eNotes: Workers’ Compensation – July 2019
July 01, 2019
SIGNIFICANT PENNSYLVANIA CASE SUMMARIES
Greater Hazleton Health Alliance v. Workers’ Compensation Appeal Board (Zito), No. 1309 C.D. 2018 (June 6, 2019)
Pennsylvania Commonwealth Court, Unpublished
By: Andrew T. Kravitz
Causes of action are identical when the subject matter and the ultimate issues are the same in both the old and the new proceedings.
Background: By decision and order of April 15, 2014 WCJ Rapkin, relying upon the testimony of Dr. Talsania, granted Claimant’s Review Petition, changing the description of the work injury. Dr. Jalali, a pain management specialist, assumed responsibility for managing Claimant’s medications on March 31, 2015. Dr. Jalali changed some of the medications prescribed by Dr. Talsania, but while they were different, the medications were the same type.
On July 6, 2016, WCJ Caravaggio issued a decision denying Claimant’s Review Petition to add additional injuries. In denying Claimant’s petition, the WCJ found the opinions of Dr. Jalali as to these additional injuries to be not credible. Citing the decision of WCJ Caravaggio, Employer refused to pay for any medications prescribed by Dr. Jalali. As a result, Claimant filed a Penalty Petition against Employer on September 21, 2016.
In support of the Penalty Petition Claimant presented the testimony of Dr. Jalali. Dr. Jalali testified that the prescriptions he continued to provide were reasonable and necessary for the treatment of those medical conditions found to be work-related. Employer presented no evidence to rebut the testimony of Dr. Jalali. It was Employer’s position that Claimant’s Penalty Petition was barred by res judicata and/collateral estoppel arguing that the 2014 WCJ Caravaggio decision and the Penalty Petition concerned the same issues and parties.
The WCJ granted Claimant’s Penalty Petition finding the testimony of Dr. Jalali as to the relationship between his prescriptions and the accepted work injuries to be credible.
Holding: The Commonwealth Court rejected Employer’s arguments and affirmed the WCJ decision granting Claimant’s Penalty Petition. The Court found that the issues were not identical as WCJ Caravaggio’s decision did not address any specific medical bills or their relationship to the work injury.
Take Away: Res Judicata and Collateral Estoppel can be valid arguments in successive litigation. However, in this case, they did not apply. Here, Employer presented no medical or factual evidence to refute the evidence presented in support of a finding that the medical treatment was reasonable and necessary treatment of the accepted work injury. The only evidence submitted by Employer was the prior decision. As Dr. Jalali was willing to present new testimony, and was willing to testify that his treatment was related only to the accepted work injuries, it was necessary for Employer to present rebuttal testimony to refute his opinion.
Questions about this case can be directed to Andrew Kravitz, at (717) 237-7157 or firstname.lastname@example.org.
Debellis v. Workers’ Comp. Appeal Bd. (Dermatology, Ltd.), No. 1358 C.D. 2018 (June 5, 2019)
Pennsylvania Commonwealth Court, Unpublished
By: Stephanie A. Walczak, Esquire
In this case, the Commonwealth Court provides a refresher as to how a WCJ’s findings are reviewed on appeal.
Background: Claimant was a receptionist who sustained a work-related injury in February, 2013. Employer issued a Notice of Temporary Compensation Payable (NTCP), describing the injury as right knee, right ankle, chin, and left side contusions. In May 2013, Employer issued an amended/corrected NTCP describing the injury as a right-knee tear. Employer filed a Termination Petition and at the same time Claimant filed a Review Petition seeking to expand the description of injury. Claimant also filed a Penalty Petition asserting Employer violated the Act by intentionally limiting the description of Claimant’s work injuries to avoid liability.
In April 2013, Claimant underwent right-knee surgery. She also had cortisone injections in her left hip and both knees, and a nerve block injection in her low back. Claimant underwent a second right-knee surgery in April, 2014.
Claimant presented the testimony of a Physiatrist who diagnosed her with chin and facial contusions, lumbosacral sprain and strain with aggravation of lumbar degenerative joint and disc disease, clinical evidence of lumbar radiculopathy, bilateral hip strains and sprains with post-traumatic greater trochanteric bursitis, bilateral knee contusions, sprain and strain with chondromalacia patella, and a right-knee injury with internal derangement, status post-surgery for a meniscal tear and for chondroplasty of the right knee.
Employer submitted a board-certified orthopedic surgeon who preformed IMEs of Claimant in November, 2015 and August, 2016. The IME physician testified that Claimant’s right-knee showed some soft tissue injury to the kneecap and some kneecap arthritis. He explained that the Claimant’s surgeon did not remove the meniscus because it was stable. At the time of the November, 2015 IME Claimant showed no signs of meniscal, cartilage, or ligament tears in her knees. Further, Claimant did not have any treatment for her right knee during the year prior to the August, 2016 examination. The WCJ granted the Termination Petition and denied the Review and Penalty Petitions.
On appeal, Claimant argued that Employer violated the Act by intentionally limiting the description of Claimant’s work-related injuries to avoid liability, the WCJ capriciously disregarded evidence, the WCJ did not make a well reasoned decision, and the IME doctor’s testimony was incompetent because he failed to state that Claimant’s work injury did not aggravate her preexisting degenerative knee conditions, and because it was unsupported or inconsistent with medical evidence.
Holding: The Commonwealth Court held that the Act does not impose any ongoing duty for the employer to voluntarily amend the description of injury throughout the pendency of the claim. Further the Court affirmed the Board’s decision that the medical evidence and the IME physician’s testimony supported the WCJ’s decision to grant the Termination and deny the Review and Penalty Petitions. Where the WCJ discusses evidence in question, but rejects it as less credible or assigns it less evidentiary weight than other evidence, this determination does not constitute a capricious disregard of the evidence. The Court further held that the Board’s review of the evidence was correct in finding that the WCJ relied upon substantial competent evidence in the form of the IME doctor’s opinion that Claimant’s work-related injury has fully and completely resolved.
The Court further held that Claimant’s assertion that the IME doctor’s testimony was incompetent because he failed to state that Claimant’s work-related injury did not aggravate her preexisting degenerative knee conditions was unfounded. The IME doctor testified that Claimant’s surgeries revealed a little bit of arthritis in the knee joint and the arthritic changes were taken care of during surgery.
The Court held that Claimant’s assertion that the IME doctor’s testimony should be found incompetent because it was unsupported or inconsistent with medical evidence was rejected. Viewing the IME doctor’s testimony as a whole, the Court detected no error or abuse of discretion in the WCJ’s determination, and found that the IME doctor’s testimony provided substantial, competent evidence that Claimant fully recovered from her work related right-knee injury.
Finally, the Court held there was no violation of the Act. The Act imposes no duty on an employer to voluntarily amend the description of injury. The Court found that an employer has the duty to investigate a reported work injury and to issue either an NCP or NCD within 21 days of receiving notice of the injury. Nothing further is required and no ongoing duty upon the Employer is imposed by the Act.
Take Away: An employer does not have any ongoing duty to voluntarily amend the description of injury throughout the pendency of a claim. The WCJ maintains the ability to make credibility determinations and to weigh the evidence as the finder-of-fact.
Questions about this case can be directed to Stephanie A. Walczak, at (610) 332-7025 or email@example.com