April 12, 2011

Digest Of
Appellate Decisions
March,  2011

Shawn Morrison. v. WCAB (Rothman Institute), 403 C.D. 2010 (Pa. Cmwlth, 2010)

The Commonwealth Court affirmed the decisions of the Board and the WCJ which denied Claimant’s claim petition.  

Claimant worked for the Rothman Institute (Employer) as an x-ray clerk from October 18, 2004 to January 19, 2007, when he was discharged.  On June 6, 2007, Employer filed a NCD which acknowledged than an April 4, 2006 injury took place, but denied that Claimant was disabled as a result of the injury.  On June 15, 2007, Claimant filed a claim petition alleging that he sustained a work-related injury to his low back and right leg.

Claimant testified that on April 19, 2006, he was called to the MRI office to assist a patient who had fallen from a wheelchair.  After he lifted the patient back into the wheelchair he walked upstairs to this department and experienced pain in his back and right leg.  Claimant reportedly submitted an incident report and scheduled an evaluation with Dr. Conliffe, a physician at the Rothman Institute for May 24, 2006.  Claimant continued working for Employer without accommodations until January 19, 2007, when Employer terminated his employment.  Claimant received unemployment compensation benefits until June 24, 2007, when he began working for another employer.

On May 24, 2006, Dr. Conliffe evaluated Claimant.  Claimant denied any injury, but reported a three year history of chronic recurrent lower back pain, which began insidiously and worsened over the preceding six months.   Dr. Conliffe diagnosed Claimant with chronic lower back pain, but scheduled an MRI to rule out a disc herniation.  The July 15, 2006, lumbar MRI, which revealed a broad-based right posterolateral L4-5 disc herniation with associated mild central canal stenosis and a broad-based left posterolateral L5-S1 disc herniation with associated mild central canal stenosis.  The  radiologist concluded that claimant had mild to moderate disc disease at L4-5 and L5-S1.

Dr. Conliffe’s May 16, 2007 progress note contained a notation that Claimant was initially injured while moving a patient while working as an x-ray technician, but this was not reported in his May 24, 2006 evaluation.  Dr. Conliffe prescribed pain mediation and outpatient therapy with a chiropractor.

On January 9, 2008, Claimant was evaluated by Dr. McCoy who diagnosed Claimant with lumbosacral strain and sprain with symptomatic disc herniation, right lumbar radiculopathy and myospasm/myofascitis.  Dr. McCoy opined that these conditions were related to Claimant’s April 19, 2006 work-injury, and he recommended physical therapy, an updated MRI, and EMG. 

The June 4, 2008 MRI revealed evidence of L4-5 and L5-S1 degenerative disc disease with bilateral foraminal narrowing at L4-5 with no significant canal stenosis.

In opposition to the claim petition, Employer presented the deposition of Ms. Kutufaris, director of Human Resources.  Ms. Kutufaris testified that Claimant received several warnings about adhering to a work schedule, insubordination, and non-work related internet usage.  Claimant was terminated for lack of performance and working unauthorized overtime.  Following Claimant’s discharge, Dr. Conliffe call to inform her that Claimant sustained a work-related injury, and she then reviewed the personnel file where she discovered an incident report.  Ms. Kutufaris was not certain who provided the incident report to her office, or when it was submitted, but it was submitted on a form typically used for performance management issues, rather than Employer’s incident report form, and was not signed by a manager.  Ms. Kutufaris explained that employees injured while working are required to use panel doctors rather than Employer’s doctors in order to avoid conflicts of interest.  She also receives medical reports and updates on employees treating for work-related injuries, but she never received any such reports regarding Claimant.  Additionally, Claimant did not complain of any physical problems performing his job, and she was unaware that Claimant sustained a work-related injury until she reviewed Claimant’s personnel file after he was discharged. 

Employer also presented the testimony of Lynn West, Employer’s Director of Operations.  Ms. West testified that she interacted with Claimant regularly, and he never notified her of a work-related injury, or any need for physical accommodations.   Claimant’s managers did not inform Ms. West that Claimant sustained a work-injury.  Claimant was terminated due to attendance and performance related issues.  Employer also presented records from the Pennsylvania Department of Labor and Industry, including a determination of overpayment of benefits that resulted from Claimant’s failure to report his earnings from his subsequent employer in June and July 2007.   The Department of Labor and Industry determined that this was a fault overpayment and recommended Claimant’s prosecution. 

Employer offered medical reports from Dr. Karl Rosenfeld.  Dr. Rosenfeld conducted an IME on August 14, 2007, and concluded that Claimant sprained his back and recommended  physical therapy and anti-inflammatory medication.  Dr. Rosenfeld opined that although the Claimant’s MRI reviewed some stenosis at L4-5, Claimant’s physical examination was completely normal.  Dr.  Rosenfeld’s addendum report noted that although the herniated discs at L4-5 and L5-S1 were real radiographically, the MRI findings did not correlate with Claimant’s physical examination, which was normal.  Dr. Rosenfeld concluded that Claimant’s symptoms were causally related to a pre-existing condition, and not a work-injury. 

The WCJ accepted the testimony of Ms. West and Ms Kutufaris as credible and persuasive, stating that their testimony was consistent and supported by evidence of record.  The WCJ also accepted Dr. Rosenfeld’s opinions as credible and persuasive noting that Dr. Rosenfeld's opinions were supported by his review of medical records from Dr. Conliffe.

The WCJ rejected the testimony of Claimant as not credible, citing the absence of any corroborating evidence of record and Claimant’s failure to report his earnings from his subsequent employer to the Department of Labor and Industry.  The WCJ also found that Claimant’s medical evidence was not credible or persuasive because Dr. Conliffe’s evaluation indicates that Claimant denied a specific injury and instead related a history of chronic back pain. Additionally, Dr. McCoy’s report was based on a history provided by Claimant whose testimony the WCJ rejected.  Based upon the credibility determinations, the WCJ concluded that Claimant failed to present substantial competent evidence to satisfy his burden of proving that he sustained a disabling work-related injury on April 19, 2006, and denied the claim petition. 

Claimant argued to the Court that the WCJ erred in denying the claim petition because the NCD was untimely and acknowledged that Claimant suffered a work-injury.  Claimant asserts that Employer was estopped from denying a work-injury.   The Commonwealth Court correctly noted that it is Claimant’s burden of proof to prove disability, and that burden never shits to the employer.  Therefore, even when an employer issues a NCD which acknowledges an injury but disputes disability, the claimant maintains the burden to prove he is entitled to benefits.  Here, Claimant did not credibly or persuasively establish that he sustained a disabling work-injury. 

Questions

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ConnorsLaw LLP

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As the Pennsylvania representative of the National Workers' Compensation Defense Network, we encourage you to contact our workers' compensation defense attorneys to discuss the significance of this decision, its potential impact on your workers' compensation defense practice, as well as to offer any other feedback or insight that you might wish to share with us, concerning your experience in handling workers' compensation claims; our workers' compensation defense attorneys remain always available to answer any questions that you might have about workers' compensation practice and procedure, as well as to provide you with our own professional experiences have been in defending thousands of workers' compensation claims.

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