• The Commonwealth Court Affirmed the Decision of the WCJ, Which Terminated Claimant’s Benefits Despite the WCJ Finding Claimant’s Testimony that He was not Recovered from His Work Injury, Needed Work Restrictions and Additional Treatment and Still Experienced Pain to be Credible.
  • August 7, 2018 | Author: Joseph J. Shields
  • Law Firm: Thomas, Thomas & Hafer LLP - Wilkes-Barre Office
  • Background

    On August 12, 2011, Claimant sustained a work injury described as a thoracic sprain. At the time of the injury, Claimant was performing modified duty resulting from an earlier 2006 work-related lumbar spine injury. In September 2013, Claimant presented Employer with work restrictions and was thereafter laid off. On October 1, 2013, Claimant filed a Reinstatement Petition alleging a decrease in earning power following his 2011 injury. The Employer filed an answer admitting that it laid off Claimant because it could not accommodate his work restrictions, but denied that the restrictions were related to the work injury. Claimant was thereafter seen by Dr. Fras for an IME on March 14, 2014 and Employer filed a Termination Petition based upon the results of the IME. On February 5, 2016, the WCJ granted both Petitions, finding that Claimant was totally disabled from September 30, 2013 through March 14, 2014, but recovered thereafter.

    Claimant appealed and the WCAB reversed the WCJ’s decision granting reinstatement. The WCAB found that Claimant’s inability to work as of September 30, 2013 was, at least in part, due to an unrelated lumbar spine condition. The WCAB vacated the grant of the Termination Petition and remanded for the WCJ to consider the testimony of Claimant’s medical expert, Donna Kulp (D.C.). On remand, the WCJ found Claimant’s live testimony credible while also finding the testimony of Dr. Fras more credible than that of Dr. Kulp. The WCJ again granted both Petitions and terminated Claimant’s benefits as of March 14, 2014. The WCJ also awarded litigation costs to the Claimant. Both parties appealed the WCJ’s decision. On November 28, 2017, the WCAB affirmed the WCJ’s decision granting the Termination Petition, but reversed the WCJ’s decision granting the Reinstatement Petition and award of litigation costs, as the WCAB’s April 25, 2016 Order only remanded the Termination Petition to the WCJ, and the Reinstatement Petition and litigation costs were not properly before the WCJ. Claimant appealed, arguing that the WCB erred in affirming the WCJ’s decision granting the Termination Petition because the WCJ found Claimant’s live testimony credible.

    Legal Analysis

    The Commonwealth Court affirmed the decisions of the WCJ and WCAB.

    In a termination petition, the employer’s burden is met when an employer’s medical expert unequivocally testifies that it is his or her opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings that either substantiate any ongoing complaints of pain or connect them to a work injury. The Court noted that testimony regarding the existence of Claimant’s complaints of pain, in and of itself, does not require the WCJ to find for a claimant, as a contrary result would forever preclude the termination of benefits by merely complaining of continuing pain. In this case, the Employer’s medical expert, Dr. Fras, testified that Claimant’s physical examination was objectively normal and that Claimant’s imaging studies were modest, degenerative in nature and unrelated to a thoracic spine sprain. Claimant argued that the WCJ’s decision was inconsistent in that the WCJ credited the testimony of Dr. Fras regarding Claimant’s full recovery while also crediting Claimant’s testimony that he continues to have pain and restrictions attributable to his work injury.

    The Court cited to the case of Pella Corp. v. WCAB (Wertz), No. 2144 C.D. 2008. The Court recognized that Pella was an unreported opinion, which can be cited for its persuasive value, but not as binding precedent pursuant to the Court’s Internal Operating Procedures. The Court found Pella persuasive in this case because of factual similarities to the case at bar. In Pella, the employer’s expert testified that claimant’s ongoing complaints resulted from preexisting degenerative conditions, and not from the work injury. Claimant testified that while she had prior unrelated surgery, her current complaints and restrictions were due to her current work injury. The WCJ found both claimant and the employer’s expert credible and terminated claimant’s benefits. The Commonwealth Court ultimately affirmed the decision of the WCJ, finding that substantial evidence supported the WCJ’s decision in granting the termination petition, as the WCJ had the sole authority, as the factfinder, to weigh the conflicting evidence and make a determination. The Court found the facts in Pella to be very similar to the facts at bar, and again affirmed the decision of the WCJ to terminate Claimant’s benefits, as the WCJ had the sole authority to weigh the evidence and reach the conclusion to terminate Claimant’s benefits.

    Take Away

    The main take away from this case is that the Commonwealth Court explicitly recognized that it will consider unreported opinions when deciding cases if the facts of the unreported cases are similar to those of the case at bar. Per the Court’s Internal Operating Procedures, the Court does not have to consider unreported opinions at all, as those cases are not binding precedent like reported opinions. However, this case makes clear that unreported opinions with similar fact patterns should be cited and discussed when appealing any decisions, as the Court will consider those opinions if factually similar.