CHILDREN‘S HOSPITAL OF PHILADELPHIA and RISK ENTERPRISE MANAGEMENT, LTD., Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (SLOANE), Respondent.
Commonwealth Court of Pennsylvania
Decided Oct. 1, 2015
102 A.3d 591
Submitted on Briefs April 24, 2015.
insurance policy on account of a suspension under this section,” State Farm argues that the prohibition does not apply to a refusal to write.
This court previously addressed this argument in State Farm. In State Farm, we agreed with the Department that “Act 31, unlike Act 78, makes no distinction between cancellations before or after sixty days. Act 31‘s blanket prohibition against cancellation necessarily includes precluding cancellation within sixty days.” 598 A.2d at 1346. The suspension of Dougherty‘s operating privilege for underage alcohol consumption is not a permissible basis for the cancellation of her automobile insurance policy under
Nonetheless, State Farm argues that this court should rely on the Commissioner‘s decision in Erie/Pursh, wherein the Commissioner determined that Erie Insurance Exchange did not violate Act 78, the predecessor to Act 68, when it refused to write an automobile insurance policy for Pursh. We initially note “that administrative decisions have no precedential value before this [c]ourt.” State Farm Mutual Automobile Insurance Company v. Department of Insurance, 720 A.2d 1071, 1074 n. 5 (Pa.Cmwlth.1998). Additionally, this court has already decided the issue presented in this case and “[t]he rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.” Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898, 903 n. 9 (1996).
We also note that Erie/Pursh does not mention this court‘s decisions in either Erie Insurance or State Farm. Moreover, in Erie/Pursh the insurance company did not issue a temporary binder as it did in this case. In Erie/Pursh, the Commissioner specifically stated that “[b]ecause of [Erie Insurance Exchange‘s] refusal to issue a binder for or subsequently write a policy for Mr. Pursh this case is not controlled by Act 78. or
Finally, State Farm contends that the Commissioner erred in concluding that Dougherty‘s misrepresentation of her driving record was not material to State Farm‘s review of her application. In accordance with section 2008(b) of Act 68,
Accordingly, we affirm.
ORDER
AND NOW, this 24th day of September, 2015, we hereby affirm the January 15, 2015, order of the Insurance Department, Theresa D. Miller, Acting Insurance Commissioner.
Audrey J. Copeland, King of Prussia, for respondent.
BEFORE: DAN PELLEGRINI, President Judge, P. KEVIN BROBSON, Judge, and JAMES GARDNER COLINS, Senior Judge.
OPINION BY Senior Judge JAMES GARDNER COLINS.
Before this Court are cross-petitions for review filed by Sandra Sloane (Claimant) and her employer, Children‘s Hospital of Philadelphia1 (Employer), of an order of the Workers’ Compensation Appeal Board (Board) that affirmed in part and reversed in part the decision and order of a Workers’ Compensation Judge (WCJ) granting a petition for reinstatement of benefits (Petition) filed by Claimant. Claimant seeks review of the portion of the Board‘s order that reversed the WCJ‘s reinstatement of total disability benefits arising from work injuries sustained in 2004 and 2006. Employer seeks review of the Board‘s order to the extent it upheld the WCJ‘s determination that Claimant‘s 2007 right-knee replacement surgery and related treatment were compensable medical expenses related to the 2006 work injury. For the reasons that follow, we affirm the order of the Board.
On April 20, 2004, Claimant injured her right elbow during the course and scope of her employment as a nurse for Employer while moving cervical traction weights for a patient. (WCJ Decision and Order, Finding of Fact (F.F.) ¶ 5; December 30, 2004 Notice of Compensation Payable (2004 NCP), Reproduced Record (R.R.) at 6a-7a.) Employer accepted the injury and resulting wage-loss disability through a Notice of Compensation Payable (2004 NCP), which described the injury as lateral epicondylitis of the right elbow. (WCJ Decision and Order, F.F. ¶ 5; 2004 NCP, R.R. at 6a-7a.) Claimant began receiving partial disability benefits pursuant to a series of supplemental agreements entered into by the parties and returned to work in a light-duty position with reduced wages. (WCJ Decision and Order, F.F. ¶¶ 6, 13.)
Claimant suffered a second work-related injury to her right elbow and right knee on December 3, 2006 while attempting to restrain a patient. (WCJ Decision and Order, F.F. ¶ 5; December 28, 2006 Notice of Compensation Payable (2006 NCP), R.R. at 8a-9a.) Employer accepted this injury through a medical-only NCP (2006 NCP) that did not recognize compensation for loss of wages. (WCJ Decision and Order, F.F. ¶ 5; 2006 NCP, R.R. at 8a.) The injury was described in the 2006 NCP as an “exacerbation of right elbow epicondylitis and flare up of preexisting [degenerative joint disease in her] right knee.” (2006 NCP, R.R. at 9a.) Following the 2007 injury, Claimant returned to light-duty work while continuing to receive partial disability for the 2004 injury until November 16, 2007 when she ceased working in anticipation of right-knee replacement surgery. (WCJ Decision and Order, F.F. ¶ 6.)
Claimant filed the Petition on May 31, 2011 seeking the reinstatement of total disability benefits as of November 1, 2007. (Petition, R.R. at 1a-3a.) Employer filed an answer to the petition denying Claimant‘s entitlement to a reinstatement of benefits, and the matter was assigned to a WCJ. (Answer, R.R. at 4a-5a.) Claimant testified by deposition and at a hearing before the WCJ, and Claimant also submitted the deposition of her physician, Thomas J. Mercora, D.O. The evidence presented by Employer included the deposition testimony of Barry Ruht, M.D., who performed an independent medical examination of Claimant on December 22, 2011.
In a May 15, 2012 decision and order, the WCJ granted the Petition, concluding that Claimant was totally disabled as of November 17, 2007 based on both her 2004 and 2006 work injuries. (WCJ Decision and Order, F.F. ¶ 16, Conclusions of Law (C.L.) ¶¶ 1-3.) The WCJ further concluded that Employer was liable for payment of medical services provided or prescribed as a result of the 2004 and 2006 work injuries, including the December 2007 right-knee replacement surgery and subsequent treatment provided by Dr. Mercora. (Id., F.F. ¶ 17, C.L. ¶¶ 7-8.) The WCJ found Claimant credible and found Dr. Mercora more credible than Dr. Ruht on the basis that Dr. Mercora was Claimant‘s treating physician. (Id., F.F. ¶¶ 13-14.)
Employer appealed the WCJ‘s decision and order and the Board affirmed in part and reversed in part. The Board reversed the portion of the WCJ‘s order that had granted total disability benefits based on the 2006 work injury, concluding that Claimant was required to comply with the three-year limitations period of Section 413(a) of the Workers’ Compensation Act (Act)2 for modification of an NCP rather than the 500-week period for reinstatement of suspended partial disability benefits. (Board Op. at 2-4, 7-9.) As Claimant did not file the Petition within three years of the issuance of the 2006 NCP, the Board determined that Claimant was barred from receiving total disability benefits for the 2006 injury. (Id. at 8-9.) The Board concluded that the Petition was timely filed with respect to the 2004 work injury because Claimant continued receiving partial disability payments through the date of filing of the Petition; the Board, however, reversed the WCJ‘s award of total disability benefits for the 2004 injury, concluding that the credible medical evidence of Claimant‘s own witness, Dr. Mercora, rebutted Claimant‘s testimony that she was totally disabled as a result of the 2004 injury and instead showed that the disability was a result of the 2006 injury. (Id. at 9-10 & n.6.) The Board also affirmed the WCJ‘s order to the extent it found Employer liable for Claimant‘s 2007 right-knee replacement surgery and Dr. Mercora‘s treatment related to the 2006 work injury, holding that Dr. Mercora‘s testimony provided substantial evidence for this determination and that the WCJ did not err in crediting him though he did not begin treating Claimant until July 2011. (Id. at 10-11.)
Claimant and Employer each petitioned this Court for review of the Board‘s order.3
We first address whether the Petition was timely filed with respect to the request for total disability benefits based on the 2006 work injury. Section 413(a) of the Act provides a WCJ with broad discretion to amend an award of benefits, an NCP or an agreement of the parties.
where compensation has been suspended because the employe‘s earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury.
