E.M. Gower, Jr. v. WCAB (Haines & Kibblehouse Inc.) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward M. Gower, Jr., :
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Haines & Kibblehouse Inc.), : No. 572 C.D. 2015
Respondent : Submitted: September 18, 2015
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY FILED: November 17, 2015
Edward M. Gower, Jr. (Claimant) challenges the order of the
Workers’ Compensation Appeal Board (Board) that affirmed the Workers’
Compensation Judge’s (WCJ) decision that granted Claimant’s claim petition in
part, suspended benefits from May 10, 2012, through July 9, 2012, reinstated total
disability benefits from July 10, 2012, through July 24, 2012, modified benefits to
partial disability benefits from July 25, 2012, to November 29, 2012, and
terminated benefits as of November 30, 2012. The WCJ also denied and dismissed
Claimant’s penalty and review petitions and granted the termination petition of
Haines & Kibblehouse, Inc. (Employer) as of November 30, 2012.
Claimant worked as a truck driver for Employer for approximately
two years. On May 10, 2012, Claimant slipped when he attempted to get in the
“loader” and landed flat footed on the ground and felt a jolt through his back. That
same day, as he attempted to clean a cement mixer with a chipping hammer to
remove excess concrete from inside the barrel of the cement mixer, he bent over
and felt a pinching in his lower back. Also, on May 10, 2012, Claimant attempted
to remove the forms used to make concrete blocks. When Claimant bent over to
pull the form away from the concrete, he felt “like a pop in my lower back and . . .
it was like when you hit your funny bone, how it goes up through your arm. I felt
that through my butt down through my legs and toes.” Notes of Testimony,
October 12, 2012, (N.T.) at 14; Reproduced Record (R.R.) at 22a. Claimant
notified Employer of his injuries and, after working on May 11, 2012, did not
return to work.
On June 14, 2012, Employer issued a notice of temporary
compensation payable. On August 8, 2012, Employer issued a notice stopping
temporary compensation because Employer decided not to accept liability. Also,
on August 8, 2012, Employer issued a notice of workers’ compensation denial
which indicated that Employer contested liability. The Bureau of Workers’
Compensation Claim Forms Summary indicates that the notice of workers’
compensation denial was filed on August 13, 2012.
On August 15, 2012, Claimant petitioned for benefits and alleged that
he suffered a “spine injury, herniation at T12-L1; low back injury,” on May 10,
2012, when he was “falling, chipping with air chisel, lifting heavy object.”
Claimant Petition, August 15, 2012, at 1. Also, on August 15, 2012, Claimant
petitioned for penalties and asserted that PMA, Employer’s insurer, issued a notice
2
of denial on the ninety-first day after the work injury in violation of Section 406.1
of the Workers’ Compensation Act (Act),1 77 P.S. §717.1.
Also, on August 15, 2012, Claimant petitioned to review
compensation benefits and alleged that a notice of temporary compensation
payable dated June 12, 2012, contained an incorrect description of the injury and
an incorrect average weekly wage. Employer denied the allegations contained in
all three petitions.
On February 14, 2013, Employer petitioned to terminate benefits and
alleged that Claimant had fully recovered. The four petitions were ultimately
consolidated before the WCJ.
At hearing before the WCJ on October 12, 2012, Claimant testified
regarding his injury on May 10, 2012. Claimant continued to experience pain in
his lower back and “the pain still goes through the back part of my butt and down
the back of my legs.” N.T. at 18; R.R. at 26a. Sometimes, Claimant had trouble
bending and lifting. N.T. at 18; R.R. at 26a. Although at one point his physician,
Charles C. Norelli, M.D. (Dr. Norelli), released him to return to work with
restrictions of lifting not more than ten pounds, with no overhead work, no
bending, and no repetitive movements, Claimant never returned to work. N.T. at
19; R.R. at 27a. When he took the medication Neurontin which was prescribed for
treatment of the work injury, he became “aggravated and very uneasy. I just . . .
1
Act of June 2, 1915, P.L. 736, as amended. This section was added by the Act of
February 8, 1972, P.L. 25.
