T. Bartee v. WCAB (Pocono Mountain SD)
2019 and 2087 C.D. 2015
Pa. Commw. Ct.Jul 6, 2016Background
- Claimant (school bus driver) sustained a work-related right shoulder rotator cuff tear on April 12, 2011; Employer initially denied then later issued a temporary notice of compensation payable and Claimant underwent rotator cuff surgery in July 2011.
- Employer suspended benefits January 3, 2012; Claimant continued working without restriction through the 2012–2013 school year.
- Claimant sought reinstatement of benefits alleging a worsening/recurrent tear as of January 30, 2013, filed later claim and penalty petitions, and underwent shoulder hemiarthroplasty on August 20, 2013.
- Employer filed petitions to review the July 6, 2011 NCP (alleging a material mistake) and to terminate benefits (contending Claimant had fully recovered by April 26, 2013).
- At hearing, WCJ credited Claimant’s pain complaints and treating surgeon (Menio) as to initial and recurrent tear but found Claimant failed to prove a new work injury on January 30, 2013 or loss of earning power as of that date; WCJ denied reinstatement and denied Employer’s review and termination petitions.
- WCAB affirmed; Commonwealth Court affirmed the WCAB order.
Issues
| Issue | Plaintiff's Argument (Bartee) | Defendant's Argument (Pocono Mountain) | Held |
|---|---|---|---|
| Whether Claimant proved entitlement to reinstatement as of Jan 30, 2013 | Reinstatement needed because condition worsened/recurrent tear and post-operative inability to work establishes disability | No loss of earning power on Jan 30, 2013; Claimant worked without restrictions through school year and had no lost time | Denied — Claimant failed to prove adverse effect on earning power from original injury as of Jan 30, 2013 |
| Whether WCJ erred by not explicitly addressing Claimant’s Nov 4, 2013 testimony about post‑op disability | Testimony alone (per Latta) suffices to prove continued disability | WCJ permitted to credit evidence and need not make findings on every piece of evidence; testimony did not show continued disability from original injury | Denied — WCAB and WCJ adequately considered and were not required to adopt that testimony as showing disability from the original injury |
| Whether Employer proved the July 6, 2011 NCP was materially incorrect (petition to review) | NCP wrong because treating physician relied on inaccurate/incomplete history; causation opinion unreliable | Medical-record gaps affect weight, not competency; WCJ decides credibility and weight | Denied — WCJ properly credited treating physician; failure to review all records goes to weight, not competence |
| Whether Employer proved entitlement to terminate benefits | Employer’s expert (Schmidt) said Claimant fully recovered and unrelated to 2011 injury | Claimant’s treating physician linked recurrent tear to original injury; WCJ credited treating physician over Employer’s expert | Denied — WCJ declined to credit Employer’s expert; termination not proven |
Key Cases Cited
- Bufford v. Workers’ Compensation Appeal Board, 2 A.3d 548 (Pa. Cmwlth.) (reinstatement requires proof original disability continues and earning power is adversely affected)
- Latta v. Workers’ Compensation Appeal Board, 642 A.2d 1083 (Pa. 1994) (a claimant’s credible testimony alone can support reinstatement)
- Pistella v. Workers’ Compensation Appeal Board, 633 A.2d 230 (Pa. Cmwlth.) (WCJ need only make findings necessary for meaningful review)
- Huddy v. Workers’ Compensation Appeal Board, 905 A.2d 589 (Pa. Cmwlth.) (failure of medical witness to review all records affects weight, not competency)
- Phillips v. Workmen’s Compensation Appeal Board, 545 A.2d 869 (Pa. Cmwlth.) (willful concealment of medical evidence can void compensation agreement)
- Udvari v. Workers’ Compensation Appeal Board, 705 A.2d 1290 (Pa.) (termination requires medical proof of full recovery and no objective findings linking condition to work injury)
- Lombardo v. Workers’ Compensation Appeal Board, 698 A.2d 1378 (Pa. Cmwlth.) (WCJ has authority to accept or reject witness testimony and determine weight)
- Universal Cyclops Steel Corp. v. Workers’ Compensation Appeal Board, 305 A.2d 757 (Pa. Cmwlth.) (WCJ is ultimate determiner of credibility)