IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Patricia Pujols, : : Petitioner : : v. : No C.D : Workers Compensation Appeal : Submitted: May 1, 2015 Board (Good Shepherd Rehab : Hospital), : : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 16, 2015 Patricia Pujols (Claimant) petitions for review of the Order of the Workers Compensation Appeal Board (Board) that affirmed the Decision of a Workers Compensation Judge (WCJ) granting the Petition to Terminate Compensation Benefits (Termination Petition) filed by Good Shepherd Rehab Hospital (Employer). 1 On appeal, Claimant argues that the WCJ misapplied the burden of proof in granting the Termination Petition and that the WCJ s findings of fact and 1 The Board also affirmed the WCJ s Decision granting, in part, Claimant s Petition to Review Compensation Benefits and adding a right shoulder/trapezius strain and a thoracic strain to the description of Claimant s work-related injury. This part of the Board s Order has not been appealed to this Court.

2 Decision regarding Claimant s full recovery from her work-related injuries were not reasoned or supported by substantial evidence. For the following reasons, we affirm. On January 2, 2011 Claimant sustained a work-related injury while working as a certified nursing assistant for Employer, which Employer accepted as a lowback strain and sprain. (WCJ Decision, Findings of Fact (FOF) 1-2, 4.) After periods of partial disability, Claimant s total disability benefits were reinstated via an Amended Supplemental Agreement executed on May 24, (FOF 3.) Employer filed the Termination Petition alleging that, as of January 9, 2012, Claimant had fully recovered from her work-related low-back strain and sprain. (WCJ Decision at 1.) Claimant, thereafter, filed a Petition to Review Compensation Benefits (Review Petition) asserting that the description of her work-related injury should be expanded to include injuries to her right and left shoulders, neck, and thoracic region. (WCJ Decision at 2.) The Termination Petition and Review Petition were consolidated. The WCJ held hearings at which Claimant testified, and Claimant and Employer submitted, inter alia, the testimony of medical experts. (WCJ Decision at 2.) Claimant testified as follows. Claimant injured her neck, low back, shoulders, and thoracic spine when she attempted to assist a patient in a shower chair. (FOF 4.) She went to the emergency room for treatment and then treated with one of Employer s panel physicians. (FOF 4.) Claimant also obtained treatment from, inter alia, Amir Katz, D.O., who placed physical restrictions on Claimant s work abilities, gave Claimant injections, and prescribed a variety of 2

3 medications. (FOF 4.) On May 6, 2011, Employer placed Claimant on medical leave and she received a termination letter from Employer effective December 15, (FOF 4.) Claimant acknowledged that she: moved in November 2011 but did not lift or carry anything; and was in a car accident on July 23, 2012 but she was not injured. (FOF 4.) In support of its Termination Petition, Employer presented the deposition testimony of Scott Sexton, M.D., a board-certified orthopedic surgeon, who examined Claimant on January 9, (FOF 5.) Dr. Sexton reviewed Claimant s medical records and employment history, and he obtained from Claimant a description of the work injury and a medical history. (FOF 5.) During the examination, Claimant complained of pain in her right shoulder and trapezius, low-back pain, and tightness essentially all over her body, particularly in the morning. (FOF 5 (internal quotation marks omitted).) Upon examining Claimant and reviewing her medical records, Dr. Sexton noted that an April 15, 2011 MRI of Claimant s right shoulder and the results of a May 10, 2011 EMG were normal. (FOF 5.) Dr. Sexton opined that Claimant had fully recovered from the work-related low-back strain and sprain and that, based on a lack of positive findings in his physical examination, Claimant did not sustain a workrelated left shoulder [or] neck... injury. (FOF 5.) However, Dr. Sexton acknowledged that Claimant s medical records referenced a thoracic injury, which he described as a thoracic strain but, because there was no ongoing evidence of that injury at the time of his examination, he concluded that Claimant had fully recovered therefrom. (FOF 5.) Dr. Sexton opined that Claimant needed no 3

4 further treatment and/or testing for her work-related injuries and that she was capable of engaging in any kind of employment without restriction. (FOF 5.) Claimant offered the deposition testimony of Dr. Katz, who is Board[- ]certified in physical medicine, rehabilitation, neuromuscular and electrodiagnostic medicine, in opposition to the Termination Petition and in support of her Review Petition. (FOF 6.) Dr. Katz began treating Claimant in May 2011, at which time he reviewed her medical and employment history. (FOF 6.) Claimant denied having any past history of injuries to her low back, neck, or arms, and she complained of radiating low-back pain and right upper extremity/shoulder pain. (FOF 6.) Although Dr. Katz acknowledged Claimant s May 10, 2011 EMG results were normal, he indicated that this did not mean that there wasn t pathology. (FOF 6 (internal quotation marks omitted).) Dr. Katz noted that the April 15, 2011 MRI of Claimant s right shoulder demonstrated a degree of fluid in the subcoracoid bursa, which was an inflammatory change, and he diagnosed her with right shoulder bursitis. (FOF 6 (internal quotation marks omitted).) Dr. Katz released Claimant to light-duty work with a ten pound lifting restriction as of May 17, (FOF 6.) Throughout Dr. Katz s treatment of Claimant, she complained of problems in her low back, right shoulder, the right interscapular area, and the right side of her neck. (FOF 6.) Claimant had an MRI of her lumbar spine on August 10, 2012, revealing a L4-L5 disc herniation, which Dr. Katz attributed to the January 2, 2011 work injury. (FOF 6.) On crossexamination, Dr. Katz acknowledged that: Claimant s overall condition had improved; Claimant s low-back pain was significant due to the disc herniation; Claimant no longer needed injections to her neck and upper trapezius; he never 4

5 diagnosed Claimant with a left shoulder or thoracic spine injury; and Claimant had a history of recurring cervical strain before the work injury. (FOF 6.) He further acknowledged that, when Claimant went to the emergency room on January 2, 2011, she reported only mild low-back pain, she demonstrated a full range of motion, her neurological exam was normal, and she was diagnosed with a lumbar strain. (FOF 6.) The WCJ credited Claimant s evidence that she sustained a work-related thoracic strain and a right shoulder/trapezius strain, as it was consistent with the medical records and Dr. Sexton s diagnoses. (FOF 8, 11.) However, the WCJ rejected Claimant s testimony as not credible or persuasive that she experienced ongoing symptoms due to those injuries following Dr. Sexton s January 9, 2012 examination. (FOF 8.) In doing so, the WCJ noted that Claimant s diagnostic tests following the work injury were relatively benign, indicating that she sustained only soft tissue injuries; her symptoms were becoming more global in nature ; Claimant had a history of neck pain before the work injury, but denied having such a history; and had she sustained a more severe injury to her low back on January 2, 2011, she would have reported a much higher level of discomfort than mild lowback pain and she would not have demonstrated a full range of motion at the time of her emergency room evaluation. (FOF 8.) The WCJ credited Dr. Sexton s opinions and diagnoses, as they were consistent with [C]laimant s medical records immediately following her work-related injury and the [C]laimant s diagnostic test results. (FOF 9.) The WCJ accepted Dr. Katz s testimony that Claimant sustained work-related right [] shoulder/trapezius strain and a lumbar strain and sprain, but rejected the rest of Dr. Katz s opinions as not credible, 5

6 particularly that Claimant sustained a herniated disc on January 2, (FOF 10.) The WCJ rejected Dr. Katz s testimony because, inter alia: Claimant only had mild complaints of pain and a normal neurological examination in the emergency room on that day; the disc herniation diagnosis occurred almost two years after the work injury; and he was not aware of Claimant s prior history and treatment for neck pain. (FOF 10.) Based on the credited evidence, the WCJ found that Claimant sustained work-related right shoulder/trapezius and thoracic strains in addition to her lumbar strain, but had fully recovered from all of those injuries as of January 9, (FOF 11, 13.) The WCJ found that Claimant did not suffer a work-related left shoulder and/or neck injury. (FOF 12.) Accordingly, the WCJ held that Claimant sustained her burden, in part, on the Review Petition and added the right shoulder/trapezius and thoracic strains to the description of her January 2, 2011 work injury. (WCJ Decision, Conclusions of Law (COL) 2.) However, the WCJ concluded that Employer had sustained its burden of proving that Claimant had recovered fully from all of her work-related injuries as of January 9, 2012 and, thus, granted the Termination Petition. (COL 4.) Claimant appealed to the Board, specifically challenging some of the WCJ s findings as being unreasoned and not supported by the record. (Appeal from Judge s Findings of Fact and Conclusions of Law (Board Appeal), R.R. at 25a- 26a.) Additionally, Claimant asserted generally that the WCJ s Decision was not reasoned. (Board Appeal at 2, R.R. at 26a.) The Board affirmed the WCJ s Decision. The Board concluded that the WCJ s Decision was reasoned as required 6

7 by Section 422(a) of the Workers Compensation Act 2 (Act) and that the WCJ s findings were supported by the record. (Board Op. at 3-8.) The Board further noted that the burden does not shift to the defendant in a termination proceeding to prove the absence of a causal connection between newly alleged injuries to different parts of the body than those accepted. (Board Op. at 4 (citing City of Philadelphia v. Workers Compensation Appeal Board (Fluek), 898 A.2d 15, (Pa. Cmwlth. 2006)).) Claimant now petitions this Court for review. 3 On appeal, Claimant asserts that the WCJ misapplied the burden of proof in this termination proceeding by requiring her to prove the causal relationship between the L4-L5 disc herniation and her work injury rather than requiring Employer to establish that the disc herniation was not work related. According to Claimant, pursuant to Gumro v. Workmen s Compensation Appeal Board (Emerald Mines Corporation), 626 A.2d 94 (Pa. 1993), 4 and Marks v. Workers 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S This Court s scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated. Peters Township School District v. Workers Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008). 4 In Gumro, the claimant sustained a work-related injury to his left knee, underwent arthroscopic surgery to that knee, and subsequently developed venous insufficiency in the veins of his left calf, which caused him to be unable to return to his pre-injury position. Gumro, 626 A.2d at The employer filed a termination petition alleging that the original injury to the left knee had fully resolved and that any remaining disability was unrelated to the work injury; however, its physician could not comment on the causal connection between the knee injury and the venous insufficiency. Id. at This Court affirmed the termination of benefits, but the Supreme Court reversed, concluding that the employer did not prove that an independent cause existed for the claimant s ongoing disability resulting from the injury to his left leg. Id. at 97. Gumro has since been cited for the proposition that if there is evidence of a disabling injury to 7 (Continued )

8 Compensation Appeal Board (Dana Corporation), 898 A.2d 689 (Pa. Cmwlth. 2006), Employer had the burden to prove full recovery from all diagnoses related to the accepted body part, here Claimant s low back, in order to prevail on its Termination Petition. Claimant asserts that, because the L4-L5 disc herniation is related to her low back, Employer had to establish that it was not related to her January 2, 2011 work injury and did not do so because Dr. Sexton neither reviewed nor commented on the August 10, 2012 MRI that identified the disc herniation. Employer responds that Claimant did not preserve this issue for review because she did not include it in her Board Appeal. Employer notes that this waiver is not cured by the inclusion of the issue in a brief to the Board per Matticks v. Workers Compensation Appeal Board (Thomas J. O Hora Company, Inc.), 872 A.2d 196, 202 (Pa. Cmwlth. 2005). Employer further maintains that, if the issue was preserved, the WCJ did not err in requiring Claimant to prove the causal relationship between the L4-L5 disc herniation and the January 2, 2011 work injury because it is a separate and distinct injury from the accepted lumbar strain, and Gumro and its progeny are to be interpreted narrowly per our Supreme Court s the same area of the body as the accepted, disabling work injury, the employer has to prove not only that the accepted work injury had resolved, but that the other injury causing the disability is not related to the accepted work injury. See, e.g., Visteon Systems v. Workers Compensation Appeal Board (Steglik), 938 A.2d 547, 552 (Pa. Cmwlth. 2007) (citing Gumro for the proposition that where the claimant s ongoing disability is related to an injury or condition which is of a very similar nature and/or affects the same body parts which have been recognized as compensable, then the burden remains with an employer to establish an independent cause for the same ); Marks, 898 A.2d at , 695 (holding that, under Gumro, the WCJ erred in placing the burden on the claimant to establish that his continuing complaints were related to his work injury during a termination petition). 8

9 decision in Cinram Manufacturing, Inc. v. Workers Compensation Appeal Board (Hill), 975 A.2d 577 (Pa. 2009). After reviewing Claimant s Board Appeal, we conclude that Claimant did not preserve this issue before the Board and, therefore, it is not preserved for this Court s review on appeal. Pennsylvania Rule of Appellate Procedure 1551 provides, with certain exceptions not applicable here, that [n]o question shall be heard or considered by the court which was not raised before the government unit. Pa. R.A.P The Board s regulation at 34 Pa. Code (a)(2) requires that an appeal must contain [a] statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged and that [g]eneral allegations which do not specifically bring to the attention of the Board the issues decided are insufficient. Id. (emphasis added). Not raising an issue with specificity in the appeal documents before the Board results in that issue not being preserved for appellate review. McGaffin v. Workers Compensation Appeal Board (Manatron, Inc.), 903 A.2d 94, (Pa. Cmwlth. 2006). Including an argument regarding the issues in a brief to the Board does not cure the failure to comply with 34 Pa. Code (a). Matticks, 872 A.2d at 202. Claimant s Board Appeal did not assert that the WCJ improperly applied the burden of proof in this matter and the Board did not address that question. Therefore, Claimant did not preserve it for review by this Court. 9

10 Even if the issue had been preserved, we would agree with Employer that an alleged herniated lumbar disc is an injury separate from an accepted lumbar sprain and that Claimant bore the burden of proving that this separate injury was work related under Cinram Manufacturing. Harrison v. Workers Compensation Appeal Board (Auto Truck Transport Corporation), 78 A.3d 699, 705 (Pa. Cmwlth. 2013), petition for allowance of appeal denied, 92 A.3d 812 (Pa. 2014). In Cinram Manufacturing, a case involving an accepted work-related lumbar strain and sprain and an asserted aggravation to a pre-existing disc herniation, our Supreme Court expressed its approval with this Court s determinations that Gumro should be applied narrowly and that a disc herniation is a separate injury from a lumbar strain. Cinram Manufacturing, 975 A.2d at 582 n.9. The Supreme Court noted [t]he Commonwealth Court s approach of interpreting Gumro s holding somewhat narrowly seems reasonable, particularly in light of the liberal procedures available under the statute for claimants to obtain modifications to descriptions of accepted injuries, as well as the legitimate allocation to claimants of the burden to prove injuries which are not accepted by employers. In the absence of any relevant argumentation by the parties to this appeal, although we will not dispositively resolve the matter, we decline to disturb the Commonwealth Court s approach here. Id. Based on this language in Cinram Manufacturing, this Court held, in Harrison, that in Cinram Manufacturing, the Supreme Court clarified the meaning of Gumro. Citing the legitimate allocation to claimants of the burden to prove injuries which are not accepted by employers, the Supreme Court declined to disturb this Court s determination that an alleged herniated lumbar disc is an injury separate from an accepted lumbar sprain. Cinram Manufacturing, A.2d at 582 n.9. Where the injuries are separate, the burden rests with claimants to establish the existence of additional compensable injuries giving rise to corrective amendments, regardless of the procedural context in which the 10

11 amendments are asserted. Id. at In short, Cinram Manufacturing squarely places the burden of proving additional injuries upon the claimant. Harrison, 78 A.3d at 705. Here, as in Harrison, Claimant understood this, which is why [s]he filed a [R]eview [P]etition. Id. Therefore, based on Cinram Manufacturing and Harrison, we discern no error in the WCJ requiring Claimant to establish that the L4-L5 disc herniation was work related. Claimant also argues that the WCJ s findings regarding her full recovery from her right shoulder and lumbar injuries are not supported by substantial evidence or reasoned. Claimant maintains that Dr. Sexton s testimony that she was fully recovered from her work-related injuries should have been rejected because it was inconsistent with Dr. Katz s testimony and the MRIs which she alleges show that she is not fully recovered. Claimant further challenges the reasons the WCJ gave for rejecting the evidence that the L4-L5 disc herniation was work related. Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion. Wells- Moore v. Workmen s Compensation Appeal Board (McNeil Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). [T]he appellate role is not to reweigh the evidence or to review the credibility of the witnesses, but to determine whether, upon consideration of the evidence as a whole, the [WCJ s] findings have the requisite measure of support in the record. Bethenergy Mines, Inc. v. Workmen s Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992). When considering whether the WCJ s findings are supported by substantial evidence, we must consider the evidence in a light most favorable to the party 11

12 who prevailed before the [WCJ]. Brewer v. Workers Compensation Appeal Board (EZ Payroll & Staffing Solutions), 63 A.3d 843, 848 (Pa. Cmwlth. 2013). We first consider Claimant s challenge to the reasons the WCJ gave for rejecting the evidence regarding the work-relatedness of the L4-L5 disc herniation. Specifically, Claimant argues that the WCJ s explanation in finding of fact 8(d) is sheer speculation because, inter alia, the WCJ was not in the emergency room on January 2, 2011 and the emergency room physician did not testify. (Claimant s Br. at 14.) That finding of fact states: Had the claimant suffered a work-related lumbar disc herniation on January 2, 2011, she would have reported a much higher level of discomfort than mild low-back pain and she would not have demonstrated a full range of motion at the time of her emergency room evaluation. (FOF 8(d).) However, as Employer points out, Claimant did not challenge this finding of fact in her Board Appeal and, therefore, it is not preserved for this Court s review. Matticks, 872 A.2d at 202. Even if it were preserved, the record shows that Dr. Katz agreed that Claimant s emergency room records showed that she complained of mild low back pain due to lifting a heavy patient, mild tenderness of her low back, she had a full range of motion, was neurologically normal, and was diagnosed with a lumbar strain. (Katz Dep. at 39-40, R.R. at 140a-41a.) Thus, the record supports the WCJ s reasoning. Moreover, the WCJ provided other reasons for not crediting Claimant s evidence beyond that which supported right shoulder/trapezius and thoracic strains, including that Claimant denied ever having 12

13 prior neck pain and treatment, but did have such pain for which she underwent treatment; Dr. Katz was unaware of Claimant s prior treatment for her neck injury; and the disc herniation was not diagnosed until almost two years after the work incident. (FOF 8(c), 10(b), (c).) These reasons, also, are supported by the record and, therefore, we discern no abuse of discretion in the WCJ s credibility determinations. Claimant further notes that Dr. Sexton did not review the August 10, 2012 lumbar spine MRI that revealed the L4-L5 disc herniation, which left Dr. Katz s opinions uncontroverted. However, this is unsurprising because Dr. Sexton examined Claimant on January 9, 2012 and gave his deposition testimony on July 16, 2012, almost a month before the lumbar spine MRI was performed. While a WCJ cannot reject credible and uncontroverted medical evidence without explaining why the evidence is rejected, Acme Markets, Inc. v. Workmen s Compensation Appeal Board (Pilvalis), 597 A.2d 294, (Pa. Cmwlth. 1991), the WCJ here did not credit Dr. Katz s testimony regarding, inter alia, the workrelatedness of the L4-L5 disc herniation and provided reasons for doing so. Because the WCJ concluded that the L4-L5 disc herniation was not work related, it was of no moment that Employer s expert did not address the MRI revealing a non-work-related injury. Accordingly, the WCJ did not abuse her discretion in rejecting Dr. Katz s opinions despite Dr. Sexton s lack of review of that MRI. We next address Claimant s contention that the findings of fact pertaining to her full recovery are not supported by substantial evidence. In this matter, Dr. Sexton credibly testified that: Claimant had fully recovered from the work-related 13

14 strains and sprains to her low back, right shoulder/trapezius, and thoracic area; there was no objective evidence that those injuries continued; and Claimant could return to any employment without restrictions. (FOF 5.) This credited testimony constitutes substantial evidence to support the WCJ s finding that Claimant had fully recovered from her work-related injuries, which, in turn, supports the grant of Employer s Termination Petition. Claimant argues that, according to Dr. Katz, her shoulder MRI was not normal; however, the WCJ found Dr. Sexton s testimony more credible. 5 Our review of the record reveals that the April 2011 MRI of Claimant s right shoulder was not submitted into the record and, therefore, the only evidence on that point was the conflicting testimony of the two medical experts. As noted above, credibility determinations are a matter for the WCJ, not an appellate court, Bethenergy Mines, 612 A.2d at 437, and the WCJ chose to credit Dr. Sexton s testimony over Dr. Katz s testimony. Furthermore, as discussed, the fact that Dr. Sexton offered no opinion regarding the non-work-related L4-L5 disc herniation does not preclude the grant of Employer s Termination Petition. Finally, we consider Claimant s general arguments that the WCJ s Decision was not reasoned. Section 422(a) of the Act provides as follows: All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why 5 In her brief to this Court, Claimant challenges finding of fact 9, which sets forth the reasons why the WCJ credited Dr. Sexton s opinion. Employer observes that Claimant did not specifically challenge this finding of fact in her Board Appeal. While our review confirms that this is accurate, we note that Claimant challenged finding of fact 5 on the basis that Dr. Sexton s testimony was not sufficient to terminate Claimant s benefits. We conclude that this challenge encompasses a challenge to the WCJ s credibility determination regarding Dr. Sexton. 14

15 and how a particular result was reached. The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. 77 P.S Our Supreme Court discussed Section 422(a) in Daniels v. Workers Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003), stating that a WCJ s decision is reasoned for purposes of Section 422(a) if it allows for adequate review by the [Board] without further elucidation, and if it allows for adequate review by the appellate courts under applicable review standards. Id. at Further, the Supreme Court held that when the testimony presented is by way of deposition, a WCJ must articulate reasons why the testimony of one witness was credited over the testimony of another; the resolution of the conflicting evidence cannot be supported by a mere announcement that [the WCJ] deemed one expert more credible and persuasive than another. Id. at The WCJ s Decision here contains findings of fact and conclusions of law based on the evidence presented and it explains the rationale the WCJ used in reaching her determination. The WCJ further identified the conflicting evidence, resolved those conflicts, and adequately articulated reasons for why she credited some evidence over other evidence. In short, the WCJ s Decision provide[d] the basis for meaningful appellate review. 77 P.S Accordingly, that Decision is reasoned as required by Section 422(a) of the Act and Daniels. 15

16 For the foregoing reasons, we affirm the Board s Order. RENÉE COHN JUBELIRER, Judge 16

17 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Patricia Pujols, : : Petitioner : : v. : No C.D : Workers Compensation Appeal : Board (Good Shepherd Rehab : Hospital), : : Respondent : O R D E R NOW, July 16, 2015, the Order of the Workers Compensation Appeal Board, entered in the above-captioned matter, is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge