M.R. Carlson v. St. Luke's Quakertown Hospital (WCAB) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Roy Carlson, :
Petitioner :
:
v. : No. 1198 C.D. 2019
:
St. Luke’s Quakertown Hospital :
(Workers’ Compensation Appeal :
Board), :
Respondent :
Matthew Roy Carlson, :
Petitioner :
:
v. : No. 962 C.D. 2020
: Submitted: November 20, 2020
St. Luke’s Quakertown Hospital :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: December 22, 2020
Matthew Roy Carlson (Claimant) petitions for review of the August 7, 2019
identical Orders of the Workers’ Compensation (WC) Appeal Board (Board),
which affirmed the identical July 2, 2018 and July 6, 2018 Decisions of a WC
Judge (WCJ) denying St. Luke’s Quakertown Hospital’s (Employer) First Petition
to Terminate Compensation Benefits (Termination Petition) and Claimant’s
Petition to Review Compensation Benefits (Review Petition), but granting
Employer’s Second Termination Petition and Petition to Suspend Compensation
Benefits (Suspension Petition).1 Before this Court, Claimant essentially challenges
the WCJ’s decision to allow litigation of the Second Termination Petition and
Suspension Petition before issuing a decision on the First Termination Petition and
the Review Petition, and argues that because of the procedural posture, he was not
aware if the higher evidentiary burden required by Lewis v. Workers’
Compensation Appeal Board (Giles & Ransome, Inc.), 919 A.2d 922, 926 (Pa.
2007), would apply. In Lewis, our Supreme Court determined that “where there
have been prior petitions to modify or terminate benefits, the employer must
demonstrate a change in physical condition since the last disability determination.”
Id. Discerning no error, we affirm.
I. Factual Background and Procedure
On November 4, 2014, while employed as a magnetic resonance imaging
(MRI) technologist for Employer, Claimant sustained a low back injury during the
transfer of a patient from a wheelchair to an MRI table. Specifically, Claimant was
1
The Board circulated identical Orders, one appearing at Appeal Case No. A18-0795 and
the second at Appeal Case No. A18-0796. Claimant’s Petition for Review filed at No. 1198 C.D.
2019 identified only the Board’s Order entered at Appeal Case No. A18-0795 as the Order to be
reviewed. However, upon review of the filings at No. 1198 C.D. 2019, it appeared to the Court
that Claimant sought review of both of the Board’s identical Orders. By Order dated September
3, 2020, the Court ordered that the filing date of the Petition for Review at No. 1198 C.D. 2019
would be preserved should Claimant file an additional petition for review of the Board’s Order at
Appeal Case No. A18-0796. In response, Claimant filed a second Petition for Review at No. 962
C.D. 2020. By Order dated November 17, 2020, the Court consolidated the two Petitions for
Review.
2
injured while catching a falling patient. Employer filed a Notice of Temporary
Compensation Payable on November 24, 2014, identifying Claimant’s injury as
low back strain and providing disability compensation at a weekly rate of $932.00.
The Notice of Temporary Compensation Payable converted to a Notice of
Compensation Payable (NCP) by operation of law.
A. First Termination Petition and Review Petition
Employer filed its First Termination Petition on June 12, 2015, therein
alleging that based upon the independent medical examination (IME) performed by
Scott Naftulin, D.O., as of March 2, 2015, Claimant had fully recovered from the
November 4, 2014 injury. (No. 1198 C.D. 2019 Certified Record (C.R.) Item 2.)
Claimant filed an Answer denying that allegation and requesting unreasonable
contest attorney’s fees in accordance with Section 440 of the WC Act,2 77 P.S.
§ 996. (C.R. Item 4.) On August 11, 2015, Claimant filed the Review Petition
seeking to alter the NCP’s description of his injury to include “aggravation of
lumbar degenerative disc disease injury.” (C.R. Item 5.) Employer filed an
Answer denying that the description of Claimant’s injury should be altered in that
way. (C.R. Item 7.) The matters proceeded to a hearing before a WCJ.
In support of its First Termination Petition and in opposition to the Review
Petition, Employer presented the deposition testimony of Dr. Naftulin,3 who is
licensed to practice medicine in the Commonwealth of Pennsylvania and is board
certified in physical medicine and rehabilitation, IMEs, family practice, and pain
2
Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8,
1972, P.L. 25.
3
Dr. Naftulin’s November 2, 2015 deposition testimony can be found on pages 44a-57a
of the reproduced record and is summarized in finding of fact 10.
