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A & J Builders, Inc. v. Workers' Compensation Appeal Board (Verdi)

Commonwealth Court of Pennsylvania

October 16, 2013

A & J Builders, Inc. and State Workers' Insurance Fund, Petitioners
v.
Workers' Compensation Appeal Board (Verdi), Respondent

Submitted: August 23, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION

ROBERT SIMPSON, Judge

In this workers' compensation appeal dealing with cumulative trauma and several employers, A & J Builders, Inc. and the State Workers' Insurance Fund (collectively, A&J) ask whether the Workers' Compensation Appeal Board (Board) erred in affirming a Workers' Compensation Judge's (WCJ) decision granting Anthony Verdi's (Claimant) claim petition. A&J contends the WCJ erred in determining Claimant provided timely notice of a work injury pursuant to Section 311 of the Workers' Compensation Act (Act).[1] Additionally, A&J argues the WCJ's determination that Claimant's aggravation injury occurred while working for A&J as opposed to Claimant's last-in-time employer, J.D. Miller Construction Company (J.D. Miller), is not supported by substantial evidence and does not meet the standard of a reasoned decision. Upon review, we affirm.

I. Factual and Procedural Background

Claimant is a commercial drywall carpenter by trade. For the last 10 years of his 33 years in the trade, Claimant obtained employment through his union hall, and he worked for various employers. Of relevance here, Claimant worked for A&J from August 2004 until September 25, 2007, and for J.D. Miller for three days until his final day of employment on October 6, 2008.

In June 2009, Claimant filed a claim petition against J.D. Miller alleging that, on October 6, 2008 (his last day of work for J.D. Miller), he sustained a repetitive trauma injury to his right knee during the course and scope of his employment. J.D. Miller denied the averments of the claim petition.

On July 10, 2009, Claimant filed a second claim petition against A&J alleging that, on September 25, 2007 (his last day of work for A&J), he sustained a repetitive trauma injury to his right knee during the course and scope of his employment with A&J. Claimant sought ongoing total disability benefits from October 6, 2008.

A&J denied all material allegations in the claim petition. A&J also filed joinder petitions against numerous alleged employers of Claimant. These other employers filed timely and responsive answers denying the averments in the joinder petitions. Hearings before a WCJ on all petitions ensued.

In support of his claim petition, Claimant testified his primary job duties as a union carpenter included climbing up and down scaffolding and carrying and installing commercial drywall panels, which are 12 feet wide and weigh 108 pounds. In 2004, Claimant injured his right knee while working for Heartwood Construction, for which he underwent surgery with Michael Ciccotti, M.D.

After surgery, Claimant returned to work without restrictions. In August 2004, Claimant began working for A&J and continued to work there for three-and-a-half years. Claimant performed his regular duties of installing commercial drywall. Claimant testified these duties caused his right knee pain to return. Some days, he could barely climb the scaffold.

In 2006, while working for A&J, Claimant began treating with Peter Vitanzo, M.D. for right knee pain. Claimant did not know for sure whether there was a relationship between his work duties and his knee pain, and his doctor did not tell him there was a relationship.

By the time he stopped working for A&J, Claimant "always" had right knee pain. WCJ Op., 3/24/11, Finding of Fact (F.F.) No. 1(d). In October 2007, Claimant told Dr. Vitanzo that squatting, kneeling and going up and down increased his pain.

Subsequently, Claimant worked for several other employers, the last of which was J.D. Miller. Claimant performed his usual drywall duties for J.D. Miller for three days. By his last day, Claimant's right knee filled with fluid and was "hard as a rock." F.F. No. 1(e). Claimant stopped working for J.D. Miller because the job was finished, and he was laid off. Claimant testified his pain did not go away after he stopped working. Instead, his right knee pain worsened, and he was unable to work.

In January 2009, Claimant began treating with Dennis P. McHugh, D.O. (Claimant's Physician) for his right knee. Claimant testified that, on March 31, 2009, his Physician informed him, for the first time, that there was a causal connection between his right knee pain and his work as a carpenter. Claimant's knee remains sore and painful.

Claimant also presented the deposition testimony of his Physician, who is a board-certified orthopedic surgeon, and who began treating Claimant in January 2009. Claimant's Physician examined Claimant, obtained a history from him, and reviewed his medical records.

Claimant's Physician testified, according to Dr. Vitanzo's treatment notes, Claimant presented with right knee pain in 2006. Dr. Vitanzo advised Claimant that "if he squats or bends a certain way it does flare up a bit but I told him that is to be expected given his underlying arthritis." F.F. No. 2(b). Dr. Vitanzo's notes do not express further opinion regarding causation.

Based on his initial examination, Claimant's Physician opined that Claimant had crepitus in his right patellofemoral knee joint. A February 2009 MRI study of Claimant's right knee showed advancing arthritis underneath the knee cap.

On March 31, 2009, Claimant's Physician re-examined Claimant and diagnosed him with "chronic repetitive work-related chondral wear in the patellofemoral joint on his right knee, " which is irreversible. F.F. No. 2(e). This was the first time Claimant's Physician informed Claimant there was a connection between his right knee condition and his work duties. As a result of this diagnosis, Claimant's Physician opined Claimant is disabled from working as a carpenter.

Claimant's Physician further opined Claimant's job duties of lifting drywall and climbing scaffolds for both A&J and J.D. Miller materially aggravated Claimant's underlying right knee condition. Because Claimant worked for A&J for more than three years, he sustained more chondral damage to his right knee than during the brief time he worked for J.D. Miller.

In opposition, J.D. Miller presented the deposition testimony of John R. Duda, M.D. (Employer's Physician), who is also a board-certified orthopedic surgeon, and who examined Claimant on one occasion. Employer's Physician took a history that, between 2006 and 2008, Claimant developed progressively increasing right knee pain while working as a carpenter. On examination, Claimant walked normally, performed a normal range of right knee motion, and showed no synovitis or effusion in his right knee. Claimant had subjective tenderness along his right medial joint line and a click bilaterally in his patellofemoral joint, meaning underneath the kneecap. According to Employer's Physician, the 2009 MRI showed wear and tear arthritis.

Employer's Physician opined Claimant suffers from routine age-related degenerative joint disease in his right knee. Claimant is experiencing a "typical" slow, gradual deterioration of his right knee function. F.F. No. 3(c). Claimant is disabled from working as a carpenter. ...


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