R. Augustine v. WCAB (PA DOC) PA DOC, SCI Graterford and Inservco Ins. Svcs. v. WCAB (Augustine) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Augustine, :
Petitioner :
:
v. : No. 46 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania, Department of :
Corrections), :
Respondent :
:
Commonwealth of Pennsylvania, :
Department of Corrections, SCI :
Graterford and Inservco Insurance :
Services, :
Petitioners :
:
v. : No. 100 C.D. 2017
: Submitted: August 31, 2018
Workers’ Compensation Appeal :
Board (Augustine), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: October 30, 2018
Robert Augustine (Claimant) petitions for review of the Order of the Workers’
Compensation Appeal Board (Board) that affirmed, on other grounds, the decision
of Workers’ Compensation Judge (WCJ) Lawrence Beck (WCJ Beck) denying
Claimant’s Review Petition (Second Review Petition) and Reinstatement Petition.
Although the WCJ held that the Second Review Petition was barred by collateral
estoppel, the Board concluded that the causation opinion of Claimant’s medical
doctor was not legally competent to support the grant of the Second Review Petition.
It also held, like the WCJ, that Claimant did not establish that his condition had
changed since a prior termination petition had been granted and, therefore, did not
meet his burden of proof on the Reinstatement Petition. Commonwealth of
Pennsylvania, Department of Corrections, State Correctional Institution (SCI)-
Graterford and Inservco Insurance Services (together, Employer) cross-petition for
review of the Board’s rejection of WCJ Beck’s determination that the Second
Review Petition was barred by the doctrine of collateral estoppel.1 Employer argues
that while the Board’s alternative rationale for affirming the denial of the Second
Review Petition is correct, WCJ Beck did not err in applying collateral estoppel in
this case. After review, we affirm.
I. Background
Claimant, a corrections officer, sustained work-related injuries on August 9,
2011, when the back legs of the plastic chair upon which he sat gave out, causing
him to fall backwards. Employer issued a notice of compensation payable (NCP)
accepting liability for injuries described as “sprains and contusions to the cervical
and thoracic spine and bilateral shoulders.” (WCJ Beck Decision, Finding of Fact
(FOF) ¶ 1 (emphasis added).) Claimant received his full salary under the act
commonly known as the Heart and Lung Act.2 On July 17, 2012, Employer filed a
1
This Court consolidated the petitions for review by order dated March 8, 2017.
2
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638.
2
Termination Petition based on the results of an independent medical examination
(IME) in which the IME physician opined that Claimant had fully recovered from
the accepted work-related injuries. Claimant filed a Review Petition (First Review
Petition) seeking to expand the description of his compensable injuries to include
additional cervical spine injuries. After a hearing at which both Employer and
Claimant presented expert testimony, and Claimant testified, WCJ Patricia Bachman
(WCJ Bachman) denied the First Review Petition and granted the Termination
Petition.3 WCJ Bachman found that Claimant had not proven he sustained additional
injuries on August 9, 2011, and that Claimant was fully recovered from the accepted
work injuries and able to return to his pre-injury position without restrictions as of
April 26, 2012. That decision was affirmed by the Board and, subsequently, by this
Court in Augustine v. Workers’ Compensation Appeal Board (SCI-Graterford) (Pa.
Cmwlth., No. 713 C.D. 2015, filed Dec. 23, 2015).
While Claimant’s appeals were pending, he filed the instant petitions. In the
Second Review Petition, Claimant seeks to correct the NCP’s description of his
work-related injuries “to include tears of the right and left rotator cuff per MRI
studies of January 13, 2014.” (FOF ¶ 5.) Claimant also filed the Reinstatement
Petition to reinstate his benefits following their termination, alleging his disability
had recurred. Employer filed a Motion to Dismiss (Motion) based on the doctrines
of res judicata and collateral estoppel. The matter was bifurcated in order to first
address the Motion.
Claimant submitted his deposition testimony in which he described how the
work injuries occurred, his ongoing symptoms, and his treatment of those injuries
3
WCJ Bachman’s decision can be found at pages 1a-10a of the Reproduced Record.
