IN THE COMMONWEALTH COURT OF PENNSYLVANIA Adrien Sanchez, Petitioner v. No. 2142 C.D. 2008 Workers Compensation Appeal Board Submitted April 3, 2009 (Acme), Respondent BEFORE HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED August 11, 2009 Adrien Sanchez (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) that affirmed a Workers Compensation Judge s (WCJ) decision and order granting Acme s (Employer) Modification and Suspension Petitions. The Board determined that Claimant s benefits should be modified because there was substantial evidence of record that Claimant could perform certain jobs identified in a labor market survey. The Board also determined that Claimant s benefits should be suspended because Claimant refused reasonable medical treatment.
The relevant and uncontested facts are as follows. On February 21, 2002, Claimant sustained aggravations of his multilevel cervical disc disease and mild cervical spinal stenosis, and he began receiving benefits pursuant to a previous adjudication by a WCJ. On September 14, 2006, Employer filed its Modification Petition, alleging that work was generally available based on a labor market survey and that Claimant s benefits should be modified as of June 25, 2006. On February 28, 2007, Employer filed a Suspension Petition alleging that, as of February 27, 2007, Claimant refused reasonable medical treatment. On November 21, 2007, the WCJ circulated a decision and order granting the Modification and Suspension Petitions. With regard to the Modification Petition, the WCJ credited the testimony of Marcelino P. Oliveri, D.O., Claimant s treating physician, who testified that although Claimant is not fully recovered from the aggravation of his injury, he is capable of performing modified work. Specifically, Dr. Oliveri approved Claimant to work three jobs identified in the labor market survey that was conducted by Leslie Rice, a certified rehabilitation counselor. Those jobs included a telephone sales associate with Web Extremity, a screw machine operator at Dental X/Star Dental, and a dispatcher at Comcast Cable. Because the average earnings of these jobs is $626.70 per week, the WCJ concluded that based on Claimant s earning capacity of $773.88 per week, his partial rate of benefits should be modified to $98.12 per week as of June 25, 2006. With regard to the Suspension Petition, the WCJ credited the testimony of Dr. Oliveri that Claimant refused reasonable and necessary medical treatment in the nature of cervical surgery. As such, the WCJ concluded that Claimant forfeited benefits as of February 27, 2007, the 2
date requested in Employer s Suspension Petition. Claimant appealed, and the Board affirmed the WCJ s decision. Claimant now petitions this Court for review. 1 We note that, in Claimant s brief, he identifies one issue in his Statement of Question Involved, which is whether the WCJ issued a reasoned decision. However, in his two-page argument section, he challenges the WCJ s decision granting the Modification and Suspension Petitions for various reasons, albeit, without legal authority or record citations. Because we can discern his arguments as discussed in his brief, we will address them in a logical order. Modification Petition Claimant argues that the WCJ s decision granting Employer s Modification Petition is not supported by substantial, competent evidence. Specifically, Claimant contends that Dr. Oliveri s testimony that Claimant was able to perform the three modified positions in the labor market survey was equivocal. As such, Claimant argues that the WCJ should not have omit[ed] other testimony and evidence... including the testimony of Dr. White, which establishes that Claimant is not able to work in any capacity at this time. (Claimant s Br. at 7.) Section 413(a) of the Workers Compensation Act (Act) 2 provides, in pertinent part, that a WCJ 1 Our standard of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated, or whether an error of law was committed. South Hills Health System v. Workers Compensation Appeal Board (Kiefer), 806 A.2d 962, 965 n.5 (Pa. Cmwlth. 2002). 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 772. 3
may, at any time, modify,... suspend, or terminate a notice of compensation payable... or an award of the department or its [WCJ], upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased. 77 P.S. 772. The burden of proving that a modification petition should be granted is on the party seeking modification, in this case Employer. Fruehauf Corporation v. Workmen s Compensation Appeal Board (Michaels), 559 A.2d 609, 610 (Pa. Cmwlth. 1989). Section 306(b)(2) of the Act, 3 provides Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth. 77 P.S. 512(2). Thus, an employer seeking to modify a claimant s compensation benefits under Section 306(b)(2) must either (1) offer to a claimant a specific job that it has available, which the claimant is capable of performing, or (2) establish earning power through expert opinion evidence including job listings with employment agencies, agencies of the Department of Labor and Industry, and advertisements in a claimant's usual area of employment. South Hills Health System, 806 A.2d at 966. Where, as here, an employer seeks to modify benefits based upon earning power by the use of a certified vocational expert, the employer 3 77 P.S. 512(2). 4