3
medicine. During his testimony, Dr. Naftulin noted that Claimant’s medical
history revealed extensive previous back issues, including a “lumbosacral fusion,”
a diagnosis of “failed back syndrome,” a disc herniation, and a diagnosis of
degenerative disc disease, all of which predated the November 4, 2014 injury at
issue. (Nov. 2, 2015 Deposition (Dep.) Transcript (Tr.) at 14, 17, 23-24; WCJ
Decisions, Finding of Fact (FOF) ¶ 10(c).) Dr. Naftulin stated that the symptoms
of which Claimant complained at the examination were similar to the symptoms
Claimant experienced with his preexisting condition before the injury at issue.
(FOF ¶ 10(g).) Based upon his March 2, 2015 examination of Claimant and his
review of Claimant’s medical history and records, Dr. Naftulin opined that
Claimant had fully recovered from the November 4, 2014 injury as of March 2,
2015. (Id. ¶ 10(h).) Dr. Naftulin explained his reasoning as follows:
[T]he mechanism of [the November 4, 2014] injury would be a
plausible cause for the lumbar sprain and strain. But [Claimant’s]
clinical presentation at the time of my examination was consistent
with [Claimant’s] preexisting conditions as documented throughout
[Claimant’s medical] records . . . . And the information provided,
including imaging studies done both prior and subsequent to the work
injury, revealed no material change or aggravation of his preexisting
condition. And without objective evidence of the ongoing lumbar
strain/sprain that was accepted, it was felt that [Claimant’s] condition
was fully explained by [Claimant’s] preexisting condition . . . .
(Nov. 2, 2015 Dep. Tr. at 30-31.) When asked specifically whether the November
4, 2014 injury aggravated Claimant’s preexisting condition, as Claimant alleged in
his Review Petition, Dr. Naftulin again opined that it did not, explaining
“[i]maging studies . . . done before and after the [November 4, 2014] injury really
revealed no substantial change” to support the alleged aggravation of Claimant’s
preexisting condition. (Id. at 31-32.)
4
Claimant offered his own testimony,4 as well as the deposition testimony of
one of his treating physicians, Nirav Shah, M.D., in opposition to the First
Termination Petition and in support of the Review Petition. Claimant testified that
on November 4, 2014, he was transferring a patient from a wheelchair to an MRI
table when she began to fall. (FOF ¶ 5(a-b).) Claimant stated that he was injured
while catching the patient. (Id.) According to Claimant, he has not fully recovered
from the November 4, 2014 injury and is still in pain from that injury. (Id.
¶ 5(i)(c).) Claimant testified that he did not believe the November 4, 2014 injury
worsened or aggravated his preexisting symptoms or conditions. (Jan. 25, 2017
Hr’g Tr. at 18.) Rather, the injury at issue is to a different part of his back than his
preexisting back conditions. (FOF ¶ 5(i)(d).)
Dr. Shah,5 who is licensed in the Commonwealth of Pennsylvania and is
board certified in neurosurgery, testified that Claimant’s medical history and
records reveal an “extensive back history,” including undergoing back surgery in
2013. (Feb. 10, 2016 Dep. Tr. at 8; FOF ¶ 8(b).) Based upon Claimant’s medical
history and records, as well as Dr. Shah’s two physical examinations of Claimant,
Dr. Shah opined that as a result of the November 4, 2014 injury, Claimant suffered
from an “aggravation of his pre[]existing lumbar condition with significant
aggravation of his low back pain, and radiculopathy for the lumbar, as well as new
onset thoracic pain with associated thoracic radiculopathy.” (Feb. 10, 2016 Dep.
4
Claimant testified before a WCJ on four different occasions: November 18, 2015;
January 25, 2017; March 20, 2017; and August 10, 2017. Claimant’s testimony can be found on
pages 174a-255a of the reproduced record and is summarized in findings of fact 5, 5(i), 6, and 7.
The WCJ’s Decisions contain two number 5s and two number 11s, and we will identify the
second of each as 5(i) and 11(i).
5
Dr. Shah’s February 10, 2016 deposition testimony can be found on pages 76a-145a of
the reproduced record and is summarized in finding of fact 8.
5
Tr. at 14.) Dr. Shah agreed that while an MRI taken after the November 4, 2014
injury revealed no changes from an MRI taken before the November 4, 2014
injury, he explained that “[y]ou do not have to have an anatomical change on an
MRI to diagnose an aggravation injury.” (Feb. 10, 2016 Dep. Tr. at 14-15.) Dr.
