IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Zebley, : Petitioner : : v. : No. 1690 C.D. 2008 : Submitted: January 9, 2009 Workers' Compensation Appeal Board : (A. J. Appliance), : Respondent : BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: March 13, 2009 John Zebley petitions for review of an August 6, 2008 order of the Workers' Compensation Appeal Board (Board) affirming an order of the Workers' Compensation Judge (WCJ) who granted Zebley's claim petition and ordered A.J. Appliance (Employer) to pay total disability benefits from June 25, 2005 to July 9, 2005. The WCJ also allowed Employer to suspend benefits from July 10, 2005 to July 18, 2006 and then to terminate benefits after July 19, 2006. Zebley questions whether the WCJ erred by terminating benefits when medical evidence relied upon did not prove full recovery from the work injuries and whether the WCJ erred by granting the claim petition for a closed period. Zebley was employed as a repairman for Employer, and on June 25, 2005 he was on call and driving his work truck when he was rear-ended by another truck. Zebley was taken to a hospital and remained there for two days for head and neck injuries. On June 29, 2005, Zebley was treated by James F. Bonner, M.D., board certified in physical medicine and pain management. Dr. Bonner's diagnosis
included: a small subdural hematoma, cerebral concussion and post-concussive syndrome, traumatic brain injury and cervical and lumbosacral strains and sprains. Zebley missed work for two weeks and thereafter resumed work at his pre-injury wages. Zebley complained of dizziness, sleepiness, problems with head, neck and back pain and headaches. Dr. Bonner referred Zebley to John Boor, M.D., a neurologist, and to Glen Greenberg, Ph.D., a neuropsychologist, for neurological symptoms. Dr. Bonner last examined Zebley on August 10, 2005 and concluded that all of his symptoms had resolved except for continued symptoms of a head injury and some mild residuals related to cognitive or memory deficits from the subdural hematoma. He opined that Zebley could return to work. Zebley filed a claim petition on March 26, 2006, alleging an ongoing partial disability. Employer denied the claim and retained Richard I. Katz, M.D., who examined Zebley, conducted tests and reviewed his records on July 18, 2006. Zebley submitted transcripts of depositions given by him and by Dr. Bonner. Employer submitted deposition testimony given by Joseph Pinto, Vice President; Dr. Katz' report; and an affidavit of Michael Herrold, claims representative. In addition to finding that Zebley still suffers from headaches, the WCJ found in part as follows: 28. Regarding diagnoses, Dr. Bonner testified, and the Judge finds that the Claimant had diagnosed conditions of a small subdural hematoma with cerebral concussion and post-concussive syndrome, parentheses, traumatic brain injury, and acute cervical and lumbosacral strains and sprains and a subsequent resolution of them and had a two week period of disability with one week as a vacation, or a disability from June 25, 2005 to July 9, 2005 inclusive in accordance with these findings, as a result of the diagnosed conditions and as a consequence of the work injury. 2
29. Dr. Bonner testified, and the Judge finds that the Claimant did not recover from the work injury by August 10, 2005, or the date of Dr. Bonner's last examination of the Claimant before Dr. Bonner's testimony, and could work.. 32. About additional examination results, Dr. Katz said, and the Judge finds that at the time of his examination of the Claimant on July 18, 2006: the neurologic examination showed normal mental and language function. 33. Regarding diagnoses, Dr. Katz said, and the Judge finds that the Claimant had a blunt head injury with a scalp laceration and foreign body, specifically glass, a cerebral concussion, and cervical and lumbar strain by history. 34. Dr. Katz' statements established, and the Judge finds that the Claimant's conditions resolved by the date of his examination, July 18, 2006. The WCJ concluded that Employer was liable for total disability for the period June 25, 2005 to July 9, 2005 and that it may suspend benefits from July 10, 2005 to July 18, 2006 inclusive and terminate benefits after July 19, 2006. 1 The Board affirmed the WCJ's decision, reasoning as follows: In a claim petition, the claimant bears the burden of proving all of the elements necessary to support an award. Inglis House v. WCAB (Reedy), 634 A.2d 592 (Pa. 1993). The claimant must prove that he sustained a work-related injury and that this injury caused a disability. Ruhl v. WCAB (Mac-It Parts, Inc.), 611 A.2d 327 (Pa. Cmwlth. 1992). Where the causal relationship between the work incident and the disability is not obvious, unequivocal medical evidence is 1 Under Section 413(c) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 774.2, "an insurer may suspend the compensation during the time the employe has returned to work at his prior or increased earnings upon written notification of suspension by the insurer to the employe." 3
