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Susan (Nawn) Green v. Workers‟ Compensation Appeal

August 22, 2011

SUSAN (NAWN) GREEN, PETITIONER
v.
WORKERS‟ COMPENSATION APPEAL BOARD (US AIRWAYS), RESPONDENT



The opinion of the court was delivered by: Judge Butler

Submitted: May 13, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY

Susan Nawn Green (Claimant) petitions this Court for review of the October 28, 2010 order of the Workers‟ Compensation Appeal Board (Board) affirming an order of a Workers‟ Compensation Judge (WCJ) denying Claimant‟s reinstatement and penalty petitions. Claimant presents four issues for this Court‟s review: (1) whether the Board erred as a matter of law by affirming a decision of the WCJ which was not reasoned and relied on an erroneous interpretation of medical evidence; (2) whether the Board erred as a matter of law by affirming the WCJ‟s decision without addressing the WCJ‟s erroneous rejection of the testimony of Claimant‟s unrebutted medical expert, William Carson, Jr., M.D. (Dr. Carson); (3) whether the Board erred as a matter of law by affirming the WCJ‟s decision where the WCJ erroneously relied on lay testimony to address causal connection of medical treatment; and, (4) whether the Board erred by failing to address the WCJ‟s application of an incorrect burden of proof. For the following reasons, we vacate the order of the Board and remand for a new decision by a WCJ in accordance with this opinion.

On August 11, 1993, Claimant was working as a flight attendant for U.S. Airways (Employer) when she suffered a work injury. Employer issued a Notice of Compensation Payable (NCP) at that time describing Claimant‟s injury as a right meniscus tear. On August 28, 2000, Claimant‟s description of injury was amended to include a left knee injury as well. Claimant‟s benefits were suspended as of August 12, 2003. On October 26, 2006, the Board recognized Claimant‟s left tibial plateau cartilage damage as part of her accepted work injury, and amended the NCP to include a lateral femoral condyle defect as well.

On January 7, 2008, Claimant filed a Reinstatement Petition alleging that as of December 1, 2007, her condition had worsened and medical bills were unpaid. She also filed a Penalty Petition on that date, alleging that Employer violated the Pennsylvania Workers‟ Compensation Act (Act)*fn1 by failing to pay for reasonable and necessary medical expenses. On September 4, 2008, Claimant filed a second Penalty Petition alleging that Employer violated the terms and provisions of the Act by failing to pay Dr. Carson on January 2, 2008 and June 4, 2008. The petitions were consolidated and a hearing was held before the WCJ.

Testifying by way of deposition, Dr. Carson explained the following regarding the history and present state of Claimant‟s work injury.

I performed arthroscopic surgery of her left knee on -- in May of 1994. At that time, there was a medial meniscus tear and there was also a chondral defect over the lateral femoral condyle. Just for clarification, the lateral femoral condyle is the lateral or outside of your knee, and the articular cartilage covering that is called articular cartilage. . . . There . . . was an injury to that. . . . [W]e were concerned about the articular cartilage at the lateral femoral condyle.

Reproduced Record (R.R.) at 66a, 68a.

I‟ve operated on her knee twice, and I‟ve seen this chondral lesion on the end of the cartilage on the end of the femur. And I‟ve also operated on her medial meniscus. And knowing that she‟s got two previous injuries to that area and we‟ve altered the anatomy . . . because of the injury, that would be the logical place that . . . she would be having problems going forward, knowing that the articular cartilage problem is a progressive one. . . . [C]linically, unfortunately, once you have an articular cartilage injury . . . once you lose that cushioning, it won‟t grow back. . . . It will be a progressive problem as time goes on, which appears to be happening at this point on her, on this patient.

R.R. at 69a-71a.

[H]er original injury was a medial meniscus tear. Now she has further tearing of the medial meniscus. So [her extensive degenerative tear of the posterior horn of the medial meniscus] logically would progress from the original injury, work injury.

R.R. at 77a-78a.

[W]e all -- orthopedists know that once the meniscus tears and you fix it . . . it‟s not normal . . . it‟s prone to reinjury and ...


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