Potere v. Workers' Compensation Appeal Board
2011 Pa. Commw. LEXIS 235
| Pa. Commw. Ct. | 2011Background
- Claimant sustained a work injury January 22, 2005, as a tractor-trailer driver for Kemcorp, with neck/back pain and sensory symptoms; treatment followed and he did not return to work.
- Employer issued a NTCP February 10, 2005 accepting medical and indemnity expenses; later, an IME in March 2005 found objective normality and recommended a four-week physical therapy program.
- Employer sent a return-to-work notice in March 2005 and again in April 2005, ultimately stopping temporary compensation and issuing an NCD citing lack of ongoing disability and Claimant’s refusal of a job offer.
- Claimant filed a claim petition on April 28, 2005 seeking total disability from January 23, 2005 to April 21, 2005; WCJ denied, finding no ongoing disability beyond March 17, 2005.
- Board reversed in part, remanding for consideration of Employer’s medical evidence; on remand, WCJ found Claimant could return to pre-injury work as of March 17, 2005, and suspended wage loss benefits as of April 13, 2005.
- Claimant appealed; Board affirmed with modification; this Court granted review to address whether Dr. Kahanovitz’s testimony was equivocal and whether the NCD constituted an illegal supersedeas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Kahanovitz’s testimony was equivocal to support suspension | Potere argues Kahanovitz’s testimony is equivocal and cannot sustain a finding of non-disability. | Kemcorp asserts the WCJ properly credited credible testimony to support suspension. | Equivocal testimony; remand for proper evaluation |
| Whether the NCD constituted an illegal supersedeas | Potere contends the NCD improperly superseded wage-loss benefits. | Kemcorp maintained proper use of NTCP followed by a timely NCD. | NCD proper; no illegal supersedeas |
| Whether wage loss benefits could be suspended as of April 14, 2005 | Potere argues the suspension date was improper based on medical evidence. | Kemcorp argues entitlement to suspend around mid-April 2005. | Suspension date vacated; remand for further findings |
Key Cases Cited
- Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135 (Pa. 1993) (claimant must prove disability and injury)
- Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939 (Pa.Cmwlth.2008) (disability burden remains on claimant)
- Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 166 Pa. Cmwlth.141 (Pa.Cmwlth.1994) (burden to prove disability; employer not burdened)
- Milner v. Workers' Compensation Appeal Board (Main Line Endoscopy Center), 995 A.2d 492 (Pa.Cmwlth.2010) (closed-period disability findings; credibility matters in remand)
- Heath v. Workmen's Compensation Appeal Board (Agway, Inc.), 100 Pa.Cmwlth.524 (Pa.Cmwlth.1986) (medical evidence equivocal; duty to review for competency)
- Jordan v. Workers' Compensation Appeal Board (Philadelphia Newspapers, Inc.), 921 A.2d 27 (Pa.Cmwlth.2007) (distinguishes genuine disability evidence from sham defenses)
- Armstrong v. Workers' Compensation Appeal Board (Haines & Kibblehouse, Inc.), 931 A.2d 827 (Pa.Cmwlth.2007) (NTCP/NCD usage and disability determinations)
- Gereyes v. Workers' Compensation Appeal Board (New Knight, Inc.), 793 A.2d 1017 (Pa.Cmwlth.2002) (NTCP vs. NCD timing and liability)
- Darrall v. Workers' Compensation Appeal Board (H.J. Heinz Company), 792 A.2d 706 (Pa.Cmwlth.2002) (employer may issue NCD while contesting disability)
- Meadow Lakes Apartments v. Workers' Compensation Appeal Board (Spencer), 894 A.2d 214 (Pa.Cmwlth.2006) (scope of review for substantial evidence)