Pittsburgh Greentree Marriott v. Workmen's Compensation Appeal Board

657 A.2d 1327, 1995 Pa. Commw. LEXIS 180, 1995 WL 222305
CourtCommonwealth Court of Pennsylvania
DecidedApril 17, 1995
DocketNo. 1608 C.D. 1994
StatusPublished
Cited by2 cases

This text of 657 A.2d 1327 (Pittsburgh Greentree Marriott v. Workmen's 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
Pittsburgh Greentree Marriott v. Workmen's Compensation Appeal Board, 657 A.2d 1327, 1995 Pa. Commw. LEXIS 180, 1995 WL 222305 (Pa. Ct. App. 1995).

Opinion

KELLEY, Judge.

Pittsburgh Greentree Marriott (Marriott) and its insurer, Home Insurance Company (HIC), appeal from a decision of the Workmen’s Compensation Appeal Board. The board affirmed a referee’s decision ordering Marriott to pay compensation, litigation costs, and attorney’s fees to its employee, Carol L. McVay (claimant).

On January 24,1992, claimant filed a claim petition alleging that she suffered a disabling injury to the lower back on November 9, 1991, during the course of her employment with Marriott. Marriott and HIC filed a timely answer denying the material allegations set forth in the petition. HIC subsequently filed a petition for joinder. In this petition, HIC alleged that claimant’s disability was the result of a recurrence of an injury incurred on November 19, 1989, at which time, CIGNA Property and Casualty Company (CIGNA) was Marriott’s insurer. In a timely answer, CIGNA denied the material allegations contained in the joinder petition. Claimant requested attorney’s fees on the basis of an unreasonable contest, pursuant to sections 440 and 442 of The Pennsylvania Workmen’s Compensation Act (Act).1

After several hearings, the referee made the following findings of fact:

1. The claimant; James Newell, her restaurant supervisor; and Pegg Sovak, the employer’s director of human resources, testified in this case. Each testified credibly in some respects. Where their testimony differs, your referee has found the claimant the most credible witness. Each has testified honestly, but only the claimant was present in the dining room for her entire shift on November 9, 1991.
2. In November, 1989, the claimant injured her back working for the Greentree Marriott lifting a heavy crate of orange juice containers. Her employer was aware of her injury, because she left work in an ambulance. Although the employer paid her medical bills, no Bureau documents were filed in connection with this work injury.
3. At the time of the November, 1989 work injury, the claimant was working as a waitress. Her job involved walking up and down stairs fifty times per day, reaching, lifting and carrying heavy trays weighing 10-30 pounds, and moving heavy tables. She earned an average weekly wage of $265.53, with a resulting compensation rate of $199.50.
4. The claimant continued to work at her waitress job after she was off work only six days. She did not take medication or receive medical treatment until she was reinjured on November 9, 1991. The claimant had some stiffness in her back since lifting at home the night before. She also [1329]*1329had some back pain of the type she generally associated with her menstrual period.
6. On November 9, 1991, the claimant was unusually busy at work, and had to lift a number of extremely heavy trays. While working she noticed a new, more severe, sharper pain. She finished her shift with difficulty. That evening, she called her supervisor at home and notified him that she had injured her back at work. Later, she called Pegg Sovak and notified her as well. On this date, the claimant earned an average weekly wage of $209.08, with a resulting compensation rate of $188.17.
7. Thomas H. Crews, D.C., saw the claimant at Pegg Sovak’s suggestion. He based his opinion and testimony on the claimant’s history, examination and x-rays. On examination, he noted severe muscle spasm. He referred the claimant for an MRI, and based thereon diagnosed a herniated disc. He treated the claimant’s condition with cold, ultrasound, and “trigger point” therapy. It was Dr. Crews’ opinion that due to the cumulative effect of heavy lifting and carrying heavy trays all day on November 9, 1991, the claimant was injured and became unable to perform her work as a waitress. He did not believe that the claimant’s disability was due to the earlier incident lifting laundry. Your referee credits Dr. Crews’ opinion, which is consistent with the claimant’s history, and with the opinion of Gerald P. Durkan, M.D., the claimant’s treating neurologist.
8. Gerald P. Durkan, M.D., who is Board certified in neurology, psychiatry and emergency medicine, first saw the claimant on November 13, 1991. Based on the claimant’s work history, examination, symptoms, May 14, 1992 CT scan and myelogram, EMB, and nerve conduction studies, Dr. Durkan diagnosed herniated discs at L5-S1. He treated the claimant with steroids and rest, and then referred her to Dr. Baghai, a neurosurgeon, because he thought her a surgical candidate. He found her unable to perform her work as a waitress, due to the November 9, 1991 injury, which resulted from lifting heavy trays. He was certain that this was not a recurrence of the 1989 injury, because of the severe spasm and acute worsening of her pain in 1991. Your referee credits Dr. Durkan’s opinion, which is consistent with the credible testimony of Dr. Crews, and the credible testimony of the claimant. In so doing, your referee notes that both of these witnesses have actually treated the claimant, while Dr. Richter, whose testimony is less credible, has not.
9.Paul L. Richter, M.D., a Board certified neurologist, saw the claimant on one occasion at the request of the HIC. He based his opinion on the claimant’s history, x-rays, CT Scan and MRI. He agreed that the claimant had herniated discs at L5-S1, but attributed her injury and disability to the 1989 injury, primarily because he viewed the lifting of orange crates as a more significant trauma than the repeated lifting and carrying of heavy trays. On cross examination, Dr. Richter did state that it was possible that lifting a 30 pound tray could cause a disc herniation. He did not adequately explain how an individual with such an acute injury could have worked a difficult waitress job for two years, without requiring medication or treatment. Further, Dr. Richter stated that he would have been interested to see if the claimant’s spine had been tilted to the right after the 1989 incident as it was when he examined her. Your referee notes that a St. Clair Hospital, reading of the claimant’s November 19, 1989 stated that “alignment is satisfactory.” For these reasons, your referee finds Dr. Richter’s testimony less reliable than that of the other medical witnesses.
10.Based on the credible testimony of the claimant and Drs. Crews and [1330]*1330Durkan, your referee finds that due to repetitive lifting and carrying at work on November 9,1991, the claimant became totally disabled, effective November 9,1991, while HIC was the carrier.
11. HIC’s contest was not reasonable, because all of the medical evidence in this case supports the claimant’s allegation that she was injured in the course of her employment with the defendant/employer Pittsburgh Greentree Marriott. The defendant employer and the liable carrier HIC failed to so stipulate, (Joint Exhibit 1). Had such a stipulation been made the claimant would have been able to receive compensation while the carriers litigated the issue of which work injury caused the disability.
12. The claimant and her counsel have a reasonable 20% fee agreement. Your referee finds this fee to be appropriate for an award of counsel fees as costs, based upon the amount of work performed and the usual fee charge for this type of case in this area.
13.

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657 A.2d 1327, 1995 Pa. Commw. LEXIS 180, 1995 WL 222305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittsburgh-greentree-marriott-v-workmens-compensation-appeal-board-pacommwct-1995.