WESTINGHOUSE ELEC. v. W.C.A.B. (BURGER), 838 A.2d 831 (Pa.Commw. 2003)

838 A.2d 831

No. 2820 C.D. 2002.Commonwealth Court of Pennsylvania.Submitted: April 11, 2003.
Filed: November 17, 2003. Order Filed: January 14, 2004.

ORDER

COLINS, President Judge.

NOW, January 14, 2004 having considered Petitioner’s application for reargument before the Court en banc, and Respondent’s brief in opposition, the application is denied.

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Joseph A. Fricker, Jr., Pittsburgh, for petitioner.

Frank J. Grzywinski, Pittsburgh, for respondent.

BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; MIRARCHI,, Senior Judge.

OPINION BY Judge LEAVITT.

Westinghouse Electric Corporation/CBS (Employer) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) requiring Employer to provide treatment to Jeffrey Burger (Claimant) for psychological injuries and chronic pain that resulted from his physical, work-related injuries. To that end, the Board amended the Notice of Compensation Payable (NCP) and remanded the case to the Workers’ Compensation Judge (WCJ) to allow Claimant to submit medical bills on proper forms. In other respects, the Board affirmed the decision of the WCJ.

The facts, as found by the WCJ, are as follows. On August 5, 1992, Claimant suffered a work-related injury when he was struck by an automobile.[1] The NCP describes Claimant’s injury as “internal injuries, knee strain.” Reproduced Record 182a (R.R.___). Claimant received total temporary disability benefits from August 12, 1992 to May 15, 1993, when he returned to work. On August 30, 1995, Claimant was injured in a second work accident. Claimant was hit in the back by a crane lifting a reactor coolant pump and pinned between the scaffolding and the reactor unit. On November 15, 1995, the parties entered into a Supplemental Agreement under which Claimant was paid total disability effective November 8, 1995; this agreement treated his 1995 injury as a recurrence of the 1992 injury. Claimant has continued to receive wage loss and medical benefits through the present.

On October 15, 1998, Claimant filed a Petition to Review Medical Treatment and/or Billing and a Petition for Penalties, alleging that as of October 1, 1998 Employer unilaterally terminated support care (housekeeping services) for Claimant.[2]

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Employer filed answers denying the material allegations contained in the petitions.

On September 30, 1999, Claimant filed a second Petition to Review Medical Treatment and/or Billing and Petition to Review Compensation Benefits, requesting that the NCP and Supplemental Agreement be amended to include psychological injuries, including sexual dysfunction, that arose from his 1992 work-related injury. Employer filed an answer denying Claimant’s allegations. Seven days of hearings were conducted by the WCJ.[3]

Claimant offered his own testimony and the deposition testimony of a psychologist, Thomas W. Sheridan, Ph.D., in support of his petitions. Claimant testified that since his first injury in 1992, he has undergone nine surgeries to his back and left knee and that as a result of these surgeries, he is in constant pain. He further testified that his conditions limit his ability to drive without taking a break, perform household duties, lift more than ten to fifteen pounds, stoop or bend. He wears an ankle foot orthosis (brace) because his left foot drops. Claimant testified that in June of 1998 after the insertion of a morphine pump, he developed an infection that caused him to experience extreme pain, mental anguish, delusions and depression. Because of pain, he has lost his ability to concentrate and suffers memory loss and cognitive disorders.

Dr. Sheridan opined that Claimant suffers sexual dysfunction due to the pain caused by the August 5, 1992 injury. This opinion was supported by the report and billing statements of Peter J. Snyder, Ph.D., who evaluated Claimant for pain, prior to insertion of the morphine pump. By deposition, Parviz Baghai, M.D., confirmed that he had prescribed the insertion of a spinal cord stimulator, a morphine pump and pain medications to treat Claimant’s pain.

Claimant testified that Employer refused to pay for a home gym system that was prescribed for him by Cynthia L. DiMauro, M.D. Dr. DiMauro’s billing statement and prescription for fitness equipment, as well as a cost projection report on the use of the home gym equipment were entered into evidence.