Shah concluded that Claimant could not return to his pre-injury position and has a
permanent partial disability from the November 4, 2014 injury. (Id. at 15-16, 18-
19; FOF ¶ 8(f).)
The parties submitted briefs in support of their positions, and the record was
closed on the First Termination Petition and Review Petition. However, before
WCJ Doneker entered a decision on the First Termination Petition, the parties
reached a tentative settlement agreement. Then, WCJ Doneker retired before the
tentative settlement agreement was approved, and the matter was reassigned to
WCJ Doman on October 18, 2016. The tentative settlement agreement was listed
as a potential Petition for Approval of a Compromise and Release Agreement
before WCJ Doman. This changed at a hearing held on January 25, 2017, where
the parties indicated that the Petition for Approval of a Compromise and Release
Agreement could be marked as withdrawn, as the tentative settlement agreement
was no longer agreeable, and the parties would proceed to a decision on
Employer’s First Termination Petition and Claimant’s Review Petition. (Jan. 25,
2017 Hr’g Tr. at 5.)
B. Suspension Petition
On January 4, 2017, Employer offered Claimant a modified-duty position
“assembling admission packets,” at a wage higher than Claimant’s pre-injury
wage. (C.R. Item 32.) Claimant returned to work in that capacity on January 18,
6
2017, working full time. After working three weeks in that position, Claimant
presented a doctor’s note restricting him to four hours of work per day. Claimant’s
hours were subsequently reduced from eight to four hours per day as a result of the
doctor’s note. Thereafter, Employer filed the Suspension Petition seeking to
suspend Claimant’s WC benefits as of January 18, 2017, stating that “[C]laimant
was offered an opportunity to return to work in a modified[-]duty position.”
(Supplemental Reproduced Record (S.R.R.) at 266b.) In support of its Suspension
Petition, Employer submitted the deposition testimony of two of its employees.
Employer presented the deposition testimony of its WC administrator,6 who
testified that Claimant was offered “a full-time sedentary job as an admissions
packet assembler,” Claimant returned to work in that position at a wage higher
than his pre-injury wage, and “he had no problem with [] Claimant’s work” in that
position. (FOF ¶ 11(i).) Employer also presented the deposition testimony of
Employer’s network director for volunteer services,7 who testified that “she was
involved in locating the position to which [Claimant] returned.” (Id. ¶ 12.) She
also testified that Claimant presented a doctor’s note, dated June 2015, on
February 10, 2017, stating Claimant could only work four hours a day. (Id.)
During his testimony, Claimant confirmed he returned to work in this
position, but explained he began increasing his pain medications after three weeks,
which led him to present the doctor’s note restricting his work to four hours per
day. (Id. ¶ 6.) He further testified that, as of August 10, 2017, he had received a
raise and continues to work 20 hours per week. (Id. ¶ 7.)
6
The testimony of Employer’s WC administrator can be found on pages 138b-58b of the
supplemental reproduced record and is summarized in finding of fact 11(i).
7
The testimony of Employer’s network director for volunteer services can be found on
pages 187b-202b of the supplemental reproduced record and is summarized in finding of fact 12.
7
C. Second Termination Petition
Employer filed the Second Termination Petition on May 23, 2017. The
parties litigated the Second Termination Petition during the pendency of the First
Termination Petition and Review Petition. While litigating the Second
Termination Petition, Employer allegedly filed seven Notification of
Suspension/Modification Petitions, to which Claimant responded by filing
Challenge Petitions. The WCJ eventually issued an interlocutory order on
September 25, 2017, confirming Employer’s obligation to pay partial disability
benefits. (Sept. 25, 2017 Order.)
In the Second Termination Petition Employer alleged that, based upon a
second IME performed by Dr. Naftulin, Claimant had fully recovered from the
work-related low back strain and was capable of returning to work as of May 16,
2017. (S.R.R. at 269b.) As support for its Second Termination Petition, Employer
submitted the testimony of Dr. Naftulin from a second deposition.8 At the second
deposition, Dr. Naftulin testified that he performed a second IME of Claimant on
May 16, 2017. Based upon that examination and his review of Claimant’s medical
records, Dr. Naftulin opined that Claimant was fully recovered from the low back
strain resulting from the November 4, 2014 incident as of May 16, 2017, and did
not require further treatment. (Sept. 7, 2017 Dep. Tr. at 12, 14; FOF ¶ 11(b).) This
is based upon Dr. Naftulin’s conclusion that there is no anatomical explanation for
Claimant’s continued complaints of symptoms relating to the November 4, 2014
injury. (Sept. 7, 2017 Dep. Tr. at 24-26; FOF ¶ 11(c).) When asked whether
Claimant could return to work in the same capacity as before the injury at issue,
8
Dr. Naftulin’s testimony from the second deposition can be found on pages 267a-318a
of the reproduced record and is summarized in finding of fact 11.
