Condran v. Workers' Compensation Appeal Board (H.B. Reese Candy Co.)

721 A.2d 1133, 1998 Pa. Commw. LEXIS 842, 1998 WL 777985
CourtCommonwealth Court of Pennsylvania
DecidedNovember 10, 1998
Docket1450 C.D. 1998
StatusPublished
Cited by3 cases

This text of 721 A.2d 1133 (Condran v. Workers' Compensation Appeal Board (H.B. Reese Candy Co.)) 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
Condran v. Workers' Compensation Appeal Board (H.B. Reese Candy Co.), 721 A.2d 1133, 1998 Pa. Commw. LEXIS 842, 1998 WL 777985 (Pa. Ct. App. 1998).

Opinion

NARICK, Senior Judge.

This appeal is brought by Jean Condran (Claimant) from a Decision and Order of the Workers’ Compensation Appeal Board (Board) affirming the Workers’ Compensation Judge’s (WCJ) grant of H.B. Reese Co.’s (Employer) Petition to Suspend benefits. The primary issue presented on appeal is whether the WCJ erred as a matter of law by concluding that Employer met its burden of producing a referral to an open job which Claimant was medically cleared to perform.

Claimant worked for Employer as a bag-ger in the Kit Kat Department when she suffered a work-related injury on May 10, 1991. At the end of her shift Claimant was leaving work when she fell off a sidewalk curb sustaining a fractured left foot, sprained ankle and back injury. Employer issued a notice of compensation payable pursuant to which Claimant was paid total disability benefits at a rate of $368.75 per week based on an average weekly wage of $553.10.

Employer’s medical department referred Claimant to Tristan Associates and Dr. Balog for an x-ray and treatment of her foot fracture and ankle sprain. By way of referral, Claimant subsequently treated with Drs. Bla-isdel, Wetzel, and Kuhlengel for her back injury. In June 1992 and again in May 1993, GAB Business Services, Employer’s workers’ compensation claims administrator, directed Claimant to report for an independent medical examination (IME) with John S. Rychak, M.D., a board certified orthopedic surgeon. 1 Dr. Rychak examined Claimant and released her for light-duty work at four hours per day with pain management training and physical therapy recommended for an additional four hours per day. Since April 4,1994, Claimant has primarily treated with David C. Trostle, M.D., board certified in Internal Medicine and Rheumatology.

On March 28, 1994, Employer mailed Claimant a notice of available work starting April 4, 1994 at her time of injury wage. The letter indicated that Employer received notice that Claimant was medically cleared to return to work at a sedentary/light-duty capacity. Employer offered Claimant a “pat- *1135 down, load books, Kit-Kat molding” position at eight hours per day, five days per week. Claimant informed Employer that she could not return to work on April 4, 1994 due a previously scheduled doctor appointment. Employer responded that Claimant would be expected to report to work the following day, April 5, 1994. Claimant failed to ever report to work for Employer, which prompted Employer to file a Petition to Suspend benefits effective April 4,1994.

The WCJ held hearings in this matter on June 24, 1994 and September 28, 1994. Claimant testified on her own behalf and presented the deposition testimony of Dr. Trostle. Employer presented the testimony of its safety supervisor, Rhonda Kurtz, and the deposition testimony of Dr. Rychak.

Dr. Trostle testified that he reviewed Claimant’s CT Scan and concluded that her May 10, 1991 work injury caused a left pos-terolateral herniation at the L5-S1 disc with probable compression of the left L5 nerve root. Dr. Trostle further diagnosed Claimant as suffering from post-traumatic or reactive fibromyalgia secondary to her work related injury. 2 Dr. Trostle opined that Claimant continues to suffer chronic diffuse pain as a result of her work injury, which precludes her from performing even light-duty work. (Deposition of Dr. Trostle, at 10-13, R.R. at 187a-190a).

Dr. Rychak testified that he found no evidence of fibromyalgia and that his physical examination revealed only sparse objective findings regarding Claimant’s low back injury. Dr. Rychak stated that he found no objective medical evidence that Claimant suffered a herniation of the L5-S1 disc. Dr. Rychak further testified that he preferred to have Claimant undergo a functional capacity evaluation (PCE) before recommending a return to work. From what could be gleaned from the record, an FCE is a medical assessment conducted over an eight-hour period, which tests an individual’s physical capabilities including their strength, flexibility, stamina and a measure of whether the patient is consistently providing a full volitional effort. 3

Relying on the results of the FCE, Dr. Rychak released Claimant to return to work. Dr. Rychak’s release restricted Claimant to perform sedentary, light-duty work for four hours per day in conjunction with an additional four hours of physical therapy and pain management training each day. Dr. Rychak opined that “[t]he goal of the therapy would be to improve her flexibility and endurance which may make her more feasible for employment, along with psychological counseling which will address her focus on pain.” (Deposition of Dr. Rychak, at 49, R.R. at 95a). Dr. Rychak concluded that Claimant would progress to an eight-hour, five day a week light-duty position after completing the physical therapy and pain management counseling.

After considering the evidence the WCJ issued a decision granting Employer’s Petition to Suspend Claimant’s benefits effective April 8,1994. The WCJ found the testimony of Dr. Trostle less than credible largely because he first saw Claimant nearly three years after her injury and was not provided numerous medical records on which to formulate an opinion. (WCJ Decision, May 24, 1996, Finding of Fact No. 33, at 8, R.R. at 235a). The WCJ found the testimony of Dr. Rychak persuasive and credible based on his thorough examination and review of numerous medical records and diagnostic studies. 4 *1136 (Finding of Fact No. 34). Further, the WCJ found that Claimant lacked credibility regarding her complaints and limitations and that she failed to make a good faith effort to return to available employment. (Finding of Fact No. 23).

Claimant appealed the WCJ’s Decision to the Board, which affirmed the suspension of benefits. The Board affirmed the WCJ’s decision that Employer sustained its burden of proving that work was available within Claimant’s capabilities and that Claimant had failed to pursue this job in good faith. Claimant now appeals the Board’s order to this Court. 5

On appeal, Claimant argues that the WCJ’s decision is not based on substantial evidence 6 of record because the record does not contain evidence showing that Dr. Ryc-hak released Claimant to work an eight-hour shift. Employer argues that the WCJ properly exercised his discretion as fact finder by concluding that Employer met its burden of producing a position within Claimant’s capabilities. Specifically, Employer asserts that the WCJ relied on Dr. Rychak’s response to a question asking that he render an opinion based solely on a review of Claimant’s MRI and clinical examination results regarding Claimant’s ability to work the eight hour shift. Limiting his focus to these two sources of information, Dr. Rychak responded that he saw no contraindication for Claimant performing the position as offered by Employer. 7 Claimant counters that Dr. Ryc-hak made this statement in response to a hypothetical question based on artificial parameters. Claimant argues that Employer extracted this statement from Dr.

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721 A.2d 1133, 1998 Pa. Commw. LEXIS 842, 1998 WL 777985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/condran-v-workers-compensation-appeal-board-hb-reese-candy-co-pacommwct-1998.