Harrison v. Workers' Compensation Appeal Board
2013 Pa. Commw. LEXIS 391
| Pa. Commw. Ct. | 2013Background
- Claimant slipped on May 9, 2008 at work; Employer issued an NCP for a right ankle sprain and paid total disability benefits.
- After 104 weeks, Claimant underwent an IRE by Dr. Bednarz (Aug. 25, 2010) resulting in a 13% whole-person impairment; Dr. Bednarz assigned 0% impairment to the ankle sprain and attributed the 13% to preexisting flat-foot surgery.
- Employer filed modification and termination petitions (change total to partial, then terminate); Dr. Raklewicz (IME, Oct. 11, 2010) opined Claimant fully recovered from the ankle sprain and remaining problems were congenital flat feet and degeneration.
- Claimant filed a review petition seeking to amend the NCP to add post-injury ankle/foot conditions (and asserted a later broken leg was related); treating podiatrist Dr. Bernstein attributed post‑surgical ankle/foot conditions and ongoing pain to the work incident.
- WCJ credited Drs. Bednarz and Raklewicz, granted Employer’s modification and termination petitions, and denied Claimant’s review petition; the Board affirmed and this appeal followed.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Did the IRE expand the compensable injury/NCP? | Bednarz’s IRE (13% impairment based on post‑surgical problems) implicitly expanded the compensable injury beyond the ankle sprain, so those conditions are presumed work-related. | The IRE does not change the NCP; Bednarz actually assigned 0% to the sprain and attributed impairment to a preexisting condition. | IRE did not amend the NCP; no implicit expansion. |
| Who bears burden to prove additional injuries are compensable? | Once an IRE reflects impairment in the same body part, Employer should bear burden to prove additional conditions are not work-related (relying on Gumro). | Under Cinram, claimant bears burden to prove additional, separate compensable injuries/corrective amendments. | Claimant bears burden to prove additional injuries; WCJ properly required evidence from Claimant. |
| Was Employer’s evidence sufficient to terminate benefits? | Claimant contends his ongoing pain and later fracture show non‑recovery. | Employer produced competent medical testimony (IME) that Claimant fully recovered from the accepted ankle sprain. | Credited IME proved full recovery from the NCP-listed sprain; termination was proper. |
| Could the WCJ credit treating physician and deny review petition? | Claimant’s treating podiatrist linked post‑surgical pathology and later leg fracture to the work injury. | Employer’s experts and earlier MRI/bone scan supported non‑work congenital etiology; WCJ weighs credibility. | WCJ is factfinder; it permissibly credited Employer experts and denied amendment/review. |
Key Cases Cited
- Koszowski v. Workmen's Compensation Appeal Board, 595 A.2d 697 (Pa. Cmwlth. 1991) (employer must present competent medical evidence of full recovery in termination proceedings)
- Cinram Mfg., Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577 (Pa. 2009) (corrective amendment standard; claimant bears burden to prove additional injuries)
- Gumro v. Workmen's Compensation Appeal Board (Emerald Mines Corp.), 626 A.2d 94 (Pa. 1993) (employer must prove no ongoing disability or independent cause; interpreted in later cases)
- Schachter v. Workers' Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa. Cmwlth. 2006) (IRE finding of impairment does not bar employer from pursuing termination)
- City of Philadelphia v. Workers' Compensation Appeal Board (Butler), 24 A.3d 1120 (Pa. Cmwlth. 2011) (employer must prove full recovery from injuries listed in the NCP)