8
Dr. Naftulin testified that Claimant “could return to his pre-injury level of activity,
including work without restriction.” (Sept. 7, 2017 Dep. Tr. at 15.) When asked
by Claimant’s counsel whether “there [was] any significant change in [Claimant’s]
condition” between his first and second IME, Dr. Naftulin responded that “[t]he
records suggest no significant change, chronic ongoing pain complaints, although
[Claimant’s] clinical evaluation or physical examination was somewhat different
between the two.” (Id. at 50.)
In opposition to the Second Termination Petition, Claimant submitted the
testimony of Dr. Shah from a second deposition.9 At the second deposition, Dr.
Shah testified that he examined Claimant for a third time on December 5, 2017,
and based upon his examination, his diagnosis remained that Claimant suffers from
an “aggravation injury to the lower back, thoracic herniations as well as
posttraumatic spasm and mechanical back pain.” (Dec. 11, 2017 Dep. Tr. at 11;
FOF ¶ 9(a).) As he did in his first deposition, Dr. Shah opined that Claimant was
not capable of returning to work in his previous capacity as an MRI technician and
could work a modified position on a part-time basis. (Dec. 11, 2017 Dep. Tr. at
12-13; FOF ¶ 9(c).)
D. WCJ’s Decisions
The WCJ issued two identical Decisions on July 2, 2018, and July 6, 2018,
under two different dispute numbers,10 in which the WCJ adjudicated the various
petitions. The WCJ found Dr. Naftulin, Claimant, and Dr. Shah each to be credible
9
Dr. Shah’s testimony from the second deposition can be found on pages 338a-94a of the
reproduced record and is summarized in finding of fact 9.
10
The First Termination Petition and the Review Petition were filed under one dispute
number while the remaining petitions in this case were filed under a different dispute number.
9
in part. The WCJ found Dr. Naftulin’s testimony not credible with respect to his
testimony that “Claimant was completely recovered as of . . . March 2, 2015.”
(FOF ¶ 13.) Instead, the WCJ found Claimant and Dr. Shah credible to the extent
they testified that Claimant was not completely recovered as of March 2, 2015.
(Id. ¶ 14.) The WCJ based this finding largely on “the relative recentness of the
injury” to March 2, 2015. (Id.) However, the WCJ found Dr. Naftulin credible in
all other respects, including that Claimant’s continued medical issues after May 16,
2017, were a result of his preexisting condition and not the November 4, 2014
injury. As such, the WCJ accepted Dr. Naftulin’s opinion that Claimant had
recovered from the November 4, 2014, injury, which was limited to the low back
strain and did not aggravate his preexisting conditions, as of May 16, 2017. The
WCJ reasoned that the results of objective diagnostic tests, as set forth in
Claimant’s medical records, supported Dr. Naftulin’s opinion that Claimant’s
continued symptoms were a result of Claimant’s long-standing preexisting
conditions. (Id. ¶ 13.) The WCJ also accepted Dr. Naftulin’s opinion that
“Claimant was capable of performing the work that was available to him for eight
hours per day.” (Id. ¶ 15.) The WCJ did not credit Claimant and Dr. Shah to the
extent they testified that “Claimant continued to suffer from the work injury as of
May 16, 2017[,]” or that he could not work more than four hours per day in light of
Dr. Naftulin’s credible testimony. (Id. ¶ 14.) Based on these findings, the WCJ
denied Employer’s First Termination Petition and Claimant’s Review Petition, but
granted Employer’s Second Termination Petition and Suspension Petition.
10
E. Board’s Opinion
Claimant appealed the WCJ’s Decision to the Board. Relevant to this
appeal, Claimant argued that the WCJ erred in granting the Second Termination
Petition because Employer did not demonstrate a change in Claimant’s physical
condition as required by Lewis. Claimant also asserted that the Second
Termination Petition was barred by res judicata pursuant to Bechtel Power
Corporation v. Workmen’s Compensation Appeal Board (Miller), 452 A.2d 286(Pa. Cmwlth. 1982).11 Additionally, Claimant argued that the WCJ erred in
denying the Review Petition. Specifically, Claimant argued that the WCJ erred by
not adequately explaining why he did not credit Dr. Shah’s testimony that
Claimant suffered injuries beyond the low back strain described in the NCP.