3
with various physicians, including, most recently, Gerald E. Dworkin, D.O. 4 (Id. ¶
6.) According to Claimant, even though he had ongoing shoulder complaints, his
physicians did not suggest he undergo a MRI until January 2014. Prior to January
2014, he had no knowledge that he had sustained rotator cuff tears in the August 9,
2011 work fall. He also presented the deposition testimony of Dr. Dworkin, who
first examined Claimant on July 17, 2014.5 Dr. Dworkin reviewed Claimant’s
history, noted “that Claimant had complained of shoulder problems since the work
injury,” and observed that Claimant’s “prior [physicians] had provided an
insufficient workup of [Claimant’s] shoulder problems.” (Id. ¶ 7.) Dr. Dworkin
opined that Claimant was “unable to return to work as a corrections officer due to
his shoulders.” (Id.)
Considering the evidence presented, WCJ Beck found that the Second Review
Petition was barred by the doctrine of collateral estoppel. WCJ Beck found that:
“Claimant had a fair and full opportunity to litigate the description of his injury
during the prior consideration of” the First Review Petition and Termination
Petition, which included the issue of “the nature and extent of all of Claimant’s
injuries”; “[t]he issue of the nature, extent, and duration of Claimant’s injuries was
decided on the merits by [WCJ] Bachman,” which was ultimately affirmed; and
“[t]he determination as to what injuries Claimant suffered, as well as the status of
such injuries, was essential to [WCJ] Bachman’s decision.” (Id. ¶ 8(a)-(c).)
Accordingly, WCJ Beck denied the Second Review Petition. (Id. ¶ 10; WCJ Beck
Decision, Conclusion of Law (COL) ¶ 3.)
4
Claimant’s deposition testimony can be found at pages 11a-21a of the Reproduced
Record.
5
Dr. Dworkin’s deposition testimony can be found at pages 28a-57a of the Reproduced
Record.
4
As for the Reinstatement Petition, WCJ Beck noted Claimant’s benefits were
terminated based on the finding of full recovery of his work injuries, including
injuries to his shoulders, as of April 26, 2012. WCJ Beck found that Claimant and
Dr. Dworkin testified that Claimant continued to complain of and be disabled by
injuries to Claimant’s shoulders. Such testimony, WCJ Beck found, did not
“establish that Claimant’s purported disability has recurred, i.e.[,] there is no
evidence to establish that once again Claimant is disabled by his work injury.” (Id.
¶ 9(c).) WCJ Beck held this testimony, instead, “set forth that Claimant was, is, and
continues to be disabled by his shoulder problems and, at no time, had he ever
recovered from same.” (Id.) Because “Claimant failed to show that his condition
ha[d] changed [since WCJ Bachman granted the Termination Petition] and, once
again, he is disabled by his work injury, assuming his shoulder complaints are related
to the August 9, 2011 injury,” WCJ Beck denied the Reinstatement Petition. (Id.
¶¶ 9(d), 11; COL ¶ 4.)
II. Board’s Decision
Claimant appealed to the Board. Claimant first argued WCJ Beck erred in
finding that the Second Review Petition was barred by the doctrine of collateral
estoppel because the issue in that Petition, whether he sustained work-related
bilateral rotator cuff tears, is different from that litigated before WCJ Bachman. The
Board held that neither res judicata nor collateral estoppel would bar the Second
Review Petition because the issue raised therein was the compensability of the
bilateral rotator cuff tears reflected in the January 2014 MRIs, and the First Review
Petition and Termination Petition involved, respectively, whether Claimant
sustained additional cervical injuries and whether Claimant had fully recovered from
5
the injuries described in the NCP. (Board Opinion (Op.) at 3-4, 7-8.) However,
citing Section 424 of the Workers’ Compensation Act6 (Act), the Board affirmed the
denial of the Second Review Petition on other grounds. The Board concluded that
Dr. Dworkin’s causation opinion was not legally competent because it was based on
an incorrect understanding of the medical situation and on an assumption that was
contrary to the established facts. The Board held Dr. Dworkin testified that Claimant
had “ongoing neck, as well as right shoulder – greater than left shoulder – pain,” the
cause of which was the August 9, 2011 work injury. (Id. at 5, 8 (quoting Reproduced
Record (R.R.) at 39a) (emphasis added).) Dr. Dworkin’s understanding that
Claimant has had ongoing shoulder symptoms since August 9, 2011, the Board
concluded, was contrary to the established fact that Claimant had fully recovered as
of April 26, 2012. According to the Board, Dr. Dworkin’s causation opinion, which
did not acknowledge Claimant’s full recovery, was not legally competent and could
not support the Second Review Petition.
