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Hakif Namani v. Workers‟ Compensation Appeal Board

December 6, 2011

HAKIF NAMANI, PETITIONER
v.
WORKERS‟ COMPENSATION APPEAL BOARD
(A. DUIE PYLE), RESPONDENT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Submitted: July 8, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

Hakif Namani (Claimant) petitions for review of an Order of the Workers‟ Compensation Appeal Board (Board) that affirmed a Workers‟ Compensation Judge‟s (WCJ) decision denying Claimant‟s Claim Petition, Reinstatement Petition, and Review Petition (jointly, Petitions). Claimant argues that his medical expert‟s testimony, along with other evidence, was sufficient to warrant a reinstatement of his benefits and/or a modification of the notice of compensation payable (NCP) to include additional injuries.*fn1

Claimant suffered a work-related injury on December 23, 2004, for which he received workers‟ compensation benefits pursuant to a NCP. (WCJ Decision, November 29, 2006 (November 2006 Decision) Findings of Fact (November 2006 FOF) ¶ 1, Reproduced Record (R.R.) at 3a.) Claimant‟s injury was described as "left arm and left hand contusions." (November 2006 FOF ¶ 2, R.R. at 3a.) By decision and order circulated November 29, 2006, the WCJ granted Employer‟s Termination Petition and terminated Claimant‟s benefits effective June 21, 2005. (November 2006 Decision, R.R. at 1a-8a.) Claimant appealed the November 29, 2006 Order to the Board, which affirmed. (Board Decision and Order, August 22, 2007, R.R. at 10a-17a.) Upon further appeal, this Court affirmed the Board‟s Order. (Namani v. Workers‟ Compensation Appeal Board (A. Duie Pyle) (Pa. Cmwlth., No. 1772 C.D. 2007, filed December 21, 2007), R.R. at 18a-28a.)

On November 11, 2008, Claimant filed a Reinstatement Petition alleging a worsening of his condition. (Reinstatement Petition, November 11, 2008, Certified Record (C.R.).) On November 25, 2008, Claimant filed a Claim Petition alleging that he suffered additional work-related injuries on December 23, 2004, in the nature of cervical radiculopathy, cervical disc herniations at C5-6 and C6-7, cervical spondylosis, and complex regional pain syndrome. (Claim Petition, November 25, 2008, C.R.) Claimant alleged further that he neither knew nor should have known of these diagnoses until February 6, 2008, and sought total disability benefits from that date. (Claim Petition, C.R.) On February 13, 2009, Claimant filed a Review Petition seeking to correct the description of his December 23, 2004 work-related injury to include the following additional injuries: "cervical radiculopathy, cervical disc herniations at C5-6 and C6-7, cervical spondylosis, and complex regional pain syndrome resulting in Claimant undergoing C5-6 and C6-7 anterior cervical discectomies and fusion on November 24, 2008." (Review Petition, February 13, 2009, C.R.) Employer filed timely Answers to Claimant‟s Petitions denying the material allegations contained therein. (Answer, November 24, 2008, C.R.; Answer, December 5, 2008, C.R.; Answer, March 4, 2009, C.R.)

Claimant‟s Petitions were consolidated and hearings ensued before the WCJ. In support of the Petitions, Claimant presented the deposition testimony of Andrew Freese, M.D., Ph.D., and testified on his own behalf. In opposition, Employer presented the deposition testimony of Francis Kralick, D.O., and Claimant‟s deposition testimony.

By Decision and Order circulated April 27, 2010, the WCJ denied and dismissed Claimant‟s Petitions. The WCJ found that Dr. Freese‟s testimony and opinions on causation were legally insufficient because Dr. Freese was unaware of, and failed to address, the WCJ‟s November 2006 Decision and Order granting Employer‟s Termination Petition and terminating Claimant‟s benefits as of June 21, 2005. (WCJ Decision, April 27, 2010, (April 2010 Decision) Findings of Fact (April 2010 FOF) ¶ 3.) The WCJ determined that the salient fact of Claimant‟s full recovery, while not a total bar to further relief in the proper circumstances, was a relevant factor to be considered and explained by Dr. Freese. (April 2010 FOF ¶ 3.) The WCJ found that Dr. Freese‟s opinion, that Claimant, some three and a half years after the December 23, 2004 work-related injury, had sustained herniated cervical discs from the work-related injury, could not stand without any consideration to the previous determination of full recovery. (April 2010 FOF ¶ 3.)

The WCJ found further that Dr. Freese implicated a cervical injury as stemming from the December 23, 2004 work-related injury based on, in part, a January 2005 EMG study, which was performed within a month of the work- related injury. (April 2010 FOF ¶ 4.) The WCJ determined, however, that this fact was available to Claimant's medical expert at the time of the proceedings on the Termination Petition. (April 2010 FOF ¶ 4.) The WCJ pointed out that Dr. Freese challenged the medical work-up, which was initially undertaken after the December 23, 2004 work-related injury, and that Dr. Freese‟s opinions presented new and different medical reasons in support of Claimant‟s Petitions. (April 2010 FOF ¶ 4.) The WCJ found that: (1) Dr. Freese‟s opinions could have been presented earlier on proper medical work-up in the first instance in that the medical information was then available; and (2) Claimant was actually attempting to re- litigate the earlier termination proceedings without comment as to the impact of the earlier decision that Claimant was fully recovered from his work-related injury. (April 2010 FOF ¶ 4.) Accordingly, the WCJ denied Claimant‟s Petitions. Claimant appealed the WCJ‟s April 2010 Order and, upon review, the Board affirmed. (Board Opinion and Order, March 4, 2011.) This appeal followed.*fn2

