Submitted: August 2, 2013
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
MARY HANNAH LEAVITT, Judge
Randall Harrison (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his request to expand the list of his compensable work injuries and terminating his workers' compensation benefits. In doing so, the Board affirmed the Workers' Compensation Judge's (WCJ) determination that Claimant had fully recovered from the accepted work injury and that the medical problems identified by Claimant in his review petition were not work-related. Claimant argues that the Board erred because his recognized work injury was expanded during a proceeding that established his impairment rating, and he has not recovered from those additional injuries. Discerning no merit to Claimant's contentions, we affirm.
Claimant worked for Auto Truck Transport Corp. (Employer) as a truck driver. On May 9, 2008, Claimant slipped while standing on top of a truck tire, and his right ankle became lodged between the tires. Employer issued a Notice of Compensation Payable (NCP) describing the work injury as a right ankle sprain and paying total disability benefits.
On August 25, 2010, Lucian Bednarz, M.D. performed an impairment rating evaluation (IRE) and assigned Claimant a 13% whole body impairment rating. On this basis, Employer filed a modification petition to change Claimant's disability status from total to partial. On October 11, 2010, Michael Raklewicz, M.D., performed an independent medical examination (IME) and found Claimant to be fully recovered from his ankle sprain. Employer then filed a petition to terminate benefits. Claimant filed answers denying the allegations in both petitions.
Claimant also filed a petition to review compensation benefits, seeking to amend the injury description in the NCP to include the additional right ankle and foot conditions described by Dr. Bednarz in his IRE report. Finally, Claimant sought to add a broken leg he later sustained, which he believed to be caused by his original work injury. Employer denied these allegations.
The petitions of Employer and Claimant were consolidated and the matter assigned to a WCJ. At the hearings, both parties appeared and presented evidence.
Claimant testified that his work injury made his ankle painful and swollen, and the pain continued despite physical therapy and surgery. Claimant explained that he was able to ride his motorcycle to his medical appointments in the months after his ankle sprain but could not do so after his surgery. In July 2010, Claimant fell down stairs at his home, breaking his leg and injuring his knee. Claimant attributed this fall to stability problems with his right ankle. Claimant testified that he continues to suffer severe pain in his right ankle and knee.
Claimant presented the deposition testimony of Barry Bernstein, DPM, his treating podiatrist since March 2009. Claimant initially presented with extreme right lower extremity pain. Based on his examination of Claimant, a review of medical records from prior treating physicians and radiographic testing, Dr. Bernstein diagnosed Claimant with flat foot deformity; a nerve entrapment in the ankle; and a fracture fragment in the rear of the ankle. Dr. Bernstein attributed these diagnoses to the work incident except for the flat foot condition, which was pre-existing. Dr. Bernstein did surgery on the right foot and ankle in October 2009. After this surgery, Claimant's pain increased. Dr. Bernstein stated it was possible that Claimant's pain caused him to fall and break his leg. Dr. Bernstein opined that Claimant has not fully recovered from his work injury, as evidenced by his residual pain, and cannot return to his truck driver job.
In support of its position, Employer presented the deposition testimony of Dr. Bednarz. The Department of Labor and Industry assigned Dr. Bednarz to do an IRE evaluation of Claimant on August 25, 2010. Because Dr. Bednarz was asked to evaluate Claimant's right ankle and foot, the doctor took into account two diagnoses: (1) Claimant's ankle sprain and (2) Claimant's preexisting flat foot deformity, which was treated by Dr. Bernstein's surgery. Using the AMA Guides, Dr. Bednarz concluded that Claimant had a 13% whole body impairment. Dr. Bednarz testified that he could not assign a rating for the ankle sprain because Claimant had no residual problems from that injury. Claimant's impairment rating was wholly attributable to the after-effects of the surgery for his pre-existing, congenital flat foot condition.
Employer also submitted the deposition testimony of Dr. Raklewicz, a board certified orthopedic surgeon who performed an IME on October 11, 2010. Dr. Raklewicz reviewed medical records of Claimant's various treating physicians and radiographic test results. An MRI taken shortly after the work injury showed a minor ankle sprain, which was the diagnosis made by Claimant's original treating physician, Dr. Kim. Dr. Raklewicz opined that this diagnosis was borne out by Claimant's ability to ride his motorcycle after the injury. A bone scan showed a pre-existing congenital condition of bilateral flat feet, which caused bilateral ankle degeneration. Dr. Raklewicz testified that Dr. Bernstein's surgery was done to treat Claimant's flat feet, not his ankle sprain. Dr. Raklewicz opined that Claimant had fully recovered from the ankle sprain and that his remaining ankle and foot problems were attributable to Claimant's congenital flat foot condition, with associated ankle degeneration. The leg and knee injuries sustained in Claimant's fall down the stairs were sequelae of Claimant's congenital foot condition, not his work injury.
The WCJ credited Dr. Bednarz's 13% impairment rating because it was not rebutted by Claimant. The WCJ granted Employer's modification petition, concluding that Employer proved through Dr. Bednarz's testimony that Claimant's disability status should be modified as of August 25, 2010.
The WCJ credited the testimony of Dr. Raklewicz because it was corroborated by the MRI performed shortly after the injury and by the opinion of initial treating physician Dr. Kim. The WCJ found that Claimant fully recovered from the ankle sprain work injury and that his other foot, ankle and leg problems were attributable to a congenital condition, not the work injury. The WCJ concluded that Employer met its burden of proving full recovery and terminated disability benefits as of October 11, 2010. The WCJ denied ...