necessary to establish it. Jeannette Dist. Memorial Hosp. v. WCAB (Mesich), 668 A.2d 249 (Pa. Cmwlth. 1995). Where the claimant fails to establish ongoing disability beyond a certain date by unequivocal medical testimony, benefits are properly terminated as of that date. Innovative Spaces v. WCAB (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994).. Our review of the record reveals no error on the part of the Judge. It was Claimant's burden on his Claim Petition to prove through unequivocal medical evidence that he sustained a work-related injury that caused a disability. Ruhl; Mesich. However, if he did not prove ongoing disability beyond a certain date, his benefits could be terminated. DeAngelis. As such, the Judge found no conflict between Claimant's and Defendant's medical evidence, accepting Dr. Bonner that Claimant was not recovered by his final examination, and Dr. Katz's report that Claimant was recovered by his later, July 18, 2006 evaluation. Moreover, the Judge made no findings on Claimant's testimony as to the continuation of the work injury. While the Judge acknowledged that Claimant continued to experience headaches, she did not find that those headaches were related to Claimant's work injury. Board's Opinion, pp. 2-6 (citations omitted). Zebley argues that the WCJ erred in granting his claim petition for a closed period and then terminating benefits. Citing Giant Eagle, Inc. v. Workmen's Compensation Appeal Board (Chambers), 635 A.2d 1123 (Pa. Cmwlth. 1993), Zebley states that disability is presumed to continue until demonstrated otherwise, and he asserts that to terminate benefits the employer must prove that all of the claimant's work-related disability has ceased. Id. He further argues that Employer failed to prove full recovery because Dr. Katz did not accept that Zebley sustained subdural hematoma, post concussive syndrome or traumatic brain injury as found by the WCJ. Instead, Dr. Katz accepted diagnoses of blunt head injury, cerebral 4
concussion and cervical and lumbar strain. Zebley cites Noverati v. Workmen's Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455 (Pa. Cmwlth. 1996), for the principle that an employer's medical expert cannot refuse to accept the work-relatedness of a condition that has been established. Zebley asserts that Dr. Katz failed to consider that Zebley still suffers headaches, as found by the WCJ, and that a credible complaint of pain is sufficient to support a finding of continued disability even without evidence of an anatomical cause under JAB Enters., Inc. v. Workmen's Compensation Appeal Board (Haehn), 470 A.2d 210 (Pa. Cmwlth. 1984). Citing to Parker v. Workers' Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102 (Pa. Cmwlth. 1999), Zebley asserts that a termination is appropriate only if the employer proves that the claimant's disability arises from a cause unrelated to the work injury. In addition, the WCJ erred in crediting Dr. Katz' testimony when his diagnoses were different from those of Dr. Bonner; he examined Zebley only once; and his opinion of full recovery conflicts with Zebley's continuing headaches. Furthermore, Employer's Vice President admitted that Zebley suffered memory problems after the accident. Employer counters that the term "disability" under the Act means loss of earning power. Citing Bissland v. Workmen's Compensation Appeal Board (Boyertown Auto Body Works), 638 A.2d 493 (Pa. Cmwlth. 1994), it asserts that a claimant is disabled and entitled to compensation only if the physical disability occasions a loss of earnings. Employer posits that the claimant in a claim petition must "demonstrate not only that he has sustained a compensable injury but also that the injury continues to cause disability throughout the pendency of the claim petition." DeAngelis, 646 A.2d at 54. It highlights Dr. Bonner's testimony that Zebley's cerebral concussion, subdural hematoma and cervical and lumbar sprains 5