The Board affirmed. In concluding that Lewis was inapplicable, the Board
reasoned that since the First and Second Termination Petitions were adjudicated in
the same July 2, 2018 and July 6, 2018 Decisions, there was no prior decision;
thus, Lewis’s requirement that an employer establish a change in physical
condition in any subsequent termination petitions was not triggered. (Board’s
Opinion at 6.) Similarly, with respect to res judicata, the Board determined that
since a decision was not issued on the First Termination Petition prior to the July 2,
2018 and July 6, 2018 Decisions granting the Second Termination Petition, “res
judicata is not applicable.” (Id. at 7.) The Board also determined that the rule set
forth in Bechtel did not apply in this case because Employer was not disputing the
11
In Bechtel, this Court held that an employer that has filed an appeal of a WCJ’s
decision granting WC benefits may not file a termination petition until a decision on the appeal
of the WCJ’s decision granting benefits is issued. 452 A.2d at 287-88. We reasoned that to
allow an employer to file a termination petition while an appeal of a WCJ’s decision granting
WC benefits was pending would allow the employer to both attack a finding of disability while
at the same time argue the disability ceased. Id.
11
initial disability claim or making inconsistent arguments. (Id. at 7-8.) As to the
WCJ’s decision not to credit Dr. Shah’s testimony, the Board concluded that the
WCJ was entitled to credit “in whole or in part a medical expert as he deems fit, so
long as the WCJ provides objective reasons for his credibility determinations.”
(Id. at 8.) Citing the fact that the WCJ “explained that Dr. Naftulin’s testimony
that Claimant’s work injury was limited to a lumbar strain/sprain was more
credible than Dr. Shah’s opinion that Claimant had sustained aggravations to his
preexisting [] conditions,” the Board determined the WCJ provided an adequate
objective reason for his credibility determination because Dr. Naftulin’s testimony
was supported by Claimant’s medical records. (Id. at 9.)
Claimant then filed the instant Petitions For Review.12
II. Discussion
In his brief, Claimant argues that he was wrongfully forced to contest the
Second Termination Petition during the pendency of the First Termination Petition
and Review Petition because a decision on those petitions languished after the
retirement of WCJ Doneker.13 Claimant submits that “it was impossible for [him]
12
“Our scope of review of the Board’s decision[s] is limited to determining whether an
error of law was committed, whether necessary findings of fact are supported by substantial
evidence, or whether constitutional rights were violated.” Virgo v. Workers’ Comp. Appeal Bd.
(Cnty. of Leigh-Cedarbrook), 890 A.2d 13, 17 n.8 (Pa. Cmwlth. 2005).
13
Employer argues that Claimant has not preserved any issues for our review.
Claimant’s Petitions for Review filed with this Court list the following two issues for our review:
(1) whether “[t]he [WCJ’s] decision to allow the re-litigation of a [S]econd Termination Petition
before issuing a decision on the [F]irst Termination Petition and Review Petition was wrong as a
matter of law because it forced the parties to re-litigate the same issues” and (2) whether “[t]he
[WCJ’s] decision to deny the Review Petition was wrong as a matter of law because it was not
supported by any of the medical evidence of record.” (Claimant’s Petitions for Review at 5-6.)
In his brief to this Court, Claimant presents a single issue for review: whether “the [Board] erred
(Footnote continued on next page…)
12
_____________________________
(continued…)
as a matter of law when it failed to apply Lewis and reverse the WCJ’s Decision[s].” (Claimant’s
Brief at 12.) Employer contends that Claimant has waived review of the two issues presented in
his Petitions for Review by failing to develop those issues in his brief. Additionally, Employer
contends Claimant has waived review of the single issue raised in his brief for failing to include
that issue in his Petitions for Review.
A petition for review filed in our appellate jurisdiction is to include, among other things,
“a general statement of the objections to the order or other determination.” Pennsylvania Rule of
Appellate Procedure 1513(d)(5), Pa.R.A.P. 1513(d)(5). However, under this Rule, “the omission
of an issue from the statement shall not be the basis for a finding of waiver if the court is able to
address the issue based on the certified record.” Id. (emphasis added). In addition, “[n]o
question will be considered unless it is stated in the statement of questions involved” section of a
party’s brief “or is fairly suggested thereby.” Pennsylvania Rule of Appellate Procedure
2116(a), Pa.R.A.P. 2116(a). Further, an appellate brief is to “be divided into as many parts as
there are questions to be argued.” Pennsylvania Rule of Appellate Procedure 2119(a), Pa.R.A.P.
