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Harvey v. Workers' Compensation Appeal Board

October 21, 2009


The opinion of the court was delivered by: Judge Cohn JUBELIRER*fn1

Submitted: June 12, 2009



Jennifer Harvey (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed the Workers' Compensation Judge's (WCJ) decision granting the modification petitions of Monongahela Valley Hospital (Employer). Before this Court, Claimant contends that the Board erred when it: (1) concluded that Employer was neither required to refer nor offer Claimant a nursing position that was actually open and available because Claimant no longer held an active registered nurse's license, and failed to reverse the WCJ's finding that the hypothetical nursing positions presented by Employer were vocationally available; and (2) failed to address Claimant's argument that Employer did not follow the requirements of the Workers' Compensation Act*fn2 (Act) in terms of the Impairment Rating Evaluation (IRE).

Claimant worked as a registered nurse for Employer and sustained work-related injuries when she was involved in a motor vehicle accident while leaving Employer's parking lot on July 4, 2001. As she left the parking lot, Claimant failed to make a left-hand turn to exit through the parking lot gate, drove over a four-inch curb, went over an embankment, and came to a stop in a wooded area. Claimant fractured her neck and underwent a spinal fusion of her cervical and thoracic vertebrae. While investigating Claimant's accident, the local police found two empty morphine vials in Claimant's vehicle, and Employer initiated an investigation into Claimant's handling of narcotic medications. Monongahela Valley Hospital v. Workers' Compensation Appeal Board (Harvey), No. 1337 C.D. 2004, slip op. at 10-11 (Pa. Cmwlth. April 4, 2005). Employer notified Claimant of its investigation on July 12, 2001. Id. As a result of its investigation, Employer concluded that Claimant had, on four occasions in a ten-month period, violated Employer's narcotic medication policy by checking out narcotics, but not indicating in patient records that the narcotics had been administered. Employer discharged Claimant on July 16, 2001, based on her violation of Employer's narcotic medication policy. Id.

On December 30, 2002, the WCJ granted Claimant's claim petition and determined that her injuries were caused in significant part by the condition of the premises, specifically, the lack of a barrier around the parking lot. The WCJ also determined that Claimant was discharged from employment by Employer for reasons unrelated to her work injury. The Board affirmed the WCJ's decision and specifically determined that Claimant was properly discharged due to irregularities associated with her administration of narcotics.

Employer petitioned this Court for review of the Board's order and argued that there was no substantial evidence to support the WCJ's finding that the physical condition of Employer's parking lot caused Claimant to drive over the embankment. Monongahela Valley Hospital. Claimant cross-petitioned and argued that her discharge was pretextual and designed to relieve Employer from having to provide disability benefits. This Court affirmed the Board's order. This Court determined that the WCJ, who is the ultimate fact finder, credited Employer's witnesses over Claimant that her discharge was for reasons unrelated to her work injury.

On October 6, 2006, Employer filed a modification petition (First Modification Petition) in which it sought to modify benefits on the basis that "[w]ork would be available with Monongahela Valley Hospital within the limitations set by Dr. Bookwalter had the employee not been terminated from employment for conduct not related to the work injury." (First Modification Petition at 1, October 6, 2006.) On July 31, 2007, Employer petitioned to modify benefits (Second Modification Petition) on the basis that "[Claimant]'s benefit status is to be changed from total to partial based on an Impairment Rating Evaluation of Dr. Jon Tucker of 25%." (Second Modification Petition at 1, July 31, 2007.) The WCJ consolidated the First Modification Petition and Second Modification Petition (together, Modification Petitions) and held a hearing, at which Employer and Claimant presented evidence.

David E. Clark (Clark), Employer's vice president for human resources, testified that three jobs were available for a registered nurse: (1) a cardiac monitoring nurse, who would sit and monitor cardiac monitors in the progressive care unit; (2) a case manager utilization review nurse, who would review patient charts while the patient was in the hospital; and (3) a utilization review nurse, who would review the chart after discharge and assist the coders in applying the proper codes to be sent to insurance companies and Medicare for payment. (WCJ Hr'g Tr. at 10-11, November 29, 2006.) These jobs were within Claimant's restrictions; however, Clark testified that Employer would not offer Claimant these positions because "she does not hold a current license as a registered nurse which would be required for each one of these positions." (WCJ Hr'g Tr. at 11.) On cross-examination, Clark added the position of assessment nurse as a possible position within Claimant's medical restrictions. (WCJ Hr'g Tr. at 12.) Clark admitted that he had not provided these job descriptions to Claimant or to any physicians. (WCJ Hr'g Tr. at 13.) Further, these positions were not available to Claimant because of her "termination and because of her license status." (WCJ Hr'g Tr. at 14.)

Employer also presented the deposition testimony of John William Bookwalter, M.D. (Dr. Bookwalter), a board-certified neurosurgeon. For purposes of this litigation, Dr. Bookwalter examined Claimant on August 28, 2006, took a history, and reviewed medical records. Dr. Bookwalter opined:

It was my impression that she had sustained a T3 compression fracture and had undergone several surgical procedures. At the time of that evaluation of August 28, 2006, the symptoms which she was experiencing in terms of her chronic cervical and thoracic pain were stable and were a consequence of that event. I felt that she was at maximum medical improvement, and it was my opinion that further therapeutic interventions were . . . unlikely to substantially alter her physical capacities of her symptom complex.

(Bookwalter Dep. at 10.) Dr. Bookwalter released Claimant to part-time sedentary work of four hours per day, five days per week. Dr. Bookwalter limited Claimant to lifting ten pounds occasionally and believed Claimant could "sit, stand, and walk up to a total of two hours per day and drive up to a total of an hour." (Bookwalter Dep. at 10.) Dr. Bookwalter believed Claimant could perform the jobs Clark described. (Bookwalter Dep. at 11.)

Employer also offered the deposition testimony of Jon B. Tucker, M.D. (Dr. Tucker), a board-certified orthopedic surgeon, who conducted an IRE of Claimant on May 15, 2007. Dr. Tucker rated Claimant with a 12.5 percent whole person impairment attributable to a partially fused thoracic spine in a kyphotic*fn3 position and a 14 percent whole person impairment for the cervical spine. Dr. Tucker used the combined values table prepared by the American Medical Association to determine a whole person impairment of 25 percent. (Tucker Dep. at 9-10.)

Employer also introduced into evidence the State Board of Nursing Disciplinary Actions from April 2007, which stated:

[Claimant] . . . had her license indefinitely suspended, based on findings she is unable to practice the profession with reasonable skill and safety to patients by reason of mental or physical illness or condition of physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, she possessed, used, acquired or distributed a controlled substance or caution legend drug for other than an acceptable medical purpose, she falsified or knowingly made incorrect entries into patient records, and is guilty of immoral or unprofessional conduct in the departure from or failure to conform to ethical and/or quality standards of the profession concerning medication administration and dispensing and record keeping.

(Pennsylvania Department of State, State Board of Nursing Disciplinary Actions at 3, April 2007.)

Claimant testified on her own behalf. Claimant testified that she could not return to her time-of-injury job as a registered nurse. (WCJ Hr'g Tr. at 17-18.)

Claimant also presented the deposition testimony of Lisa Weidner, M.D. (Dr. Weidner), Claimant's treating physician since July 2001, who is board-certified in anesthesiology, pain management, and acupuncture. Dr. Weidner explained that Claimant suffered a T2-T3 compression fracture in the automobile accident and underwent emergency surgery. She subsequently had a fusion of her cervical and thoracic spine. (Weidner Dep. at 8.) Dr. Weidner diagnosed Claimant with "postcervical thoracic laminectomy, pain syndrome with myofacial pain." (Weidner Dep. at 13.) Dr. Weidner testified within a reasonable degree of medical certainty that Claimant could not work as a registered floor nurse in a hospital setting. Dr. ...

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