IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia Corporation for Aging : and Liberty Mutual, : Petitioners :

:

v. : No. 1226 C.D. 2017

: SUBMITTED: February 2, 2018 Workers' Compensation Appeal : Board (Canty), : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: April 2, 2018

Philadelphia Corporation for Aging and Liberty Mutual (collectively

, “Employer”) petition for review of an order of the Workers’ Compensation Appeal

Board (Board) that reversed the order of a Workers’ Compensation Judge ( WCJ )

,

after remand, granting Employer’s petition to terminate the workers’ compensation

benefits of Adrian L. Canty (Claimant). We affirm.

Claimant sustained a n April 2012 work

- related injur y in the nature of

cervical, dorsal, and lumbar strain s as the result of a car acci dent during the course

of her employment as an assessment worker for Employer

. (WCJ’s September 21,

2016, Decision, Findings of Fact (F.F.) Nos. 4(a) and 12.) Following the initial

litigation, t he WCJ granted her claim petition and dismissed Employer’ s f irst

termination petition. Employer filed a second termination petition in September2

2014, alleging that Claimant had fully recovered from her work injur y as of August

13, 2014

, the date of Steven Hausmann, M.D. ’s independent medical examination

(IME) . I n July 2015 , the WCJ granted Employer’s second termination petition,

concluding that , as of the date of the IME, Claimant was fully recovered from her

work injuries and able to return to her pre

- injury job.

In May 2016, the Board remanded the matter to the WCJ to determine

whether Employer had met its burden of establishing a change in Claimant’s

physical condition between the denial of the first termination petition and the second

in accordance with Lewis v. Workers’ Compensation Appeal Board (Giles &

Ransome, Inc.) , 919 A.2d 922 (Pa. 2007). T he WCJ issued a September 2016

decision with three new fact

- findings and , once again, concluded that Employer had

met its burden

. T he Board reversed and Employer’s petition for review follow ed.

On appeal, Employer maintains that the Board erred in determining that

the WCJ’s decision was not supported by substantial competent evidence

. In

addition, Employer asserts that the Board improperly reweighed the evidence and

disregarded the WCJ’s cr edibility determinations, which Employer contends support

a conclusion that Claimant’s ongoing complaints a re unrelated to the work injury

. Employer’s position is without merit.

In order to terminate benefits based on the theory that a claimant’s

disabil ity has reduced or ceased due to an improvement in physical ability: “ [I]t is

first necessary that the employer’s petition be based upon medical proof of a change

in the claimant’s physical condition. Only then can the [WCJ] determine whether

the change in physical condition has effectuated a change in the claimant’s disability,

i.e., the loss of his earning power. ” Id . at 926. W here termination has been denied

and the employer seeks a subsequent termination, the employer must establish that3

a change in physical condition has occurred since the preceding disability

determination. Id

. “Absent this requirement ‘a disgruntled employer (or claimant)

could repeatedly attack what he considers an erroneous decision of a [WCJ] by fi l ing

petitions ba sed on the same evidence ad infinitum, in the hope that one [WCJ] would

finally decide in his favor.’” Id . (citations omitted) . In summary , a simple finding

of full recovery is insufficient. The WCJ must render a fact

- finding accepting as

credible a med ical expert’s opinion of full recovery and that this constitutes a change

in the claimant’s physical condition since the last disability a d judic a tion. Delaware

Cty. v. Workers’ Comp. Appeal Bd. (Br o wne) , 964 A. 2d 29, 35 (Pa. Cmwlth. 2008).

In the present case, the WCJ issu ed three new fact

- findings in response

to the Board’s directive to address Lewis . One finding recited the remand and the

reason therefore and the remaining two were as follows:

17. The undersigned finds that the weight of the

medical e vidence shows an improvement in the

Claimant’s condition

– a change in [her] condition

– from the time of the first decision denying termination until the time of the second decision of July 20, 2015 granting termination. Among other things, [Michael Molter, D.O.], one of [her] treating doctors, found [her] at maximum

medical improvement [MMI] just prior to Dr. Hausmann’s August 13, 2014 examination. Additionally , the undersigned in my June 10, 2013 decision found [her] less than fully recovered, acce pting Dr. Hausmann in part.