2119(a). Thus, an issue raised in a petition for review, but not addressed either in the statement
of questions involved or argument section of the petitioner’s brief, is waived. Muretic v.
Workers’ Comp. Appeal Bd. (Dep’t of Labor & Indus.), 934 A.2d 752, 758 (Pa. Cmwlth. 2007).
Claimant raised two issues in his Petitions for Review, and while the issue raised in his
brief is not phrased exactly as either of these issues, the first issue raised in Claimant’s Petitions
for Review and the issue in his brief can both be broadly understood as challenging Employer’s
litigation of a Second Termination Petition before a determination on the First Termination
Petition has been issued. This issue was addressed by the Board in its Opinion and we find it is
properly before us.
While Claimant’s Petitions for Review also questioned whether the WCJ’s decision to
deny the Review Petition was supported by substantial evidence, Claimant did not develop that
argument in his brief and so it is waived. Id. at 758. Had it not been waived, we would have
concluded that the WCJ’s Decisions were supported by substantial evidence. “Substantial
evidence is such relevant evidence a reasonable mind might accept as adequate to support a
conclusion.” Wawa v. Workers’ Comp. Appeal Bd. (Selter), 951 A.2d 405, 407 n.4 (Pa. Cmwlth.
2008). Claimant’s Review Petition alleged that the description of his injury in the NCP was
incorrect as it failed to include the aggravation of his preexisting conditions. Dr. Naftulin,
Employer’s expert, testified that the November 4, 2014 injury was limited to low back
sprain/strain and that this injury did not aggravate Claimant’s preexisting conditions. (Nov. 2,
2015 Dep. Tr. at 31-32.) Dr. Shah, Claimant’s expert, testified that the November 4, 2014 injury
did aggravate Claimant’s preexisting conditions. (Feb. 10, 2016 Dep. Tr. at 14.). The WCJ
credited Dr. Naftulin’s testimony that the November 4, 2014 injury did not aggravate Claimant’s
preexisting conditions, explaining that Dr. Naftulin’s testimony was supported by diagnostic
tests performed before the November 4, 2014 injury. (FOF ¶ 13.) In WC cases, WCJs are free
to credit or reject, in whole or in part, expert testimony. Clear Channel Broad. v. Workers’
Comp. Appeal Bd. (Perry), 938 A.2d 1150, 1157 (Pa. Cmwlth. 2007). “If the WCJ did not
(Footnote continued on next page…)
13
to know which evidentiary burden would apply to the Employer’s [S]econd
Termination Petition because [the] WCJ [] did not circulate a decision” on the First
Termination Petition or Review Petition “despite the record closing in January
2017” and that “[t]his uncertainty prevented [] Claimant from adequately raising a
legal defense.” (Claimant’s Brief (Br.) at 13.) Because a decision was not issued
on the First Termination Petition and Review Petition before the filing and
litigation of the Second Termination Petition, Claimant contends he did not know
if the additional evidentiary burden required by Lewis would apply or what the
description of the injury would be. Claimant asserts that “[p]arties cannot be left to
guess what their evidentiary burden requires them to prove” and that “[t]his case
demonstrates the ill effects that can arise from a [WCJ]’s failure to issue a timely
decision.” (Id. at 14.)
Employer responds that, unlike the employer in Lewis, it was not engaged in
the serial prosecution of termination petitions, but “[r]ather, [it] prosecuted two
Termination Petitions – alleging two dates of full recovery – simultaneously during
the course of a single proceeding before the WCJ.” (Employer’s Br. at 47
(emphasis omitted).) Therefore, because there was no adjudication of any
termination petition before the July 2, 2018 and July 6, 2018 Decisions
adjudicating both the First and Second Termination Petitions were issued, the
change in circumstances requirement set forth in Lewis is not applicable in the
present matter. Additionally, Employer argues that even if Lewis is applicable,
_____________________________
(continued…)
actually observe the witnesses’ demeanor, the WCJ must provide some articulation of the
objective basis for [the WCJ’s] credibility determinations.” Id. Here, the WCJ credited Dr.
Naftulin’s deposition testimony that the November 4, 2014 injury did not aggravate Claimant’s
preexisting conditions and provided an objective basis for doing so. This constitutes substantial
evidence.