3
felt like I was losing control of everything.” N.T. at 20; R.R. at 28a. He was
prescribed Ativan to counteract this side effect of the Neurontin. N.T. at 20; R.R.
at 28a. Prior to taking Ativan, Claimant called Benetta Corley (Corley) at
Employer and Victoria Eckert (Eckert), the PMA adjuster, because his workers’
compensation check was late. Claimant explained what he said in messages to
them:
I believe it was along the lines of I’m telling you the
same thing of what I told my doctor, which was that I
was that stressed out from everything going on, that I was
starting to count my rifle shells and that’s why he
prescribed me the other medication, so I wouldn’t feel
that way.
N.T. at 23; R.R. at 31a.
After Claimant took the Ativan, he “started to feel calmer and more
back to my old self.” N.T. at 24; R.R. at 32a. He telephoned Eckert and Corley to
apologize for his earlier calls. N.T. at 24; R.R. at 32a. Employer fired him
because of the threats he made. N.T. at 25; R.R. at 33a. Claimant did not believe
that he could return to his time of injury job because it was too hard on his back.
N.T. at 27; R.R. at 35a. Claimant attended an Independent Medical Examination
(IME) conducted by Dr. Kovalsky but left before the examination was complete
because Dr. Kovalsky “didn’t want to listen to me or pay attention to what I was
trying to explain to him or tell him and I just . . . couldn’t take it anymore.” N.T. at
28; R.R. at 36a. On cross-examination, he admitted that he told Eckert that he was
“going to blow and it wouldn’t be pretty.” N.T. at 40; R.R. at 48a. He also
admitted that when he left the examination with Dr. Kovalsky he was already
taking Ativan. N.T. at 44-45; R.R. at 52a-53a.
4
Claimant presented the deposition testimony Dr. Norelli, board-
certified in physical medicine and rehabilitation and Claimant’s treating physician.
Dr. Norelli first examined Claimant on July 10, 2012, took a history, and reviewed
medical records. Dr. Norelli also ordered a magnetic resonance imaging test for
Claimant which revealed a “herniated disc, moderate to large up at T12-L1.”
Deposition of Charles C. Norelli, M.D., December 7, 2012, (Dr. Norelli
Deposition) at 8; R.R. at 60a. Dr. Norelli testified within a reasonable degree of
medical certainty that the cause of the disc herniation was trauma from the May 10,
2012, work incidents. Dr. Norelli Deposition at 9, 13; R.R. at 60a-61a. With
respect to the effect Neurontin had on Claimant, Dr. Norelli explained that anxiety
was not the usual side effect of Neurontin but that it could happen. Dr. Norelli
Deposition at 14; R.R. at 62a. At the time of the deposition, Dr. Norelli
characterized Claimant as having mild back pain, no leg pain, and had the ability to
perform some “pretty heavy duties” in his backyard with a chainsaw. Dr. Norelli
Deposition at 16; R.R. at 62a. He did not believe that it would harm Claimant if he
attempted to resume his time of injury job. Dr. Norelli Deposition at 17; R.R. at
62a.
Trooper Krystal Dugan (Trooper Dugan) of the Pennsylvania State
Police testified on behalf of Employer that she was contacted by Corley regarding
messages to her from Claimant. Employer introduced into evidence her
investigative report. Trooper Dugan contacted Claimant and informed him that
Employer did not want to receive any more phone calls. Employer did not press
charges. Notes of Testimony, January 28, 2013, (N.T. 1/28/2013) at 10; R.R. at
97a.
5
Eckert testified that she received a phone call from Claimant: “There
was a phone call in July. He was upset over a few items that had happened and
said that if things didn’t change that he was going to blow, and it wouldn’t be
pretty.” N.T. 1/28/2013 at 17; R.R. at 104a. She discussed this message with
Corley who told her of a message she had received from Claimant. Eckert felt
threatened by the contact. N.T. 1/28/2013 at 18; R.R. at 105a.
