IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Osram Sylvania,

:

Petitioner :

:

v.

: No. 1378 C.D. 2004

:
Workers' Compensation
: Submitted: November 5, 2004
Appeal Board (Fitzpatrick),
:

Respondent
:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
MARY
HANNAH LEAVITT, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY

FILED: February 8, 2005

Osram Sylvania (Employer) petitions for review of an order of the
Workers' Compensation Appeal Board affirming an order of the Workers'
Compensation Judge granting Drew Fitzpatrick's (Claimant) claim petition. We
reverse.

Claimant was employed by Employer as a warehouseman. On or
about May 10, 2002, Claimant filed a claim petition alleging that on May 13, 1999,
he sustained a work-related injury to his right knee in the nature of a torn medial
meniscus. Employer filed an answer denying the material allegations of the claim
petition. Hearings before a WCJ ensued.

In support of his claim petition, Claimant testified on his own behalf
and presented the July 28, 1999 medical report of Barry Hennessey, D.O..1 In
opposition to the claim petition, Employer presented the testimony of its
occupational health nurse, Molly Melinda Mitke, as a fact witness, the medical
records from Healthworks, and its nurse's notes.

The WCJ accepted as credible and persuasive, Claimant's testimony
regarding the development of right knee symptoms on May 13, 1999. The WCJ
also accepted as credible the opinions of Dr. Hennessey that Claimant suffered a
work related meniscal tear in his right knee on May 13, 1999. The WCJ rejected
as not credible, Employer's panel physician's opinion that Claimant's right knee
condition was not work related.

Accordingly, the WCJ found that Claimant sustained a work-related
torn medial meniscus of the right knee while employed by Employer. The WCJ
found further that Claimant was totally disabled from July 28, 1999 up to and
including October 3, 1999 as a result of his work-related injury. Finally the WCJ
found that, as of October 4, 1999, Claimant was fully recovered from his May 13,
1999 work-related injury and returned to work without restrictions. Therefore, the
WCJ granted Claimant's claim petition for the period from July 28, 1999 to
October 3, 1999 and terminated Claimant's benefits effective October 4, 1999.

Employer appealed the WCJ's decision to the Board which affirmed.
This appeal followed.

1 Since Claimant's claim for benefits was for 52 weeks or less of disability, the
admittance of medical reports is permitted and findings of fact may be based upon such reports.
See Section 422 of the Pennsylvania Worker's Compensation Act, Act of June 2, 1915, P.L. 736,
as amended, 77 P.S. §835.
2.

Initially, we note that this Court's scope of review is limited to
determining whether there has been a violation of constitutional rights, errors of
law committed, or a violation of appeal board procedures, and whether necessary
findings of fact are supported by substantial evidence. Lehigh County Vo-Tech
School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d
797 (1995). Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods v.
Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11 (Pa. Cmwlth.
1988).

In this appeal, Employer presents two issues: (1) whether Dr.
Hennessey's medical report can form the basis for an award in Claimant's favor
when the report is not part of the record; and (2) whether Dr. Hennessey's medical
report constitutes competent medical evidence to support an award.2

First, Employer argues that Dr. Hennessey's medical report was never
properly admitted into evidence because it was submitted after the close of the
record. Therefore, Employer contends that the report is outside the record and
cannot form the basis for an award regardless of its contents.

Upon review of the record, we conclude that Employer has waived
this issue by failing to raise it before the Board. See Pa.R.A.P. 1551 (No question
shall be heard or considered by the Court which was not raised before the
government unit.); Coombs v. Workmen's Compensation Appeal Board
(Philadelphia Electric Co.), 689 A.2d 996 (Pa. Cmwlth. 1997) (issue waived if not
raised before the Board).

