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John Potere v. Workers' Compensation Appeal Board (Kemcorp

May 20, 2011

JOHN POTERE, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (KEMCORP), RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: December 10, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE McCULLOUGH

John Potere (Claimant) petitions for review of the June 8, 2010, order of the Workers' Compensation Appeal Board (Board), which affirmed as modified the June 18, 2009, decision of a Workers' Compensation Judge (WCJ) granting Claimant's claim petition for the closed period from January 22, 2005, through April 12, 2005. We now affirm in part and vacate and remand in part.

Claimant worked as a tractor trailer driver for Kemcorp (Employer). On January 22, 2005, Claimant's tractor trailer struck a snow bank and a concrete barrier after Claimant swerved to avoid a collision with automobiles on an icy road. Claimant reported the accident to Employer but was able to drive home. Claimant later experienced stiffness in his neck and back, as well as numbness and tingling in his legs and in the bottom of his feet. Claimant began treatment with Raymond P. Rogowski, D.C., and did not return to work. (WCJ's Decision, July 28, 2006 (2006), Findings of Fact Nos. 1, 4(b), 4(c).)

On February 10, 2005, Employer issued a notice of temporary compensation payable (NTCP) accepting liability for Claimant's medical expenses and indemnity benefits. On March 17, 2005, Claimant attended an independent medical examination (IME) with Neil Kahanovitz, M.D. Dr. Kahanovitz described the IME as objectively normal. On March 28, 2005, Employer sent Claimant a notice of ability to return to work. Employer thereafter sent Claimant a letter dated April 13, 2005, requesting that he return to his pre-injury position no later than April 20, 2005. Claimant called and advised Employer that he was not capable of performing his pre- injury position, and he did not return to work. Employer simultaneously issued a notice stopping temporary compensation and a notice of workers' compensation denial (NCD), the latter notice citing a lack of medical documentation of any ongoing disability and Claimant's failure to return to work. (2006 Findings of Fact Nos. 1, 2.)

On April 28, 2005, Claimant filed a claim petition alleging that he was totally disabled from January 23, 2005, to April 21, 2005. Employer filed an answer acknowledging that an injury took place, but denying that the injury caused a compensable disability. The case was assigned to a WCJ for hearings. Claimant testified regarding the January 22, 2005, accident, his complaints of pain, and his subsequent treatment by Dr. Rogowski, his chiropractor. Claimant acknowledged that he declined Employer's offer to return to his pre-injury position in April of 2005. Claimant also indicated that he received physical therapy some time after his examination by Dr. Kahanovitz. (2006 Findings of Fact Nos. 3, 4(a)-(c), (d), (f).)

Claimant also presented the deposition testimony of James Bonner, M.D., who began treating Claimant on May 24, 2005. Dr. Bonner ordered several diagnostic studies, including a lumbar MRI which was normal, a cervical MRI which revealed no herniations but did show impingement at C3-4, and an EMG which was also normal. Following a functional capacity evaluation, Dr. Bonner restricted Claimant to light duty work. Dr. Bonner diagnosed Claimant as suffering from chronic pain of the musculoligamentous structures of the cervical, thoracic, and lumbar spine with a bulging cervical disc and opined that Claimant had not fully recovered from his original work injury. On cross-examination, Dr. Bonner indicated that there was a significant psychological and subjective component to Claimant's disability. (2006 Findings of Fact Nos. 5, 5(b)-(e).)

Claimant also presented the deposition testimony of Jane Jones, a claims representative from Lincoln General Insurance Company, Employer's workers' compensation insurance carrier. Jones did not dispute that Claimant incurred a work- related injury. Jones testified that she originally issued the NTCP and that she later issued the notice stopping the same and the NCD based on a lack of documentation supporting Claimant's alleged ongoing disability, the offer of work consistent with Dr. Kahanovitz' IME report, and Claimant's failure to return to work. Jones explained that Employer extended a job offer to Claimant on April 13, 2005. (2006 Findings of Fact Nos. 6, 6(a)-(d).)

In opposition to Claimant's claim petition, Employer presented the deposition testimony of Dr. Kahanovitz. Dr. Kahanovitz testified that Claimant's March 17, 2005, examination revealed no evidence of neurological abnormalities and no objective evidence of any orthopedic abnormalities. At that time, Dr. Kahanovitz diagnosed Claimant as suffering from a cervical/thoracic/lumbar strain, and he recommended that Claimant undergo an exercise-oriented physical therapy program.*fn1 Dr. Kahanovitz opined that Claimant should be able to return to full duty upon completion of four weeks of physical therapy. Dr. Kahanovitz explained that he believed that Claimant was able to return to full duty as of the time of his examination, but that he recommended that Claimant undergo physical therapy as a prophylactic and preventative measure because of the vibration involved in driving a tractor trailer. (2006 Findings of Fact Nos. 7(c)-(e).)

Dr. Kahanovitz indicated that he reviewed EMG and MRI studies conducted in June of 2005 and that these studies were essentially normal and consistent with his opinion. On cross-examination, Dr. Kahanovitz again explained that his recommendation that Claimant undergo physical therapy prior to returning to work was designed to prevent re-injury upon Claimant's return to full duty, which involved lifting and mechanical vibrations. On re-direct examination, Dr. Kahanovitz testified that there was no need to reevaluate Claimant after the physical therapy because it was suggested as a preventative and prophylactic measure given Claimant's job duties. (2006 Findings of Fact Nos. 7(f)-(h).)

The WCJ accepted the testimony of Dr. Kahanovitz as more credible and persuasive than the contrary testimony of Dr. Bonner, accepted the testimony of Jones as credible, and rejected Claimant's testimony regarding his subjective complaints and his inability to perform his pre-injury position. Based upon the credible testimony of Dr. Kahanovitz, the WCJ found that Claimant's injury consisted of a cervical/thoracic/lumbar sprain and/or strain from which Claimant had recovered as of March 17, 2005. (2006 Findings of Fact Nos. 8-11.) Further, the WCJ concluded that Claimant had not sustained his burden of proving any ongoing disability beyond April 20, 2005. Thus, the WCJ denied Claimant's claim petition and directed that all benefits be terminated as of March 17, 2005.

Claimant appealed to the Board, which affirmed in part and reversed and remanded in part. The Board affirmed the WCJ's decision insofar as the WCJ rejected Claimant's medical evidence. However, the Board reversed the WCJ's denial of Claimant's claim petition and his conclusion that Claimant had fully recovered from his work injuries and remanded for further consideration of Employer's medical evidence. The Board stated that since Employer admitted that Claimant suffered a work-related injury, the WCJ should have granted Claimant's claim petition and determined the extent of his disability. The Board noted that the evidence of record established that Claimant was at least disabled from January 22, 2005, to March 17, 2005, and that Employer only ceased paying wage loss benefits on April 20, 2005.

The Board concluded that the record lacked substantial, competent evidence to support the WCJ's finding that Claimant was fully recovered from his injury because the testimony of Dr. Kahanovitz, upon which the WCJ relied, was speculative and legally insufficient to support such a finding. The Board held that the WCJ failed to address critical issues regarding the testimony of Dr. Kahanovitz and whether Claimant's wage loss benefits should be suspended. Regarding the former, the Board indicated that the WCJ did not render a credibility determination with respect to certain testimony from Dr. Kahanovitz which appeared to state that Claimant was only capable of light to moderate work as of March 17, 2005. Hence, the Board remanded the ...


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