Rodney Grass (Grass), human resources manager for Employer,
testified that Corley contacted him, after Claimant called her several times and
complained that his workers’ compensation check was late. Claimant was upset
and cursing. N.T. 1/28/2013 at 29; R.R. at 116a. Grass testified that Employer
decided not to press charges against Claimant and fired him for violating company
policy by making threats. N.T. 1/28/2013 at 31; R.R. at 118a.
Daniel Condiles, Jr., general manager of Rahns Construction Material
Company (Rahns), a related company to Employer, identified a letter he sent to
Claimant that indicated that Rahns would have work for Claimant except for the
fact that he was terminated. N.T. at 43; R.R. at 130a.
Employer presented the deposition testimony of Neil Kahanovitz,
M.D. (Dr. Kahanovitz), a board-certified orthopedic surgeon. On November 30,
2012, Dr. Kahanovitz examined Claimant, took a history, and reviewed medical
records. Within a reasonable degree of medical certainty, Dr. Kahanovitz
diagnosed Claimant with a lumbar strain from which he fully recovered as of the
examination on November 30, 2012. Dr. Kahanovitz opined that Claimant could
6
resume his previous activities and occupation with no restrictions. Deposition of
Neil Kahanovitz, M.D., February 14, 2013, (Dr. Kahanovitz Deposition) at 16;
R.R. at 155a. According to Dr. Kahanovitz, the T12-L1 disc herniation was
clinically irrelevant. He did not agree with Dr. Norelli that the disc herniation was
caused by the work incidents on May 10, 2012. Dr. Kahanovitz Deposition at 17;
R.R. at 156a. If there had been earlier clinical manifestations of the T12-L1 disc
herniation, none were present at the time of the examination. Dr. Kahanovitz
Deposition at 20; R.R. at 159a.
The WCJ granted the claim petition in part. The WCJ suspended
benefits from May 10, 2012, through July 9, 2012; reinstated total disability
benefits from July 10, 2012, through July 24, 2012; modified to partial disability
benefits from July 25, 2012, through November 29, 2012; and terminated benefits
as of November 30, 2012. The WCJ denied the review and penalty petitions and
granted Employer’s termination petitions as of November 30, 2012. The WCJ
made the following relevant findings of fact:
2. Claimant first missed work on May 14, 2012. . . .
Consequently, the 90 day period for filing the Notice
Stopping Compensation and the Notice of Workers’
Compensation Denial (Denial) ends on August 12, 2012.
3. The Notice Stopping Temporary Compensation
indicates Employer decided not to accept liability for the
work injury. An envelope attached to the document
bears a postmark of August 9, 2012. The Claim Forms
Summary also indicates the document was filed on
August 9, 2012. . . .
4. Defendant [Employer] also issued a Denial. The
envelope accompanying the Denial also bears a postmark
of August 9, 2012. However, the Claim Forms Summary
7
indicates that this document was filed on August 13,
2012. . . . Neither party has offered evidence regarding
this date discrepancy. I find this evidence, without more,
is insufficient to meet the claimant’s burden of proving a
violation of the Act.
....
14. Based upon my observation of them, I find the four
defense witnesses entirely credible and persuasive.
However, while defendant [Employer] had work
available that claimant could perform, there is no
evidence of what claimant would have earned, but for his
misconduct. . . .
15. Based upon my observations of him, I find claimant
is sincerely apologetic for his threatening phone calls.
However, claimant’s belief that his agitation and hostility
was caused by a reaction to Neurontin is rejected, in light
of claimant’s behavior at the IME scheduled for July 31,
2012.
16. In light of the fact that claimant made several rude
and threating phone calls to the employer, a rude and
threatening phone call to the claims adjuster, and was
rude to Dr. Norelli’s office staff, I find the employer was
justified in its decision to terminate claimant’s
employment. The fact that the employer decided not to
challenge claimant’s award of unemployment
compensation benefits is not binding in this court. The
employer witness persuasively explained that he was
unwilling to confront claimant at an unemployment
compensation hearing in light of claimant’s repeated past
behavior. Consequently, I find some portion of
claimant’s loss of earnings from July 25, 2012 and
ongoing is a result of claimant’s volatile behavior. . . .
