N. Brinkley v. WCAB (US Airways, Inc.)
1182 C.D. 2016
| Pa. Commw. Ct. | Dec 13, 2017Background
- Brinkley, a lead fleet service agent, sustained work-related fractures of the right second and fifth metatarsals; he stopped working July 6, 2011 while using a CAM walker boot.
- Claimant filed petitions seeking amendment of the acknowledged injury description, reinstatement of benefits, and penalties; Employer filed a termination petition alleging full recovery as of April 4, 2012.
- Employer and Claimant stipulated that the second and fifth metatarsal fractures were work-related; other claimed diagnoses remained contested.
- Employer’s IME (Dr. Horenstein) found the metatarsal fractures healed and no ongoing foot/ankle impairment; Claimant’s treating physician (Dr. Temple) opined Claimant had not fully recovered and could not return to his pre-injury job.
- The WCJ granted Employer’s termination petition, dismissed Claimant’s petitions, and denied recusal; the Board affirmed. Brinkley appealed to this Court.
Issues
| Issue | Plaintiff's Argument (Brinkley) | Defendant's Argument (US Airways) | Held |
|---|---|---|---|
| Whether Employer met burden to terminate benefits | Dr. Horenstein failed to accept the acknowledged work injury (ankle fracture), so his opinion cannot support termination | Dr. Horenstein acknowledged the stipulated metatarsal fractures, found them healed, and opined Claimant had recovered from the accepted injuries | Affirmed: Employer met burden; IME sufficiently addressed the accepted injuries |
| Whether WCJ should have recused for bias/ex parte contact | WCJ’s voicemail to Employer counsel and receipt of Employer’s email (not copied to Claimant) created appearance of bias and ex parte communication | Contacts were clerical/administrative, not communications on the merits; no record evidence of bias | Affirmed: Recusal denied; no substantial reasonable doubt of impartiality |
Key Cases Cited
- Gillyard v. Workers’ Compensation Appeal Board (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth. 2005) (employer must present unequivocal, competent medical evidence to terminate benefits)
- Westmoreland County v. Workers’ Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008) (medical opinion that fails to recognize previously determined work-related injury is insufficient to support termination)
- O'Neill v. Workers' Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50 (Pa. Cmwlth. 2011) (an opinion can remain unequivocal despite some uncertainty if expert expresses a professional belief)
- Shaffer v. Workers' Compensation Appeal Board (Weis Markets), 667 A.2d 243 (Pa. Cmwlth. 1995) (an expert's testimony can be unequivocal despite reservations if the expert gives a clear professional opinion)
- Steinhouse v. Workers’ Compensation Appeal Board (A.P. Green Services), 783 A.2d 352 (Pa. Cmwlth. 2001) (recusal standard: whether substantial reasonable doubt exists about judge’s impartiality)