ROMINGER
LEGAL
Pennsylvania Court Cases and Opinions -
PA Legal
Research
NOT FINDING
WHAT YOU NEED? -CLICK HERE
|
ROMINGER
LEGAL
|
||||||||||
|
Pennsylvania Court Cases and Opinions -
PA Legal
Research
|
||||||||||
| Need Legal Help? | ||||||||||
|
NOT FINDING
WHAT YOU NEED? -CLICK HERE
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE |
|
|
Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Diane J. Keyser-Marr, : Petitioner : : v. : No. 1122 C.D. 2004 : Submitted: February 11, 2005 Workers' Compensation Appeal : Board (Diversified Marketing Sales), : Respondent : OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: March 7, 2005 Diane J. Keyser-Marr (Claimant) appeals pro se from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) granting the termination petition filed by Diversified Marketing Sales (Employer) because she had fully recovered from her work-related injury. Claimant sustained a work-related injury to her right arm, neck and lower back on April 14, 1986, while employed by Employer as an accountant. On October 20, 1993, Employer filed a termination petition along with a supersedeas alleging that Claimant had fully recovered from her work injury and was capable of returning to her pre-injury position as of August 17, 1993. Employer also filed a modification petition alleging that Claimant had failed to follow through on job referrals within her physical restrictions. Ten years later at a hearing before a WCJ,1 in support of its termination petition, Employer offered the testimony of Noubar Didizian, M.D. (Dr. Didizian), who testified that he examined Claimant on January 15, 1992, at which time she related her work injury and subsequent surgeries she had undergone including a right side carpal tunnel release, lumbar fusion and cervical fusion. He stated that he reviewed Claimant's medical records, including an EMG test, nerve conduction studies dated January 27, 1989, and an MRI of the cervical spine dated May 7, 1992. He also conducted a physical exam on January 15, 1992, and December 16, 1992, and again on August 17, 1993, and everything appeared normal. It was Dr. Didizian's opinion that Claimant had fully recovered from her work injury and was capable of returning to her pre-injury employment.2 In her defense, Claimant offered the testimony of Avrom S. Brown, M.D. (Dr. Brown ), who treated Claimant from 1986 through 1994. He diagnosed Claimant with an acute strain and sprain of the cervical lumbar spines with right cervical radiculopathy and thoracic outlet syndrome and right lumbar radiculopathy. He stated that he released Claimant to return to sedentary or light- duty work in March 1991. However, he continued to state that from June 1994 through September 1997, Claimant complained of increasing pain in her neck, 1 There is no explanation in the record for the lapse in time between the date Employer filed its petition and the date the hearing was held before the WCJ. 2 In support of its modification petition, Employer offered the testimony of Rosemary Hieronymous, a certified case manager and certified insurance rehabilitation specialist employed by Inservco Insurance Services as a rehabilitation coordinator. She testified that she located five positions for Claimant, all of which were approved by Dr. Didizian but only two of which Claimant applied to for employment. 2 upper back, right upper extremity, low back and lower extremity and he diagnosed her with ongoing myofascitis. He stated that his final diagnosis of her was chronic pain stemming from damage to her cervical discs and lumbar discs, carpal tunnel syndrome and brachia plexopathy. Claimant also offered the testimony of Philip Spergel, Ed.D. (Dr. Spergel), a licensed clinical psychologist with a subspecialty in rehabilitation psychology, who testified that he had treated Claimant since August 16, 1989. He first explained his qualifications; he stated he had a doctorate in the School of Education in Counseling Psychology, hence the Ed.D. after his name, but it was the same as having a Ph.D. He admitted that he was not a medical doctor. He then related Claimant's medical history, but admitted that he did not review any treatment records from Dr. Brown or any of Claimant's hospital records. He added that she had marital problems and problems with her daughter. He diagnosed Claimant in 1990 with adjustment disorder and mixed emotional features and noted that she was experiencing personal adjustment difficulties related to her severe injury. Dr. Spergel admitted that Claimant had a history of psychological problems predating the work injury and they were ongoing. He stated that when he last treated Claimant on May 17, 1994, she complained of low back and neck pain. He summed up by stating that based on her medical history, she was unable to engage in employment. The WCJ found Dr. Didizian credible that Claimant had recovered from her work-related injury as of August 17, 1993, and did not find Claimant or her witnesses credible. The WCJ then found that Employer had met its burden and 3 granted its termination petition.3 Claimant appealed to the Board alleging that the WCJ erred in terminating her benefits because the medical evidence indicated that she had no change in her condition and she continued to be impaired.4 The Board affirmed the WCJ's decision explaining that the WCJ did not find Claimant's experts credible and Employer met its burden with