Claimant argues that the 2006 NCP has the same effect as the prior practice before the Board of granting a claim petition with the immediate suspension of disability benefits in cases where medical treatment is required but there is no immediate wage loss. See, e.g., Ruth Family Medical Center v. Workers’ Compensation Appeal Board (Steinhouse), 718 A.2d 397, 403 (Pa.Cmwlth.1998) (recognizing that the Board acted properly in granting a claim petition and immediately suspending benefits where the injury had not manifested itself in a loss of earning power); Shaffer v. Workmen‘s Compensation Appeal Board (Hollenback Township), 153 Pa.Cmwlth. 430, 621 A.2d 1125, 1129 (1993) (same). Therefore, Claimant contends that the appropriate form to seek disability benefits for the 2006 injury was by filing a petition to reinstate her suspended benefits and her Petition was timely filed within the 500-week period in which an injured employee is eligible to receive partial disability benefits.
However, as the Board explained in its opinion, the effect of issuing a medical-only NCP is distinct from the effect of a WCJ ruling that a claimant has suffered a loss of earning power and granting a claim petition but immediately suspending benefits. As this Court has explained, the Board created the medical-only option for NCPs in 2004 to allow an employer to accept liability for an injury but not any loss of earning power. City of Philadelphia v. Workers’ Compensation Appeal Board (Butler), 24 A.3d 1120, 1124 (Pa.Cmwlth.2011) (en banc); Forbes Road CTC v. Workers’ Compensation Appeal Board (Consla), 999 A.2d 627, 629 (Pa.Cmwlth.2010); Armstrong v. Workers’ Compensation Appeal Board (Haines & Kibblehouse, Inc.), 931 A.2d 827, 831 & n. 5 (Pa.Cmwlth.2007). This understanding of the effect of a medical-only NCP is evident in this case where Employer checked the portion of the NCP form which states “[c]heck only if compensation for medical treatment (medical only, no loss of wages) will be paid subject to the Workers’ Compensation Act” and did not complete the portions of the form related to wage-loss benefits, including the weekly compensation rate. (2006 NCP, R.R. at 8a (emphasis in original).) Accordingly, because no disability had ever been recognized by Employer or established by a WCJ for the 2006 injury, disability had not been suspended when the 2006 NCP was issued. Claimant therefore could not seek to have disability benefits reinstated, and the 500-week period for reinstatement of benefits does not govern this case.
Having resolved that the 500-week period was inapplicable to the Petition, we must determine whether the Board correctly held that the Petition was untimely to the extent it sought disability benefits for the 2006 injury. At the outset, we observe that it appears that no appellate court has determined what limitations period applies to a petition that seeks to establish disability compensation for an injury that was previously recognized by the Employer through a medical-only NCP. The Board determined that to the extent the Petition sought disability benefits for the 2006 injury, it was properly viewed as a review petition under Section 413(a) rather than a claim petition under Section 315 of the Act,
lished
Despite apparent ambiguity relating to the proper form of the Petition, we need not resolve this issue because Claimant‘s request for disability benefits for the 2006 injury would be untimely under the limitations periods of Section 413(a) or Section 315. Under Section 413(a), a reinstatement petition must be filed “within three years after the date of the most recent payment of compensation made prior to the filing of such petition.”
Section 315 also imposes a three-year limitations period, measured from the date
Next, we address whether the Board erred in reversing the WCJ‘s award of total disability benefits to Claimant based on the 2004 right elbow injury. Claimant argues that her testimony that she stopped working in November 2007 both because of her right knee and right elbow injuries was sufficient to meet her burden for a reinstatement of total disability benefits without any medical evidence, and that by reversing the WCJ the Board improperly disturbed the WCJ‘s determination that Claimant was credible. Employer argues that the Board appropriately reversed the WCJ because her own expert, Dr. Mercora, who was also found credible by the WCJ, attributed her total disability to her 2006 right knee injury. In addition, Employer argues that the WCJ erred in awarding total disability benefits based on the 2004 injury because the issue of disability benefits was not included in the Petition and the parties expressly agreed that the matter before the WCJ was confined to the 2006 injury.
We agree with Employer‘s argument that a reinstatement for disability benefits was not properly before the WCJ and affirm on this basis.8 In rejecting Employer‘s argument that the 2004 injury was not at issue in the current proceedings, the Board determined that, though the Petition was initially based only upon the 2006 injury, Claimant‘s counsel expanded the Petition to include the 2004 injury at Claimant‘s deposition on August 31, 2011 and Employer‘s counsel acknowledged the multiple theories for reinstatement.9 (Board Op. at 1-2.) The Board‘s analysis, however, ignores that during the deposition of Employer‘s medical expert, Dr. Ruht, on February 2, 2012 the parties stipulated that Claimant‘s 2004 right elbow injury was not at issue in the current proceedings:
[Employer‘s counsel:] I do want you to focus your medical opinions on the
... And, Counsel, if you could just please state for the record whether I accurately represented our stipulation prior to the dep?