14
Employer established through Dr. Naftulin’s second deposition testimony the
requisite change in Claimant’s condition between March 2, 2015, the first alleged
date of recovery, and May 16, 2017, the date on which the WCJ found Claimant to
have recovered. Employer asserts that “[a] comparison of Dr. Naftulin’s March 2,
2015 and May 16, 2017 examinations, confirms [C]laimant’s two very different
physical presentations.” (Id. at 49.) In its brief, Employer sets forth a “Table of
Comparison,” which highlights changes in Claimant’s physical condition between
the two IMEs. (Id. at 49-52.) Employer contends that Claimant’s “counsel
attempted to establish that there was no difference in [C]laimant’s physical
presentation from March 2, 2015[,] to May 16, 2017[,]” during Dr. Naftulin’s
second deposition in order to thwart the Second Termination Petition through an
application of Lewis. (Id. at 48.)
Upon review, we conclude the Board did not err in determining that Lewis is
inapplicable to the present matter. Section 413 of the WC Act provides: “A
[WCJ] . . . may, at any time, modify, reinstate, suspend, or terminate a notice of
compensation payable . . . upon petition filed by either party . . . , [and] upon proof
that the disability of an injured employe has increased, decreased, recurred, or has
temporarily or finally ceased, or that the status of any dependent has changed.” 77
P.S. § 772. To prevail
[o]n a termination petition, an employer bears the burden of proving
by substantial evidence that a claimant’s disability ceased, or any
remaining conditions are unrelated to the work injury. An employer
may satisfy this burden by presenting unequivocal and competent
medical evidence of claimant’s full recovery from [his] work-related
injuries.
Westmoreland Cnty. v. Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217
(Pa. Cmwlth. 2008) (citations omitted). In Lewis, our Supreme Court examined an
15
employer’s burden of proof when litigating a termination petition subsequent to the
denial of a prior termination petition.
At issue in Lewis was “whether an employer must demonstrate a change in a
claimant’s physical condition since the preceding disability adjudication in order to
bring a petition to terminate or modify benefits due to a decrease in physical
disability.” 919 A.2d at 925. The Court determined that “where there have been
prior petitions to modify or terminate benefits, the employer[,]” in a second or
subsequent petition to terminate benefits, “must demonstrate a change in physical
condition since the last disability determination.” Id. at 926 (emphasis added).
The Court reasoned that “[a]bsent this requirement[,] ‘a disgruntled employer (or
claimant) could repeatedly attack what he considers an erroneous decision of a
[WCJ] by filing petitions based on the same evidence ad infinitum, in the hope that
one [WCJ] would finally decide in [the employer’s] favor.’” Id. (quoting Dillon v.
Workmen’s Comp. Appeal Bd. (Greenwich Collieries), 640 A.2d 386, 389 (Pa.
1994)).
Here, there was an unusual procedural progression in the litigation.
Employer filed its First Termination Petition on June 12, 2015, and Claimant filed
a Review Petition. After the record was closed, the parties reached a tentative
settlement agreement and then the WCJ retired. Thereafter, a Petition for
Approval of a Compromise and Release Agreement was listed before the new
WCJ. At the hearing, the parties informed the WCJ that settlement was no longer
an option and that they would proceed to a decision. Before a decision on the First
Termination Petition was issued, Employer filed a Second Termination Petition on
May 23, 2017, and then filed a Suspension Petition seeking suspension of
Claimant’s benefits as of January 18, 2017. This resulted in the parties litigating
16
the Second Termination Petition during the pendency of the First Termination
Petition and Review Petition. Also during this time, Employer allegedly filed
seven Notification of Suspension/Modification Petitions, to which Claimant
responded by filing Challenge Petitions. The WCJ ultimately issued an
interlocutory order on September 25, 2017, confirming Employer’s obligation to
pay partial disability benefits. (Sept. 25, 2017 Order.) The WCJ simultaneously
adjudicated the First and Second Termination Petitions, the Review Petition, and
the Suspension Petition in the identical Decisions issued on July 2, 2018, and July
6, 2018. Therein, the WCJ rejected Dr. Naftulin’s testimony that Claimant had
recovered from the November 4, 2014 injury by March 2, 2015, while accepting
Dr. Naftulin’s opinion that Claimant had recovered from the November 4, 2014
injury as of May 16, 2017. Accordingly, the WCJ denied the First Termination
Petition and granted the Second Termination Petition. As there had not been a
determination of the termination or modification petitions prior to the WCJ’s July
2, 2018 and July 6, 2018 Decisions, technically the requirement set forth in Lewis
that an employer “must demonstrate a change in physical condition since the last
disability determination” is not applicable in this case. 919 A.2d at 926
(emphasis added).
