Exacerbation of Pseudoarthrosis L4-5 As a Result of a Work-Related Injury
In GA & FC Wagman v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001), Aucker "began receiving benefits for an injury described as 'exacerbation of pseudoarthrosis L4-5'" pursuant to a notice of compensation payable (NCP). Id. at 1088.
GA & FC Wagman, Inc. (employer) had petitioned to terminate benefits.
Employer presented the testimony of Dr. Morris.
"As to Aucker's pseudoarthrosis, Dr. Morris determined that there is possible pseudoarthrosis at the L4-5 region as a result of the fusion procedure.
He also testified that 'I agree there is a pseudoarthrosis that I think is of no consequence here.'" Id. at 1089, quoting N.T. 4/08/98, p. 57.
Dr. Morris opined that Aucker had fully recovered from his work-related injuries.
The workers' compensation judge found Dr. Morris credible and stated that this judge "does not believe Dr. Morris's opinion concerning what occurred on July 25, 1990, is really inconsistent with the general nature of the injury as described on the Notice of Compensation Payable so as to render his overall opinion that the Claimant's Aucker's problems are related to degenerative disc disease and not the July 25, 1990 work injury to be legally 'worthless'." Id. at 1090.
The workers' compensation judge granted the termination petition and the board reversed.
On appeal, the query was whether a WCJ could terminate compensation benefits based upon the testimony of a medical expert who believed that the accepted injury acknowledged in the NCP had never occurred:
These portions of the Act Section 407 and Section 413(a) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 771 and 731 ensure that, when an employer seeks to terminate a claimant's benefits, neither party can relitigate the nature of the accepted injury at a subsequent proceeding without following the proper procedures, which is to file a Review Petition and seek to have the description of the injury changed . . . . the WCJ may also 'in the course of the proceedings' determine that the NCP was incorrect.
However, that procedure was not followed here . . . . Rather, the WCJ found that the opinion of Dr. Morris concerning what occurred on July 25, 1990 was not inconsistent 'with the general nature of the injury described in the Notice of Compensation Payable.'
Rather, the NCP specifically describes the injury as 'exacerbation of pseudoarthrosis L4-5', not an exacerbation in the area of L4-5, and not a muscular sprain.
Exacerbation of pseudoarthosis, or fibrous union, is the injury that the Employer has acknowledged through issuance of the NCP that Claimant Aucker suffers from and in order to terminate Claimant's benefits, it must submit medical evidence proving Claimant Aucker has recovered from that injury. the medical evidence presented by Employer, however, is inconsistent with the NCP because Dr. Morris does not recognize that Claimant ever suffered from 'exacerbation of pseudoarthrosis' on July 25, 1990.
Therefore, it is impossible for Dr. Morris to give an opinion that Claimant Aucker fully recovered from that injury . . . . Dr. Morris failed to determine whether or not Claimant Aucker has recovered from the accepted injury. GA & FC Wagman, 785 A.2d at 1091-92.