The Board also rejected Claimant’s argument that WCJ Beck erred in denying
the Reinstatement Petition. It held that Claimant did not meet his burden of proving
that his physical condition had changed and that his disability had increased or
recurred since the termination. (Id. at 9 (citing Nat’l Fiberstock Corp. (Greater N.Y.
Mut. Ins. Co.) v. Workers’ Comp. Appeal Bd. (Grahl), 955 A.2d 1057, 1062 (Pa.
Cmwlth. 2008)).) The Board concluded that because Claimant and Dr. Dworkin
testified that Claimant’s shoulder condition was ongoing and did not acknowledge
6
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 855. In pertinent part, Section 424
states “[w]henever an appeal shall be based upon an alleged error of law, it shall be the duty of the
board to grant a hearing thereon . . . . As soon as may be after such hearing, the board shall either
sustain or reverse the [WCJ’s] award or disallowance of compensation, or make such
modification thereof as it shall deem proper.” Id. (emphasis added).
6
Claimant’s full recovery, that testimony could not establish that Claimant’s physical
condition had changed since the termination of Claimant’s benefits. (Id.) Claimant
appealed from the Board’s Order, and Employer filed a cross-appeal.7
III. Appeals to this Court
A. Claimant’s Appeal
In his appeal, Claimant argues that, while the Board correctly concluded that
the Second Review Petition is not barred by the doctrines of res judicata or collateral
estoppel, it erred in affirming WCJ Beck’s decision because the record lacks
substantial evidence to support the Board’s alternative reasoning that Dr. Dworkin’s
testimony was “incomplete and inaccurate.” (Claimant’s Brief (Br.) at 16.)
Claimant asserts that, once the Board rejected WCJ Beck’s application of the
doctrines of res judicata or collateral estoppel, it should have remanded the matter
to WCJ Beck for additional and more thorough fact finding. Claimant asserts that,
in not doing so, the Board usurped the role of the WCJ. Claimant further argues that
the Board did not adequately explain why the fact that Dr. Dworkin did not
“acknowledge” Claimant’s full recovery or WCJ Bachman’s decision undermined
the competency of Dr. Dworkin’s opinions or made his understanding incomplete.
He asserts that those opinions are founded on the January 2014 MRIs and Dr.
Dworkin’s treatment, which occurred after April 26, 2012, the date WCJ Bachman
found that Claimant had fully recovered. Claimant further argues that the accepted
shoulder injury was bilateral strains of his shoulders, not bilateral rotator cuff tears,
and, therefore, Dr. Dworkin’s lack of acknowledgment of the accepted shoulder
7
Our “review of an order of the Board is limited to determining whether the necessary
findings of fact were supported by substantial evidence, constitutional rights were violated, or
errors of law were committed.” Nat’l Fiberstock Corp., 955 A.2d at 1061 n.3.
7
injury has no impact on his opinion regarding the rotator cuff tears. For these
reasons, Claimant requests that the Board’s Order be reversed insofar as it affirmed
WCJ Beck’s decision on other grounds and the matter remanded for additional fact
finding.
Employer responds the Board did not err in affirming the denial of the Second
Review Petition and Reinstatement Petition because Claimant did not present
competent, substantial evidence to satisfy his burdens of proof on those petitions.
