Combined Insurance Co. of America v. Workers' Compensation Appeal Board

754 A.2d 59, 2000 Pa. Commw. LEXIS 236
CourtCommonwealth Court of Pennsylvania
DecidedMay 10, 2000
StatusPublished
Cited by2 cases

This text of 754 A.2d 59 (Combined Insurance Co. of America v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Combined Insurance Co. of America v. Workers' Compensation Appeal Board, 754 A.2d 59, 2000 Pa. Commw. LEXIS 236 (Pa. Ct. App. 2000).

Opinion

RODGERS, Senior Judge.

Combined Insurance Company of America (Employer) petitions for review of án order of the Workers’ Compensation Appeal Board (Board) that reversed a workers’ compensation judge’s (WCJ) order granting Employer’s suspension petition and affirmed the dismissal of Jeffrey Levine’s (Claimant) petition to review the notice of compensation payable. We affirm.

Claimant sustained a lumbar strain injury on July 27, 1992 and received benefits pursuant to a notice of compensation payable. On' July 12, 1995, Employer filed a suspension petition, alleging that Claimant was released without restriction to return to his pre-injury position as an insurance salesman and sales manager as of December 5, 1993, and that Claimant refused in bad faith to accept that position.1 Claimant denied the allegations and the matter was assigned to a WCJ.

Employer presented the testimony of Janet Louise Maurer, Employer’s divisional sales administrator, Solomon Kahane, Claimant’s manager, and Carol McMillian, a claims examiner for Employer’s insurance carrier. Mr. Kahane testified about the duties involved in the sales manager position and Ms. Maürer and Ms. McMilli-an both testified about the notice provided to Claimant concerning the availability of the job. Both Ms. Maurer and Ms. McMil-lian also indicated that they had no knowledge about Claimant’s intended move to Florida until Ms. Maurer spoke with Claimant on the day he acknowledged receiving the letter instructing him to return to work.

Employer also presented the deposition testimony of Jan B. Wemple, M.D., a board-certified neurosurgeon, who exaim-ined Claimant on September 14, 1993, after a referral froift Claimant’s treating physician. Claimant provided Dr. Wemple with a history, explaining that he began having back problems following a slip on ice in 1991, which was followed by a fall when Claimant was chased by a dog. The referral requested an evaluation for possible surgery. Based on a review of tests, an examination and Claimant’s description of his job duties, Dr. Wemple believed that Claimant would be unable to perform his [61]*61pre-injury job. However, following receipt of photographs and a videotape taken in July 1993, depicting Claimant performing various activities, Dr. Wemple indicated that Claimant’s limitations were not as extensive as he had believed at the time of the examination on September 14, 1993. Dr. Wemple revised his opinion, stating that as of December 5, 1993, Claimant was capable of performing light to moderate work. He approved the job description provided by Employer, concluding that Claimant could perform his pre-injury job duties as an insurance salesman/manager.

Claimant testified on his own behalf, acknowledging receipt of notice of the job opening approved by Dr. Wemple. He further acknowledged that he did not contact Mr. Kahane or Dr. Wemple and that he did not attempt to return to work with Employer. Claimant also testified that he moved to Florida on February 7, 1994 and began working as a telemarketer. He testified that his present job allowed the use of a special chair, but that with his continuing pain he would be unable to perform the driving and door-to-door sales calls required by his prior position. When presented with the photographs and a videotape over the objection of his attorney,

Claimant acknowledged that he appears in six (6) photographs, that were marked Defense Exhibit # 2, in which he is depicted bending over a lounge chair, jumping into a swimming pool, and photographs of the Claimant walking about a pool deck.

(WCJ’s decision, Finding of Fact No. 5, p. 4).

We note that the WCJ overruled Claimant’s objection to the admission of the photographs (Reproduced Record, p. 63a), and Claimant’s testimony about the photographs formed the basis for the WCJ’s Finding of Fact No. 5, set forth above. However, the WCJ did not rule on Claimant’s objection to the videotape, rather the WCJ acceded to the parties agreement.2

Claimant also presented the deposition testimony of Bram Riegel, M.D., board-certified in physical medicine and rehabilitation, who maintains a practice in Sarasota, Florida. Dr. Riegel treated Claimant on September 16, 1994, November 15, 1994, March 20, 1996, and August 19, 1996. Dr. Riegel did not believe Claimant could perform his pre-injury job in September of 1994 and he was not certain that Claimant was capable of performing that position in 1996.

The WCJ found Employer’s witnesses more credible than Claimant and his medical witness. The WCJ specifically stated that “[t]he opinion and testimony of Dr. Wemple is credible, that the Claimant was capable of performing his pre-injury job of insurance sales manager, as of December 5, 1993, especially after reviewing the photographs and surveillance evidence, that he was capable of much greater physical activity than Dr. Wemple had been led to believe.” (WCJ’s decision, Finding of Fact No. 17, p. 10).

Accordingly, the WCJ formulated the following Conclusions of Law, stating that:

2. [Employer] has met its burden of proof to establish, by substantial, competent and credible evidence, that Claimant recovered from his work-related injury, to the extent that he was able to perform employment made available to him by [Employer], as of February 7, 1994. '
3. [Employer] has met its burden of proof to establish that the position of sales manager was made available to the Claimant, as of February 7, 1994, which [62]*62was medically suitable and approved by Dr. Wemple.
4. [Employer] has met its burden of proof to establish that the Claimant authenticated photographic and video evidence offered by [Employer],
5. Claimant has failed to meet his burden of proof to establish that he, in good faith, attempted to perform the sales manager position, which was made available to him on and after February 7, 1994.

(WCJ’s decision, Conclusions of Law, pp. 12-13). Thus, the WCJ granted Employer’s suspension petition and Claimant appealed to the Board, which reversed. The Board reasoned that the WCJ’s Conclusion No. 4 was based on Finding of Fact No. 5, which was in turn based on improperly introduced exhibits. The Board explained that Employer had failed to properly authenticate the photographic exhibits as agreed to by the parties.3 Although the Board noted that case law provides that a witness on cross-examination may authenticate a videotape or photographs by admitting that he or she is the individual depicted, the Board concluded that the WCJ should have stricken Claimant’s testimony concerning these exhibits in light of the parties’ agreement.

Likewise the Board concluded that Dr. Wemple could not rely on these improperly admitted exhibits to change his opinion that Claimant could perform his pre-injury job. Without Dr. Wemple’s testimony, the Board concluded that 'Employer had not carried its burden of proving that a suspension should be granted. Therefore, the Board reversed the WCJ’s grant of the suspension petition.

Employer now appeals to this Court,4 arguing that when the record contains other substantial, competent evidence upon which Dr. Wemple relied, the WCJ committed harmless error in admitting the photographic and videotape evidence authenticated by Claimant. Specifically, Employer argues that although Dr.

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754 A.2d 59, 2000 Pa. Commw. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/combined-insurance-co-of-america-v-workers-compensation-appeal-board-pacommwct-2000.