Reading Anthracite Co. v. Workers' Compensation Appeal Board

728 A.2d 408, 1999 Pa. Commw. LEXIS 251
CourtCommonwealth Court of Pennsylvania
DecidedApril 9, 1999
StatusPublished
Cited by1 cases

This text of 728 A.2d 408 (Reading Anthracite Co. 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
Reading Anthracite Co. v. Workers' Compensation Appeal Board, 728 A.2d 408, 1999 Pa. Commw. LEXIS 251 (Pa. Ct. App. 1999).

Opinion

DOYLE, Judge.

Reading Anthracite Company (Employer) appeals an order of the Workers’ Compensation Appeal Board, which reversed an order of a Workers’ Compensation Judge (WCJ) and reinstated Robert Konopka’s (Claimant) benefits.

Claimant was employed by Employer as an equipment operator, and on August 4, 1989, while repairing a dragline shovel, he sustained a work-related injury to his right knee. Employer issued a notice of compensation payable, and Claimant received total disability benefits for a closed period of time from August 4, 1989, to January 6, 1992. Thereafter, Claimant returned to work, and his benefits were suspended under the terms of a supplemental agreement. Upon his return to work, Claimant operated bulldozers, which included larger and newer bulldozers that could be operated by hand controls alone, as well as older and smaller bulldozers that also utilized foot controls. However, Claimant’s physician told him that he should avoid activities that could aggravate his knee condition such as carrying, lifting, or climbing.

On September 11, 1993, while disembarking from a small bulldozer, Claimant slipped and jammed his right knee. Claimant continued to work from September 11th through September 15th; however, on September 16th, Claimant stopped working because he underwent a heart catheterization and an angioplasty procedure, which had been scheduled since September 3rd in order to treat his non-work-related coronary artery disease. Claimant did not return to work thereafter.

On January 3, 1994, Claimant filed a reinstatement petition, alleging that, on September 11,1993, he had “reinjured and/or aggra-vat[ed]” his right knee, the same knee that he had previously injured in August of 1989. He alleged that, on September 15, 1993, his knee injury forced him to stop working and that he has never been able to return .to work. The petition was assigned to the WCJ, who conducted four hearings, from February 22, 1994, to February 28, 1995.

After Claimant’s reinstatement petition was filed, the parties stipulated that

the Petition for Reinstatement currently pending before [the WCJ], alleging that Claimant sustained a recurrence of his disability on September 11, 1993 resulting from a work related injury to his right knee which occurred on August 4, 1989, shall be amended to the extent the Petition shall be treated as a Claim Petition alleging Claimant sustained a new injury to his right knee on September 11, 1993.

(Exhibit C-3, Stipulation of Counsel; Reproduced Record (R.R.) at 208a.) (Emphasis added.) The WCJ found that, in light of the stipulation, the Claimant’s petition was not to be treated as one requesting a reinstatement in the alternative and that Claimant was no longer asking for reinstatement with respect to the August 1989 injury.

At the hearing, Claimant testified as to the facts described above. Claimant also testified that he did not seek immediate medical attention for his knee, and, although he called his physician on September 13, 1993, Claimant’s doctor did not examine his right knee until October 5, 1993. Further, when asked why he stopped working on September 15, 1993, Claimant explained that it was “because of the pain in my knee, and it started to get worse. I had to go for a heart catheterization.” (Notes of Testimony (N.T.), 2/22/94, at 13; R.R. at 56a.)

Claimant also testified that his physician, Dr. Polidora, in October of 1993, released him to return to work with the restriction that he only operate the bulldozers with hand controls and that do not require repetitive motions of the feet. Claimant stated that he contacted Employer in mid-October of 1993 and informed Employer that he would return to work if he could operate the large bulldozer only. Employer, however, never responded to Claimant.

Claimant introduced the testimony of Frank Polidora, M.D. who opined that Claimant sustained a new injury, described as an [410]*410“axial loading injury,” to his knee on September 11, 1993. He further stated that Claimant had severe progressive and degenerative arthritis in his right knee, which was caused by the original August 4,1989 injury and was worsened by the September 11, 1993 injury. Dr. Polidora opined that the September 11th injury rendered Claimant unable to work. However, on cross-examination, Dr. Polidora testified that Claimant’s ability to return to work was contingent on his cardiac condition.

Dr. Polidora also drafted a written report, dated October 5, 1993, wherein he concluded that Claimant was able to return to work with the restriction that he only operate large equipment which does not require repetitive foot motions, but was not working because of his coronary artery disease.

Employer presented the testimony of Dr. Sanford Sternlieb, an orthopedic surgeon, who concluded that Claimant did not suffer a new injury, but rather was experiencing a continuing worsening of knee-related problems due to the original 1989 injury. He determined, as of his July 21, 1994 examination, that Claimant’s knee injury did not prevent him from performing his job as a bulldozer operator, so long as he was not required to do a significant amount of standing, walking, or climbing stairs or ladders. Dr. Sternlieb further noted that Claimant was capable of working in a job where he would be seated.

Claimant’s cardiologist, Dr. Bryan Kluck, testified as to Claimant’s coronary artery disease. He explained that Claimant underwent several procedures before the one performed on September 16, 1993: an angioplasty in June of 1992; catheterization in January of 1993; and an experimental Rotob-lader procedure in April of 1993. Dr. Kluck opined that, from a cardiovascular view, Claimant cannot return to work. Dr. Kluck refused to give any opinion on Claimant’s knee problems, but noted that Claimant’s September 16, 1993 hospital discharge summary did not indicate that Claimant suffered a new knee injury.

After considering the above evidence, the WCJ issued a decision denying Claimant benefits. The WCJ accepted the opinion of Dr. Sternlieb and found as fact that Claimant did not suffer a new injury at all, but instead suffered a recurrence of his 1989 injury on September 11, 1993. Accordingly, the WCJ determined that Claimant did not sustain his burden of proof that he suffered a new knee injury, in the form of an aggravation, in September of 1993.

Furthermore, although the WCJ concluded that Claimant had waived the reinstatement issue, the WCJ found that the September 11th recurrence of Claimant’s knee injury made it impossible for him to perform all the job duties that he was doing before that date, in particular, that Claimant was no longer able to operate the small bulldozers after September 11th. The WCJ held that Claimant’s benefits should not be reinstated, however, because all of Claimant’s wage loss was connected to the heart disease and not to any work-related injury.

Claimant appealed to the Board, which reversed the WCJ. The Board held that the WCJ erred in not reinstating Claimant’s total disability benefits, because the evidence established that Claimant could not do his job due to a recurrence of his original work-related injury. This appeal by Employer followed.

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Bluebook (online)
728 A.2d 408, 1999 Pa. Commw. LEXIS 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reading-anthracite-co-v-workers-compensation-appeal-board-pacommwct-1999.