IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John McCloskey,
:
: No. 1594 C.D. 2014
Petitioner : Submitted: March 27, 2015
:
v.
:
:
Workers’ Compensation Appeal
:
Board (Bock Construction, Inc.),
:
:
Respondent :
BEFORE:
HONORABLE DAN PELLEGRINI, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN
FILED: June 24, 2015
John McCloskey (Claimant) petitions for review of the August 14, 2014,
order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision
of a workers’ compensation judge (WCJ) to deny Claimant’s reinstatement and
penalty petitions and granting Bock Construction, Inc.’s (Employer) termination
petition. We affirm in part, reverse in part, and remand for further proceedings.
Claimant worked for Employer as a carpenter foreman.
Findings of Fact, No. 7.)
(WCJ’s
On April 16, 2009, Employer issued a notice of
compensation payable (NCP) stating that on March 23, 2009, Claimant sustained a
left knee sprain. On January 11, 2010, Employer, through its insurance carrier,
Liberty Mutual (Carrier), issued an amended NCP stating that Claimant sustained a
work injury consisting of a left knee sprain and two meniscal tears. On January 29,
2010, Claimant signed a supplemental agreement (Agreement) stating that Claimant’s
workers’ compensation (WC) benefits were suspended as of November 16, 2009.
The parties specifically agreed “Claimant is able to return to full duty with no lost
wages as of November 16, 2009; [b]enefits suspended as of November 16, 2009; and,
Carrier agrees to pay reasonable, necessary and related medical expenses.” (Id., Nos.
1-3.)
On December 11, 2011, Claimant filed a reinstatement petition pursuant
to section 413(a) of the Workers’ Compensation Act (Act),1 requesting reinstatement
of WC benefits as of November 16, 2009. (Id., No. 4.) On April 30, 2012, Employer
filed a termination petition in which Employer alleged that Claimant had fully
recovered from his work injury as of March 21, 2012. (Id., No. 5.) On May 16,
2012, Claimant filed a penalty petition alleging that Employer violated the Act by
issuing a fraudulent supplemental agreement and not paying WC benefits. (Id., No.
6; Penalty Pet. at 1.)
At the WCJ’s hearing on February 2, 2012, Claimant described the
March 23, 2009, incident in which he injured his left knee. Claimant underwent
surgery for the injury on June 5, 2009. Claimant testified that he had also sustained
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
2
an injury to his left knee and underwent surgery in 2002.2 Claimant did not have
additional problems with his left knee following the 2002 surgery and worked in a
full-duty capacity until his 2009 work injury.
Claimant identified his signature on the Agreement but testified that he
did not actually return to work on November 16, 2009. Claimant testified that after
his WC benefits stopped on November 16, 2009, he filed for and received
unemployment compensation benefits.
Claimant has not returned to work for
Employer since his 2009 work injury, despite telling Employer that he wanted to
return to work. Since signing the Agreement, Claimant has held three jobs. (WCJ’s
Findings of Fact, No. 7.) Claimant testified that he experienced pain and decreased
strength in his left knee during these jobs due to his 2009 work injury. (Id.; N.T.,
2/2/12, at 16-17.) Claimant stated that he continues to have pain and decreased
strength in his left knee and does not feel capable of working full duty. (WCJ’s
Findings of Fact, No. 12.)
Claimant submitted the deposition testimony of Gregory S. Maslow,
M.D., who is board-certified in orthopedic surgery. Dr. Maslow testified that he first
treated Claimant on October 20, 2011. Based on his examination, Dr. Maslow
concluded that Claimant had re-torn the meniscus in his left knee. Dr. Maslow
ordered a magnetic resonance imaging (MRI), which was performed on November 8,
2011. The interpreting radiologist found a meniscal tear, which appeared unchanged
2
Claimant also testified that he sustained injuries to his neck and right shoulder in 2005 for
which he is receiving WC benefits. (WCJ’s Findings of Fact, No. 7.) Claimant also receives social
security disability for his back. (Id., No. 12.)
3
from an April 16, 2009, MRI. Dr. Maslow found these findings consistent with his
initial examination of Claimant. On March 6, 2012, Dr. Maslow recommended that
Claimant undergo arthroscopic surgery. (Id., No. 8.)
