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Simmons v. Workers' Compensation Appeal Board (Powertrack International)

Commonwealth Court of Pennsylvania

July 24, 2014

Gregory Simmons, Petitioner
v.
Workers' Compensation Appeal Board (Powertrack International), Respondent

Submitted May 2, 2014

Appealed from No. A11-0824. Workers' Compensation Appeal Board.

Harry R. Ruprecht, Pittsburgh, for petitioner.

Michael B. Dodd, Pittsburgh, for respondent.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE LEADBETTER.

OPINION

Page 1144

BONNIE BRIGANCE LEADBETTER, Judge.

Claimant Gregory Simmons petitions for review of the order of the Workers' Compensation Appeal Board (Board), which affirmed the grant of Employer Powertrack International's petition for modification of benefits premised on a labor market survey demonstrating that Simmons had an earning capacity. The primary issue on appeal is whether Employer met its burden of demonstrating that Claimant's physical condition had changed since the last adjudication of his disability status.[1] After review, we affirm.

In 2001, Claimant sustained a totally disabling work-related head injury, which was subsequently established by a workers' compensation judge (WCJ) to be a closed head injury resulting in post-concussive syndrome. WCJ's decision and order at 10 (August 17, 2005); Reproduced Record (R.R.) at 18a. Since his injury, Claimant has undergone numerous independent medical examinations and Employer has sought to terminate his benefits on two occasions.[2] Since the focus of this

Page 1145

appeal is again on whether Employer demonstrated a change in Claimant's condition, Claimant's condition at the time of the last termination proceeding is relevant and necessary to our resolution of this matter.

We begin by noting that while the prior WCJ failed to make any specific findings regarding Claimant's condition in his decision denying the second petition to terminate benefits, he did find that Claimant credibly testified that his subjective complaints remained the same since the first petition to terminate and that his condition had not improved. Similarly, while accepting as credible the opinion of Claimant's treating physician, Dr. Taylor, that Claimant's condition had not changed since he last testified in the first termination proceeding, that WCJ failed to make any specific findings from Dr. Taylor's testimony regarding Claimant's medical condition other than noting that Claimant continues to suffer from depressive disorder, cognitive disorder and other symptoms resulting from post-concussion syndrome. Moreover, because the first termination proceeding focused solely upon whether Claimant had fully recovered from his injury, the fact-finding regarding Claimant's specific complaints and medical limitations at that time is also somewhat scant. However, according to the credited medical opinions in the first termination proceeding, including that of Dr. Taylor, Claimant related that he suffered from headaches, unsteadiness, memory problems, reduced activity, reduced social interaction and depression. The credited experts generally opined that Claimant's condition was consistent with post-concussion syndrome, that they found no signs of symptom magnification or malingering and that he was not capable of returning to employment at that time. In addition, the psychological testing administered at that time revealed short-term memory deficits, problems with processing speed, an impaired ability to pay attention and concentrate, and depression. See WCJ's decision and order (August 17, 2005); R.R. at 7a.

Notably, in connection with the present petition to modify benefits based upon earning capacity, Employer offered the medical report and deposition testimony of Eric Fishman, Ph.D., a neuropsychologist who evaluated Claimant in February 2008, administered his own neuropsychological testing and reviewed Claimant's medical records and prior test results. Based upon the results of his testing, Dr. Fishman testified to a diagnosis of probable malingered neurocognitive dysfunction, founded in part on Claimant's inconsistent and invalid test results.[3] ...


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