S. Wisnieski v. WCAB (Apollo Ridge SD and Highmark Casualty Ins. Co.)
2395 C.D. 2015
Pa. Commw. Ct.Aug 23, 2016Background
- Claimant (Wisnieski), a custodial supervisor, slipped and fell at work on April 20, 2012; Employer issued a medical-only NCP describing a lumbar contusion and right arm contusion.
- Claimant experienced ongoing low‑back pain and later right‑leg symptoms; treating providers (Drs. Morgante and Paul) imposed work restrictions and later attributed radicular symptoms to the work injury.
- Employer’s panel doctor (Dr. Tragesser) initially attributed leg symptoms to the work injury but relied on Claimant’s history and did not review all prior records; Employer later obtained an IME from Dr. Gause, who concluded Claimant had at most a lumbar contusion and had fully recovered by July 5, 2013.
- Claimant filed review (seek amendment of NCP to include right‑leg radiculopathy), reinstatement (worsening/loss of earning power), and penalty petitions; Employer filed a termination petition.
- The WCJ found Dr. Gause credible, rejected Dr. Tragesser’s opinion as based on an inaccurate/incomplete history, denied Claimant’s petitions, and granted Employer’s termination petition; the Board affirmed and this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NCP should be amended to include right‑leg radiculopathy | Wisnieski: medical evidence and treating doctors support amendment | Employer: medical evidence shows only accepted contusion; panel doctor’s opinion unreliable due to inaccurate history | WCJ/Board/Court: deny amendment; Dr. Tragesser’s opinion incompetent because based on incomplete/inaccurate history |
| Whether Employer is estopped or bound by its panel physician’s opinions | Wisnieski: Employer investigated and paid for panel treatment, so should be bound by panel doctor | Employer: panel doctor’s opinions are not controlling if based on inaccurate history; employer presented contrary competent IME | Court: estoppel/agency arguments fail; no authority to bind Employer to incompetent opinion |
| Whether Employer met its burden to terminate benefits | Wisnieski: IME did not address all diagnoses and was not unequivocal | Employer: Dr. Gause’s unequivocal competent testimony shows recovery from accepted injury | WCJ/Board/Court: Employer met burden; substantial competent evidence supports termination |
| Whether penalties/reinstatement warranted for employer’s conduct | Wisnieski: Employer failed to timely compensate and wrongfully ceased benefits | Employer: no violation—medical evidence supports termination | WCJ/Board/Court: denied penalty and reinstatement petitions; no violation shown |
Key Cases Cited
- Southwest Airlines v. Workers’ Compensation Appeal Board (King), 985 A.2d 280 (Pa. Cmwlth. 2009) (medical opinion based on incomplete/inaccurate history is incompetent on causation)
- Chik‑Fil‑A v. Workers’ Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002) (expert opinion relying on inaccurate history cannot establish causation)
- Westmoreland County v. Workers’ Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008) (employer bears burden of proving cessation of disability by substantial evidence)
- Fortwangler v. Workers’ Compensation Appeal Bd. (Quest Diagnostics), 113 A.3d 28 (Pa. Cmwlth. 2015) (standard/scope of appellate review of WCJ findings)
- Kelly v. Workmen’s Compensation Appeal Board (DePalma Roofing and S.W.I.F.), 669 A.2d 1023 (Pa. Cmwlth. 1995) (distinguishable estoppel holding where employer made payments in lieu of compensation)
- County of Schuylkill v. Workmen’s Compensation Appeal Board (Lawlor), 617 A.2d 46 (Pa. Cmwlth. 1992) (distinguishable for failure to complete investigation)