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Jacqueline O'neill v. Workers' Compensation Appeal Board (News Corp. Ltd

June 15, 2011

JACQUELINE O'NEILL, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (NEWS CORP. LTD.), RESPONDENT



The opinion of the court was delivered by: James R. Kelley, Senior Judge

ORDER

AND NOW, this 15th day of September, 2011, it is ordered that the Opinion filed on June 15, 2011, shall be designated OPINION rather than MEMORANDUM OPINION, and that it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacqueline O'Neill, Petitioner v. Workers' Compensation : Submitted: February 4, 2011 Appeal Board (News Corp. Ltd.), Respondent

No. 2203 C.D. 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY SENIOR JUDGE KELLEY

Jacqueline O‟Neill (Claimant) petitions for review of an order of the Workers‟ Compensation Appeal Board (Board) which affirmed an order of a Workers‟ Compensation Judge (WCJ). Pursuant to the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4; 2501 -- 2708, the WCJ‟s order granted the Termination Petition of News Corp. Ltd. (Employer), denied Employer‟s Utilization Review Petition, and granted Claimant‟s Petition to Review Medical Treatment (Travel Expenses).*fn1 We affirm.

On November 1, 1993, Claimant injured her left wrist in the course and scope of her work as a stenographer for Employer, and thereafter began receiving benefits under the Act pursuant to a Notice of Compensation Payable (NCP) describing her injury as left carpal tunnel syndrome. In prior litigation not at issue herein, a Termination Petition brought by Employer was denied by a WCJ, and the description of Claimant's injury was expanded to encompass diagnoses of cumulative trauma disorder, bilateral carpal tunnel, thoracic outlet, scapholunate ligament injury, and depression. By WCJ decision and order circulated December 9, 1998 (WCJ Decision I), Claimant began receiving total disability benefits under the Act. Thereafter, the parties stipulated that Claimant no longer suffers from depression.*fn2

On September 17, 2007, Employer filed the instant Termination Petition, alleging full recovery based upon the medical opinion of Dr. Stephen Cash. On October 9, 2007, Claimant filed a Petition to Review Medical Treatment (Travel Expense) (hereinafter, the Review Petition) alleging unpaid medical bills, and seeking reimbursement for prescription expenses and for mileage incurred in her travel to receive specialized care. Claimant and Employer filed timely answers to the respective Petitions. On January 18, 2008, Employer filed a Petition to Review Utilization Review Determination (Utilization Review Petition). The three Petitions were thereafter consolidated for hearings before the WCJ.

The following facts are based upon the WCJ‟s findings in this matter. In part relevant hereto, Claimant testified as to her continuing suffering from pain and symptomology related to her injuries. Included in Claimant's evidence and testimony were assertions that after her injury over 15 years ago, Claimant has not worked or attempted to find employment in the past 14 years, and has treated with Scott Martin Fried, D.O. Claimant testified that her medical condition has worsened over the last 14 years. Claimant received only one surgery related to her work injuries, namely an implantation of a spinal cord stimulator. Claimant testified that she exercises at home, but could not attend Dr. Fried‟s prescribed physical therapy due to her inability to afford to drive to the location of the therapy.

Claimant also presented the deposition testimony of Dr. Fried, who testified that Claimant continues to suffer from the effects of her diagnosed conditions, and that she has not fully recovered from her work-related injuries. Dr. Fried testified that despite 10 years of treatment, Claimant's condition has not improved. Dr. Fried testified that his treatments of Claimant, including SSEP testing and prescriptions including Prevacid, Hydrocodone, Naproxen, and Cyclobenzaprine, were reasonable and necessary.

Employer presented the deposition testimony of Stephen L. Cash, M.D. Dr. Cash‟s testimony included assertions that the EMGs relied upon by Dr. Fried were unreliable, and that Dr. Fried‟s treatments were neither reasonable nor necessary. Dr. Cash further testified that as of the date of his examination of Claimant on August 7, 2007, Claimant had fully recovered from her work-related injuries and was capable of returning to full, unrestricted activity. Dr. Cash testified that while his examination noted Claimant‟s complaints of pain, his examination revealed no physical explanation for those complaints. Dr. Cash noted that Claimant's medical history was positive for a high degree of symptom exaggeration.

The WCJ rejected as not credible the testimony of both Claimant and Dr. Fried. The WCJ accepted as credible the testimony of Dr. Cash, and further concluded that Dr. Cash had accepted the previous findings in this case regarding Claimant‟s work-related injuries, including the prior finding that Claimant suffered from thoracic outlet syndrome. The WCJ further concluded that Dr. Cash‟s medical opinion was competent, and supported a finding that Claimant was fully recovered from her work-related injuries.

