IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thomas Stajduhar, : Petitioner : : v. : No. 1016 C.D. 2013 : SUBMITTED: September 27, 2013 Workers Compensation Appeal : Board (Department of : Transportation), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: December 3, 2013 Claimant, Thomas Stajduhar, petitions for review of an order of the Workers Compensation Appeal Board (Board) that affirmed the decision of the Workers Compensation Judge (WCJ) denying his claim, penalty and review petitions. We affirm. Claimant worked as a transportation operator for the Department of Transportation (Employer) from December 2008 to April 25, 2009, at which time Employer laid off its seasonal employees. His job duties included operating snow plows and dump trucks, patching potholes, shoveling asphalt and removing debris from along roads. On March 10, 2009, Claimant suffered a work-related back

contusion when he climbed into the bed of a truck to remove bags of litter and debris, lost his footing and fell into the truck bed. Pursuant to a notice of compensation payable, Claimant received total disability benefits in the weekly amount of $418, based on an average weekly wage of $573.75, for the closed period of March 11th to 31st, 2009. After receiving a full-duty work release from the Dr. Blair Truxal, the panel physician who treated him following his work injury, Claimant returned to work on April 1, 2009. Accordingly, Employer suspended Claimant s benefits pursuant to an April 1st notification of suspension, which Claimant did not challenge. In November 2009, Claimant contacted the claims adjuster for Employer s workers compensation insurer, claiming that he sustained a recurrence of his March 10th work injury while raking leaves. In order to determine if a recurrence had occurred, the insurer approved visits with Dr. Emilio Villegas, Claimant s family physician, and a subsequent evaluation by Dr. Robert G. Liss, a board-certified orthopedic surgeon. In January 2010, Employer filed a notice of denial of benefits therein denying a November 1, 2009 recurrence of the original March 10th injury. On March 3, 2010, Claimant filed a claim petition alleging that, as of April 26, 2009, he was totally disabled from the March 10, 2009 injury. In October 2010, Claimant filed a penalty petition, alleging that Employer violated the Workers Compensation Act 1 by failing to pay chiropractic bills from Anthony M. Consales, D.C. Also in October 2010, Claimant filed a review petition, seeking to expand the description of the original March 10th injury to include a herniated disc. The WCJ consolidated the three petitions and ultimately denied all three. In 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 1-1041.4, 2501-2708. 2

so doing, she accepted as credible the testimony of Employer s medical experts, board-certified orthopedic surgeons Jack G. Smith, M.D. and Robert G. Liss, M.D., that Claimant had no residuals from the March 10th work injury and did not suffer from a herniated disc. She specifically rejected the testimony of Claimant s expert, Anthony J. Consales, D.C., to the contrary. The Board affirmed and Claimant s timely appeal to this Court followed. On appeal, Claimant first argues that the WCJ erred in disregarding the regulation governing the time for taking oral depositions thereby permitting Employer to take the depositions of its medical experts more than ninety days after the initial deposition of Claimant s medical expert. (The timing of the depositions was as follows: May 13, 2010: Claimant s expert; October 22, 2010, and November 2, 2010: Employer s experts.) In addition, even if the WCJ arguably had discretion to grant an extension of time in which to conduct the depositions, Claimant maintains that she erred in determining that Employer had good cause for its delay. Finally, Claimant points out that the late depositions of Drs. Smith and Liss were what caused him to lose his case. We reject Claimant s arguments. In general, [t]he deposition of a medical expert testifying for the responding party shall be taken within 90 days of the date of the deposition of the last medical expert testifying on behalf of the moving party. 34 Pa. Code 131.63(c). Further, [i]f a party fails to abide by the time limits established by this section for submitting evidence, the evidence will not be admitted, relied upon or utilized in the proceedings or the [WCJ s] rulings. 34 Pa. Code 131.63(f). Notwithstanding that regulation, there is also a general regulation granting the WCJ discretion to modify time constraints. It provides that, the time fixed or the period of time prescribed in this chapter [Special Rules of Administrative Practice 3