17. I find Dr. Kahanovitz’[s] opinion that claimant
sustained a lumbar strain, and that claimant is fully
recovered from his work injury as of November 30, 2012,
entirely credible and persuasive. In this regard, I note Dr.
Kahanovitz[‘s] superior qualifications as an orthopedic
surgeon, who completed a fellowship in spinal surgery
and who limits his practice to treatment of disorders of
8
the spine. Dr. Kahanovitz’[s] opinion of full recovery is
supported by his thorough physical examination.
18. Dr. Norelli’s opinion that claimant sustained a T12-
L1 disc herniation as a result of the series of events on
May 10, 2012, and Dr. Norelli’s opinion that claimant’s
behavior toward the employer and the insurance adjuster
was a side effect of Neurontin is entirely lacking in
credibility. Dr. Norelli did not point to any medical
literature or information in the Physician’s Desk
Reference which would support his statement about the
Neurontin. Dr. Norelli’s opinion that claimant was
initially totally disabled and then partially disabled is
credible and supported by his initial physical examination
findings. As to his opinion that claimant remains
partially disabled, the doctor’s opinion is rejected in light
of the fact that he acknowledged claimant performed
some work with a chainsaw in the back yard and he
acknowledged observing grease stains in claimant’s
hands. Furthermore, the physical exam findings on
December 7, 2012 were entirely benign, and not
consistent with a finding of an extruded disc. (Citations
omitted).
WCJ’s Decision, April 8, 2013, Findings of Fact Nos. 2-4 and 14-18 at 1-2, and 6-
7; R.R. at 233a-234a and 238a-239a.
Claimant appealed to the Board which affirmed.
Claimant contends 1) that the WCJ erred when she granted the
termination petition where Claimant presented competent, credible evidence that
he was not fully recovered and Employer failed to present competent, credible
evidence to the contrary; 2) that the WCJ erred when she denied the penalty
petition when Employer’s Notice Stopping Temporary Benefits was filed more
than ninety days after it was put on notice of Claimant’s injuries; 3) that the WCJ
erred when she denied the review petition when both parties acknowledged the
9
presence of a T12-L1 herniation and the WCJ failed to adequately explain why she
found Dr. Kahanovitz more credible than Dr. Norelli; 4) that the WCJ erred when
she found that Employer’s termination of employment was reasonable when the
stated reason for Claimant’s termination was the result of a side effect of
Neurontin, a prescription drug that Claimant was compelled to take because of his
May 10, 2012, workplace injury; and 5) that the WCJ erred when she admitted into
evidence Dr. Kahanovitz’s report when the IME was conducted after the deadline
imposed by the WCJ.2
Initially, Claimant contends that the WCJ erred when she granted
Employer’s termination petition because Employer failed to prove that all
disability had ceased.
The employer bears the burden of proof in a termination petition
proceeding to establish that the work injury has ceased. In a case where the
claimant complains of continued pain, this burden is met if an employer’s medical
expert unequivocally testifies that it is his opinion, within a reasonable degree of
medical certainty that the claimant is fully recovered, can return to work without
restrictions and that there are no objective medical findings which either
substantiate the claims of pain or connect them to the work injury. Udvari v.
Workmen’s Compensation Appeal Board (US Air, Inc.), 705 A.2d 1290, 1293 (Pa.
1997).
2
This Court’s review is limited to a determination of whether an error of law was
committed, whether necessary findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Vinglinsky v. Workmen’s Compensation Appeal Board
(Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
10
Here, the WCJ found that Claimant suffered a work-related lumbar
strain/sprain. Dr. Kahanovitz testified that Claimant was fully recovered from any
injury suffered on May 10, 2012. With respect to the disc herniation at T12-L1,
Dr. Kahanovitz found that it did not manifest itself clinically when he examined
Claimant and that it was not caused by the May 10, 2012, work incidents.
