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Dingle v. Workers' Compensation Appeal Board9/30/2005
Gayle Dingle (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board terminating her total disability benefits. In doing so, the Board affirmed the decision of a Workers' Compensation Judge finding that Claimant was fully recovered from her work-related injuries. In this case we consider whether that decision was reasoned and whether the WCJ erred in making certain credibility determinations.
Claimant was last employed as an administrative assistant in the University of Pennsylvania's (Employer) Athletics Department. On July 24, 1996, Claimant injured her lower back while transporting a mail bin down a flight of stairs. In a notice of compensation payable (NCP) dated September 24, 1996, Employer acknowledged an injury described as a "lumbosacral strain/sprain" and began paying Claimant total disability benefits. Reproduced Record at 12a (R.R. ___). Employer thereafter petitioned to terminate Claimant's benefits, alleging that she had fully recovered from her work injury as of March 26, 1997. Claimant denied Employer's allegation and petitioned to amend the description of her injury. Following hearings, WCJ Sarah Makin denied Employer's petition, granted Claimant's petition and ordered that the NCP be amended to include "a L5-S1 herniated disc, S-1 radiculopathy, and mechanical low back pain in addition to a lumbosacral strain/sprain" in the description of injury. R.R. 25a.
Employer filed a second termination petition on January 21, 2003, alleging that Claimant had fully recovered from her work injury as of December 23, 2002. In support of its petition, Employer offered a surveillance videotape taken in September of 2002 that showed Claimant performing stretching exercises and moving about her front porch without the use of a cane that her treating physician had prescribed in 1996.
Employer also offered the deposition testimony of its independent medical examiner, Stuart L. Gordon, M.D., who is board-certified in orthopedic surgery. Prior to his deposition, Dr. Gordon reviewed the surveillance videotape and conducted an examination of Claimant on December 23, 2002. Dr. Gordon prepared a report on the day of his examination (IME Report) referencing Claimant's "low back strain type injury that occurred in 1996" as well as Claimant's history of chronic depression. R.R. 4a, 5a. Dr. Gordon reported that Claimant was experiencing pain in her low back, with radiation down her legs, all of which he considered "positive Waddell's findings," or malingering. R.R. 5a. Dr. Gordon wrote that, in his opinion, Claimant's presentation was "based solely on her history of psychiatric issues not any orthopaedic issues" and that her "soft tissue sprain has fully resolved." R.R. 6a. On January 6, 2003, Dr. Gordon issued a physician's affidavit of recovery certifying that Claimant had fully recovered from "low back strain" and could return to her pre-injury job as of December 23, 2002. R.R. 8a. Neither the IME Report nor the affidavit of recovery referred to the specific conditions that were added to the NCP by WCJ Makin.
Dr. Gordon authored a one-page Supplemental Report, also dated January 6, 2003, in the form of a letter addressed to Employer's counsel. Therein he noted, inter alia, that " s mentioned on Page 3 in the impression section [of the IME Report], [Claimant] has made a full recovery based upon her orthopaedic injuries." R.R. 88a. Employer provided a copy of the Supplemental Report to Claimant's counsel for the first time at Dr. Gordon's deposition on March 3, 2003. Claimant's counsel objected to admission of the Supplemental Report and to any testimony by Dr. Gordon outside the scope of his IME Report or affidavit of recovery.
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