In response, Employer offered the deposition testimony of Dr. DiMauro, Paul S. Lieber, M.D., and Stuart S. Burstein, M.D. Dr. DiMauro began treating Claimant on August 18, 1997 for chronic pain related to his work injury.[4] Dr. Burstein opined that Claimant did not suffer any psychological problems or sexual dysfunction as a result of his work injuries and that Claimant exaggerated the extent of his pain.

On April 5, 2001, the WCJ circulated a decision that denied Claimant’s petition for penalties. It granted in part, and denied in part, Claimant’s first review petition,[5] and it granted Claimant’s second review

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petition. The WCJ concluded that Claimant met his burden of establishing that the exercise equipment was prescribed for treatment of Claimant’s work injury; that his sexual dysfunction, chronic pain and depression were related to his work injury; and that treatment rendered by Dr. Sheridan was related to Claimant’s work injury. The WCJ did not credit Dr. Burstein’s opinion. The WCJ credited the testimony of Dr. Lieber, Employer’s witness, who observed no signs of symptom magnification.

Accordingly, the WCJ ordered that the NCP for the 1992 injury be amended to include sexual dysfunction, chronic pain disorder, and depression. The WCJ ordered Employer to pay a bill of $4,560 for treatment rendered to Claimant by Dr. Sheridan, and to reimburse Claimant $927.33 for two-thirds of the cost of the exercise equipment.[6]
Employer appealed to the Board. The Board remanded to the WCJ to give Claimant the opportunity to submit Dr. Sheridan’s medical bills on the forms mandated by Act 44;[7] it affirmed the decision of the WCJ in all other respects. Employer then petitioned for this Court’s review.[8]

On appeal, Employer raises four issues. It asserts that the Board erred as a matter of law by allowing Claimant to pursue his claim in a review petition as opposed to a claim petition. Second, the Board erred because the record does not support an amendment to the NCP. Third, the Board erred in requiring Employer to pay for gym equipment. Fourth, the Board erred in remanding the case to allow Claimant to submit claims on the correct forms. We consider these claims seriatim.

The first question is whether the WCJ had authority to modify Claimant’s NCP pursuant to Section 413(a) of the Act, 77 P. S. § 771-772.[9] Employer asserts that Claimant’s review petition under Section 413(a) never should have been allowed. It argues that Claimant’s psychological and sexual dysfunction injuries were not the natural consequence of the accepted injuries of “internal injuries and knee strain,” and, therefore, Claimant should have filed a claim petition under Section 315[10] of the Act. Further, Employer argues that it did not get notice of

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Claimant’s injury within 120 days of its occurrence as required under Section 311 of the Act,[11] and Claimant did not satisfy the three-year statute of limitations in Section 315 of the Act. Since Claimant’s petition was filed on February 7, 2001, almost nine years after his injury on August 5, 1992, Employer asserts that it is untimely. Employer contends that a reversal of the Board is compelled by this Court’s decision in Jeanes Hospital v. Workers’ Compensation Appeal Board (Hass), 819 A.2d 131 (Pa.Cmwlth. 2003). We disagree.

In Jeanes Hospital, this Court found that when seeking compensation benefits for disabilities that are related to, but distinct from, an injury described in an NCP, a claimant must file a claim petition, not a review petition.[12] In that case, the claimant’s fibromyalgia and pain disorder were conditions not identified on the NCP; her new physical problems the were separate and distinct from the original low back injury on the NCP; and claimant did not prove that her new physical problems were a natural consequence of the original injury. Claimant never sought to amend the description of her injury on the NCP until the employer filed a suspension/termination petition four years after the original injury. Accordingly, we held that Section 315, which establishes a statute of repose, barred an amendment to the claimant’s NCP.[13]
Jeanes Hospital followed this Court’s earlier holding in ATT v. Workers’ Compensation Appeal Board (Hernandez), 707 A.2d 649 (Pa.Cmwlth. 1998). In that case, we noted that the claimant should have filed a claim petition because he did “not contend that his aseptic necrosis of the hips occurred as a natural consequence of the back sprain or was, in fact, related to the back sprain in any way.” Hernandez, 707 A.2d at 650 n. 2. The form of the petition was not determinative because the employer failed to prove that claimant had fully recovered; accordingly, the WCJ’s determination that claimant remained disabled was affirmed.[14]