and Procedure before Workers Compensation Judges] may, in the exercise of sound discretion and for good cause, be shortened or extended by the [WCJ] upon the [WCJ s] motion or at the request of a party. 34 Pa. Code 131.12(12). We turn then to determining whether the WCJ in the present case abused her discretion in granting Employer more time in which to take the depositions of its medical experts. Coyne v. Workers Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 950 (Pa. Cmwlth. 2008) (holding that the test for determining whether the WCJ erred in waiving the Special Rules is whether there has been an abuse of discretion.) In Atkins v. Workers Compensation Appeal Board (Stapley in Germantown), 735 A.2d 196 (Pa. Cmwlth. 1999), this Court considered the claimant s argument that the WCJ erred in waiving the employer s failure to comply with the ninety-day deposition requirement because admission of the late deposition hurt her case. In determining that the WCJ was within his discretion in waiving the special rule, we noted that the [a]dmission of evidence is committed to the sound discretion of the WCJ. Id. at 199. In addition, assuming prejudice as an element in analyzing whether a WCJ should grant a request to waive the ninetyday period, we rejected the claimant s assertion that the requisite prejudice resulted merely because the late evidence damaged her case. In that regard, we held as follows: The prejudice Claimant is arguing herein is that her ability to win the case is hurt by the introduction of the deposition. Of course it is, but this is not what courts mean when utilizing the phrase prejudice in the context of determining whether delay by an opposing party ought to serve as grounds for precluding evidence which that opposing party wants to introduce. Rather the kind of prejudice intended is that because of the delay, the party objecting to the admission of such evidence has been 4

Id. rendered incapable of responding to such evidence, because e.g., a witness has died, evidence has been lost, etc. In the present case, it is undisputed that Employer s proffered reasons for the delay were two-fold: 1) Dr. Smith s full schedule; and 2) the necessity of prior approval from the Commonwealth employer for payment of Dr. Liss deposition. See September 29, 2010 Letter from Employer s Counsel to WCJ; Reproduced Record (R.R.) at 107a. In permitting the depositions of the two boardcertified orthopedic surgeons, the WCJ concluded that there was no deliberate component to the delay and that Claimant would not be prejudiced. October 7, 2010 Hearing, Notes of Testimony (N.T.) at 9; Supplemental Reproduced Record (S.R.R.) at 9b. To reiterate, the deposition of Claimant s expert was on May 13, 2010, and the depositions of Employer s experts, respectively, were on October 22, 2010, and November 2, 2010. In addition, Claimant s expert did not conclude his testimony until November 4, 2010, after the depositions of both of Employer s medical experts. In light of the WCJ s subsequent consolidation of the three petitions, the time-table in which the depositions ultimately occurred and the lack of demonstrable prejudice, we discern no abuse of discretion. Claimant next argues that the WCJ erred in not reinstating his benefits because Employer failed to establish that his disability had ceased at the time of his lay-off. Claimant emphasizes that Employer failed to elicit the testimony of Dr. Truxal, the panel physician who treated him after his work injury, or to submit Truxal s return-to-work slip into evidence. If the slip is considered, Claimant maintains that a release to work without restriction is not the equivalent of establishing that all disability from the work injury has ceased. In support of his 5

position, Claimant cites Zimcosky v. Workmen s Compensation Appeal Board (U.S. Steel Corp.), 544 A.2d 1106 (Pa. Cmwlth. 1988). In Zimcosky, the employer sought to suspend the claimant s benefits when employer s plant physician released him to return to his pre-injury job. This Court reversed the Board s decision granting the suspension petition, concluding that the claimant was entitled to total disability benefits despite the fact that the WCJ found that he was able to return to his pre-injury job with residual disability. Noting that, at the time he was released to return to work, the claimant s former job was no longer available due to a departmental closing and a mill-wide layoff, we pointed out that the employer presented no evidence as to work availability in the claimant s department, at its mill, or at any other job. Zimcosky is factually distinguishable from the present case. Here, Claimant did return to full duty work when he was released to do so, so the job availability issue key to Zimcosky was not present. More fundamentally, Zimcosky involved a suspension petition, in which an employer has the burden of showing either a change in medical condition or job availability within the employee s capabilities. At issue here was a claim petition, which was in actuality a petition for reinstatement of the benefits paid in March, 2009. Employer issued a notice of suspension on April 1, 2009, which Claimant did not challenge. Pursuant to Section 413(c) of the Act, 2 therefore, Claimant was deemed to have admitted to the return to work and receipt of wages at prior or increased earnings and the notification had the same binding effect as a fully executed supplemental agreement for the suspension of benefits. Anderson v. Workers Comp. Appeal Bd. (Penn Center for Rehab.), 15 A.3d 944, 948 (Pa. Cmwlth. 2010). Contrary to 2 Added by Section 2 of the Act of July 1, 1978, P.L. 692, 77 P.S. 774.2(2). 6

