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Arnold v. Workers' Compensation Appeal Board (Lacour Painting, Inc.)

Commonwealth Court of Pennsylvania

January 28, 2015

Scott Arnold, Petitioner
v.
Workers' Compensation Appeal Board (Lacour Painting, Inc.), Respondent

Submitted, July 25, 2014

Page 1064

Appealed from No. A12-0746. State Agency Workers' Compensation Appeal Board.

David R. Cherry, Media, for petitioner.

R. Burke McLemore, Jr., Harrisburg, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.

OPINION

Page 1065

 COLINS, SENIOR JUDGE

Scott Arnold (Claimant) petitions for review of orders of the Workers' Compensation Appeal Board (Board) that (i) affirmed the decision and order of a Workers' Compensation Judge (WCJ) granting in part and denying in part a Petition to Review Medical Treatment and/or Billing (Review Petition) filed by Claimant and (ii) denied a Petition for Specific Loss Benefits (Specific Loss Petition) filed directly with the Board. Finding no error, we affirm.

On December 19, 2007, Claimant sustained a work-related injury to his lumbar and thoracic spine during the course of his employment with Lacour Painting, Inc. (Employer). (May 16, 2012 WCJ Decision and Order (WCJ Decision), Finding of Fact (F.F.) ¶ 1.) Employer thereafter issued a Notice of Temporary Compensation Payable, indicating Claimant's injury was a " burst fracture at L1, bilateral displaced transverse process fractures at L1, nondisplaced fracture through the bilateral lamina and sinousprocess at T12." ( Id.; Notice of Temporary Compensation Payable, Reproduced Record (R.R.) at 3a-4a.) Pursuant to the Notice, Claimant began receiving weekly compensation of $389.50 based

Page 1066

on an average weekly wage of $520.96. (WCJ Decision, F.F. ¶ 2; Notice of Temporary Compensation Payable, R.R. at 3a; Statement of Wages, R.R. at 5a.)

On November 30, 2011, Claimant filed the Review Petition alleging that he had suffered specific loss of the use of both legs separate and apart from his accepted injury. (R.R. at 7a-9a.) At a hearing held before the WCJ on the Review Petition, Claimant testified that he was working as a painter for Employer on December 19, 2007 when he was thrown off a scissor lift that had tipped over, falling approximately 35 feet and landing on his buttocks. (Hearing Transcript (H.T.) at 9, R.R. at 62a.) Claimant was transported to Milton S. Hershey Medical Center where he underwent back surgery. ( Id. at 9-10, R.R. at 62a-63a.) Following the surgery, Claimant has been confined to a wheel chair, and though he can stand on his left leg, Claimant testified that his right leg feels dead and he cannot walk more than a few steps. ( Id. at 10-12, R.R. at 63a-65a.) Claimant stated that he has regained some feeling in his left leg to his knee, but no feeling has returned in his lower left leg or his entire right leg. ( Id. at 10, 13-14, R.R. at 63a, 66a-67a.) Claimant testified that he suffers from lower back pain, but this pain by itself would not prevent him from returning to work. ( Id. at 11, 14-16, R.R. at 64a, 67a-69a.)

Claimant submitted to the WCJ medical records regarding his surgery and treatment at the Milton S. Hershey Medical Center and subsequent rehabilitation at Magee Rehabilitation Hospital. (Exhibits C-2 and C-3, R.R. at 76a-86a.) Although not marked as an exhibit at the hearing and not appearing in the certified record on appeal, the WCJ indicated in his decision that Claimant also submitted a March 22, 2012 narrative report of Guy W. Fried, M.D., of Magee Rehabilitation who began treating Claimant one week after the injury. (WCJ Decision, F.F. ¶ 7.) The WCJ found that Dr. Fried opined that Claimant suffered from incomplete paraplegia, neurogenic bowel and bladder movement, chronic and persistent pain as a result of the work injury, and that Claimant had an ongoing unresolved spinal fracture injury with residual problems separate and apart from the loss of use of both his legs. ( Id., F.F. ¶ 7(b).)

On May 16, 2012, the WCJ issued a decision and order granting in part and denying in part Claimant's Review Petition. The WCJ found Claimant's testimony and Dr. Fried's narrative report credible and persuasive and found that Claimant had proven " a total loss of use of both of his legs as a result of the December 19, 2007 work injury, as of the date of his work injury, for all practical intents and purposes." (WCJ Decision, F.F. ¶ ¶ 10-12, Conclusion of Law (C.L.) ¶ 2.) The WCJ concluded that, pursuant to Section 306(c)(23) of the Workers' Compensation Act (Act), Claimant was entitled to total disability benefits under Section 306(a) of the Act.[1] (WCJ Decision, C.L. ¶ 2.) However, the WCJ denied the Review Petition insofar as it sought specific loss benefits, concluding that only the Board had authority under Section 306(c)(23) to determine whether Claimant's loss of use of his legs could be characterized as anything other than a total disability benefit. ( Id., C.L. ¶ 3.) The WCJ declined to make any credibility determination or finding concerning whether Claimant's total loss of use of his legs was separate and distinct from that which would normally follow from Claimant's work injury because, in his

Page 1067

view, this authority rested exclusively with the Board. ( Id. at 3 n.1.)

Claimant appealed the WCJ's decision and order to the Board and also filed the Specific Loss Petition with the Board requesting that the Board award him specific loss benefits for the total loss of use of both legs pursuant to Section 306(c)(23) of the Act. The Board affirmed the WCJ's decision and order and denied the Specific Loss Petition without taking additional evidence. In its opinion,[2] the Board determined that Section 306(c)(23) created a presumption in favor of total disability, and that its role was confined to determining whether another provision would prove more beneficial to Claimant. The Board discussed our Supreme Court's decision in Turner v. Workmen's Compensation Appeal Board (Jones & Laughlin Steel Corp.), 479 Pa. 618, 389 A.2d 42 (Pa. 1978), in which the Court affirmed the Board's modification of an award from total disability to specific loss because the award of specific loss benefits was more economically advantageous to the claimant under his union contract. However, the Board distinguished Claimant's situation from Turner, because here Claimant did not want to choose between two types of compensation but rather was seeking both total disability and specific loss to be paid concurrently. The Board observed that there are scenarios where a claimant may receive multiple awards for injuries arising out of one work incident, such as where a claimant sustains separate specific loss injuries to different parts of the body or where a claimant sustains a specific loss injury that causes a separate and distinct injury to another part of the body. The Board observed, however, that in the instant matter the WCJ specifically noted that he was not making a finding or legal conclusion that Claimant had suffered a loss of the use of his legs that was separate and apart from his accepted back injury. The Board therefore concluded that despite the discretion afforded to it under Section 306(c)(23), it was unable to grant Claimant the relief sought of an award of specific loss benefits paid concurrently with total disability benefits and declined to modify Claimant's award of ongoing total disability benefits. Claimant petitioned this Court for review of the Board's orders.[3]

Before reaching the issues raised by Claimant's appeal, we first address Employer's argument that Claimant's appeal should be dismissed because Claimant failed to include " [a] short conclusion stating the precise relief sought" in his brief as required by Rule of Appellate Procedure 2111(a)(9). While an appeal may be dismissed or quashed when a defect in a brief is " substantial," Pa. R.A.P. 2101, we may ignore even " egregious violations" of the Rules of Appellate Procedure if these defects do not preclude meaningful appellate review. Richardson v. Pennsylvania Insurance Department, 54 A.3d 420, 426 (Pa. Cmwlth. 2012) (quoting Seltzer v. Department of Education, 782 ...


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