18. Two years had passed between the October 5, 2012 and August 13, 2014 Dr. Hausmann examinations. I

find Claimant improved in that interval

– her condition changed

– warranting a termination as of August 13, 2014.

(F.F. Nos . 17 and 18.) For the following reasons, we agree with the Board that

Employer failed to meet its burden.4 As the Board noted

, the WCJ on remand relied , in part, on the opinion

of Claimant’s treating doctor, Dr. Molter. He opined tha t, just before Dr.

Ha usmann’s 2014 IME

, Claimant was at her maximum medical improvement

( MMI ) . T he Board rejected the WCJ’s reliance on Dr. Molter , however, concluding

that a determination of “MMI does not signify a change in physical condition , but

rather that a claimant’s c ondition has stabilized and her condition is unlikely to

improve any further.” (Board’s August 10, 2017, Decision at 6.) The Board’s

analysis is sound.

As even the WCJ acknowledged, MMI “is the point where no further

treatment is going to be effective for the patient and that is where they’re [sic] at; no

other treatment is available.” (F.F. No. 9(p).) In that regard, the WCJ in his finding

pertaining to Dr. Molter stated:

9(o). Dr. Molter fou nd that they could do nothing else, so he found Claimant to be at [MMI]

. There was no
other treatment available, so that would make her recovered as much as she’s going to [be] from her accident. There are still the subjective complaints, but

there isn’t any indication that she has any condition that was curable in any way.

. . . . (q). Dr. Molter didn’t find Claimant to be fully

recovered , but her injuries were basically soft tissue injuries and the abnormalities on the diagnostic study

couldn’t be con strued as being related. So the soft tissue injuries heal within eight to twelve weeks. They cannot really say why Claimant is still in pain. In terms of medical treatment for any specific traumatic injuries that occurred, there’s nothing further availa ble because those injuries have healed at this point and fully resolved.

( Id ., No. 9(o) and (q) (emphasis added ) )

.5 By way of analysis, t he meaning of the MMI determination was that

there was nothing more to do for Claimant , not that there necessarily was a complete

healing and resolution of her work injur ies

. Accordingly, notwithstanding the

WCJ’s reference to the nature of soft tissue injuries, th e above finding simply does

not support his conclusion that the MMI determination was tantamount to a change

in Claimant’s medical condition and full recovery since the last disability

adjudication

.

Moreover, as the Board observed

, the testimony of Dr. Hausman n

,
which the WCJ also found to be credible and relied upon, “indicated that both his

examinations of Claimant in 2012 and 2014 established substantially the same

findings and with residual symptoms.” ( Board’s Decision at 6) (emphasis added).

In pertinent part, Dr. Hausmann testified as follows:

Q. Based upon the history that you took at your

second IME and y our physical examination and additional records that you had to review at that time, within a

reasonable degree of medical certainty, did you form any opinions?

A. Well, my opinion was that she had strain injuries to the neck, mid and lower back. The prior scoliosis I felt made her slower to recover. I didn’t find any traumatic damage. I noted that the impact was fairly minor, and I didn’t see anything on the CAT scan to show any bony injury. At that point, I didn’t think that any further

treatment was appropriate. I thought at that point that she had reached a point of [MMI] and that she was going to be left with certain symptoms . And I felt that she c ould return
to work as a social worker at that time and I felt that she

w as recovered with symptoms

.

Q. I’m sorry, go ahead.

A. Recovered with residual symptoms

.6

(Deposition of Dr. Hausmann, Notes of Testimony at 15

- 16; Reproduced Record at

13a) (emphasis added).

The above evidence does not establish the requisite change in medical

condition nor an unequivocal medical opinion as to full recovery

. Even had there

been shown a change in medical condition, “[d] isability is presumed until

demonstrated otherwis e and it is the e mployer’s burden to prove that all disability

related to a compensable injury has c eased. ” Browne , 964 A.2d at 34 (ci t ation

omitted).

Accordingly, we affirm.

_____________________________________ BONNIE BRIGANCE LEADBETTER,
Senior J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia Corporation for Aging : and Liberty Mutual, : Petitioners :

:

v. : No. 1226 C.D. 2017

: Workers' Compensation Appeal : Board (Canty), : Respondent :

O R D E R

AND NOW, this 2 nd day of April

, 201 8

, the order of the Workers’

Compensation Appeal Board is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER,
Senior J udge