Claimant s contention, therefore, Employer did not have the burden of proof. Instead, Claimant bore the burden applicable to a reinstatement of benefits following a suspension: 3 [Our Supreme Court has] held that, because the claimant had already established a work-related injury supporting an award of benefits, when seeking reinstatement of those benefits causation will be presumed if the claimant can demonstrate that: (1) through no fault of his own, his earning power is once again adversely affected by his disability; and (2) the disability which gave rise to his original claim, in fact, continues. Kane v. Workmen s Comp. Appeal Bd. (Weis Mkts., Inc.), 682 A.2d 17, 20 (Pa. Cmwlth. 1996) (emphasis omitted) [quoting Latta v. Workmen s Comp. Appeal Bd. (Latrobe Die Casting Co.), 537 Pa. 223, 236, 642 A.2d 1083, 1084 (1994) (citation omitted)]. See also Pieper v. Ametek-Thermox Instr. Div., 526 Pa. 25, 584 A.2d 301 (1990). Moreover: [W]here a claimant returns to work under a suspension, without restriction, to his or her pre-injury job, is subsequently laid off, and then petitions for reinstatement, the claimant has the burden to affirmatively establish that it is the work-related injury which is causing his or her present loss of earnings. That 3 The fact that Employer chose to defend against Claimant s petitions and present its own expert witnesses does not equate to Employer bearing the burden of proof. In fact, Claimant bore the burden of proof with respect to all three of his petitions. Anderson, 15 A.3d at 948 (where claimant failed to challenge suspension notification within twenty days, claimant bore burden to justify a change in the status quo and establish that earning power was adversely affected by the work injury); Hartner v. Workmen s Comp. Appeal Bd. (Phillips Mine & Mill, Inc.), 604 A.2d 1204, 1209 (Pa. Cmwlth. 1992) (party seeking to change description of injury via a review petition must prove material mistake of law or fact regarding extent of work injury); CVA, Inc. v. Workers Comp. Appeal Bd. (Riley), 29 A.3d 1224, 1227 (Pa. Cmwlth. 2011) (claimant pursuing a penalty petition has the burden of proving a violation of the Act). 7

is, while the claimant still enjoys the presumption that some work-related medical injury continues, the claimant is not entitled to the presumption that his or her present disability, i.e. loss of earnings, is causally related to that work injury. See Trumbull v. Workmen's Compensation Appeal Board (Helen Mining Co.), 683 A.2d 342 (Pa. Cmwlth.1996); Ogden Aviation Services v. Workmen's Compensation Appeal Board (Harper), 681 A.2d 864 (Pa. Cmwlth.1996). Teledyne McKay v. Workmen s Comp. Appeal Bd. (Osmolinski), 688 A.2d 259, 262 (Pa. Cmwlth. 1997) (emphasis in original and footnote deleted). Here, the WCJ s supported findings establish that Claimant returned to work without restrictions in April of 2009 4 and his subsequent layoff was not related to the March 10, 2009 injury. WCJ s Decision, Finding of Fact No. 27 and Conclusion of Law Nos. 1-2. Further, the WCJ accepted as credible the testimony of two orthopedic surgeons that Claimant had no residuals from the original work injury and that he did not have a herniated disc. WCJ s Decision, Findings of Fact Nos. 18, 21, 22 and 26 and Conclusion of Law No. 3. Based on this credited medical testimony, she concluded that Claimant s symptoms since November 2009 were not related to the March 10 work injury. Conclusion of Law No. 4. It was within the WCJ s purview as the ultimate finder of fact to credit the testimony of Employer s medical witnesses and to accept or to reject, in whole or in part, the testimony of Claimant s medical witness. Anderson, 15 A.3d at 949. This Court will not disturb such findings where, as here, they are supported by substantial evidence. Id. Moreover, Employer s decision not to depose Dr. Truxal went to the 4 There is abundant evidence that Dr. Truxal released Claimant to full-duty work without restrictions. Claimant admitted to Dr. Truxal s release. May 10, 2010 Deposition of Claimant, Notes of Testimony (N.T.) at 12 and 26; Reproduced Record (R.R.) at 27a and 41a. In addition, Dr. Smith testified several times as to his review of Dr. Truxal s full unrestricted duty release. October 22, 2010 Deposition of Dr. Smith, N.T. at 10 and 26-27; S.R.R. at 39b and 56b-57b. 8