and strains had resolved as of August 10, 2005, and it stresses Dr. Katz' opinion that Zebley could work and pursue his activities without restriction. Employer notes that it had no burden to meet and that Dr. Katz did not reject Dr. Bonner's diagnoses. Assuming that Dr. Katz rejected any diagnosis, Dr. Bonner opined that Zebley had recovered and that the only residual may be cognitive or memory loss. The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a practice or procedure of the Board was not followed or whether the WCJ's findings of fact are not supported by substantial evidence in the record. Helvetia Coal Co. v. Workers' Compensation Appeal Board (Learn), 913 A.2d 326 (Pa. Cmwlth. 2006). Based upon a review of the record, the Court discerns error in the WCJ's decision to terminate benefits. It is evident that findings of full recovery were not supported by substantial evidence. The WCJ specifically found that Zebley's treatment included physical therapy, diagnostic tests and cognitive and memory testing and that he continues to suffer headaches. She also found that Zebley's injuries had resolved according to Dr. Bonner's testimony. The doctor testified, however, that as of August 10, 2005 Zebley had recovered from his "musculoskeletal complaints" but that he had been referred to Dr. Boor for treatment regarding the traumatic brain injury, subdural hematoma, headaches and cervical pain. Dr. Bonner agreed that Zebley's cerebral concussion, cervical and lumbosacral strains and sprains and subdural hematoma (blood clot) had resolved but stated that there was some degree of cognitive or memory loss associated with the subdural hematoma as shown in further testing. In his report Dr. Katz stated that his neurologic, musculoskeletal and neurovascular examinations of Zebley on July 19, 2006 were normal. He reviewed Zebley's medical history and records and noted prior suggestions that he limit his 6
school work because of potential problems with memory. The doctor diagnosed blunt head injury with scalp laceration and foreign body, cerebral concussion and cervical and lumbar strain. Although opining that Zebley's conditions had resolved by July 19, 2006, he did not acknowledge the other injuries accepted by the WCJ. Moreover, Dr. Katz indicated that he looked forward to reviewing the films of Zebley's brain CT scan and brain and spine MRIs. Although the WCJ has the authority in a claim petition proceeding to render a decision that incorporates aspects of modification, suspension and/or termination and the burden remains on the claimant in such proceedings, the Court cannot agree that the evidence here establishes full recovery from Zebley's work injuries as discussed above. By contrast, there is definite support in the record for the decision to suspend benefits after July 10, 2005 as Zebley returned to work at pre-injury wages. In Hartner v. Workmen's Compensation Appeal Board (Phillips Mine & Mill, Inc.), 604 A.2d 1204, 1208 (Pa. Cmwlth. 1992), the Court reiterated that "even though a claimant continues to suffer a work-related disability, if that disability does not manifest itself in a loss of earnings then compensation must be suspended." See also Howze v. Workers' Compensation Appeal Board (Gen. Elec. Co.), 714 A.2d 1140 (Pa. Cmwlth. 1998). The Court therefore reverses that part of the Board's order affirming a termination as of July 19, 2006 when the record fails to demonstrate that Zebley has recovered fully from all work injuries diagnosed by Dr. Bonner and accepted by the WCJ. In this regard, the Board erred in stating that the WCJ did not find that the headaches were related to the work injury when Dr. Bonner unequivocally testified that the primary complaints after the work injury involved headaches. The doctor testified within a degree of medical certainty that Zebley's injuries resulted 7
from the work incident, and there is no dispute that the WCJ credited this doctor's testimony. Because the Board did not err in affirming the suspension of benefits due to Zebley's return to work, the Court will affirm in this regard but with the modification that the suspension be reinstated generally as of July 10, 2005. DORIS A. SMITH-RIBNER, Judge 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Zebley, : Petitioner : : v. : No. 1690 C.D. 2008 : Workers' Compensation Appeal Board : (A. J. Appliance), : Respondent : O R D E R AND NOW, this 13th day of March, 2009, the Court reverses the order of the Workers' Compensation Appeal Board granting a termination of benefits but affirms the grant of a suspension of benefits as modified by the foregoing opinion. DORIS A. SMITH-RIBNER, Judge