Westinghouse Elec. v. WCAB (BURGER)

838 A.2d 831
CourtCommonwealth Court of Pennsylvania
DecidedNovember 17, 2003
StatusPublished

This text of 838 A.2d 831 (Westinghouse Elec. v. WCAB (BURGER)) 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
Westinghouse Elec. v. WCAB (BURGER), 838 A.2d 831 (Pa. Ct. App. 2003).

Opinion

838 A.2d 831 (2003)

WESTINGHOUSE ELECTRIC CORPORATION/CBS, Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (BURGER), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 11, 2003.
Decided November 17, 2003.
Reargument Denied January 14, 2004.

*832 Joseph A. Fricker, Jr., Pittsburgh, for petitioner.

Frank J. Grzywinski, Pittsburgh, for respondent.

BEFORE: SMITH-RIBNER, Judge, LEAVITT, Judge, and MIRARCHI, JR., Senior Judge.

Reargument En Banc Denied January 14, 2004.

OPINION BY Judge LEAVITT.

Westinghouse Electric Corporation/CBS (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) requiring Employer to provide treatment to Jeffrey Burger (Claimant) for psychological injuries and chronic pain that resulted from his physical, work-related injuries. To that end, the Board amended the Notice of Compensation Payable (NCP) and remanded the case to the Workers' Compensation Judge (WCJ) to allow Claimant to submit medical bills on proper forms. In other respects, the Board affirmed the decision of the WCJ.

The facts, as found by the WCJ, are as follows. On August 5, 1992, Claimant suffered a work-related injury when he was struck by an automobile.[1] The NCP describes Claimant's injury as "internal injuries, knee strain." Reproduced Record 182a (R.R.____). Claimant received total temporary disability benefits from August 12, 1992 to May 15, 1993, when he returned to work. On August 30, 1995, Claimant was injured in a second work accident. Claimant was hit in the back by a crane lifting a reactor coolant pump and pinned between the scaffolding and the reactor unit. On November 15, 1995, the parties entered into a Supplemental Agreement under which Claimant was paid total disability effective November 8, 1995; this agreement treated his 1995 injury as a recurrence of the 1992 injury. Claimant has continued to receive wage loss and medical benefits through the present.

On October 15, 1998, Claimant filed a Petition to Review Medical Treatment and/or Billing and a Petition for Penalties, alleging that as of October 1, 1998 Employer unilaterally terminated support care (housekeeping services) for Claimant.[2]*833 Employer filed answers denying the material allegations contained in the petitions.

On September 30, 1999, Claimant filed a second Petition to Review Medical Treatment and/or Billing and Petition to Review Compensation Benefits, requesting that the NCP and Supplemental Agreement be amended to include psychological injuries, including sexual dysfunction, that arose from his 1992 work-related injury. Employer filed an answer denying Claimant's allegations. Seven days of hearings were conducted by the WCJ.[3]

Claimant offered his own testimony and the deposition testimony of a psychologist, Thomas W. Sheridan, Ph.D., in support of his petitions. Claimant testified that since his first injury in 1992, he has undergone nine surgeries to his back and left knee and that as a result of these surgeries, he is in constant pain. He further testified that his conditions limit his ability to drive without taking a break, perform household duties, lift more than ten to fifteen pounds, stoop or bend. He wears an ankle foot orthosis (brace) because his left foot drops. Claimant testified that in June of 1998 after the insertion of a morphine pump, he developed an infection that caused him to experience extreme pain, mental anguish, delusions and depression. Because of pain, he has lost his ability to concentrate and suffers memory loss and cognitive disorders.

Dr. Sheridan opined that Claimant suffers sexual dysfunction due to the pain caused by the August 5, 1992 injury. This opinion was supported by the report and billing statements of Peter J. Snyder, Ph. D., who evaluated Claimant for pain, prior to insertion of the morphine pump. By deposition, Parviz Baghai, M.D., confirmed that he had prescribed the insertion of a spinal cord stimulator, a morphine pump and pain medications to treat Claimant's pain.

Claimant testified that Employer refused to pay for a home gym system that was prescribed for him by Cynthia L. DiMauro, M.D. Dr. DiMauro's billing statement and prescription for fitness equipment, as well as a cost projection report on the use of the home gym equipment were entered into evidence.

In response, Employer offered the deposition testimony of Dr. DiMauro, Paul S. Lieber, M.D., and Stuart S. Burstein, M.D. Dr. DiMauro began treating Claimant on August 18, 1997 for chronic pain related to his work injury.[4] Dr. Burstein opined that Claimant did not suffer any psychological problems or sexual dysfunction as a result of his work injuries and that Claimant exaggerated the extent of his pain.

On April 5, 2001, the WCJ circulated a decision that denied Claimant's petition for penalties. It granted in part, and denied in part, Claimant's first review petition,[5] and it granted Claimant's second review *834 petition. The WCJ concluded that Claimant met his burden of establishing that the exercise equipment was prescribed for treatment of Claimant's work injury; that his sexual dysfunction, chronic pain and depression were related to his work injury; and that treatment rendered by Dr. Sheridan was related to Claimant's work injury. The WCJ did not credit Dr. Burstein's opinion. The WCJ credited the testimony of Dr. Lieber, Employer's witness, who observed no signs of symptom magnification.

Accordingly, the WCJ ordered that the NCP for the 1992 injury be amended to include sexual dysfunction, chronic pain disorder, and depression. The WCJ ordered Employer to pay a bill of $4,560 for treatment rendered to Claimant by Dr. Sheridan, and to reimburse Claimant $927.33 for two-thirds of the cost of the exercise equipment.[6] Employer appealed to the Board. The Board remanded to the WCJ to give Claimant the opportunity to submit Dr. Sheridan's medical bills on the forms mandated by Act 44;[7] it affirmed the decision of the WCJ in all other respects. Employer then petitioned for this Court's review.[8]

On appeal, Employer raises four issues. It asserts that the Board erred as a matter of law by allowing Claimant to pursue his claim in a review petition as opposed to a claim petition. Second, the Board erred because the record does not support an amendment to the NCP. Third, the Board erred in requiring Employer to pay for gym equipment. Fourth, the Board erred in remanding the case to allow Claimant to submit claims on the correct forms. We consider these claims seriatim.

The first question is whether the WCJ had authority to modify Claimant's NCP pursuant to Section 413(a) of the Act, 77 P.S. §§ 771-772.[9] Employer asserts that Claimant's review petition under Section 413(a) never should have been allowed. It argues that Claimant's psychological and sexual dysfunction injuries were not the natural consequence of the accepted injuries of "internal injuries and knee strain," and, therefore, Claimant should have filed a claim petition under Section 315[10] of the Act. Further, Employer argues that it did not get notice of *835 Claimant's injury within 120 days of its occurrence as required under Section 311 of the Act,[11] and Claimant did not satisfy the three-year statute of limitations in Section 315 of the Act.

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838 A.2d 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westinghouse-elec-v-wcab-burger-pacommwct-2003.