Employer asserts the Board did not overstep its authority in affirming the denial of
the Second Review Petition on other grounds, but made it clear that it was making
its own conclusions of law based on WCJ Beck’s factual findings and credibility
determinations, and the facts of record. According to Employer, the Board cited
WCJ Beck’s findings of fact indicating that neither Claimant nor Dr. Dworkin
acknowledged Claimant’s full recovery from his work injuries, and then made the
legal conclusion that this failure, as a matter of law, rendered Dr. Dworkin’s expert
testimony not competent. Employer also argues that Claimant did not meet his
burden of proof on the Reinstatement Petition because he did not present evidence
establishing a change in his physical condition and a recurrence in his disability since
WCJ Bachman’s decision terminating his workers’ compensation benefits based on
his full recovery. Finally, in response to Claimant’s argument that WCJ Beck’s
findings of fact were not thorough enough, Employer points out that WCJs are not
required to recite, in detail, the full testimony of a witness. Remanding for WCJ
Beck to make additional findings of fact that set forth more of this testimony,
Employer asserts, would be a waste of judicial resources because none of that
testimony would satisfy Claimant’s burdens of proof.
8
1. The Board’s Authority to Affirm on Other Grounds
We begin with Claimant’s contention that the Board overstepped its authority
in affirming WCJ Beck’s decision on other grounds. The Board may affirm a WCJ’s
decision based on legal reasoning that differs from that of the WCJ. See Motor Coils
Mfg./WABTEC v. Workers’ Comp. Appeal Bd. (Bish), 853 A.2d 1082, 1087 n.9 (Pa.
Cmwlth. 2004) (“[T]he Board may . . . affirm the decision of the WCJ if the WCJ
makes the right decision but for the wrong reasons.”), aff’d, 912 A.2d 212 (Pa. 2006);
Carmen Paliotta Gen. Constr. v. Workmen’s Comp. Appeal Bd. (Tribuzio), 528 A.2d
274, 277-78 (Pa. Cmwlth. 1987) (stating that while WCJs have authority over factual
findings and credibility determinations, the Board has “final authority to make
conclusions of law which are then subject to appeal” and can modify the legal
conclusions of the WCJ).
Here, the Board’s alternative basis for affirming the denial of the Second
Review Petition was its conclusion that Dr. Dworkin’s causation opinion was not
legally competent. This conclusion was based on WCJ Beck’s finding that Dr.
Dworkin had not acknowledged the prior determination that Claimant had fully
recovered from his work-related injuries. Whether “medical evidence is competent
is a conclusion of law reviewable on appeal.” Nat’l Fiberstock Corp., 955 A.2d at1063 n.6 (emphasis added). Additionally, in affirming WCJ Beck’s denial of the
Reinstatement Petition, the Board simply reviewed the record to ascertain whether
substantial evidence supported WCJ Beck’s finding that Claimant did not establish
that his physical condition had changed since WCJ Bachman terminated his benefits
based on his full recovery. Substantial evidence review is a part of the Board’s
appellate review of WCJ opinions. Accordingly, we discern no usurpation of WCJ
Beck’s authority by the Board under these circumstances.
9
2. The Second Review Petition
We next address Claimant’s assertion that the Board erred in affirming the
denial of his Second Review Petition based on its determination that Dr. Dworkin’s
causation opinion that Claimant sustained bilateral rotator cuff tears as a result of
the August 9, 2011 work event was not legally competent. Pursuant to Section
413(a) of the Act,
[a] workers’ compensation judge may, at any time, review and modify
or set aside a notice of compensation payable . . . or upon petition filed
by either party with the department, or in the course of the proceedings
under any petition pending before such workers’ compensation judge,
if it be proved that such notice of compensation payable . . . was in any
material respect incorrect.
77 P.S. § 771. A modification of an NCP may occur at any time where there is a
true mistake of fact or law which renders the NCP materially incorrect. Birmingham
Fire Ins. Co. v. Workmen’s Comp. Appeal Bd. (Kennedy), 657 A.2d 96, 99 (Pa.
Cmwlth. 1995). It is the burden of the party seeking modification of the NCP to
prove that a material mistake of fact or law was made at the time the NCP was issued.
Id. “An NCP is materially incorrect if the accepted injury fails to include all of the
injuries that the claimant suffered in the work incident.” Cinram Mfg., Inc. v.
Workers’ Comp. Appeal Bd. (Hill), 932 A.2d 346, 349 (Pa. Cmwlth. 2007). Where
there is no obvious connection between the accepted work-related injury and any
alleged additional work-related injuries, the burden is on the claimant to prove
causation with respect to amending the description of the injury contained in the
NCP. Huddy v. Workers’ Comp. Appeal Bd. (U.S. Air), 905 A.2d 589, 592-93 (Pa.
Cmwlth. 2006). To meet that burden, the claimant must present unequivocal
medical evidence of causation. City of Pittsburgh v. Workers’ Comp. Appeal Bd.
(Wilson), 11 A.3d 1071, 1075 (Pa. Cmwlth. 2011).
10
As stated above, whether “medical evidence is competent is a conclusion of
law reviewable on appeal.” Nat’l Fiberstock Corp., 955 A.2d at 1063 n.6. “Where
an expert’s opinion is based on an assumption that is contrary to the established facts
of record, that opinion is [incompetent].” Taylor v. Workers’ Comp. Appeal Bd.
(Servistar Corp.), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). However, “[a] medical
expert’s opinion is not rendered incompetent unless it is solely based on inaccurate
or false information.” Am. Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd.
(Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (emphasis in original). “[I]t is well
established that the opinion of a medical expert must be viewed as a whole, and that
inaccurate information will not defeat that opinion unless it is dependent on those
inaccuracies.” Id. (emphasis in original).
Claimant relies upon Dr. Dworkin’s testimony to establish that the NCP was
materially incorrect because the NCP did not include Claimant’s bilateral rotator
cuff tears, which Dr. Dworkin opined were caused by the August 9, 2011 work fall.
In rendering that opinion, Dr. Dworkin noted that Claimant complained of bilateral
shoulder pain since August 9, 2011, that Claimant’s shoulder problems were
“ongoing,” and that those ongoing issues prevented Claimant from performing his
pre-injury position. (R.R. at 38a-39a, 42a, 54a.) Dr. Dworkin explained that the
“ideology of [Claimant’s] pain was clearly the trauma that occurred when [the] chair
failed and [Claimant] injured [his] neck and shoulders on August 9, 2011[,] while at
work.” (Id. at 39a-40a.) Viewing Dr. Dworkin’s causation testimony as a whole, it
was based on the fact that Claimant’s symptoms had been ongoing since August 9,
2011. However, WCJ Bachman found that Claimant’s symptoms had resolved and
that Claimant had fully recovered from his work-related injuries as of April 26, 2012.
In particular, WCJ Bachman rejected Claimant’s testimony that he had “any
11
ongoing, residual effects of his work injury” as not credible. (WCJ Bachman’s
Decision, FOF ¶ 10, R.R. at 8a.) Absent from Dr. Dworkin’s testimony is anything
addressing or considering this established fact.
This is not like the testimony of the medical expert in Taylor, who explained
that the work-related condition from which the claimant was found to be fully
recovered by a WCJ – plantar fasciitis – was a condition that could remit causing the
cessation of symptoms and then recur, and had recurred since the date of full
recovery. 883 A.2d at 713. We held that this testimony, which adequately explained
the remission and recurrence process, was not inconsistent with the WCJ’s
termination decision and, therefore, was legally competent. Id. Dr. Dworkin did not
acknowledge the established fact that Claimant had fully recovered from his
shoulder problems and explain how such symptoms could recur after that
determination. Instead, he relied, contrary to the established facts, on the
assumption that Claimant’s symptoms were ongoing to opine the bilateral rotator
cuff tears were work related. That testimony is not legally competent to support the
grant of the Second Review Petition. Accordingly, the Board did not err in affirming
the denial of that Petition on those grounds.