[Claimant‘s counsel:] Yes, you did.
(Deposition of Dr. Ruht at 14-15, R.R. at 117a-118a.) Importantly, this stipulation excluding the 2004 injury occurred after the statement by Claimant‘s counsel during Claimant‘s deposition, which the Board had held expanded the issues in the Petition. Furthermore, in accordance with the parties’ understanding that only the 2006 right knee injury was at issue, Employer did not elicit testimony from Dr. Ruht concerning Claimant‘s 2004 injury and whether that contributed to Claimant‘s total disability.
We recognize, as the Board did, that liberal pleading rules apply in workers’ compensation matters. Kruskauskas v. Workers’ Compensation Appeal Board (General Motors), 56 A.3d 64, 69 (Pa.Cmwlth.2012) (en banc); Brehm v. Workers’ Compensation Appeal Board (Hygienic Sanitation Co.), 782 A.2d 1077, 1081-82 (Pa.Cmwlth.2001) (en banc). Nevertheless, principles of fairness and due process require that the party against whom relief is awarded must have been on notice of the theory of relief and had an opportunity to respond. Kruskauskas, 56 A.3d at 69; Brehm, 782 A.2d at 1081-82 & n. 16. Thus, where the parties expressly stipulated that the 2004 injury was excluded from the current proceedings and Employer relied on that agreement to not present medical evidence related to that injury, the WCJ acted outside his authority by ordering benefits related to the 2004 injury.
Employer also appeals from the Board‘s order affirming the WCJ‘s determination that Employer was responsible to pay Claimant‘s medical expenses related to the December 3, 2006 knee injury, including Claimant‘s right-knee replacement surgery.10 Employer specifically challenges the competency of Dr. Mercora, Claimant‘s medical expert, arguing that the WCJ erred in crediting Dr. Mercora as Claimant‘s treating physician because Dr. Mercora was hired only for litigation purposes and he did not have personal knowledge of Claimant‘s treatment.
Dr. Mercora testified that he first examined Claimant on July 6, 2011, at which time he took Claimant‘s history and performed a physical examination of Claimant. (Deposition of Dr. Mercora (Mercora Dep.) at 12-18, R.R. at 94a-96a.) Based on the physical examination, the history elicited from Claimant and a review of Claimant‘s medical records, including the records of Dr. Booth who performed the
The WCJ found that Dr. Mercora‘s testimony was credible and entitled to greater weight than the testimony of Employer‘s medical expert, Dr. Ruht, which the WCJ rejected to the extent inconsistent with the testimony of Dr. Mercora. (WCJ Decision and Order, F.F. ¶ 14.) In finding Dr. Mercora‘s opinion was entitled to greater weight than that of Dr. Ruht, the WCJ relied on the fact that Dr. Mercora was Claimant‘s treating physician while Dr. Ruht performed a one-time evaluation for litigation purposes. (Id.) The WCJ further found that Dr. Mercora‘s diagnosis of Claimant was supported by his training and expertise as a physician, his observation of Claimant over time, his review of her medical records, his reliance on Claimant‘s credible history and his understanding of Claimant‘s job duties as a registered nurse. (Id.)