Employer’s reliance upon Jeanes Hospital and Hernandez is misplaced. They are factually distinguishable, and they do not stand for the broad proposition, as suggested by Employer, that an NCP must be modified within three years of the occurrence of an injury.[15] In Jeanes Hospital,

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the employer was presented with a separate and distinct physical injury after claimant’s right to assert a new injury had been extinguished by the statute of repose. In Hernandez, the claimant did not assert that the new injuries were the natural consequence of the original. Here, by contrast, Claimant acknowledged that he had the burden of relating his psychological difficulties to his work-related injury and specifically sought to amend the NCP.

Further, so long as there is a causal relationship between a psychological and physical injury, a claimant is not bound by the statute of repose in Section 315 of the Act. In Commercial Credit Claims v. Workers’ Compensation Appeal Board (Lancaster), 556 Pa. 325, 728 A.2d 902
(1999), our Supreme Court held that the claimant, not the employer, bears the burden of establishing a causal relationship between a work-related injury and a subsequent psychiatric injury where the NCP relates only to physical injuries. At issue there was employer’s termination petition; the claimant had not petitioned to modify the terms of the original NCP in accordance with the Act.[16] The Supreme Court refused to allow the claimant to shift the burden of proof on whether his psychiatric injury was related to the work-related injury merely by contesting the employer’s termination petition. However, the Supreme Court noted that the Claimant was not without recourse even though sixteen years had elapsed since the original injury:

Claimant may still file a Petition for Review seeking to amend the original Notice of Compensation Payable by meeting his burden of proving that he suffered a work-related mental disability as a result of the work-related physical injury for which employer accepted liability.

Commercial Credit Claims, 556 Pa. at 332, 728 A.2d at 906.[17]

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In sum, Employer’s effort to shoehorn Claimant’s petition into a Section 315 petition must be rejected. Section 413(a) of the Act[18]
applies to those situations where the parties have previously agreed upon the compensation payable, but a dispute arises as to the nature of the injury accepted or the continued disability of the claimant. At the time he filed his review petition, Claimant was receiving medical and wage loss benefits pursuant to an agreement with Employer. Accordingly, Section 413(a), not Section 315, applied to Claimant’s petition. As required by Section 413(a) of the Act, Claimant’s petitions were filed “within three years after the date of the most recent payment of compensation made prior to the filing of such petition.”77 P. S. § 772. They were, therefore, timely, and a review petition was the proper filing for considering the issue of whether Claimant’s physical injuries had additional, psychological consequences.

Next, Employer argues that even if Claimant was able to seek an amendment to his NCP by filing a review petition pursuant to Section 413(a) of the Act, he failed to meet his burden of proof for such an amendment. Again, we disagree.

Section 413(a) of the Act requires the moving party to prove that a disability has “increased,” and to prove the causal relationship between the original injury and the amending disability. Claimant had the burden of establishing the causal relationship between the work-related injury and his psychiatric disability by unequivocal medical testimony. Carnegie Mellon University v. Workmen’s Compensation Appeal Board (Lenz), 645 A.2d 389 (Pa.Cmwlth. 1994). This causal connection may be shown to arise from medical treatment for the physical injury. Brockway v. Workers’ Compensation Appeal Board (Collins), 792 A.2d 631 (Pa.Cmwlth. 2002).

