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Calex, Inc. and Inservco v. Workers' Compensation Appeal Board

March 26, 2009


The opinion of the court was delivered by: Judge Leavitt

Submitted: December 12, 2008



Calex, Inc. (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) to grant the claim petition of John Vantaggi (Claimant). Employer contends that Claimant's medical evidence did not prove that his cervical problems were work-related because his expert did not consider all of Claimant's medical records when he rendered his opinion. Employer also contends that the Board erred in awarding Claimant reimbursement for the cost of his comprehensive health insurance coverage. We affirm the award of medical and disability compensation but set aside the award of reimbursement of Claimant's health insurance premiums.

On January 14, 2006, Claimant, a truck driver, was involved in an accident in California when the tractor trailer he was operating collided with a guard rail. Claimant reported the accident and returned to Employer's Pittston, Pennsylvania terminal approximately one week later. Because he reported low back pain to his supervisor, Stan Malinowski, Claimant was referred to a panel physician, Dr. Stankowski, who directed Claimant not to work for several days. Dr. Stankowski's notes recorded that Claimant complained of lower back pain, a condition for which he had received surgical treatment in 1972. Claimant returned to work and continued making runs between California and Pittston until late April 2006, when he was discharged by Employer for not reporting his whereabouts.*fn1

On May 31, 2006, Claimant filed a claim petition alleging an injury date of January 14, 2006. Claimant described his injuries as an "aggravation of a low back injury and psychosis as a result of a closed brain injury." Claim Petition ¶1. Claimant later amended his claim petition to withdraw the claim for a psychiatric injury. Employer denied the allegations in the petition, and the parties proceeded to a hearing.

Claimant testified that he reported complaints of lower back pain, stiffness in his neck and upper shoulders, and numbness in his leg to Dr. Stankowski. Claimant stated that he did not have any trouble with his work until late March 2006, when on a trip to California he began to experience headaches above his right eye so severe it caused hallucinations. Nevertheless, Claimant continued working until, in April while in California, he found himself unable to continue driving the truck.*fn2 Claimant sought medical treatment in California and then returned to Manville, New Jersey, where he sought psychiatric treatment from Dr. Otalomey. He also sought treatment from Christopher Lycette, M.D., a Pennsylvania neurosurgeon, to whom he was referred by Dr. Otalomey.

In spite of treatment, Claimant testified that he still has headaches; trouble sleeping; limited neck movement; and numbness. He is on a number of medications such as vicodin, zoloft, depakote and respirdal, prescribed by Dr. Otalomey.

In a second hearing, Claimant testified about the costs of his medical treatments. Part of these costs were paid by New Jersey Medicaid and part by his Geisinger health insurance coverage provided through Employer's group plan. After Claimant stopped working, he continued his coverage through the Employer-sponsored plan by making monthly COBRA premium payments. His COBRA premium for 10 months of coverage with Geisinger was $3,986.18.

Claimant offered the deposition testimony of Dr. Lycette, a neurosurgeon who first examined Claimant on July 25, 2006. Claimant presented with neck pain and right upper extremity pain, as well as numbness, severe headaches and diminished strength on his right side. Dr. Lycette reviewed an MRI of Claimant's head and lumbar spine as well as a CT scan of Claimant's head; he also ordered another MRI that day. At Claimant's August appointment, Dr. Lycette learned, for the first time, that Claimant had been involved in a motor vehicle accident in January 2006. Dr Lycette testified that Claimant's July 25, 2006, MRI showed bilateral facet arthrosis, moderate spinal stenosis as well as degenerative changes and edema related to microfractures. Dr. Lycette opined that "typically" such microfractures are caused by trauma of the type Claimant reported he experienced in the January 2006 motor vehicle accident. Reproduced Record at 165a (R.R. ___). Dr. Lycette also noted that Claimant had not experienced any cervical symptoms prior to the accident.

On September 18, 2006, Dr. Lycette performed a cervical fusion on Claimant. By September 25, 2006, Claimant reported that his headaches had resolved and the numbness in his hands had improved; however, he continued to experience lower back and leg pain.*fn3

On cross-examination, Dr. Lycette acknowledged that Claimant did not provide him with all of his previous medical records; that his opinion that Claimant's cervical condition was work-related was based on Claimant's description of the January 2006 motor vehicle accident; that his knowledge of the January accident was not detailed but limited to the simple fact that Claimant's truck hit some kind of immovable object; that he did not know when Claimant's neck pain became significant; that Claimant's multilevel degenerative disc disease was not caused by the January 2006 accident; that it was "unclear" whether the edema and microfractures were related to trauma or degenerative changes because it is not uncommon for individuals with these changes to become symptomatic in the absence of a traumatic event (R.R. 177a); that it would be "more typical" for an individual who had suffered a cervical injury in an accident on January 14, 2006, to complain of neck pain on January 23, 2006, when Claimant saw Dr. Stankowski (R.R. 182a); and, finally, a person who suffered a cervical injury would complain of cervical pain "shortly thereafter" or within thirty days of the event. (R.R. 183a).

Employer offered the deposition testimony of William H. Spellman, M.D., board-certified in orthopedic surgery, who evaluated Claimant on January 12, 2007, and reviewed Claimant's medical history and records. Dr. Spellman observed that Dr. Stankowski, the first physician to see Claimant after the motor vehicle accident, diagnosed Claimant with a low-back sprain. Dr. Stankowski's notes did not record that Claimant complained of neck pain, and they did not record any physical findings that would be consistent with a neck injury. The first medical report of Claimant's neck pain was from the Easton Family Practice on June 16, 2006, and it did not mention Claimant's January 2006 motor vehicle accident. Dr. Spellman also reviewed Claimant's CT scan of the head and Claimant's MRIs; each recited that they were being performed as a result of a motor vehicle accident.

Based upon his physical examination, his review of Claimant's records, diagnostic studies and history, Dr. Spellman testified that Claimant had no problems in his lower back and, therefore, his low-back injury had ceased to be disabling. Dr. Spellman also testified that Claimant's cervical surgery could not be related to Claimant's January 2006 motor vehicle accident because Claimant had not complained to any physician about his neck until June 2006. If Claimant had injured his neck in January sufficiently to require surgery six months later, Dr. Spellman ...

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