The WCJ, as the ultimate finder of fact in workers’ compensation
cases, has exclusive province over questions of credibility and evidentiary weight,
and is free to accept or reject the testimony of any witness, including a medical
witness, in whole or in part. General Electric Co. v. Workmen’s Compensation
Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of
appeal denied, 600 A.2d 541 (Pa. 1991). This Court will not disturb a WCJ’s
findings when those findings are supported by substantial evidence. Nevin
Trucking v. Workmen’s Compensation Appeal Board (Murdock), 667 A.2d 262
(Pa. Cmwlth. 1995). Employer met its burden under Udvari.
Claimant next contends that the WCJ erred when she denied his
penalty petition because Employer filed its Notice of Workers’ Compensation
Denial ninety-five days after Claimant’s injury.
Section 435(d)(i) of the Act, 77 P.S. §991,3 provides that a penalty of
up to fifty percent of the compensation due may be assessed against an employer if
there has been a violation of the Act or its regulations. The assessment of
penalties, as well as the amount of penalties imposed, is discretionary, and absent
3
This section was added by the Act of February 8, 1972, P.L. 25.
11
an abuse of discretion by the WCJ, this Court will not overturn the WCJ’s decision
on appeal. Westinghouse Electric Corporation v. Workers’ Compensation Appeal
Board (Weaver), 823 A.2d 209 (Pa. Cmwlth. 2003). “An abuse of discretion is not
merely an error of judgment but occurs, inter alia, when the law is misapplied in
reaching a conclusion.” Id. at 213-214. A judge’s ruling on a penalty petition is to
be reversed only if the judge has abused his discretion and misapplied the law.
Westinghouse.
Here, Claimant argues that Employer violated the Act because it did
not file its Notice Stopping Temporary Compensation until more than ninety days
after Claimant was disabled.
Section 406.1 of the Act, 77 P.S. §717.1, provides in pertinent part:
(2) The notice of temporary compensation payable shall
be sent to the claimant and a copy filed with the
department and shall notify the claimant that the payment
of temporary compensation is not an admission of
liability of the employer with respect to the injury which
is the subject of the notice of temporary compensation
payable. The department shall, upon receipt of a notice
of temporary compensation payable, send a notice to the
claimant informing the claimant that:
....
(ii) the payment of temporary compensation entitles the
claimant to a maximum of ninety (90) days of
compensation; and
....
(4) Payments of temporary compensation may continue
until such time as the employer decides to controvert the
claim.
(5)(i) If the employer ceases making payments pursuant
to a notice of temporary compensation payable, a notice
12
in the form prescribed by the department shall be sent to
the claimant and a copy filed with the department, but in
no event shall this notice be sent or filed later than five
(5) days after the last payment.
....
(6) If the employer does not file a notice under
paragraph (5) within the ninety-day period during which
temporary compensation is paid or payable, the employer
shall be deemed to have admitted liability and the notice
of compensation payable shall be converted to a notice of
compensation payable.
The ninety day period for temporary compensation commences on the
first date of disability. Galizia v. Workers’ Compensation Appeal Board
(Woodlock Pines, Inc.), 933 A.2d 146 (Pa. Cmwlth. 2007).
The WCJ found that Claimant’s first day of disability was May 14,
2012. Ninety days from May 14, 2012, was August 12, 2012. The WCJ further
found that the Notice of Stopping Temporary Compensation was filed on August 9,
2012.4 The Notice of Workers’ Compensation Denial came in an envelope that
was postmarked August 9, 2012. However, the actual document was not filed until
August 13, 2012, one day after the deadline. August 12, 2012, was a Sunday, a
date when state offices were not open for business. As a result, the filing on
August 13, 2012, was timely and did not violate the Act. This Court is permitted
to take judicial notice of the day of the week of a particular date. Mentz v.
Unemployment Compensation Board of Review, 370 A.2d 1232 (Pa. Cmwlth.
1977).
4
A review of the record indicates that this notice was filed on August 9, 2012,
though it was not “received” until August 13, 2012.
13
Claimant next contends that the WCJ erred when he denied
Claimant’s review petition to add the T12-L1 disc herniation to Claimant’s injury
when Claimant proved that the injury occurred and the WCJ failed to give a
reasoned decision as to why he found Dr. Kahanovitz more credible than Dr.