Here, Claimant met his burden of proving that his disabilities had increased and that those disabilities were caused by the work-related injury noted on the NCP. The WCJ credited the testimony of Claimant’s medical expert, Dr. Sheridan, on Claimant’s psychological condition and sexual dysfunction,[19] and he rejected the opinion of Employer’s witness, Dr. Burstein.[20]

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This is the province of the factfinder. Cittrich v. Workers’ Compensation Appeal Board (Laurel Living Center), 688 A.2d 1258 (Pa.Cmwlth. 1997). In short, the WCJ’s findings are supported by the record, and the Board did not err in affirming the WCJ in this regard.

Employer claims, however, that the testimony of Dr. Sheridan was incompetent, and, therefore, the WCJ’s finding that Claimant’s depression, sexual dysfunction and chronic pain disorder were causally related to Claimant’s work-related injury is not supported by substantial evidence. Employer claims that Dr. Sheridan acted as an advocate for Claimant, which Employer believes to be an impermissible deviation from his role as an expert witness.[21] In any case, Employer asserts that Dr. Sheridan, a psychologist, is incompetent to establish the medical diagnosis of sexual dysfunction and chronic pain disorder.

The WCJ found that Claimant’s sexual dysfunction was not related to the organic problems caused by the original work injury but, rather, was due to the pain caused by that injury. This finding is based upon all the medical testimony, as a whole, specifically that of Claimant’s treating medical doctors. Dr. Sheridan’s testimony was based partially upon the report of Dr. Snyder, the psychologist at the pain clinic who initially evaluated Claimant for insertion of the morphine pump, and subsequently treated him for depression and chronic pain. An expert may express an opinion based, in part, upon the reports of others upon which the expert customarily relies in his profession. Pistella v. Workmen’s Compensation Appeal Board (Samson Buick Body Shop), 633 A.2d 230 (Pa.Cmwlth. 1993).

Employer’s objection goes to the weight of the evidence and not to its competency. Kocher v. Workmen’s Compensation Appeal Board (B.G. Coon Construction Co.), 415 A.2d 162 (Pa.Cmwlth. 1980). As noted, the authority of the WCJ over questions of credibility, conflicting medical evidence, and evidentiary weight is unquestioned. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383 (Pa.Cmwlth. 1995). We find no merit in Employer’s argument regarding the competence of Dr. Sheridan’s testimony or the weight given to it by the WCJ.

Next, we consider whether the Board erred in requiring Employer to reimburse Claimant for two-thirds of the cost of gym equipment the purchased.[22] The home exercise equipment was prescribed by Dr. DiMauro as part of the physical therapy prescribed to treat Claimant’s chronic pain and weakness. Employer asserts that there is a lack of evidence to relate Claimant’s chronic pain to the injuries of “internal injuries, knee strain” noted on the NCP. This argument is unavailing because the NCP was amended. Claimant’s psychological injuries and constant pain were caused by his physical

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work-related injuries and the surgeries they required.

Alternatively, Employer contends that since Claimant gave away some of the equipment, he should receive no reimbursement. The WCJ struck a reasonable compromise on this point that we decline to disturb. The equipment was prescribed, but there was no guarantee that it would be efficacious. Employer offers no case law or statutory authority to support this point.

Finally, we consider Employer’s challenge to the Board’s decision to remand this case to the WCJ to require Dr. Sheridan to resubmit his bills in accordance with Section 306(f.1) of the Act, 77 P. S. § 531. Under this provision, medical bills causally related to a work-related injury must be paid by employer.

However, the obligation to pay does not begin to run until bills are submitted on the proper medical forms with a monthly medical report. The appropriate remedy where, as here, a provider has failed to submit medical bills in the proper form is to remand the matter to the WCJ. ATT v. Workers’ Compensation Appeal Board (DiNapoli), 728 A.2d 381, 384
(Pa.Cmwlth. 1999) (ordering the Board to remand to the WCJ to provide the provider “the opportunity to submit his medical bills on those forms mandated by Act 44.”) The Board’s remand to the WCJ was correct.

For the above reasons, we affirm the decision of the Board.

ORDER
AND NOW, this 17th day of November, 2003, the order of the Workers’ Compensation Appeal Board dated November 4, 2002, in the above-captioned matter is hereby affirmed.