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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynette Anderson,

: Petitioner : : v. : : Workers' Compensation Appeal Board : (Pennsylvania Hospital), : Respondent : Pennsylvania Hospital, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Anderson), : Respondent : BEFORE:

No. 1341 C.D. 2002

No. 1402 C.D. 2002 Submitted: May 2, 2003

HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge FILED: August 15, 2003

OPINION BY SENIOR JUDGE FLAHERTY

Both Lynette Anderson (Claimant) and Pennsylvania Hospital (Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board) which reversed the decision of a Workers' Compensation Judge (WCJ) granting Claimant's Review Petition and affirmed the decision of the WCJ denying Employer's Termination/Suspension/Modification Petition and Review Petition. We reverse that part of the Board's order which affirmed the WCJ's denial of Employer's Review Petition and affirm the order of the Board in all other respects.

Pursuant to a Notice of Compensation Payable (NCP), Claimant began receiving compensation benefits for an injury described as right medial epicondylitis1 and right carpal tunnel syndrome that occurred on November 13, 1998 as the result of lifting objects at work. Thereafter, on October 18, 1999, Employer filed a Termination/Suspension/Modification Petition alleging that as of September 13, 1999 Claimant has fully recovered and is able to return to unrestricted work. Claimant filed an Answer denying the allegations set forth in Employer's Petition. On December 20, 1999, Claimant filed a Review Petition asserting that the NCP should be amended to include a left hand carpal tunnel injury. On August 8, 2000, Employer filed a Review Petition alleging that the right epicondylitis injury should be removed from the NCP because this was a preexisting condition as evidenced by the testimony of both Claimant and her medical expert. Thereafter, hearings were held before the WCJ. Claimant testified that at the time of the injury she had worked for Employer for approximately twenty years. Most recently, Claimant worked as a technician at a DTI machine in the central processing and distribution department. The DTI machine washes and sterilizes dirty sets of instruments from the operating room (OR). After washing, the clean OR set comes out of the machine for the waiting technician who reassembles the set and makes sure it is clean. At this time, however, the OR set is hot and must be allowed to cool. Claimant testified that on the day of the injury the DTI machine sent out another OR set before the previous one had finished cooling. So, she grabbed the hot OR set so that the cooling OR set would not be knocked onto the ground. By doing this, Claimant burned her hands. Afterwards, Claimant began experiencing pain radiating down
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Medial epicondylitis is soreness of the elbow.

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her arm. Claimant missed work as a result of this injury but eventually returned to a light-duty position with Employer. However, Claimant stopped working at this job because the tasks she was required to perform caused her hand and elbow to hurt and also caused her hand to swell. Claimant then returned to another lightduty job with Employer at the welcome desk of the hospital. Claimant did not have trouble performing this job but Employer did not keep her in this position. Rather, Employer hired a vocational counselor to find her a light-duty job with another employer. The WCJ accepted the testimony of Claimant as credible. John Meehan, a vocational counselor, testified on behalf of Employer. Mr. Meehan stated that it was his understanding that Claimant was capable of performing a light-duty job, which would include lifting up to twenty pounds. Mr. Meehan testified that he identified numerous jobs that would be suitable for Claimant and informed Claimant that these jobs were available. He also stated that David J. Bozentka, M.D. approved these jobs as being within Claimant's physical capabilities. Employer also presented the testimony of Dr. Bozentka, a boardcertified orthopedic surgeon who treated Claimant from November of 1997 to May 3, 1999. His review of Claimant's records revealed that Claimant injured her right elbow in a July 14, 1997 automobile accident. Dr. Bozentka concluded that the November 13, 1998 work-related accident did not materially contribute to Claimant's pre-existing medial epicondylitis and carpal tunnel syndrome. In addition, even if the November 13, 1998 work-related accident exacerbated these pre-existing injuries, Dr. Bozentka testified that Claimant had returned to her preinjury baseline condition by the time of his May 1999 examination. (N.T. 5/17/2000, p. 25). Dr. Bozentka also testified that he reviewed the jobs that Mr.

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Meehan found were available and concluded that Claimant was physically capable of performing these jobs. (N.T. 5/17/2000, pp. 30-31). In support of its petitions, Employer also presented the testimony of Donald F. Leatherwood, M.D., a board-certified orthopedic surgeon who examined Claimant on September 13, 1999. He took Claimant's history, which revealed that she burned her hands on November 13, 1998 and that, as a result of this injury, she experiences numbness and tingling in her index, long and middle fingers. She also reported that she had injured her elbow a year earlier and that the pain in her elbow had recurred. After examining Claimant, Dr. Leatherwood concluded that she sustained a possible minor superficial burn during the November 13, 1998 workrelated accident and a possible sprain/strain injury to her elbow. In addition, he opined that at the time of this accident Claimant suffered from the underlying injuries of bilateral carpal tunnel syndrome and medial epicondylitis of the right elbow but that the work-related injury did not materially contribute to these preexisting injuries. (N.T. 3/29/2000, p. 31). He also concluded that Claimant has fully recovered from the injuries she sustained in the November 13, 1998 workrelated accident. (N.T. 3/29/2000, pp. 21-22). Employer also presented the testimony of John S. Taras, M.D., a board-certified hand surgeon who first examined Claimant on September 7, 1999. He took Claimant's history and reviewed her medical records, which revealed that Claimant was diagnosed with carpal tunnel syndrome before the November 13, 1998 work-related accident. (N.T. 4/17/2000, p. 27). He also opined that Claimant's medial epicondylitis pre-existed the November 13, 1998 work-related accident and that Claimant has fully recovered from any injury she sustained in that accident. (N.T. 4/17/2000, p. 25).

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Employer also presented the testimony of Karen Aryes, who is a claim representative for ARCAP, which is Employer's third-party insurance administrator. Ms. Aryes explained that the right epicondylitis injury was placed on the NCP as a result of a clerical error. She also testified that the description of the injury in the temporary NCP was inflammation of the right arm. The WCJ accepted the testimony of Ms. Ayres as credible. In support of her Petitions, Claimant presented the testimony of George Rodriguez, M.D., who is board-certified in physical medicine and rehabilitation. Dr. Rodriguez began treating Claimant on June 17, 1999. He testified that Claimant suffers from both right and left carpal tunnel syndrome and right medial epicondylitis. Dr. Rodriguez concluded that these injuries were caused by Claimant performing repetitive tasks at work. (N.T. 7/12/2000, pp. 3234). With regard to the jobs that Mr. Meehan identified as being available for Claimant, Dr. Rodriguez testified that he reviewed the descriptions of these jobs and he concluded that Claimant is not physically capable of performing any of these jobs, primarily because of the right carpal tunnel syndrome injury. (N.T. 7/12/2000, pp. 47-48). Dr. Rodriguez further testified that Claimant has been suffering from right carpal tunnel syndrome for some time and that even if some of the available jobs could be performed with the left hand, this would not be advisable because she would then "cause a problem with the left side while avoiding the right carpal tunnel syndrome. There's no advantage to doing that in her particular case." (N.T. 7/12/2000, p. 52). The WCJ issued a decision and order dated March 18, 2001. The WCJ found that his review of the testimony of Dr. Bozentka, Dr. Taras and Dr. Leatherwood revealed that they are generally in agreement as to Claimant's

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diagnosis as stated by Dr. Rodriguez.

However, the WCJ accepted Dr.

Rodriguez's evaluation of Claimant's condition because his opinion was supported by Claimant's medical history and the diagnostic tests. The WCJ concluded that Employer failed to meet its burden of proof with regard to the Termination/Suspension/Modification Petition and also failed to meet its burden of proving that right medial epicondylitis was incorrectly listed in the NCP. The WCJ also concluded that Claimant met her burden of proving that she suffers from left carpal tunnel syndrome as a result of the work-related accident of November 13, 1998. Accordingly, the WCJ denied Employer's Termination/Suspension/Modification Petition and Review Petition and granted Claimant's Review Petition to add left carpal tunnel syndrome to the description of work injuries. Employer appealed to the Board, which reversed that part of the WCJ's decision granting Claimant's Review Petition and adding left carpal tunnel to the description of work injuries and affirmed the decision of the WCJ in all other respects. The appeals of Claimant and Employer to this Court followed.2 On appeal, Claimant argues that the Board erred as a matter of law by concluding that Claimant failed to prove that the NCP contained a material mistake of fact and that it should be amended to add a left carpal tunnel injury. Section 413(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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