must prove that jobs exist within the claimant s capability and the expert must determine a claimant s earning power based on jobs that are actually available. South Hills, 806 A.2d at 970; see also Allied Products and Services v. Workers Compensation Appeal Board (Click), 823 A.2d 284, 287 (Pa. Cmwlth. 2003). Claimant is not challenging whether the three jobs identified in the labor market survey are actually available. Rather, he is arguing that Dr. Oliveri s testimony approving those jobs as being within Claimant s capabilities was equivocal. Claimant argues that, because this testimony was equivocal, the WCJ and the Board erred in relying upon it in granting the Modification Petition. We disagree. Dr. Oliveri s testimony was not equivocal. Medical testimony is equivocal if, after a review of a medical expert's entire testimony, it is found to be merely based on possibilities. Campbell v. Workers Compensation Appeal Board (Pittsburgh Post Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). Dr. Oliveri testified that, as Claimant s treating physician, he reviewed the job descriptions for all jobs identified in the labor market survey and approved some of the jobs. Specifically, Dr. Oliveri testified unequivocally that he approved three jobs identified therein a telephone sales associate position with Web Extremity, a screw machine operator position at Dental X/Star Dental, and a dispatcher position at Comcast Cable because they were very, very sedentary type of work positions. (Oliveri Dep. at 6-8.) Although Claimant argues that Dr. Oliveri equivocated in his opinion as to whether he approved those jobs within Claimant s capabilities, he fails to direct our attention to the specific portion of Dr. Oliveri s testimony in which Claimant believes Dr. Oliveri equivocated. Nonetheless, our review of Dr. Oliveri s entire deposition testimony 5
reveals that, at no point did Dr. Oliveri recant his opinions regarding Claimant s abilities to perform the three identified jobs in the labor market survey. In fact, on cross-examination, Dr. Oliveri testified that while Claimant could not return to his previous job with Employer or engage in some of the jobs listed on the labor market survey, I would have let him do the other jobs, which I approved. (Oliveri Dep. at 17.) Dr. Oliveri s testimony was unequivocal, and the WCJ specifically credited Dr. Oliveri s testimony. The WCJ is the ultimate finder of fact and arbiter of credibility determinations. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). The WCJ chose to credit the testimony of Dr. Oliveri and this Court will not disturb the WCJ s findings, especially in light of the fact that his testimony was not equivocal. Claimant wants this Court to rely on the testimony of Harold White, D.O., that Claimant is totally disabled and unable to work any of the jobs identified in the labor market survey. However, the WCJ specifically stated that he rejects the opinion of Dr. White that Claimant is wholly disabled. (WCJ Decision, Finding of Fact (FOF) 20.) Therefore, the Board did not err in granting the Modification Petition. Suspension Petition Claimant next argues that the WCJ s decision granting Employer s Suspension Petition was erroneous and must be reversed. Specifically, Claimant argues that, because he was previously adjudicated as totally disabled, in order to suspend benefits based on an ability to work, Employer must show that Claimant s condition has changed. Furthermore, Claimant contends that he did not refuse reasonable 6
medical treatment because he understood Dr. Oliveri s recommendation as advising Claimant against undergoing surgery for his condition. An employer may seek a suspension of benefits under Section 306(f.1)(8) of the Act, 77 P.S. 531(8), which provides, [i]f the employe shall refuse reasonable services of health care providers, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to have resulted from such refusal. This Court, in Alltel, Inc. v. Workers Compensation Appeal Board (Baum), 829 A.2d 739 (Pa. Cmwlth. 