Norelli. It was Claimant’s burden to prove that the notice of compensation payable
was materially incorrect. Section 413(a) of the Act, 77 P.S. §771. Claimant failed
to do so. While Dr. Norelli opined that the cause of the disc herniation was the
work-incidents of May 10, 2012, Dr. Kahanovitz disagreed and was found
credible.
With respect to whether the WCJ issued a reasoned decision when he
found Dr. Kahanovitz more credible than Dr. Norelli, Section 422(a) of the Act, 77
P.S. §834, provides:
Neither the board nor any of its members nor any
workers’ compensation judge shall be bound by the
common law or statutory rules of evidence in conducting
any hearing or investigation, but all findings of fact shall
be based upon sufficient competent evidence to justify
same. All parties to an adjudicatory proceeding are
entitled to a 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 workers’
compensation judge shall specify the evidence upon
which the workers’ compensation judge relies and state
the reasons for accepting it in conformity with this
section. When faced with conflicting evidence, the
workers’ compensation judge must adequately explain
the reasons for rejecting or discrediting competent
evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’
compensation judge must identify that evidence and
14
explain adequately the reasons for its rejection. The
adjudication shall provide the basis for meaningful
appellate review.
In Daniels v. Workers’ Compensation Appeal Board (Tristate
Transport), 828 A.2d 1043, 1053 (Pa. 2003), our Pennsylvania Supreme Court
stated that “absent the circumstance where a credibility assessment may be said to
have been tied to the inherently subjective circumstance of witness demeanor,
some articulation of the actual objective basis for the credibility determination
must be offered for the decision to be a ‘reasoned’ one which facilitates effective
appellate review.” (Footnote omitted and emphasis added). Our Pennsylvania
Supreme Court further explained in Daniels that “where the fact-finder has had the
advantage of seeing the witnesses testify and assessing their demeanor, a mere
conclusion as to which witness was deemed credible, in the absence of some
special circumstance, could be sufficient to render the decision adequately
reasoned.” Daniels, 828 A.2d at 1053.
With respect to whether the WCJ satisfied the reasoned decision
requirement in his acceptance of Dr. Kahanovitz’s opinion and his rejection of Dr.
Norelli’s opinion, the WCJ explained that Dr. Kahanovitz had superior
qualifications as a board-certified orthopedic surgeon and spine specialist and he
conducted a thorough physical examination. This articulation of the basis for the
WCJ’s credibility determination satisfied the reasoned decision requirement.
Claimant next contends that the WCJ erred when he determined that
Employer’s termination of Claimant’s employment was reasonable because
Claimant demonstrated that his conduct was the result of a negative side effect of
15
Neurontin, a prescription drug which was prescribed for him as a result of the work
injury.
Once again, Claimant ignores the WCJ’s credibility determinations.
The WCJ specifically did not credit the testimony of both Claimant and Dr.
Norelli. Claimant argues his version of the facts which this Court will not adopt
where they were contrary to the facts the WCJ found which were supported by
substantial evidence.
Finally, Claimant contends that the WCJ erred as a matter of law
when she relied on Dr. Kahanovitz’s expert report when the WCJ ordered that the
IME be completed within forty-five days of October 12, 2012, and it was not
conducted until November 30, 2012, which was forty-nine days after the order.
Claimant did not object to the submission of the report or the deposition testimony
of Dr. Kahanovitz before the WCJ. Further, Claimant did not raise this issue in his
appeal to the Board. An issue is waived unless it is preserved at every stage of a
proceeding. Nabisco Brands, Inc. v. Workers’ Compensation Appeal Board
(Tropello), 763 A.2d 555 (Pa. Cmwlth. 2000).
Accordingly, this Court affirms.
____________________________
BERNARD L. McGINLEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward M. Gower, Jr., :
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Haines & Kibblehouse Inc.), : No. 572 C.D. 2015
Respondent :
ORDER
AND NOW, this 17th day of November, 2015, the order of the
Workers’ Compensation Appeal Board in the above-captioned matter is affirmed.
____________________________
BERNARD L. McGINLEY, Judge