Dr. Didizian's testimony which the WCJ did find credible. This appeal by Claimant followed. Claimant essentially contends that because the WCJ referred to Dr. Spergel in her decision as "Mr." Spergel, she did not give him the respect he deserved and did not treat him as a qualified expert, thus making her decision biased.5 With regard to Dr. Spergel's testimony, the WCJ made the following findings of fact: 3 The WCJ also found that Employer met its burden of proving that Claimant refused available employment within her physical restrictions. However, because the termination date was prior to the date of the job referrals, the WCJ dismissed the modification petition as moot. 4 Our scope of review of the Board's order is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Schemmer v. Workers' Compensation Appeal Board (U.S. Steel), 833 A.2d 276 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, ___ Pa. ___, 852 A.2d 314 (2004). 5 Claimant attempted to raise this issue before the Board in her appeal by responding to Finding of Fact No. 6a (Mr. Spergel testified Claimant had difficulties in her relationship with her daughter) stating: "Mr. Spergel is Dr. Spergel a Rehabilitation Physiologist. Claimant has no daughter." Responding to Finding of Fact No. 10 (This WCJ has reviewed the testimony of Mr. Spergel and finds it not credible and persuasive that Claimant remains disabled from her work injury as of August 17, 1993), she stated: "On the contrary, Dr. Spergel's opinions are based, not only on Claimant's psychological problems, but also her medical history of carpal tunnel syndrome, multiple herniated discs in the cervical, thoracic and lumbosacral spine." The Board did not address this in its opinion. 4 6a. Mr. Spergel testified that he had been treating Claimant since August 16, 1989. Mr. Spergel continued to see Claimant on a periodic basis. At her initial examination, Claimant related a medical history of multiple herniated discs in the cervical, thoracic and lumbosacral spine. She also related having carpal tunnel syndrome to the extent that she could no longer function in her duties as an office manager. Further, Claimant related that she had been experiencing marital problems and difficulties in her relationship with her daughter. b. In his report on June 13, 1990, Mr. Spergel diagnosed Claimant with adjustment disorder and mixed emotional features. He further noted that Claimant is experiencing personal adjustment difficulties related to her severe physical injury. c. Mr. Spergel admitted that he did not review any treatment records from Dr. Brown or any of Claimant's hospital records with the exception of a report from Dr. Gladys Fenichel. He further admitted that Claimant had a history of psychological problems predating the work injury and that these symptoms are similar to the issues she deals with at present and that she continues to have ongoing psychological problems. d. Mr. Spergel last treated Claimant on May 17, 1994. Claimant still complained of low back pain that radiates down her legs and she also has neck pain which occasionally radiates to her arms and she remains affected by carpal tunnel syndrome. Claimant remains limited in physical activity. She can't perform exertional activities and she can't sit for any sustained period of time. However, Claimant additionally mentioned that the father of her new child is going to enter a custody battle which troubles her because she does not want this man to participate in the rearing of the child. e. Based on Claimant's medical history and on her medical records, Mr. Spergel concluded that Claimant was unable to engage in employment. 5 Although Claimant contends that merely by referring to Dr. Spergel as "Mr. Spergel"6 she did not review his testimony in the same fashion she reviewed the testimony of the other experts, or, in other words, she showed a lack of respect for him, there is no evidence of that based on our review of his deposition testimony and the WCJ's findings of fact. While the WCJ may not have referred to Dr. Spergel properly, she did not commit any error by not using his proper professional title. The fact remains that the issue was whether Claimant had recovered from her physical injuries, and a clinical psychologist was in no position to make that determination. Accordingly, the order of the Board is affirmed. 6 Contrary to Claimant's contention, Dr. Spergel is not a "full fledged Doctor" in the way that she would like us to believe for this case, i.e., a medical doctor that could determine if she had fully recovered from her work-related injuries to her neck, back and wrist. He is a clinical psychologist and had this case been determined on a psychological basis, her argument may have had some merit. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Diane J. Keyser-Marr, : Petitioner : : v. : No. 1122 C.D. 2004 : Workers' Compensation Appeal : Board (Diversified Marketing Sales), : Respondent : O R D E R PER CURIAM AND NOW, this 7th day of March , 2005, the order of the Workers' Compensation Appeal Board dated April 2, 2004, at No. A03-1289, is affirmed.
|
|
|
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
We
now have full text legal news
drawn from all the major sources!!
Pennsylvania Lawyer Help Board
TERMS
OF USE - DISCLAIMER - LINKING POLICIES
Created and Developed by
Rominger Legal
Copyright 1997 - 2009.
A Division of
ROMINGER, INC.