2003), has explained forfeiture pursuant to Section 306(f.1)(8) as follows This Section requires an employer to pay for reasonable medical treatment, while imposing a duty upon the employee to avail himself of these services. A claimant who declines to avail himself of reasonable medical or surgical procedures to ameliorate his condition should not be permitted to collect benefits for a permanent loss, because the Act was not designed to permit employees to elect between compensation and cure. In Muse v. Workmen s Compensation Appeal Board, 514 Pa. 1, 7, 522 A.2d 533, 537 (1987), our Supreme Court stated that[] The purpose of the statute is to provide cure where it can reasonably be done by medical arts for the benefit of the claimant, that he not be handicapped in his health or his prospects for gainful and fulfilling employment.... Who can be cured and won't soon drys [sic] sympathy and wearies the most willing helpers. One ought not in any context avoid reasonable medical procedures to cure infirmities that are a burden to life and the prospects of life. The focus of the statute is on the reasonableness of the services offered. However, what constitutes reasonable medical treatment will depend on a factual inquiry conducted by the WCJ. To establish reasonableness, the evidence submitted by the employer must show that the recommended surgery (1) involves minimal risk to the patient and (2) offers a high probability of success. 7
Id. at 742 (omission in original) (citations omitted). Once an employer submits evidence that the proposed medical treatment was reasonable, the claimant can rest his case, hoping that the employer will have failed to carry his burden, or introduce evidence as to why, in his individual case, the services offered were not reasonable. Muse, 514 Pa. at 6, 522 A.2d at 536. Before addressing whether the evidence submitted establishes that Claimant refused reasonable medical treatment, we note that Claimant s benefits were not suspended based on his ability to return to work. Because Claimant s benefits were forfeited under Section 306(f.1)(8) of the Act, Employer need not show that Claimant s physical condition has changed since a previous adjudication determining him totally disabled. See Department of Labor & Industry v. Workers Compensation Appeal Board (Exel Logistics), 586 Pa. 85, 91, 890 A.2d 1045, 1049 (2005) ( Forfeiture is based on the claimant's own unwillingness to receive treatment rather than a change in status. With forfeiture, there is no requirement of a change which alters a claimant s right to benefits, as exists with a suspension of benefits. ) Thus, any earlier determinations by the Bureau of Workers Compensation, the Board, or this Court are not relevant to this proceeding. Rather, the question is whether Employer, in seeking a forfeiture of benefits, upheld its burden of showing that Claimant refused surgery that involved minimal risk with a high probability of success. Claimant contends that it was his understanding that Dr. Oliveri did not recommend that Claimant undergo surgery for his injury. Thus, he argues that he can not be held to refusing reasonable medical care if he was not aware it was 8
recommended. (Claimant s Br. at 6.) This argument fails because it ignores the credibility determinations made by the WCJ. Greenwich Collieries, 664 A.2d at 706. Here, the WCJ specifically credited the deposition testimony of Dr. Oliveri in determining that Claimant refused reasonable and necessary medical treatment, which involved no unreasonable risks. (FOF 22.) Specifically, Dr. Oliveri credibly testified that Claimant would benefit significantly from [a surgical procedure known as] an anterior discectomy and interbody fusion at the C4/5 and C5/6 level[s] of his spine. (Oliveri Dep. at 8-9.) Dr. Oliveri opined that in his experience with patients like Claimant, who have exhausted conservative measures, they would benefit from this surgery. (Oliveri Dep. at 9.) Dr. Oliveri expected a successful result from the surgery, stating that 85 percent of people do very well with that, and... we get a good outcome. (Oliveri Dep. at 11.) Dr. Oliveri testified that he would expect Claimant to fall within that percentage. Further, Dr. Oliveri indicated that he is willing to perform this surgery on Claimant and that he has recommended this surgery and discussed it with Claimant [s]everal times. (Oliveri Dep. at 11-12 (emphasis added); see also Oliveri Dep. Ex. 3, Letter from Dr. Oliveri to Claimant s Counsel (Oct. 17, 2006) at 1 (stating that he has advised [Claimant] that at this juncture, it would be an appropriate consideration for him to undergo [the surgery] ).) Claimant did not present any evidence that the proposed surgery was unreasonable. Further, the WCJ credited Dr. Oliveri s testimony and specifically rejected Claimant s testimony noting that Claimant s testimony concerning surgery is not corroborated by the testimony of his own orthopedic surgeon[, Dr. Oliveri]. (WCJ FOF 18.) Because the WCJ found Dr. Oliveri s deposition testimony 9
credible that Claimant refused reasonable medical treatment that he recommended to Claimant and discussed on several occasions, and found Claimant s contrary testimony not credible, we agree with the Board s order granting the Suspension Petition. Accordingly, the order of the Board is affirmed. RENÉE COHN JUBELIRER, Judge 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Adrien Sanchez, Petitioner v. No. 2142 C.D. 2008 Workers Compensation Appeal Board (Acme), Respondent O R D E R NOW, August 11, 2009, the order of the Workers Compensation Appeal Board in the above-captioned matter is hereby affirmed. RENÉE COHN JUBELIRER, Judge