Dr. Maslow admitted that he had not seen any of Claimant’s medical
records, except the 2009 and 2011 MRI reports. During his deposition testimony, Dr.
Maslow reviewed the June 2, 2011, report of Marshall Pressman, D.O., which stated
that Claimant had some preexisting problems related to his 2002 injury, but that
Claimant’s predominant impairment was related to his 2009 work injury.
Dr.
Maslow opined that Claimant could not return to work in any capacity. (Id.)
Employer submitted the deposition testimony of Brian J. Sennett, M.D.,
a board-certified orthopedic surgeon.
Dr. Sennett testified that he first treated
Claimant on May 5, 2009, following a MRI of Claimant’s left knee that revealed a
meniscal tear. On June 5, 2009, Dr. Sennett performed an arthroscopy on Claimant’s
left knee. During surgery, Dr. Sennett found evidence of wear in the cartilage
surfaces and on the outside of the knee. While Dr. Sennett related the tears to
Claimant’s 2009 work injury, he related the changes in the knee to wear that predated that injury. Dr. Sennett testified that he was aware of the physical requirements
of Claimant’s pre-injury job. After a course of physical therapy, Dr. Sennett released
Claimant to return to work, without restrictions, on November 16, 2009. Claimant
returned to Dr. Sennett on December 2, 2009, for a follow-up evaluation, and Dr.
Sennett again released Claimant to return to his full-duty, pre-injury position. Dr.
Sennett also completed a physician’s affidavit of recovery. Dr. Sennett did not treat
Claimant after the December 2, 2009, evaluation. (Id., No. 9.)
4
Employer submitted the deposition testimony of Menachem M. Meller,
M.D., a board-certified orthopedic surgeon. Dr. Meller performed an independent
medical examination of Claimant on March 21, 2012. Prior to examining Claimant,
Dr. Meller reviewed Claimant’s medical records from 2002 through 2009. From Dr.
Sennett’s operative report, Dr. Meller learned that Claimant has advanced grade-4
osteoarthritis in his left knee, which Dr. Meller indicated is the most severe form of
the disease. Dr. Meller noted that Claimant’s 2009 MRI report indicated a narrowing
of joint space and thinning of the articular cartilage, which are consistent with
osteoarthritis and wear.
Dr. Meller testified that these conditions are neither
traumatic in nature nor aggravated by trauma and, thus, are unrelated to Claimant’s
2009 work injury.3 (Id., No. 10.)
Dr. Meller performed three tests to check for a meniscal injury, all of
which were negative. Based on his examination and review of Claimant’s medical
records, Dr. Meller opined that Claimant had fully recovered from his 2009 work
injury and related any complaints Claimant has pertaining to his left knee to
osteoarthritis and wear. Dr. Meller imposed no work restrictions on Claimant. (Id.)
Employer also submitted the deposition testimony of Matthew Kosloff, a
claims consultant for Carrier. Based on his review of Claimant’s claim file, Kosloff
testified that Dr. Sennett released Claimant to return to work full duty on both
3
During his deposition, Dr. Meller also reviewed Claimant’s 2011 MRI report and testified
that it showed tearing consistent with the degenerative process of Claimant’s osteoarthritis. (WCJ’s
Findings of Fact, No. 10.)
5
November 16, 2009, and December 2, 2009. Kosloff testified that after Carrier sent
Claimant the Agreement, Claimant’s attorney sent back two letters stating that
Claimant would only sign the Agreement if the injury description were amended to
include two tears of the meniscus in the left knee. Carrier revised the Agreement
accordingly, and Claimant signed the Agreement on January 29, 2010. (Id., No. 11.)
The WCJ credited the testimony of Dr. Sennett and Dr. Meller that
Claimant was capable of returning to work on November 16, 2009, and had fully
recovered from his 2009 work injury by March 21, 2012. The WCJ discredited
Claimant’s testimony that the pain he experiences in his left knee is the result of his
2009 work injury. The WCJ discredited Dr. Maslow’s testimony that Claimant’s left
knee pain is causally related to his 2009 work injury. The WCJ noted that Dr.
Maslow did not review any of Claimant’s medical records from the other treating
physicians.
The WCJ also credited the testimony of Kosloff, noting that his
testimony supported the finding that the updated injury description was the only
change to the Agreement that Claimant requested before signing it. (Id., Nos. 13-20.)
On March 14, 2013, the WCJ denied Claimant’s reinstatement and
penalty petitions and granted Employer’s termination petition, terminating Claimant’s
WC benefits as of March 21, 2012. The WCJ concluded that: (1) Claimant failed to
show through substantial, competent evidence that he was not able to return to work
on November 16, 2009, or that the Agreement was a product of Employer’s fraud, or
that Employer otherwise violated the Act; and (2) Employer proved through
substantial, competent medical evidence that as of March 21, 2012, Claimant had
fully recovered from his 2009 work injury and that any ongoing residuals regarding
6
his left knee were the result of Claimant’s pre-existing osteoarthritis.
(WCJ’s
Conclusions of Law, Nos. 2-5.) Claimant appealed to the WCAB, which affirmed.
Claimant now petitions for review of that decision.4
First, Claimant argues that the WCAB erred in failing to set aside the
Agreement because it incorrectly stated that he returned to work on November 16,
2009, and because it was the product of Employer’s fraud.5 We disagree.
Under section 413(a) of the Act, a WCJ may set aside a supplemental
agreement if it is proven that the agreement is incorrect in any material respect. 77
P.S. §771. The party petitioning to set aside a supplemental agreement bears the
burden of proving that the agreement was materially incorrect at the time it was
issued. Kraeuter v. Workers’ Compensation Appeal Board (Ajax Enterprises, Inc.),
82 A.3d 513, 520 (Pa. Cmwlth. 2013).
Although Claimant argues that the Agreement states that he, in fact,
returned to work on November 16, 2009, it actually states that “Claimant is able to
return to work full duty with no lost wages as of 11/16/09.” (Agreement at 2
4
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law, and whether the necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
5
Although Claimant did not file a petition to set aside the Agreement, “the form of a
petition is not controlling where the facts warrant relief for a claimant.” Zippo Manufacturing
Company v. Workers’ Compensation Appeal Board (Louser), 792 A.2d 29, 32 (Pa. Cmwlth. 2002).
Because Claimant argued in his penalty petition that the Agreement violated the Act and preserved
that argument on appeal to the WCAB, we may address the issue.
7
(emphasis added).) Further, the WCJ credited Dr. Sennett’s testimony that Claimant
was able to return to work without restrictions as of November 16, 2009. Thus,
Claimant failed to show that the Agreement was incorrect in any material respect.
Moreover, although Claimant alleges that the Agreement is the product
of Employer’s fraud, Claimant fails to show that Employer made any
misrepresentation to him concerning the Agreement. A party who alleges fraud bears
the burden of proving, among other things, a misrepresentation.
Donahue v.
Workers’ Compensation Appeal Board (Philadelphia Gas Works), 856 A.2d 230, 236
(Pa. Cmwlth. 2004). Claimant had an opportunity to review the Agreement, and his
only requested amendment before signing it was the inclusion of two meniscal tears
in the injury description. Claimant does not contend that the Agreement had an effect
other than that which is stipulated to in the Agreement’s terms. Because Claimant
failed to show a misrepresentation, the WCAB correctly concluded that the
Agreement was not the product of Employer’s fraud and did not err in declining to set
aside the Agreement.
Second, Claimant argues that the WCAB erred in denying his
reinstatement petition. We disagree.
A claimant seeking reinstatement of suspended WC benefits bears the
burden of proving that “his or her earning power is once again adversely affected by
his or her disability, and that such disability is a continuation of that which arose from
his or her original claim.” Bufford v. Workers’ Compensation Appeal Board (North
American Telecom), 2 A.3d 548, 558 (Pa. 2010).
8
Claimant maintains that his WC benefits should have been reinstated
because he credibly testified that he suffered a worsening of his 2009 work injury and
Dr. Maslow corroborated his testimony. However, the WCJ discredited Claimant’s
and Dr. Maslow’s testimony that Claimant’s left knee pain was causally related to his
2009 work injury. The WCJ is the ultimate factfinder with exclusive authority over
questions of credibility and evidentiary weight. A & J Builders, Inc. v. Workers’
Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The
WCJ credited Dr. Sennett’s testimony that Claimant was able to return to work
without restriction as of November 16, 2009. The WCJ also credited Dr. Meller’s
testimony that any pain in Claimant’s left knee was the result of Claimant’s
osteoarthritis. Because Claimant failed to prove that his 2009 work injury increased
or recurred, the WCAB did not err in denying Claimant’s reinstatement petition.
Third, Claimant argues that the WCAB erred in granting Employer’s
termination petition. We disagree. An employer who petitions for termination of
WC benefits bears the burden of proving that the claimant is no longer disabled or
that his current disability is unrelated to his work injury.
Jackson v. Workers’
Compensation Appeal Board (Resources for Human Development), 877 A.2d 498,
502 (Pa. Cmwlth. 2005).
The employer may satisfy its burden “by presenting
unequivocal and competent medical evidence of the claimant’s full recovery from his
work-related injuries.” Id. Here, the WCJ credited Dr. Meller’s testimony that
Claimant had fully recovered from his 2009 work injury as of March 21, 2012, and
that any continuing pain in Claimant’s left knee is the result of Claimant’s unrelated
9
osteoarthritis. Therefore, the WCAB did not err in granting Employer’s termination
petition.
Finally, Claimant argues that the WCAB erred in denying his penalty
petition on the basis that Claimant failed to show that Employer violated the Act. We
agree.
“‘Once the employer’s liability for the work injury has been established,
the employer may not unilaterally stop making benefit payment[s] in the absence of a
final receipt, an agreement, a supersedeas or any other order . . . authorizing such
action.’” North Pittsburgh Drywall Company, Inc. v. Workers’ Compensation Appeal
Board (Owen), 59 A.3d 30, 43 (Pa. Cmwlth. 2013) (citation omitted). The employer
must obtain such authorization prior to a modification of WC benefits. Sheridan v.
Workers’ Compensation Appeal Board (Anzon, Inc.), 713 A.2d 182, 186 (Pa.
Cmwlth. 1998). Section 435(d)(i) of the Act6 provides that an employer who violates
the Act may be penalized. 77 P.S. §991(d)(i). The WCJ has discretion to assess
penalties, including the amount of penalties.
City of Philadelphia v. Workers’
Compensation Appeal Board (Sherlock), 934 A.2d 156, 160-61 (Pa. Cmwlth. 2007).
Here, Employer violated the Act by unilaterally suspending Claimant’s
WC benefits before obtaining authority to do so. Employer stopped making WC
payments on November 16, 2009, yet the Agreement was not executed until January
29, 2010. Although the WCJ has the discretion to assess penalties, the WCJ’s denial
6
Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S.
§991(d)(i).
10
of Claimant’s penalty petition was based solely on the WCJ’s erroneous conclusion
that Employer did not violate the Act. Therefore, we must remand this issue to the
WCAB with instructions to remand to the WCJ.
Accordingly, we affirm the order of the WCAB to the extent that it
denied Claimant’s reinstatement petition and granted Employer’s termination petition
and reverse that portion of the WCAB’s order that denied Claimant’s penalty petition.
We further remand this matter to the WCAB with instructions to remand to the WCJ
to determine what penalties, if any, are appropriate.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John McCloskey,
:
: No. 1594 C.D. 2014
Petitioner :
:
v.
:
:
Workers’ Compensation Appeal
:
Board (Bock Construction, Inc.),
:
:
Respondent :
ORDER
AND NOW, this 24th day of June, 2015, we hereby affirm the August
14, 2014, order of the Workers’ Compensation Appeal Board (WCAB) to the extent
that it denied John McCloskey’s (Claimant) reinstatement petition and granted Bock
Construction, Inc.’s termination petition. We reverse that part of the WCAB’s order
that denied Claimant’s penalty petition. We further remand this matter to the WCAB
with instructions to remand to the workers’ compensation judge to determine what
penalties, if any, are appropriate.
Jurisdiction relinquished.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge