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McNeil v. Workers' Compensation Appeal Board (Department of Corrections, SCI-Graterford)

Commonwealth Court of Pennsylvania

September 1, 2017

Janie McNeil, Petitioner
v.
Workers' Compensation Appeal Board (Department of Corrections, SCI-Graterford), Respondent

          Submitted: April 21, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          PATRICIA A. McCullough, Judge

         Janie McNeil (Claimant) petitions for review of the November 17, 2016 order of the Workers' Compensation Appeal Board (Board) affirming a decision of the Workers' Compensation Judge (WCJ) dismissing Claimant's reinstatement petition against the Department of Corrections, State Correctional Institution (SCI)-Graterford (Employer).

         Facts and Procedural History

         While working as a gate sergeant for Employer on January 26, 2011, Claimant slipped and fell while trying to enter a truck at the front gate of Employer's premises and suffered injuries to her left ankle and left shoulder. Claimant filed a claim petition on February 15, 2011. As this petition was pending, Employer issued a notice of compensation payable (NCP) on March 7, 2011, acknowledging that Claimant sustained work-related injuries in the nature of a left ankle sprain and left shoulder sprain. On August 3, 2011, Employer issued an amended/corrected NCP which acknowledged an additional injury in the nature of a low back strain. (Reproduced Record (R.R.) at 6; Claimant's brief at 6.) By decision and order circulated July 10, 2013, the WCJ granted Claimant's claim petition with respect to the following injuries: "left ankle sprain, acute cervical strain, acute back pain, musculoskeletal injury of the left shoulder, mild edema of the left ankle, left shoulder sprain, and tenderness of the Claimant's left shoulder and upper and lower back." (R.R. at 7.) Employer did not appeal.

         On August 15, 2013, Employer filed a termination petition, alleging that Claimant had fully recovered from her work-related injuries. This petition was premised upon the decision of an arbitrator under the Heart and Lung Act, [1] which found Claimant to be fully recovered. Employer also relied on the results of an independent medical examination of Claimant conducted on May 21, 2014, by John Donahue, M.D., who similarly opined that Claimant had fully recovered from her work injuries as of the date of the examination. (R.R. at 8.) Claimant filed a timely answer denying all material allegations.

         In the meantime, on February 25, 2014, Claimant filed a petition to review benefits, alleging an incorrect description of the work injury, and a penalties petition, alleging that Employer violated the Workers' Compensation Act[2] and/or its regulations. Employer filed a timely answer denying all material allegations of Claimant's petitions. (R.R. at 6.) Claimant's petitions were consolidated with the termination petition for purposes of hearings and disposition. (R.R. at 3-21.) The final hearing was held on September 29, 2014. (R.R. at 5.)

         On July 18, 2014, Claimant had her first office visit with Andrew Kuntz, M.D. (Dr. Kuntz), a staff surgeon in the department of orthopedic surgery at the Department of Veterans Affairs Medical Center in Philadelphia. Although Dr. Kuntz's examination occurred prior to the close of the record in the aforementioned proceeding, Claimant did not depose Dr. Kuntz or offer any evidence relating to his examination.

         On August 7, 2014, Claimant underwent an MRI of her left shoulder, which indicated a partial tendon tear along with degenerative changes. (R.R. at 54.) However, the MRI results were not introduced into evidence in the aforementioned proceeding.

         Dr. Kuntz performed arthroscopic surgery on Claimant's left shoulder on December 30, 2014. During the surgery, Dr. Kuntz found "a partial articular sided tear of the supraspinatous tendon that was debrided, but did not need repair. Additionally, there was evidence of intra-articular biceps tendon fraying and tearing in conjunction with a type I SLAP tear." (R.R. at 55.) Dr. Kuntz performed a soft tissue biceps tenodesis and some additional debridement to treat both of these lesions. (R.R. at 55.) Although the record in the aforementioned proceeding was closed at the time of the surgery, the WCJ had not yet rendered a decision, and Claimant did not seek to re-open the record.