3. The Reinstatement Petition
Finally, we address Claimant’s contention that the Board erred in affirming
the denial of the Reinstatement Petition. Pursuant to Section 413(a) of the Act, 77
P.S. § 772, a WCJ may reinstate a claimant’s workers’ compensation benefits upon
proof that the claimant’s disability has increased or recurred. “A claimant seeking
reinstatement of benefits following a termination carries a heavy burden because the
claimant has been adjudicated to be fully recovered.” Nat’l Fiberstock Corp., 955
A.2d at 1062. To meet this heavy burden, “the claimant must prove that h[is]
12
disability ‘has increased or recurred since the prior decision and that h[is] physical
condition has changed in some manner.’” Namani v. Workers’ Comp. Appeal Bd.
(A. Duie Pyle), 32 A.3d 850, 854 (Pa. Cmwlth. 2011) (quoting Taylor, 883 A.2d at
713). The change in a claimant’s physical condition, which must “have occurred
after the date of [his] total physical recovery,” must be proved “‘by precise and
credible evidence of a more definite and specific nature than that upon which initial
compensation was based.’” Id. (quoting Nat’l Fiberstock Corp., 955 A.2d at 1062).
WCJ Bachman found that Claimant was fully recovered from his work-related
injuries, including those to his shoulder, as of April 26, 2012. To prevail on his
Reinstatement Petition, Claimant had to prove that his disability had recurred and
his physical condition had changed after that date. The evidence Claimant presented,
his own testimony and that of Dr. Dworkin, was that Claimant has had ongoing pain
and problems with his shoulders since August 9, 2011, for which he has continued
to treat, most recently with Dr. Dworkin. Such evidence, however, does not establish
a change in Claimant’s physical condition since the determination of his full
recovery. Rather, it reflects their belief that Claimant’s physical condition has
remained the same since August 9, 2011, and he continues to experience shoulder
problems and pain since that date. Accordingly, Claimant did not meet his burden
of proof on the Reinstatement Petition, and there was no error in denying that
Petition.
b. Employer’s Cross-Appeal
In support of its own appeal, Employer argues WCJ Beck correctly held that
Claimant is barred by the doctrines of res judicata and/or collateral estoppel from re-
litigating the extent of his shoulder injuries and the Board should have affirmed on
13
that basis. However, the Board did not err in affirming the denial of the Second
Review Petition and Reinstatement Petition based on its own reasoning. Therefore,
it is not necessary to address Employer’s protective cross-appeal.8
IV. Conclusion
For the foregoing reasons, we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
8
We note that filing a protective cross-appeal is not favored and was not required in this
case. In Lebanon Valley Farmers Bank v. Commonwealth, 83 A.3d 107, 113 (Pa. 2013), our
Supreme Court recognized that the justices have differing opinions, including that protective cross-
appeals should not be permitted. The Court, however, ultimately ruled that, while the appellee
could have filed a protective cross-appeal, it was not required to do so in order to assert, as an
alternative basis for affirming, a reason that was rejected by the trial court. The Court explained,
however, that because “[t]he court system is constantly inundated with appeals,” “[p]rotective
cross-appeals by a party who received the relief requested are not favored.” Id. As the prevailing
party below, Employer was not required to file a protective cross-appeal in order to assert its
arguments related to the doctrines of res judicata and/or collateral estoppel, but could have raised
them in its responsive brief in Claimant’s appeal as alternative bases for affirming the Board’s
Order. However, we do not fault Employer for filing its protective cross-appeal in order to protect
its interests.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Augustine, :
Petitioner :
:
v. : No. 46 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania, Department of :
Corrections), :
Respondent :
:
Commonwealth of Pennsylvania, :
Department of Corrections, SCI :
Graterford and Inservco Insurance :
Services, :
Petitioners :
:
v. : No. 100 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Augustine), :
Respondent :
ORDER
NOW, October 30, 2018, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matters, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge