A Changing Work Injury description may defeat an attempt to Terminate Benefits.

 A Changing Work Injury description may defeat an attempt to Terminate Benefits.

A recent Commonwealth Court Memorandum decision highlights the difficulty of addressing  a Changing Injury Description during Termination Petition Litigation.

A Petition to Terminate benefits will be denied where the Employer medical evidence does not address the full extent of the work-related injury.

When a Petition to Terminate is filed, we sometimes observe a Petition to Review is filed in response – to  correct/amend/expand the description of the work related injury.

In the instant case, the Employer medical expert addressed the issue of the extent of the work related injury. However the WCJ did not find the employer medical evidence to be credible.

In City of Allentown, a Commonwealth Court decision affirmed a WCJ denial of an Employer’s Petition to Terminate benefits, as the Employer failed to prove that Claimant was fully recovered from the work-related injury. The description of the injury was amended/enlarged by the Workers Compensation Judge decision in the Termination petition litigation.

See: City of Allentown v. WCAB (Bryant, Jr.) No. 593 C.D. 2020, (March 11, 2021) a memorandum opinion authored by President Judge Leavitt.

SYNOPSIS OF DECISION

The Commonwealth Court affirmed the decision of the WCJ that Claimant’s work-related injuries exceeded what had been listed on the Notice of Compensation Payable (NCP). For this reason, the Employer failed to prove that Claimant was fully recovered from the work-related injuries, as described in the WCJ in his corrected injury description.  

The Employer medical expert addressed the question of any work-relation of the cervical disc herniations. He stated the neck pain and right shoulder pain were work related but had resolved. He believed the cervical disc displacement was not work related - but expressed the opinion- that he did not know the origin of that condition. This opinion of causation was not assigned credibility by the WCJ.

On appeal, the Employer multiple arguments were not persuasive -

(1)    Expansion of the work injury description to include cervical disc herniations violated Employer’s due process rights and,

(2)    also violated the three-year statute of limitations in Section 413;

(3)    WCJ erred in overruling Employer’s objection to the claimant medical evidence, which was the basis for revising the injury description;

(4)    It was an error to deny the termination petition as Employer proved Claimant had fully recovered from the “accepted” work injury;

(5)    Claimant’s medical testimony was equivocal

(6)    WCJ finding that Claimant was not fully recovered was not supported by substantial evidence.

Detailed Review of Commonwealth Court Decision

Background Facts

In City of Allentown, Claimant was injured on December 9, 2013 in the course of his duties as a firefighter. He felt right scapula pain while lifting a patient.  Employer issued a Medical-Only NCP describing this work injury as “upper back strain”.  Employer issued an amended NCP, describing the work injury as “acute strain to the thoracic spine”. Claimant was paid benefits until his return to work on July 3, 2014.  

A Petition to Terminate benefits was filed by Employer on August 22, 2018, asserting Claimant had fully recovered.  At the initial hearing, the WCJ and attorneys discussed the proper description of the work-related injury. The Commonwealth Court opinion recited this discussion, as it was relevant to their rejection of Employer’s arguments:

WCJ noted the first NCP, medical-only, described an “upper back” injury. In their discussions (off the record) he was advised the area of the body under discussion is “cervical” with possible symptomatology going into the “thoracic region”. 

WCJ: “So the upper back seems to be a fairly good way to describe it.  However, everyone is in agreement that we are also talking (about) the neck.  So we’re not being that specific about thoracic levels or cervical levels, we’re talking about neck and upper back area – does that fairly accurately summarize the discussions we had off the record about the body part(s) and the injury we’re talking about?  Employer’s counsel: Yes, Judge, it does. 

 

Employer Medical Evidence for Termination

Employer’s medical evidence was the independent medical evaluation (IME) report of Dr. Don Ko of December 28, 2017. Claimant was working full time, with continued right shoulder pain.  He reported good results with cervical epidural steroid injections.

Dr. Ko testified Claimant’s physical examination was unremarkable except for trigger point tenderness in the right paraspinal cervical muscles and right upper trapezius muscle; which he attributed to a “sprain/strain type of injury”. The cervical spine MRI of January 11, 2016 showed a disc protrusion at the C6-C7 level.

Dr. Ko opined Claimant suffered from neck pain attributed to the cervical strain and right shoulder pain attributed to the thoracic strain and right cervical disc displacement at the C6-C7 level.  The neck pain and right shoulder pain were work related but had resolved - - as a soft tissue injury would not last beyond six months. 

The cervical disc displacement was not work related.  Claimant’s right shoulder pain was not attributed to the right cervical disc herniation at C6-C7 - as herniation at that level would cause radiating pain in the arm and hand, not into his shoulder region.

On cross-examination, Dr. Ko agreed 2015 and 2016 cervical MRIs both showed a right-side disc protrusion at the C5-C6 level.  There were no medical records of any pre-existing condition or any other injury.  The Commonwealth Court opinion footnote recited testimony of Dr. Ko that he “did not know” the cause of trigger point tenderness noted at IME. 

 

Claimant Testimony & Medical Evidence

Claimant testified and described his medical treatment since the 2013 injury.  In 2016, as he continued to experience right scapular pain with radiation into his neck, he was referred to Dr. Wertz for cervical injections which reduced symptoms for three-four months.  

Claimant’s medical witness, Dr. Wertz, commenced treatment in February 2016 as Claimant complained of pain at the neck and right shoulder blade. Cervical MRI 2016 revealed two small disc herniations at C5-C6 and C6-C7.  Dr. Wertz believed these herniations caused Claimant’s pain and treated him with cervical epidural injections. Cervical MRI 2018 also showed disc herniations at the C5-C6 and C6-C7 levels.  These cervical herniated discs caused axial pain. Claimant’s complaints were consistent and matched the MRI results. He opined the disc herniations were caused by Claimant’s work injury from which he has not fully recovered.

Employer objected to Dr. Wertz’s testimony as he attributed Claimant’s right shoulder pain to the cervical disc herniations, which were not accepted in the NCP.  Employer asserted that Claimant was barred by a three-year statute of limitations in Section 413 from amending the description of injury to include the cervical disc herniations.

WCJ Decision

WCJ denied Employer’s termination petition based upon Claimant’s credible testimony that he continues to experience pain in the neck and scapular area which is relieved by cervical epidural injections.  The WCJ credited the testimony of Dr. Wertz over Dr. Ko.

WCJ found Claimant’s cervical disc herniations were work related based on Dr. Wertz’s testimony.  Conflicting testimony of Dr. Ko was rejected.  

WCJ found the work injury description in the NCP to be “materially incorrect” and amended it to include “annular tears/disc herniations at C5-C6 and C6-C7, from which claimant had not fully recovered”.  The WCJ stated this amendment more accurately described the “upper back strain” that Employer accepted in its medical-only NCP. 

WCJ rejected Employer’s statute of limitations argument on the basis that Section 413 authorizes an amendment of an incorrect NCP at any time.  WCJ overruled Employer’s objection to the testimony of Dr. Wertz.

Employer WCAB Appeal

WCAB held the WCJ did not violate Section 413 or Employer’s due process rights by amending the NCP.  Employer had notice the injury description was an issue. The WCAB concluded the WCJ acted within his discretion to credit Dr. Wertz’s testimony to find Claimant had not fully recovered from his work-related cervical disc herniations. 

Employer Commonwealth Court Appeal

Employer alleged several errors of law: (1) WCJ expansion of the work injury description to include cervical disc herniations violated Employer’s due process rights and (2) also violated the three-year statute of limitations in Section 413; (3) WCJ erred in overruling Employer’s objection to the testimony of Dr. Wertz, which was the basis for revising the accepted work injury described in the NCP; (4) Employer argued WCJ and WCAB erred in denying the termination petition as Employer proved Claimant had fully recovered from the accepted work injury; (5) Dr. Wertz’s testimony was equivocal regarding Claimant’s herniated cervical disc condition; (6) WCJ finding that Claimant was not fully recovered was not supported by substantial evidence.

Commonwealth Court Analysis

Review/Amendment of Injury Description

The Commonwealth Court began its analysis with a review of Section 413 which states, in part:

“… a Workers’ Compensation Judge may, at any time, review and modify or set aside a Notice of Compensation Payable  … in course of the proceedings under any petition pending before such WCJ, if it is proved that such Notice of Compensation Payable or Agreement was in any material respect incorrect.  

“… no Notice of Compensation Payable agreement or award shall be reviewed or modified or reinstated unless a petition is filed with the Department within three years after the date of the most recent payment of compensation made prior to the filing of such petition.”

The Court explained in its analysis, that an NCP may not be modified unless a petition is filed within three years of the most recent payment of compensation, but it may be “corrected at any time”. 

Previously, the Pennsylvania Supreme Court interpreted the first paragraph of Section 413 to mean that “corrective amendments” to an accepted work injury do not require a review petition.  Rather, the WCJ can order a correction where the evidence supports it.  See: Cinram Manufacturing Inc. v. WCAB (Hill), (Pa. 2009).

Due process requires that an employer be given a reasonable opportunity to contest a corrective amendment: “… moreover, the procedures applied by a Workers’ Compensation Judge must obviously comport with due process norms … and therefore reasonable prior notice and an opportunity to respond must be provided to the employer, prior to the implementation of a corrective amendment ….”. Cinram, supra.

In Cinram Manufacturing, the NCP described the work injury as a lumbar strain/sprain.  In the termination proceeding, claimant’s medical expert testified work injury was an aggravation of a pre-existing disc condition that caused nerve impingement.  The WCJ accepted that evidence  and amended the NCP to include nerve impingement. The termination was denied. The Supreme Court affirmed the WCJ’s corrective amendment as the medical experts addressed nerve impingement in their testimony.  Further, the employer did not specify what other evidence it would have presented had it been given express notice that claimant sought a corrective amendment.

The Court cited another similar result. In Walter, a WCJ amended a NCP in a termination petition proceeding to include left suprascapular neuropathy.  The WCAB reversed the WCJ as the employer did not have notice that the injury description was at issue.  The Commonwealth Court reversed and concluded the employer had adequate notice of the corrective amendment as it was announced at the first hearing and medical experts of both parties testified about the claimant’s chronic suprascapular neuropathy.  The Court concluded the employer had a fair opportunity to contest the corrective amendment, as it was unclear what additional evidence the employer could have presented.

In the instant case - the City of Allentown issued both the medical-only NCP and the NCP which described the work injury as an acute strain of the upper back and thoracic spine.  However, Claimant was treating for cervical pain and Employer paid for cervical epidural injections.  At the first hearing, the WCJ and parties agreed they were dealing with Claimant’s neck and upper back area.  Also, Employer’s medical expert testified Claimant’s work injury involved a neck strain, but he opined the herniated cervical discs were not work related. Employer cross-examined Claimant’s medical witness on whether the work injury included cervical disc herniations.  Again – it is unclear what other evidence Employer would have presented had it been given notice of a corrective amendment.  For these reasons, the Commonwealth Court concluded the employer had a fair opportunity to contest the corrective amendment to claimant’s NCP in this case.

Three-Year Statute of Limitations Argument

The Commonwealth Court rejected the Employer’s argument that the three-year statute of limitations in Section 413 requires a different result.  Citing: Fitzgibbons v. WCAB (City of Philadelphia) (Pa.Cmwlth. 2010).

The Court explained the first paragraph of Section 413 applies when a party is seeking to correct an NCP. The second paragraph applies when a party is seeking to expand the description of the work injury to include consequential injuries, i.e., injuries that occurred as a result of the work injury after issuance of the NCP.  

In either case, a petition must be filed within three years of the most recent payment of compensation.  In the instant case, the WCJ decision corrected the NCP injury description based upon evidence presented in litigation of the termination petition.  The Court noted the WCJ is allowed to do so “at any time … in the course of the proceedings under any petition pending … if it is proved that such Notice of Compensation Payable … was in any material respect incorrect”.  Citing Section 413; 77 P.S. § 771.

The WCJ corrective amendment of the NCP - to include cervical disc herniations - did not violate Section 413 of the Act or the Employer’s due process rights.  The WCJ appropriately allowed Dr. Wertz’s testimony that the work injury involved more than an acute strain of the upper back and cervical spine.

Substantial Evidence Argument

The Court rejected Employer’s argument that substantial evidence does not support the WCJ finding that cervical disc herniations were part of the 2013 work injury.  Employer argued the termination petition should have been granted as Dr. Ko testified that cervical disc herniations would cause radiating pain, which Claimant did not have.  Dr. Ko testified that claimant had fully recovered from injury listed on NCP. 

However, Dr. Ko did not contest the MRI findings of cervical disc herniations.  Claimant argued Dr. Ko’s testimony - that claimant had fully recovered from the work injury is not supported by his IME results.  There was no evidence of a pre-existing condition or an intervening event. The Court concluded the WCJ did not err in crediting Dr. Wertz’s testimony. 

Dr. Wertz testified that complaints of pain correlated with the MRI findings and have been consistent since 2016. Cervical disc herniations were caused by the 2013 work injury as there was no evidence of any other trauma. The WCJ credited the testimony of Dr. Wertz over Dr. Ko and that is the prerogative of the finder of fact.  The WCJ determines the credibility of witnesses and the weight to be accorded evidence. Citing: Casne v. WCAB (Stat Couriers Inc.), (Pa.Cmwlth. 2008).

The Commonwealth Court repeated the often-cited principle that a substantial evidence analysis - is not whether there is evidence in the record which supports a finding contrary to that made by the WCJ - but rather, whether there is any evidence which supports the WCJ’s factual finding.  Citing: Hoffmaster v. WCAB (Sunoco Products Inc.), (Pa.Cmwlth 1998). 

An Appellate Court must view the evidence in the light most favorable to the party that prevailed before the WCJ. The Court concluded there was substantial evidence to support the WCJ finding Claimant had not fully recovered from the 2013 work injury which included cervical disc herniations. 

The Court concluded the WCJ was empowered under Section 413 of the Act to amend the description of claimant’s work injury - where the evidence proved that the NCP was materially incorrect.  Employer had a fair opportunity to contest the corrective amendment.

Substantial evidence supported the WCJ’s findings that Claimant sustained cervical disc herniations in the 2013 work injury and had not fully recovered from those injuries.  As such, the WCJ did not err in amending the NCP to include cervical disc herniations.

Best Practices Recommendations:

1. Before the scheduling of an IME appointment – confirm the description of work-related injury to be addressed by your medical expert -

a.       Was the injury description is amended by subsequent Agreement?

b.      … by Subsequent WCJ decision?

c.       … or by subsequent actions – paying for the medical treatment?

2. Obtain all medical records of treatment to assess the presence/absence of any other condition or event that could cause the symptoms under review.
3. Identify to the IME expert – any disputed issues regarding causal relationship of any medical conditions to be addressed in the IME report.
4. Consider a pre-IME medical records review to address any medical causation issues.

The City of Allentown decision highlights the unpredictable nature of litigation. The Employer presented medical expert evidence which addressed the causation issues … but the WCJ did not find that evidence to be credible.