In support of this appeal, Claimant argues that his workers‟ compensation benefits should have been reinstated based on the November 2006 Decision adjudicating Employer‟s Termination Petition, which was introduced into evidence, and his medical evidence establishing a disability causally related to the work injury. Claimant contends that there is no authority that mandates that a medical expert specifically comment on a judicially determined date of termination. Claimant argues that Dr. Freese credibly explained that the cervical components of Claimant‟s work-related injury were not adequately identified by Claimant‟s prior treating physicians as shown by the January 2005 EMG, which revealed a radiculopathy consistent with a recent injury. Finally, Claimant contends that there was no finding by the WCJ or the Board that Dr. Freese‟s testimony was not credible.

Pursuant to Section 413(a) of the Workers‟ Compensation Act (Act),*fn3 a WCJ may reinstate a claimant‟s workers‟ compensation benefits upon proof that the claimant‟s disability has increased or recurred. "A claimant seeking reinstatement of benefits following a termination carries a heavy burden because the claimant has been adjudicated to be fully recovered." National Fiberstock Corporation (Greater New York Mutual Insurance Company) v. Workers‟ Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008). In order to prevail on a reinstatement petition after workers‟ compensation benefits have been terminated, a claimant must establish that his disability "has increased or recurred since the prior decision and that h[is] physical condition has changed in some manner." Taylor v. Workers‟ Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). The claimant must prove a change in his physical condition by " precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based‟" and the change must be shown to have occurred after the date of the claimant‟s total physical recovery. National Fiberstock Corporation, 955 A.2d at 1062 (quoting Simeone v. Workmen‟s Compensation Appeal Board (United Parcel Service), 580 A.2d 926, 929 n.5 (Pa. Cmwlth. 1990)).

"The question of the competency of evidence is one of law and fully subject to our review." Taylor, 883 A.2d at 713. "Where an expert's opinion is based on an assumption that is contrary to the established facts of record, that opinion is [incompetent]." Id. However, "[a] medical expert‟s opinion is not rendered incompetent unless it is solely based on inaccurate or false information." American Contracting Enterprises, Inc. v. Workers‟ Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (emphasis in original). "[I]t is well established that the opinion of a medical expert must be viewed as a whole, and that inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies." Id. (emphasis in original).

Herein, the WCJ determined that Dr. Freese‟s opinions on causation were legally insufficient because the doctor was unaware of and, therefore, did not even consider or address the November 2006 Decision granting Employer‟s Termination Petition and terminating Claimant‟s workers‟ compensation benefits. (April 2010 FOF ¶ 3.) We agree. A review of Dr. Freese‟s entire deposition testimony reveals that Dr. Freese did not address or consider the termination of Claimant‟s workers‟ compensation benefits due to a total recovery of his work-related left hand and left arm contusions effective June 21, 2005. (Freese Dep., R.R. at 32a-104a.) Because Dr. Freese did not offer any testimony with regard to Claimant‟s full recovery of the accepted work-related injuries, nowhere in Dr. Freese‟s testimony does he relate that Claimant‟s physical condition has changed in some manner since the termination of Claimant‟s benefits. (Freese Dep., R.R. at 32a-104a.) Instead, Dr. Freese opines that Claimant not only suffered hand and arm injuries, but that he suffered undiagnosed cervical injuries on the date of his work-related December 23, 2004 injury. (Freese Dep. at 19, 23-24, 28-29, R.R. at 47a, 51a-52a, 56a-57a.) Dr. Freese specifically testified that it was clear that a nerve compression in the cervical spine can manifest itself with significant hand symptomatology and that there was no question that a significant component of Claimant‟s hand symptoms were related to his cervical spine injuries. (Freese Dep. at 28-29, R.R. at 56a-57a.)

Thus, Dr. Freese essentially testified that there has been no change in Claimant‟s condition since December 23, 2004, which contradicts the WCJ‟s November 2006 Decision granting Employer‟s Termination Petition based on a finding of full recovery. Accordingly, Dr. Freese‟s opinions on causation are contrary to the established facts of record and are based on inaccuracies. See National Fiberstock Corporation, 955 A.2d at 1063 ("[A] medical expert who bases his or her opinion on a factual assumption that is inconsistent with a previously decided medical fact may be ruled legally incompetent."). As such, the WCJ did not err by finding Dr. Freese‟s opinions on causation legally insufficient to support a reinstatement of Claimant‟s workers‟ compensation benefits.

Claimant argues next that Dr. Freeseā€Ÿs testimony supports a finding that the NCP was materially incorrect at the time it was issued. Claimant contends that the results of the January 2005 EMG show that he suffered cervical disc aliments that were related to his December 23, 2004 work-related injury. Claimant points out that Dr. Freese opined that only a partial cervical work-up was performed on Claimant at the time of his work-related injury and that, because his treating physician focused on ...


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