuasive, the WCJ considered that Dr. Gruen examined Claimant on more than one occasion. As such, the WCJ issued a reasoned decision. 3 Section 422(a) of the Act provides in part that a WCJ shall issue a 77 P.S reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section.... The adjudication shall provide the basis for meaningful appellate review. 6

7 Accordingly, we affirm. ROCHELLE S. FRIEDMAN, Senior Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Total Entertainment Restaurant, No C.D Petitioner v. Workers Compensation Appeal Board (Coppola), Respondent O R D E R AND NOW, this 9 th day of April, 2014, we hereby affirm the August 6, 2013, order of the Workers Compensation Appeal Board. ROCHELLE S. FRIEDMAN, Senior Judge