weight of the evidence, which is also within the purview of the WCJ. Joy Global, Inc. v. Workers Comp. Appeal Bd. (Hogue), 876 A.2d 1098, 1105 (Pa. Cmwlth. 2005). As is quite common in these cases, Dr. Smith reviewed various medical records, including Dr. Truxal s notes and the work release slip. After considering the evidence, the WCJ simply chose to reject the testimony of Dr. Consales and to accept that of Drs. Smith and Liss. Accordingly, the WCJ properly denied Claimant s requests for reinstatement, either as a result of his April, 2009, layoff or his claim of a recurrence in November, as well as his Review Petition seeking to amend the description of his work injury to include a herniated disc. Finally, Claimant maintains that the WCJ erred in not ordering payment of the bills for chiropractic services and an appropriate penalty. Specifically, he maintains that the WCJ erred in determining that Dr. Consales chiropractic treatment was unrelated to the work injury, particularly finding fault with the WCJ s reliance on the depositions of the two orthopedic surgeons. Having determined that the WCJ did not abuse her discretion in modifying the time period in which Employer had to take those two depositions, we reiterate that it was within the WCJ s purview as the ultimate finder of fact to credit the testimony of the two orthopedic surgeons and to accept or to reject, in whole or in part, the testimony of Dr. Consales. Moreover, pursuant to the Act, an employer is only liable to pay for a claimant's medical expenses that arise from and are caused by a work-related injury. Section 301(c)(1) of the Act, 77 P.S. 411(1); Kurtz v. Workers Comp. Appeal Bd. (Waynesburg College), 794 A.2d 443, 447 (Pa. Cmwlth. 2002). To that end, if medical expenses are for treatment not causally related to the work injury, an employer may deny payment of medical expenses without first filing a 9

petition with the WCJ. Cittrich v. Workmen s Comp. Appeal Bd. (Laurel Living Ctr.), 688 A.2d 1258, 1260-61 (Pa. Cmwlth. 1997). Of course, an employer that unilaterally stops paying medical bills based solely on a lack of causation assumes the risk of exposure to subsequent penalties if a WCJ, in fact, determines that they are causally related to the work injury. CVA, Inc. v. Workers Comp. Appeal Bd. (Riley), 29 A.3d 1224, 1227 (Pa. Cmwlth. 2011). That did not occur in this case. Instead, the WCJ rejected Dr. Consales opinion that Claimant s symptoms and disability continued to be related to the original work injury. Consequently, she concluded that his bills for chiropractic services were unrelated to that injury. Accordingly, we affirm the denial of all three petitions. BONNIE BRIGANCE LEADBETTER, Judge 10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thomas Stajduhar, : Petitioner : : v. : No. 1016 C.D. 2013 : Workers Compensation Appeal : Board (Department of : Transportation), : Respondent : O R D E R AND NOW, this 3rd day of December, 2013, the order of the Workers Compensation Appeal Board is hereby AFFIRMED. BONNIE BRIGANCE LEADBETTER, Judge