Thomas v. Workmen's Compensation Appeal Board

629 A.2d 251, 157 Pa. Commw. 207, 1993 Pa. Commw. LEXIS 439
Commonwealth Court of Pennsylvania·Decided July 16, 1993·No. No. 180 C.D. 1993·Published·Cited by 7 cases

Opinion

COLINS, Judge.

Ian Thomas (Thomas) petitions for review of the December 23, 1992 opinion and order of the Workmen’s Compensation Appeal Board (Board). The Board affirmed the order of the referee but modified that order to direct George’s Painting Contractors (George’s) to pay certain medical and litigation expenses incurred by Thomas.

The referee’s findings of fact, which are not contested, can be summarized as follows. Thomas injured his lower back on July 13,1989, when he lifted a heavy radiator while working as a painter. He sought medical treatment on the following day and returned to work on July 20,1989. Thomas again stopped working on August 8,1989 because of pain in his back. At the referee’s first hearing, on December 15,1989, Thomas testified that he still experienced pain in his back and in both hips and that he was unable to return to work because he could not lift and bend as required.

Thomas presented medical testimony from Natawadee Steinhouse, M.D. (Dr. Steinhouse) and from Corey K. Ruth, M.D. (Dr. Ruth). Dr. Steinhouse had treated Thomas since August 22, 1989, and his initial diagnosis was acute lumbosacral sprain and strain with possible right radiculopathy. Dr. Steinhouse testified that on May 2, 1990, Thomas was totally disabled and in need of physical therapy. Dr. Ruth, who first examined Thomas on November 28,1989, testified that Thomas continued to be totally disabled on July 17,1990. Dr. Ruth diagnosed Thomas as having a lumbar discogenic injury which was work-related.

[209] George’s presented medical testimony from Jose Auday, M.D. (Dr. Auday), who examined Thomas on January 9, 1990. Although Thomas complained of pain in his hips, Dr. Auday did not observe any muscle atrophy, radiculopathy, or any nerve root irritation. He testified that Thomas had fully recovered from his lumbosacral sprain as of January 9, 1990 and could return to work without restriction.

The referee found Dr. Auday to be credible and accepted his testimony in its entirety, but he accepted the testimony of Drs. Steinhouse and Ruth only insofar as they established that Thomas had suffered a work-related injury on July 13, 1989 and was totally disabled through 1989. The referee rejected the testimony of Drs. Steinhouse and Ruth to the extent that their testimony conflicted with that of Dr. Auday, and he found additionally, that Thomas did not need medical treatment after January 9,1990. The referee concluded, therefore, that Thomas was disabled from July 14, 1989 until July 19, 1989 and from August 8, 1989 until January 8, 1990. He awarded total disability benefits for those two periods of time and terminated Thomas’ benefits effective January 9, 1990. The referee also directed George’s to reimburse Thomas for certain medical and litigation expenses.

Thomas appealed to the Board, arguing that the referee erred by terminating his benefits, because the record does not support a termination, and because employer had not filed a termination petition. Thomas also argued that the referee erred by not awarding interest from the date of injury to the date of payment. Thomas argued finally that the referee erred by not directing employer to pay certain additional medical and litigation expenses. The Board, after reviewing the record, opined that the referee, based on substantial evidence, had properly determined the period of Thomas’ disability and had, therefore, properly terminated benefits. The Board stated:

In the case before the Referee, Claimant was the party who initiated his action. Therefore, a defense in this matter by Defendant was that Claimant had not suffered a work-related injury, and if he did, such injury had terminated. Clearly, where a Claim Petition was filed and no determina[210] tion had yet been made as to whether Claimant had suffered a work-related injury, the Referee may determine for what period such disability existed. In the interest of administrative justice and efficiency, we believe the Referee should be able to consider the period of disability of Claimant’s injury without requiring Defendant to file a Termination or Suspension Petition at the same time. Therefore, we affirm the Decision of the Referee in this regard.

The Board also determined that employer should pay the additional medical and litigation expenses and interest from the date of injury to the date of payment. The Board then affirmed the order of the referee as modified.

Thomas has petitioned this Court for review of the Board’s order and has presented two issues. He queries first, whether George’s waived the issue of termination of benefits by not raising that issue in its answer to the claim petition. He queries second, whether the Board erred by affirming the referee’s termination of benefits when George’s had not filed a termination petition. “Our scope of review is limited to determining whether an' error of law was made, constitutional rights were violated, or crucial findings of fact were not supported by substantial evidence. Harrell v. Workmen’s Compensation Appeal Board (Circle HVAC), 151 Pa.Commonwealth Ct. 8, 12, 616 A.2d 1051, 1053, petition for allowance of appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992).1

We agree with George’s that Hawkins v. Workmen’s Compensation Appeal Board (Medical College of Pennsylvania), 138 Pa.Commonwealth Ct. 180, 587 A.2d 387 (1991), is dispositive of the matter sub judice. We note, initially, our concern that Thomas’ brief states that there are no cases on point and then fails even to mention Hawkins. Our concern arises because Thomas’ lawyer was also the lawyer for Hawkins. We are constrained to note that Rule 3.3(a)(1) of the Rules of Professional Conduct provides that a lawyer shall not knowingly and falsely state the law to a tribunal. Comment to [211] that rule provides that “[l]egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.” We instruct all attorneys to familiarize themselves with these rules when practicing before this Court.

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Thomas v. Workmen's Compensation Appeal Board, 629 A.2d 251, 157 Pa. Commw. 207, 1993 Pa. Commw. LEXIS 439 (Pa. Ct. App. 1993).

629 A.2d 251 (Thomas v. Workmen's Compensation Appeal Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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