2 Employer's issues have been reordered in the interest of clarity.
3.

Second, Employer argues that Dr. Hennessey's medical report does
not constitute competent medical evidence to support an award because Dr.
Hennessey based the opinions contained therein on an inaccurate history.
Employer points out that the report states that Dr. Hennessey believes that the
medial meniscus tear of Claimant's right knee happened as a work-related injury,
"according to the patient's history." See Certified Record, Exhibit C-2. Employer
further points out that the medical report states, with respect to Claimant's history,
that "this is a 52 year old gentleman having pain in the right knee after bending and
twisting on a new job on 5/12/99. He recalls no other injury than this."3 Id.
Employer contends, based on Claimant's testimony, that the foregoing recitation of
Claimant's history is inaccurate because Claimant knew of another injury to his
right knee, specifically, the occurrence of identical symptoms several weeks prior
to the May 13, 1999 injury due to the consequence of his limping after he sprained
his left ankle in January 1999. Therefore, Employer argues, since the history that
Claimant gave to Dr. Hennessey is significantly restricted when compared to his
testimony before the WCJ, Claimant's communications to Dr. Hennessey must, by
obvious implication, lack credibility. Employer contends that two conflicting
version of the facts cannot both be true at the same time. Thus, Employer argues
that the WCJ's award of benefits to Claimant must be reversed.

A medical expert's opinion is not rendered incompetent unless it is
solely based on inaccurate or false information. American Contracting Enterprises,
Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391 (Pa.
Cmwlth. 2001). It is well established that where an expert's opinion is based upon

3 While Dr. Hennessey's medical report indicates that Claimant suffered an injury on May
12, 1999, the record shows that the actual date of Claimant's injury was alleged to be May 13,
(Continued....)
4.

assumptions which are contrary to the established facts, that opinion is worthless in
a workers' compensation proceeding. City of Butler v. Workers' Compensation
Appeal Board (Botsis), 708 A.2d 1306 (Pa. Cmwlth. 1998); Noverati v.
Workmen's Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455
(Pa. Cmwlth. 1996); State Workmen's Insurance Fund v. Workmen's
Compensation Appeal Board (Wagner), 677 A.2d 892 (Pa. Cmwlth. 1996). Thus,
in workers' compensation proceedings, a physician's testimony is deemed to be
incompetent as a matter of law where it is based upon an inaccurate or incomplete
medical history. Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick),
792 A.2d 678 (Pa. Cmwlth. 2002); Thomas Jefferson University Hospital v.
Workers' Compensation Appeal Board (O'Hara), 745 A.2d 709 (Pa. Cmwlth.
2000); Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking
Corp.), 547 Pa. 639, 692 A.2d 1062 (1997).

Herein, the record shows that Dr. Hennessey's medical report is based
on an incomplete medical history. The record shows that Claimant suffered pain in
his right knee in March and April 1999 and that, because of such pain, he missed
four weeks of work. While Claimant testified that he believed that the pain in his
right knee during this time was attributable to his putting extra weight on it after he
sprained his left ankle in January 1999 and that the pain was in a different area
than the pain he began experiencing on May 13, 1999, the fact remains that
Claimant had a history of right knee pain which he did not disclose to Dr.
Hennessey. Dr. Hennessey's report clearly states that his diagnosis that Claimant
suffered a work-related torn medial meniscus of his right knee on May 13, 1999 is

1999. See Reproduced Record at RR1.
5.

based on Claimant's history. The history provided by Claimant to Dr. Hennessey
indicates that Claimant recalled no other injury to his right knee.

Moreover, Claimant testified that the pain he experienced in his right
knee on May 13, 1999 was not the result of any specific injury but that the pain
developed over the course of the day. This onset of pain on May 13, 1999 is
similar to the onset of the pain Claimant experienced in March 1999. Claimant
testified that in March 1999 nothing specific triggered the pain in his right knee
and that the pain was there when he awoke one morning.

Accordingly, we conclude that Dr. Hennessey's medical opinion is
based on an incomplete and inaccurate history as provided by Claimant and must
be deemed incompetent. As such, the WCJ erred by basing the grant of
Claimant's claim petition on Dr. Hennessey's medical report. Therefore, the
Board's order affirming the WCJ's decision and order is reversed.

_________________________________

JAMES R. KELLEY, Senior Judge
President Judge Colins dissents.
6.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Osram Sylvania,

:

Petitioner :

:

v.

: No. 1378 C.D. 2004

:
Workers' Compensation
:
Appeal Board (Fitzpatrick),
:

Respondent
:

O R D E R

AND NOW, this 8th day of February, 2005, the order of the
Workers' Compensation Appeal Board in the above captioned matter is reversed.
_________________________________

JAMES R. KELLEY, Senior Judge