Inservco Insurance Services v. Workers' Compensation Appeal Board

902 A.2d 574, 2006 Pa. Commw. LEXIS 321
CourtCommonwealth Court of Pennsylvania
DecidedJune 13, 2006
StatusPublished
Cited by10 cases

This text of 902 A.2d 574 (Inservco Insurance Services 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
Inservco Insurance Services v. Workers' Compensation Appeal Board, 902 A.2d 574, 2006 Pa. Commw. LEXIS 321 (Pa. Ct. App. 2006).

Opinions

OPINION BY

Judge LEAVITT.

Inservco Insurance Services petitions for review of an order of the Workers’ Compensation Appeal Board denying a petition to terminate workers’ compensation benefits filed by McSquared (Employer). In doing so, the Board reversed the adjudication of a Workers’ Compensation Judge (WCJ) terminating the benefits of Donald Purefoey (Claimant). In this case, we consider whether Employer’s medical expert offered equivocal testimony that failed to recognize Claimant’s judicially established work-related injuries. We reverse the Board’s order and reinstate the WCJ’s adjudication.

Employer erects sets and platforms for trade shows at the Pennsylvania Convention Center in Philadelphia. Claimant worked for Employer as a general laborer and was primarily responsible for transporting materials and supplies and loading and unloading trucks. On October 30, 1999, Claimant sustained a work-related injury to his left foot after it got caught in the wheel of a forklift. Claimant filed a claim petition for workers’ compensation benefits, which Employer contested. The case was assigned to WCJ Nancy Goodwin, who reviewed deposition testimony from Claimant’s treating physician, Ronald B. Greene, M.D., and Employer’s independent medical examiner, Harold D. Schoenhaus, D.P.M.

WCJ Goodwin granted the claim petition and made the following pertinent findings of fact:

9. Based upon Dr. Greene’s examination and review of test results, his diagnosis is credible that as a result of the work injury, Claimant sustained a post-traumatic tarsal tunnel syndrome and post-traumatic degeneration and instability of his Lisfranc’s or tarsometatar-sal joints.
10. Dr. Greene is treating the Claimant for this crush injury which occurred at work on October 30, 1999 with anti-inflammatory medications and a custom molded orthotic for his shoes. However, the long term solution to this problem will be to fuse that joint, but the operation is very risky in that you can lose your foot in that operation, so Dr. Greene is trying to treat the injury with a custom molded orthotic for Claimant’s shoe for as long as possible. The instability in the tarso-metatarsal joint is not going to reverse and is permanent.

WCJ Opinion, 9/28/01, at 3 (emphasis added). WCJ Goodwin ruled that Claimant was entitled to receive compensation benefits for his work-related disability “as of October 30, 1999 and continuing until further order or agreement.” Id. at 4. Employer did not appeal WCJ Goodwin’s decision.

Employer filed a petition to terminate Claimant’s benefits on December 24, 2003, [577]*577alleging that Claimant had Mly recovered as of November 26, 2003. The matter was assigned to WCJ Scott Olin. Claimant testified on his own behalf and again offered deposition testimony from his treating physician, Dr. Greene. Employer also relied on the same expert, Dr. Schoenhaus, who testified regarding his second independent medical examination (IME) of Claimant on November 26, 2003. At that time, Dr. Schoenhaus obtained Claimant’s history, took x-rays of both feet and conducted a physical examination. Dr. Scho-enhaus offered the following relevant testimony on direct examination regarding the injuries previously established by WCJ Goodwin:

Q. Do you have an opinion within a reasonable degree of medical certainty as to whether he had fully recovered from the conditions as outlined in Judge Goodwin’s decision?
A. I saw no evidence of degenerative arthritis at Lisfranc’s joint. So, my opinion is he is fully recovered from that.
Q. And what’s that based on?
A. That is based upon the physical examination I performed, but most importantly, the x-rays. The x-rays are a very objective diagnostic study which showed no evidence of degeneration.

Reproduced Record at 45a-46a (emphasis added) (R.R.-).

Q. ... What is your opinion as to whether he’s fully recovered from the tarsal tunnel syndrome?
A. I would say that I cannot say that he’s completely — that there’s no evidence of any nerve injury that might still exist.

R.R. 47a-48a (emphasis added).

Q. And finally, with respect to the instability of the Lisfranc’s joint, do you believe he’s fully recovered from that condition?
A. Yes. I never saw any of it. And, absolutely, if he ever exhibited, and I never saw it, he shows no evidence of it whatsoever.

R.R. 48a-49a (emphasis added).

After considering the evidence, WCJ Olin found that the physical findings of Dr. Schoenhaus as of November 26, 2003, and his conclusion that Claimant had fully recovered, were more persuasive and credible than the testimony of Dr. Greene. WCJ Opinion, 1/14/05, at 6-7. WCJ Olin also rejected as unpersuasive Claimant’s subjective complaints of left foot discomfort. Id. at 7-8. WCJ Olin granted Employer’s termination petition and Claimant appealed to the Board.

The Board reversed, noting that Dr. Schoenhaus’ “testimony, in our view, is less than positive as to Claimant’s complete recovery from his judicially established work injuries. In addition, it fails to address the finding that Claimant’s instability in the tarsometatarsal joint [was] irreversible and permanent.” Board Opinion, 9/27/05, at 7. The Board also found that Dr. Schoenhaus’ report dated December 2, 2003, was equivocal because he concluded that if Claimant is experiencing any residual numbness it would interfere with his ability to perform his pre-injury job, but that such complaints by Claimant seem to be “suggestive in nature.” Id. Employer’s insurer, Inservco, now petitions this Court to review the Board’s order.1

[578]*578Inservco argues that the Board erred by concluding that Dr. Schoenhaus’ testimony was incompetent. Inservco also contends that WCJ Olin was not bound by WCJ Goodwin’s finding that Claimant’s injuries were permanent in nature. We agree with Inservco’s assertions and will reverse the Board’s order. For purposes of our analysis, we shall address separately the two bases for the Board’s decision: First, whether Dr. Schoenhaus’ testimony, and opinion as to Claimant’s full recovery, should have been barred by the doctrine of collateral estoppel; and, second, whether Dr. Schoenhaus’ testimony and IME report were equivocal.

It is well-settled that an employer may not re-litigate, by way of a petition to terminate benefits, the original medical diagnosis underlying a WCJ’s finding of a claimant’s disability as of the date of the compensation award. Hebden v. Workmen’s Compensation Appeal Board (Bethenergy Mines, Inc.), 534 Pa. 327, 330, 632 A.2d 1302, 1304 (1993). To do so would violate the doctrine of collateral estoppel, which “forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment.” Id. (quoting City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989)). We have carefully reviewed Dr.

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Bluebook (online)
902 A.2d 574, 2006 Pa. Commw. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inservco-insurance-services-v-workers-compensation-appeal-board-pacommwct-2006.