         By decision and order circulated on February 2, 2015, the WCJ determined: (1) the prior arbitrator's decision in the proceeding under the Heart and Lung Act did not preclude her from reaching the merits of Claimant's review petition or Employer's termination petition; (2) the termination of Claimant's workers' compensation benefits was appropriate as of May 21, 2014, the date of the examination by Dr. Donahue; (3) Claimant's penalties petition was denied; (4) Claimant's review petition was granted to the extent it sought to further add thoracic and lumbar strain and sprain as a work-related work injury; (5) Employer's contest of the review and penalties petitions was reasonable; and, (6) the testimony of Dr. Donahue was credible. The Claimant's review petition was denied insofar as it sought to add, inter alia, a left shoulder rotator cuff tear to the work-related injury. (R.R. at 13, 15-18.)

         Both parties appealed the WCJ's decision. In an opinion and order circulated on December 30, 2015, the Board affirmed the WCJ. (R.R. at 41-51.) Neither party appealed this decision of the Board.

         Meanwhile, Claimant had follow-up office visits with Dr. Kuntz on February 13, April 10, and July 10, 2015. Dr. Kuntz issued a report to Claimant's counsel on September 3, 2015 (the Kuntz report), finding that "based on Ms. McNeil's report of a fall from a truck that resulted in shoulder pain, it is [his] opinion that, within a reasonable degree of medical certainty[, ] her left shoulder pain resulted from that injury." (R.R. at 55.)

         On November 18, 2015, Claimant filed a reinstatement petition, seeking a reinstatement of her benefits as of December 30, 2014, the date of the arthroscopic surgery. Employer filed a timely answer denying all material allegations.

         The sole hearing to consider the reinstatement petition occurred before the WCJ on December 10, 2015. Although counsel for Claimant and counsel for Employer were present at the hearing, no testimony was taken. The only evidence offered by either party was the decision of the WCJ in the prior proceeding. There is no evidence that either Claimant or Employer was present with their counsel. (R.R. at 56-68.)

         At this hearing, Employer moved to dismiss the reinstatement petition because "right now as of record, she has no rotator cuff tear related to the work injury, and two there are very [expensive] appeal [sic] pending with the Appeal Board." (R.R. at 62.) The WCJ set a briefing schedule and made it clear that "[I]f I grant the motion to dismiss, you're going to appeal it. If I deny the motion to dismiss, I'll bring this back for a pre-trial [hearing] and set it up for a trial date." (R.R. at 64.) Claimant's counsel represented that he was in possession of the Kuntz report, (R.R. at 66), and the following exchange took place among counsel and the WCJ:

[Employer's counsel]: Your Honor, just to clarify on the records, it is the surgery for the rotator cuff tear in December of 2014 that you're claiming is the worsening injury?
[Claimant's counsel]: Yes, absolutely.

         (R.R. at 65.)

         The record indicates that Claimant's brief in response to Employer's motion to dismiss was electronically filed with the WCJ on February 18, 2016, and was also mailed to the WCJ. (R.R. at 1.) Claimant's counsel represents that the Kuntz report was attached to that brief. (Claimant's brief at 7-8.) Employer's counsel admits that the Kuntz report was attached to Claimant's brief, but argues that it was properly disregarded by the WCJ "because it had not been produced to Employer or submitted into evidence prior to the submission" of that brief. (Employer's brief at 15.)

         The WCJ dismissed Claimant's reinstatement petition in a decision and order circulated on February 29, 2016. The WCJ found, in pertinent part:

The Judge has reviewed the arguments of the parties and finds that a surgery for a rotator cuff tear in December of 2014 was the basis of the worsening of condition allegation in this case . . . . The Judge's review of [the prior WCJ's] decision of February 2, 2015, finds that the left rotator cuff injury alleged by the Claimant was ...

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