Further, this case does not illustrate the concern raised by the Supreme Court
in Lewis, that employers may continuously file termination petitions based on the
same evidence “in the hope that one [WCJ] would finally decide in the
[employer’s] favor.” Id. Since there was no determination on the First
Termination Petition, or any other termination or modification petition, before the
filing of the Second Termination Petition, Employer could not have been seeking a
different result. We also note that Employer’s First and Second Termination
17
Petitions were not identical. The first alleged a recovery date of March 2, 2015,
and presented Dr. Naftulin’s first IME and his first deposition testimony as
support. Employer’s Second Termination Petition alleged a recovery date of May
16, 2017, and presented Dr. Naftulin’s second IME and his second deposition
testimony as support. Thus, the Second Termination Petition not only alleged a
different recovery date, which was nearly two years later than the date of recovery
alleged in the First Termination Petition, but was also supported by new evidence.
Therefore, this matter does not present the situation where an employer is
attempting to continually file termination “petitions based upon the same evidence
ad infinitum” in order to harass the claimant or obtain a more favorable result.14 Id.
We recognize that because of numerous factors, a decision was not issued
regarding the First Termination Petition and the Review Petition before Claimant
was required to litigate the Second Termination Petition, and that this was
challenging. However, we are not persuaded by Claimant’s argument that he was
prejudiced by not knowing which evidentiary burden would apply to the Second
14
Even if Lewis does apply and Employer was required to demonstrate a change in
Claimant’s physical condition between the First and Second Termination Petitions, implicit in
the WCJ’s Decisions is that Employer demonstrated such a change. The WCJ credited the
testimony of Dr. Shah that Claimant was not recovered from the injury by March 2, 2015, and
credited the testimony of Dr. Naftulin that any remaining disability of Claimant, after May 16,
2017, was related to Claimant’s significant and long-standing preexisting conditions. Dr.
Naftulin testified that Claimant’s “physical examination was somewhat different between the
two” IMEs. (Sept. 7, 2017 Dep. Tr. at 50.) The WCJ’s Decisions, based on the testimony he
found credible, found a change in Claimant’s physical condition between the dates asserted in
the First and Second Termination Petitions and that Claimant recovered by May 16, 2017. We
are bound by the credibility determinations of the WCJ. Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). Additionally, in light of the fact
that Claimant does not challenge in his brief the WCJ’s findings of fact surrounding his recovery
from the November 4, 2014 injury, those findings are conclusive on appeal. GNB, Inc. v.
Workers’ Comp. Appeal Bd. (Korman), 810 A.2d 732, 735 (Pa. Cmwlth. 2002).
18
Termination Petition and, therefore, he could not raise an adequate defense.
Regardless of whether Employer would have to demonstrate a change in
Claimant’s physical condition, as set forth in Lewis, Employer, for both the First
and Second Termination Petitions, had the “burden of proving by substantial
evidence that a claimant’s disability ceased, or any remaining conditions are
unrelated to the work injury.” Westmoreland Cnty., 942 A.2d at 217. Claimant
had an adequate opportunity to defend against the First and Second Termination
Petitions because Claimant was afforded the opportunity to submit evidence in
opposition to those petitions both through his own testimony and the two
depositions of Dr. Shah. Moreover, Claimant’s counsel asked Dr. Naftulin during
his second deposition whether there had been “any significant change in
[Claimant’]s condition between” his first and second IME, (Sept. 7, 2017 Dep. Tr.
at 50), which appears designed to elicit facts related to the Lewis requirement.
III. Conclusion
Based upon the foregoing reasons, the Board did not err in determining that
Lewis is inapplicable to this matter, and Claimant was not prejudiced by having to
defend against the Second Termination Petition before a decision on the First
Termination Petition and Review Petition was issued. Accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Roy Carlson, :
Petitioner :
:
v. : No. 1198 C.D. 2019
:
St. Luke’s Quakertown Hospital :
(Workers’ Compensation Appeal :
Board), :
Respondent :
Matthew Roy Carlson, :
Petitioner :
:
v. : No. 962 C.D. 2020
:
St. Luke’s Quakertown Hospital :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
NOW, December 22, 2020, the August 7, 2019 Orders of the Workers’
Compensation Appeal Board in the above-captioned matters are hereby
AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge