                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2008

Novolog Bucks Cty v. OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3149




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                                              NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                    No. 07-3149
                    ___________

         NOVOLOG BUCKS COUNTY,
  SIGNAL MUTUAL INDEMNITY ASSOCIATION,

                                        Petitioners,
                           v.

KINDER MORGAN, ACE AMERICAN INSURANCE CO,
             JOHN RUSSIAN,

                                       Respondents.
                    ___________

     On Appeal from the Order dated May 22, 2007
         Benefits Review Board, at No 0090-1
               ALJ: Ralph A. Romano

                    ___________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                   July 25, 2008

 Before: McKEE, FUENTES, and WEIS, Circuit Judges.

           (Opinion Filed: August 4, 2008)

                   ____________

             OPINION OF THE COURT
                  ____________




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FUENTES, Circuit Judge:

       Novolog Bucks County (“Novolog”) petitions for review of an order and opinion

of the Benefits Review Board (the “Board”) which upheld the finding of the

Administrative Law Judge (“ALJ”) that Novolog is the employer responsible for the

benefits awarded to claimant John Russian (“Russian”) pursuant to the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (the “Act”). For the

reasons that follow, we will deny the petition for review.

                                             I.

       Because we write only for the parties, we will set forth only those facts necessary

to our analysis. On May 31, 2004, Russian injured his left knee during the course of his

employment with Novolog at the Ferris Hills Facility (“Ferris”). Dr. Barry Burton

examined Russian on June 1, 2004 and diagnosed him with a knee sprain. Dr. Burton

ordered an MRI which revealed a complex tear of the body and posterior horn of the

medial meniscus, an intermeniscal signal abnormality within the posterior horn of the

lateral meniscus which was suspicious for tear, medial and lateral compartment

osteoarthritis, and moderate to large joint effusion and a ruptured Baker’s cyst. Dr.

Burton referred Russian to Dr. David Eingorn, a board certified orthopaedic surgeon, who

ordered Russian to complete eighteen physical therapy sessions between July 12 and

August 23, 2004. Dr. Eingorn released Russian from his care on August 26, 2004,

reporting that he was almost asymptomatic based upon Russian’s self-reported lack of

                                            -2-
symptoms. Dr. Eingorn instructed Russian at that time that he would likely need

arthroscopic surgery if he had any recurrent pain.

       Russian was released to work without restrictions, and continued to work at Ferris

without complaint for nine and a half months. During this period, Kinder acquired Ferris,

making Russian an employee of Kinder. After being a Kinder employee for six months,

Russian presented to Dr. Eingorn again with complaints of pain in his left knee. An MRI

performed on that day revealed a complex tear of the body and posterior horn of the

medial meniscus with a flipped fragment in the meniscal femoral recess, a questionable

tear of the anterior horn of the lateral meniscus, mild proximal patellar tendinosis,

cartilage loss, and moderate joint effusion with thickened plica. Three and a half months

later, at the request of Novolog’s insurance carrier, Dr. Lefkoe, another board certified

orthopaedic surgeon, examined Russian and reviewed Russian’s medical records and

concluded that the objective medical tests suggested that Russian’s 2004 injury was the

precipitating cause of his 2005 disability. On December 2, 2005, Dr. Eingorn performed

surgery on Russian’s knee.

       Russian filed claims with the United States Department of Labor against both his

previous employer, Novolog, and his current employer, Kinder pursuant to the Act. The

two employers stipulated as to the compensability of Russian’s disability, but disagreed as

to the responsible employer. The ALJ held a hearing on January 9, 2006 in order to

determine which employer was liable for the payment of Russian’s medical expenses and



                                            -3-
disability benefits pursuant to the Act. At the hearing, Drs. Eingorn and Lefkoe opined

that Russian’s injury was aggravated during his employment with Kinder, and therefore,

his disability was not the natural progression of his 2004 injury. Russian testified that he

misled Dr. Eingorn as to the severity of his symptoms and stopped treatment in August

2004 because he feared losing his job if he did not return to work prior to Kinder’s

acquisition of Ferris. The ALJ credited Russian’s testimony and found that Russian’s

2005 disability was the natural progression of his 2004 injury, and that Novolog was

responsible for Russian’s benefits.

       The Board affirmed the decision of the ALJ, and Novolog petitioned this court for

review. Novolog argues that (1) there is not substantial evidence to support the ALJ’s

finding that Russian’s 2005 disability was the natural progression of his 2004 injury; (2)

Russian’s testimony that he misled his treating physicians, which was central to the ALJ’s

decision, is not credible; (3) the ALJ and the Board misconstrued the holding in Delaware

River Stevedores, Inc. v. Director OWCP, 279 F.3d 233 (3d Cir. 2002); and (4) under

Delaware River, Kinder is responsible as a matter of law. We have jurisdiction of the

petition to review the Board’s final order pursuant to 33 U.S.C. § 921(c).

                                             II.

       Under the Act, the Board is obligated to treat the ALJ’s findings of fact as

“conclusive if supported by substantial evidence in the record considered as whole.” 33

U.S.C. § 921(b)(3). Substantial evidence is “more than a mere scintilla. It means such



                                            -4-
relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).

       In reviewing the Board’s decision this court must ascertain whether the Board

adhered to the applicable scope of review, whether the Board committed any errors of

law, and whether the ALJ’s findings are supported by substantial evidence on the record

as a whole. Delaware River, 279 F.3d at 241.

       The Board correctly held that there is no apportionment of liability in cumulative

injury claims under the Act. Instead, when

       determining the responsible employer in the case of multiple traumatic
       injuries, if the disability results from the natural progression of an initial
       injury and would have occurred notwithstanding a subsequent injury, then
       the initial injury is the compensable injury and accordingly the employer at
       the time of that injury is responsible for the payment of benefits. If, on the
       other hand, the subsequent injury aggravates, accelerates, or combines with
       claimant’s prior injury, thus resulting in claimant’s disability, then the
       subsequent injury is the compensable injury and the subsequent employer is
       fully liable.

Id. (internal citations omitted).1

       Our review of the record reveals that the Board correctly found that the ALJ’s

finding that the 2005 disability was the natural progression of his 2004 injury was


       1
         Novolog argues that the ALJ and the Board misconstrued this court’s holding in
Delaware River. In Delaware River we held that the second employer is responsible if a
subsequent injury aggravates, accelerates, or combines with the original injury; however a
full recovery from the original injury is not necessary to shift the liability from the first to
the second employer. Any statements or inferences by the ALJ or the Board that Kinder
is the responsible employer only if Russian had fully recovered from his 2004 injury prior
to his 2005 disability were erroneous.

                                             -5-
supported by substantial evidence. Despite Dr. Eingorn’s and Dr. Lefkoe’s conclusions

that Russian’s injury was aggravated while working for Kinder, their testimony regarding

the objective evidence was consistent with the finding that the 2005 disability was the

natural progression of his 2004 injury. Dr. Eingorn stated that the condition of Russian’s

knee revealed in the 2005 MRI test was “more likely than not” the natural progression of

the condition revealed in the 2004 MRI. (Supp. App. at 9-10.) He further admitted that

the objective tests performed during his 2004 and 2005 physical examinations of

Russian’s knee yielded the same results, and that even after examining Russian’s knee

during surgery it was impossible to tell whether there had been a second injury. Dr.

Lefkoe, who only examined Russian in 2005, stated that the objective evidence indicated

that Russian’s condition was a natural progression of the 2004 injury. Drs. Eingorn and

Lefkoe based their opinions that Russian aggravated his injury in the course of his

employment with Kinder on Russian’s reported lack of symptoms in 2004 and on

subjective medical evidence such as pain on the medial lateral joint lines that he had not

reported during his 2004 physical examinations. However, the ALJ credited Russian’s

testimony that he stopped treatment and misled Dr. Eingorn and as to the severity of his

symptoms so that he could return to work in August 2004.

       Because the ALJ’s determination that Russian’s disability resulted from the natural

progression of the 2004 injury is supported by substantial evidence, Novolog is

responsible for paying Russian’s benefits. Siminski v. Ceres Marine Terminals Inc., 35



                                            -6-
BRBS 136 (2001); Delaware River, 279 F.3d at 241.

                                            III.

       Accordingly, we will deny the petition to review the Board’s decision affirming

the ALJ’s finding that Novolog is liable for Russian’s benefits.




                                           -7-
