Hall v. Workers' Compensation Appeal Board

DISSENTING OPINION

BY Senior Judge FLAHERTY.

I respectfully dissent from the majority opinion in this matter. Because I agree that the Workers’ Compensation Appeal *745 Board (Board) erred to the extent it found substantial, competent evidence to support a termination of benefits, I would reverse on this issue.

This case is made complicated by the haphazard execution of the NCP. As indicated by the Majority, the NCP indicates that the “Body Part(s) Affected” by Claimant’s August 12, 2004 injury was the “low back.” Claimant’s brief at p. 69. That same document, however, lists a “Description of Injury” as “lumbar/thoracic/cervical strain & sprain & aggravation of underlying disc disease & prior disc injury at L5-Sl, & aggravation of radicular component at LB.” Id. 1

A review of the NCP reveals that Employer accepted a thoracic strain and sprain following Claimant’s work-related fall in 2004. The Majority suggests that the phrase “lumbar/thoracic/cervical strain & sprain” does not connote a stand-alone “thoracic strain.” Majority Op., p. 742. Instead, it proffers that the use of the “diagonal” implies a lack of clarity concerning the boundaries of Claimant’s back sprains and strains. Id. It further indicates Claimant stipulated in an earlier proceeding that her work-related injuries were limited to her low back.

Employer does not make any argument concerning any prior stipulation limiting Claimant’s injuries to the low back. Any such stipulation, like the NCP, is absent from the certified record. Employer concedes, in brief, that the NCP does contain an injury description that includes a “lumbar/thoracic/cervical strain and sprain.” Employer’s brief, p. 2. Simply put, Employer, of is own volition, placed the word “thoracic” on the NCP. An NCP is a unilateral document issued by an employer. To find Employer can indicate a thoracic injury on the NCP and later disavow its occurrence is untenable. See Beissel v. Workmen’s Compensation Appeal Board (John Wanamaker, Inc.), 502 Pa. 178 , 465 A.2d 969 (1983) (holding that if, after having full opportunity to investigate a claim, an employer recognizes a specific injury in an NCP, it may not challenge causation at a later date because it already admitted liability). 2

Regardless, the Majority elected to give Claimant the benefit of the doubt and assumed an independent thoracic sprain and strain was part of the work injury. It found that assuming the NCP specified a discrete thoracic injury, Claimant’s benefits should be terminated as of September 6, 2006, the date Dr. Valentino, Claimant’s medical expert, last examined her. It found that on that day, Claimant’s medical expert rendered a work-related diagnosis of “cervicolumbar disc herniation[s] with radiculopathy, facet syndrome, [sacroiliac] dysfunction with aggravation of cervico-lumbar degenerative disc disease.” Majority Op., p. 742. According to the Majority, Dr. Valentino’s most recent diagnosis established Claimant was fully recovered from any thoracic injury as of that date. In so finding, it relies on SKF USA, Inc. v. Workers’ Compensation Appeal Board (Smalls), 728 A.2d 385 , 388 n. 3 (Pa.Cmwlth.1999), for the principle that a par *746 ty can satisfy its burden of proof based on evidence presented by its adversary. The Majority was required to examine Claimant’s evidence to determine whether Employer was entitled to a finding of full recovery from a stand-alone thoracic injury. Employer’s expert, as conceded by the Majority, did not examine Claimant’s thoracic spine. Employer’s expert explicitly stated his physical examination was limited to the “lumbar” and “cervical” regions of the spine. Depo. dated 8/22/06, p. 14. An employer’s medical expert cannot ignore the fact that the claimant sustained other previously accepted work-related injuries when offering an opinion of full recovery. Gillyard v. Workers’ Compensation Appeal Board (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa.Cmwlth.2005).

The Majority’s reliance on Smalls appears misplaced. In a termination proceeding, the burden of proof is on the employer to establish that the claimant has fully recovered from his work-related injury. Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319 , 705 A.2d 1290 (1997). If a claimant sustained multiple work-related injuries, the employer must present proof of full recovery for each respective injury. Central Park Lodge v. Workers’ Compensation Appeal Board (Robinson), 718 A.2d 368 (Pa.Cmwlth.1998). The employer’s burden is a considerable one and it never shifts to the claimant because disability is presumed to continue until proven otherwise. Marks v. Workers’ Compensation Appeal Board (Dana Corp.), 898 A.2d 689 (Pa.Cmwlth.2006). Dr. Valentino, per the Majority, never diagnosed Claimant with a separate thoracic injury. It is questionable how his most recent diagnosis, that would necessarily not include a thoracic injury if he never diagnosed one, could be sufficient to support a finding of full recovery from this type of injury. Udvari, Robinson. In finding that Dr. Valentino’s opinion established full recovery inasmuch as Dr. Valentino did not opine Claimant continued to experience problems from a thoracic sprain and strain, the Majority shifted the burden of proof in this termination proceeding to Claimant in contravention of Marks .

It is acknowledged that when a claimant’s own evidence concedes full recovery from a particular injury, termination is proper even if the employer’s expert failed to address that injury. Stancell v. Workers’ Compensation Appeal Board (LKI Group, LLC), 992 A.2d 221 (Pa.Cmwlth.2010); Jackson v. Workers’ Compensation Appeal Board (Res. for Human Dev.), 877 A.2d 498 (Pa.Cmwlth.2005). Claimant, however, did not concede to full recovery on the thoracic injury issue. At hearing, the following dialogue took place:

Q. One of the other diagnoses that was contained in Judge Gilbert’s decision was your thoracic spine, in other words your mid-back. Are you still having any other problems in that area?[ 3 ]

A. Uh-huh (yes).

[[Image here]]

Q. What kind of problems are you still having in the mid-back area?

A. It’s very tender to touch.

Q. Did you ever have any problems with your thoracic spine before this incident?

*747 A. No.

N.T. dated 11/13/06, p. 25.

Claimant did not concede full recovery from her thoracic injury. Employer is not entitled to a finding that Claimant is fully recovered from a discrete thoracic injury based on this type of circumstance. Stan-cell; Jackson. I would reverse the Board on this issue. There is no competent, credible evidence that Claimant is fully recovered from all of her work-related injuries as required by Robinson. Moreover, assuming Claimant were successful on appeal regarding the termination issue, she would have prevailed, in part, in the litigation. I would further remand for an award of litigation costs pursuant to Section 440(a) of the Pennsylvania Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996(a).

. It is acknowledged that an NCP, or a portion thereof, can be set aside upon a showing that it is materially incorrect. Mahon v. Workers' Compensation Appeal Board (Expert Window Cleaning), 835 A.2d 420 (Pa.Cmwlth.2003). There is no indication in the record, however, that Employer ever attempted to remove the thoracic sprain and strain from the NCP.

. This reference to a decision by Workers’ Compensation Judge (WCJ) Gilbert apparently refers to a decision whereupon WCJ Gilbert disposed of certain petitions by adopting the previously mentioned stipulation. The NCP and stipulation were apparently attached to WCJ Gilbert’s decision. None of these documents are part of the certified record.