Upon review of the record, we conclude that the WCJ‘s determination that Dr. Mercora credibly supported Employer‘s liability for medical expenses related to the 2006 right-knee injury was not in error. Employer contends that Dr. Mercora‘s testimony was not competent because Dr. Mercora did not examine Claimant in July 2011 and based his diagnosis and opinion on causation on the notes of Dr. Booth and Claimant‘s other doctors. However, an expert may base his opinion in part on the notes of others on which he customarily relies in his professional practice. Westinghouse Electric Corp./CBS v. Workers’ Compensation Appeal Board (Burger), 838 A.2d 831, 838 (Pa.Cmwlth.2003); Empire Steel Castings, Inc. v. Workers’ Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1026 (Pa.Cmwlth.2000). To the extent Employer seeks to have us second guess Dr. Mercora because he did not treat Claimant at the time of her right knee replacement surgery, Employer‘s arguments must be rejected because they go to the weight and credibility of the evidence rather than Dr. Mercora‘s competency. Burger, 838 A.2d at 838. The WCJ has exclusive province over questions of credibility and evidentiary weight, including whether to accept or reject the testimony of any witness, including a medical witness, in whole or in part. University of Pennsylvania v. Workers’ Compensation Appeal Board (Hicks), 16 A.3d 1225, 1229 n. 8 (Pa.Cmwlth.2011); Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab), 15 A.3d 944, 949 (Pa.Cmwlth.2010). As an appellate court we may not reweigh the evidence or review the credibility of wit-
nesses,
Employer also argues that the WCJ erred by affording Dr. Mercora greater deference than Employer‘s expert, Dr. Ruht, as Claimant‘s treating physician when Dr. Mercora first saw her in connection with this litigation and he admitted that he was only “monitoring” Claimant‘s condition. (Mercora Dep. at 27, R.R. at 98a.) It is well established that “greater credence may be given to the testimony of a treating physician than to a physician who examines simply to testify for litigation purposes.” School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), 84 A.3d 372, 375 (Pa.Cmwlth.2014), aff‘d, 117 A.3d 232 (2015) (quoting D.P. “Herk” Zimmerman, Jr., Inc. v. Workmen‘s Compensation Appeal Board (Himes), 103 Pa.Cmwlth. 68, 519 A.2d 1077, 1080 (1987)). Here, while Claimant was first referred to Dr. Mercora by Claimant‘s counsel, Dr. Mercora testified that he had seen Claimant once a month since the initial visit with the intention of eventually scheduling to see her every six months and that Claimant had requested he become her primary care physician. (Mercora Dep. at 26-29, 33, R.R. at 98a-99a.) Furthermore, while Dr. Mercora testified that he was only “monitoring” Claimant‘s right knee and right elbow conditions at the moment, he also testified that he had recommended to Claimant that she continue seeking treatment for those conditions with her other doctors, provided treatment related to her lower back, and had discussed potential future treatment for her right knee and elbow including the use of medication and possible surgery. (Id. at 26-31, R.R. at 98a-99a.) Thus, there was substantial evidence to support the finding that Dr. Mercora had assumed a greater responsibility in Claimant‘s medical care than simply as a litigation expert and, as Claimant‘s treating physician, was entitled to greater deference.
Finally, Employer argues that Dr. Mercora‘s testimony was not competent because his opinion was in conflict with the notes of Dr. Booth and his associates who had previously provided treatment to Claimant‘s for her knees. Employer cites specifically Dr. Booth‘s failure to reference any trauma to Claimant‘s knee in his notes for her first appointment after the December 3, 2006 incident, a pre-2006 note indicating that at some point in the future Claimant might need right knee replacement surgery and notes indicating that Claimant had some pain in her right knee as far back as 2001. (Id. at 19, 22, 39-40, R.R. at 96a, 97a, 101a.) However, Dr. Mercora did not deny that Claimant had degenerative joint disease and pain in her right knee prior to 2006, but instead stated that her left knee was the predominant issue prior to the 2006 work injury and she had responded well to the injections in her right knee that she began receiving in November 2005. (Id. at 19-21, 40-41, R.R. at 96a, 101a.) Dr. Mercora further testified that it was only in July 2007 that Claimant presented to Dr. Booth with persistent right knee pain which indicated that she had suffered an injury to her right knee in the December 3, 2006 work incident. (Id. at 21, 40-41, R.R. at 96a, 101a.) Dr. Mercora‘s testimony was thus not inconsistent with the notes of Dr. Booth. Moreover, even if we were to accept Employer‘s arguments that the testimony of Dr. Mercora is inconsistent with the notes of Claimant‘s other doctors, the WCJ‘s determination to accept Dr. Mercora‘s opinion on the causation of Claimant‘s injury is within the WCJ‘s role as
Accordingly, we conclude that the Board did not err in determining that Claimant‘s medical treatment for the 2006 work injury was compensable under the Act but was not entitled to an award of total disability benefits for the 2004 or 2006 work injuries. The order of the Board is affirmed.
ORDER
AND NOW, this 1st day of October, 2015, the order of the Workers’ Compensation Appeal Board in the above matters is affirmed.
JAMES GARDNER COLINS
SENIOR JUDGE