Regarding Claimant‟s Review Petition seeking mileage reimbursement, the WCJ found that Claimant's testimony and evidence that she was unsuccessful in locating a local doctor to treat her thoracic outlet syndrome stood unrebutted by Employer. Although he found that Employer had a reasonable basis to contest Claimant's request for reimbursement on this issue, the WCJ found that Claimant's mileage was reimbursable, and so ordered in accordance with Claimant‟s submitted mileage costs. However, the WCJ found that Claimant was not entitled to any litigation expenses, in that none of the costs entered upon the record were related to the Review Petition seeking mileage reimbursement.

By decision and order dated March 30, 2009 (WCJ Decision II), the WCJ granted Employer‟s Termination Petition effective August 7, 2007, denied and dismissed the Utilization Review Petition, granted Claimant‟s Review Petition, and ordered that Claimant‟s mileage reimbursement request was compensable by Employer.

Claimant timely appealed to the Board, which affirmed by opinion and order dated September 30, 2010. Claimant now petitions for review of the Board‟s order.

This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of Board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).

An employer seeking to terminate a claimant's benefits must prove that a claimant's disability has ceased, or that any existing injury is not the result of the work-related injury. Jaskiewicz v. Workmen's Compensation Appeal Board (James D. Morrissey, Inc.), 651 A.2d 623 (Pa. Cmwlth. 1994), petition for allowance of appeal denied, 541 Pa. 628, 661 A.2d 875 (1995). An employer may satisfy this burden by presenting unequivocal and competent medical evidence of the claimant's full recovery from the work-related injury. Koszowski v. Workmen's Compensation Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697 (Pa. Cmwlth. 1991).

Claimant first argues that Dr. Cash‟s medical opinion was incompetent, in that he disbelieved Claimant‟s recognized work injury diagnosis, which had been previously determined in WCJ Opinion I. Claimant relies primarily on GA & FC Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001), and its related cases. In Wagman, we affirmed a Board decision that reversed a WCJ grant of an employer's termination petition, holding that a doctor's testimony was insufficient to support a termination of benefits on the basis that that the medical evidence presented by employer was inconsistent with the injury description in the NCP. Wagman, 785 A.2d at 1091-1092. The NCP in that case described the injury at issue -- the description of which was not litigated - as an exacerbation of pseudoarthrosis; however, the medical evidence presented by employer was inconsistent with the NCP, and the employer‟s doctor did not recognize that the claimant ever suffered from exacerbation of pseudoarthrosis. Id. The doctor testified that the claimant also suffered from multiple level degenerative lumbar disc disease, agreed that pseudoarthrosis was also evident, but then testified "I agree there is a pseudoarthrosis that I think is of no consequence here." Id. at 1089. Therefore, we held that it was impossible for the doctor to give an opinion that claimant had fully recovered from that accepted injury, and thusly the doctor's testimony was not sufficient to support a termination of benefits. Id.

Claimant argues that, in the instant matter, Dr. Cash‟s rejection of Claimant‟s recognized work-related injury similarly renders his testimony incompetent in that Dr. Cash‟s testimony is the functional equivalent of the expert testimony in Wagman and its progeny. See also Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008) (where accepted injury was a herniated disc, employer's physician testimony was legally insufficient to support a termination where physician characterized the original injury as a strain); Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007), petition for allowance of appeal denied, 596 Pa. 463, 944 A.2d 752 (2008) (where accepted injury was a herniated nucleus pulposus, employer's physician testimony was legally insufficient to support a termination where physician characterized the original injury as a sprain or strain of the back); Gillyard v. Workers' Compensation Appeal Board (Pennsylvania Liquor Control Board), 865 A.2d 991 (Pa. Cmwlth.), petition for allowance of appeal denied, 584 Pa. 703, 882 A.2d 1007 (2005) (where accepted injury was chronic sciatica and right-sided L5-S1 radiculopathy, employer's physician testimony was legally insufficient to support a termination where physician testified that claimant suffered only lumbar strain and sprain as the result of his work injury and that Claimant has recovered only from that lumbar strain and sprain.); U.S. Steel Mining Co., LLC v. Workers' Compensation Appeal Board (Sullivan), 859 A.2d 877 (Pa. Cmwlth. 2004) (in fatal claim petition proceeding, doctors‟ opinions held incompetent where they testified that decedent never suffered from coal workers' pneumoconiosis, despite an earlier determination under the Act of that same irreversible work-related diagnosis).

Claimant in the instant matter asserts that Dr. Cash rejected Claimant's prior diagnosis of thoracic outlet syndrome, a progressive disorder. See WCJ Decision I, at 5-9, 14. Claimant cites to the following emphasized portions of Dr. Cash‟s testimony in the instant matter, in support of her argument that he failed to recognize her established diagnosis of thoracic outlet syndrome:

Q (Claimant‟s attorney): Now, I think you‟ve indicated that you disagree with Dr. Fried‟s diagnoses and treatment ...


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