Opinion
No. 154 C.D. 2014
09-15-2014
Priscilla Williams, Petitioner v. Workers' Compensation Appeal Board (SPS Technologies), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Priscilla Williams (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) that reversed the portion of the Workers' Compensation Judge's (WCJ) decision that amended the description of Claimant's injury to include cervical radiculopathy and modified the WCJ's decision on SPS Technologies' (Employer) termination petition to reflect Claimant's full recovery from a right shoulder strain.
Claimant worked as a machine operator for Employer. On August 20, 2009, Claimant suffered a work-related injury in the course and scope of her employment as she operated a clutch on a machine. Employer issued a notice of compensation payable which identified Claimant's injury as "Rt. Shoulder & lumbar spine strain/sprain." Notice of Compensation Payable (NCP) at 1; Reproduced Record (R.R.) at 140a.
On May 28, 2010, Employer petitioned to terminate benefits on the basis that Claimant fully recovered from her work-related injury as of March 16, 2010.
On September 29, 2010, Employer petitioned to review utilization determination and challenged all treatment rendered by John J. Park, M.D. (Dr. Park), board-certified in anesthesiology and pain medicine and Claimant's treating physician, from April 7, 2010, and ongoing. The WCJ denied the petition. Employer did not appeal that decision to the Board or this Court.
On January 19, 2011, Claimant petitioned to review compensation benefits and alleged that the description of her injury contained in the NCP was incorrect because it did not include an L3-4 disc herniation, post-injection fluid collection at L3-4 leading to emergency surgery, L3-4 radiculopathy, and aggravation of degenerative disc disease at L3-4 and L4-5. The petitions were consolidated before the same WCJ.
Employer presented the deposition testimony of Donald F. Leatherwood, II, M.D. (Dr. Leatherwood), a board-certified orthopedic surgeon. On March 16, 2010, Dr. Leatherwood examined Claimant, took a history, and reviewed medical records. Dr. Leatherwood noticed some "give-way testing bilaterally" which indicated that Claimant "was not completely cooperative with the exam." Deposition of Donald F. Leatherwood, II, M.D., August 31, 2010, (Dr. Leatherwood Deposition) at 26; R.R. at 215a. In addition, Dr. Leatherwood believed "there were several parts of the examination that would lead me to believe that Ms. Williams was not fully cooperative." Dr. Leatherwood Deposition at 28; R.R. at 217a. Dr. Leatherwood opined that Claimant was fully recovered from her work-related injuries and was capable of returning to her time of injury job. Dr. Leatherwood Deposition at 32-33; R.R. at 221a-222a. Dr. Leatherwood explained that in his examination he found no objective evidence to substantiate Claimant's continued complaints, and, in fact, found her examination to be normal. Dr. Leatherwood Deposition at 34-35; R.R. at 223a-224a.
Claimant testified that she operated a machine that manufactured screws. Her job involved "pushing, pulling. When I say pushing and pulling pans, big pans. Lifting, pulling C-bins on the jacks, fixing machines, working the clutch, throwing in the clutch." Notes of Testimony, January 20, 2011, (N.T.) at 9; R.R. at 150a. Claimant testified that if she didn't take her medication, she "couldn't even move. I fall already. My limbs give away, but I wouldn't even be able to move at all if I didn't see him [Dr. Park]." N.T. at 22; R.R. at 163a. Claimant continued to experience pain in her neck, shoulder, arms, and lower back. She explained that she had pain that ran from her back down her legs so that "it feels like pins and needles walking." N.T. at 24; R.R. at 165a. Claimant did not believe that she was fully recovered from her work injury. N.T. at 25; R.R. at 166a.
Claimant presented the deposition testimony of Dr. Park who treated Claimant since October 15, 2009. The first time that Dr. Park treated Claimant, she complained of constant aching and throbbing pain in her neck and low back which radiated through her buttocks, legs, and arms. She also experienced muscle spasms, and tingling of both arms and legs. Deposition of John J. Park, M.D., November 16, 2010, (Dr. Park Deposition) at 10; R.R. at 10a. Based on this initial examination and a review of medical records, Dr. Park believed that Claimant had developed a lumbar disc herniation at L3-L4, along with degeneration at other levels which caused lumbar radiculopathy. Dr. Park Deposition at 12; R.R. at 12a. Dr. Park diagnosed Claimant at that time with asymptomatic disc degeneration with developed disc displacement. Dr. Park Deposition at 13; R.R. at 13a. Dr. Park opined that this condition was caused by Claimant's work injury. Dr. Park Deposition at 15; R.R. at 15a. Claimant underwent surgery to remove the collection of fluid which was identified as a synovial cyst with proteinaceous material at the L3-L4 area. Dr. Park Deposition at 19, 25; R.R. at 19a, 25a. Dr. Park diagnosed Claimant with lumbar radiculopathy and cervical radiculopathy. Dr. Park Deposition at 25-26; R.R. at 25a-26a. Dr. Park admitted that he did not treat Claimant's right shoulder. Dr. Park Deposition at 26; R.R. at 26a. Dr. Park opined that Claimant's lumbar spine condition was related to her work-related injury. Dr. Park Deposition at 37; R.R. at 37a. Dr. Park did not clear Claimant for any work activity. Dr. Park Deposition at 39; R.R. at 39a. On cross-examination, Dr. Park admitted that he did not have an opinion with regard to Claimant's right shoulder. Dr. Park Deposition at 72; R.R. at 72a.
The WCJ denied the termination petition and granted the review petition to expand Claimant's injuries to include a disc herniation at L3-4 that caused lumbar radiculopathy and required surgery, an annular tear at L4-5 with protrusion and cervical radiculopathy. The WCJ found Claimant credible. The WCJ made the following relevant finding of fact:
6. This Judge has reviewed the evidence from both medical experts and finds the opinions and conclusions of Dr. Park to be more credible and convincing than those of Dr. Leatherwood. Dr. Park is Claimant's treating physician and has evaluated Claimant on
numerous occasions. The testimony of Dr. Park is supported not only by the records of the panel physicians who treated Claimant following the work injury but by objective diagnostic studies. Dr. Park's examination revealed findings consistent with a lumbar disc herniation and radiculopathy. It was not until the August 2009 work injury that Claimant's lower back prevented her from returning to work. Dr. Park's opinion that as a result of the work injury Claimant suffered from a disc herniation at L3-4 causing lumbar radiculopathy, which required surgery and cervical radiculopathy, is found to be credible. The diagnoses from the emergency room at Abington Memorial Hospital and Dr. Mancini are also found to be credible and support the conclusions of Dr. Park. Where the opinions of Dr. Leatherwood conflict with the opinions of Dr. Park, the opinions of Dr. Leatherwood are rejected.WCJ's Decision, October 27, 2011, Finding of Fact No. 6 at 7; R.R. at 281a.
Employer appealed to the Board and alleged that numerous findings of fact made by the WCJ were unsupported by substantial evidence, that the WCJ erred when she included cervical radiculopathy as part of the work injury, and that the WCJ erred when she failed to credit Dr. Leatherwood's unrebutted and uncontradicted opinion regarding Claimant's full recovery from a right shoulder strain.
The Board reversed the inclusion of cervical radiculopathy in the grant of the review petition. The Board modified the decision with respect to the termination petition:
Defendant [Employer] specifically asserts that the WCJ erred in not accepting the unrebutted testimony of Dr. Leatherwood that Claimant had fully recovered from her right shoulder strain. We agree.
While a WCJ is entitled to accept or reject even uncontradicted medical testimony . . . she does not have the discretion to disregard competent evidence without a reasonable explanation or without specifically discrediting it. . . . Here, the WCJ rejected the testimony of Dr. Leatherwood that Claimant had fully recovered from her work injuries which included the additionally accepted injuries to Claimant's lumbar spine. While there is substantial evidence to support a finding of a continued disability as it pertains to Claimant's lumbar spine, there is no substantial evidence to support a finding of continued disability related to Claimant's right shoulder. Dr. Leatherwood examined Claimant's right shoulder and, noting no objective findings, opined that she had fully recovered from her shoulder strain. More importantly, Dr. Park admitted that he has not been treating Claimant for any right shoulder problems. Given the lack of treatment to Claimant's shoulder and Dr. Leatherwood's normal examination, we determine that there was no substantial evidence to support a continued disability related to Claimant's right shoulder.
. . . .
Finally, Defendant [Employer] argues that the WCJ erred in adding cervical radiculopathy to the accepted work injury. We agree.
Upon review, we note that the medical testimony was very limited regarding an alleged cervical radiculopathy. The only reference to cervical radiculopathy is upon Dr. Park specifically being asked about Claimant's 'working diagnosis' at which time he opined 'lumbar radiculopathy, cervical radiculopathy.' No testimony was elicited from Dr. Park serving to establish a causal connection between this condition and the work incident of August 20, 2009. Such testimony was necessary, particularly in light of the fact that Claimant had been diagnosed with cervical radiculopathy a year prior to her work injury and further had complained of cervical symptoms following a non work related thyroid surgery in 2010. While Dr. Park went to great lengths to explain the causal connection between the work injury and the diagnosis of lumbar radiculopathy, nothing was said about a causal relationship between the work injury and
cervical radiculopathy. Having failed to establish a causal relationship between the work injury and the alleged cervical radiculopathy, the Claimant failed to meet her burden and the WCJ erred in amending the description of injury to include such diagnosis.Board Opinion, December 31, 2013, at 8-10; R.R. at 293a-295a.
Claimant contends that the Board erred when it modified the WCJ's decision with respect to the termination petition and when it reversed in part the WCJ's decision to grant Claimant's review petition.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
Initially, Claimant contends that the Board erred when it modified the WCJ's decision to deny the termination petition with respect to Claimant's right shoulder injury because the WCJ's determination that Claimant continued to suffer from her work-related shoulder injury was supported by substantial and competent evidence.
The employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met if an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, may return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
Here, Claimant credibly testified that she continued to experience pain in her shoulder among other parts of her body. Dr. Leatherwood testified that Claimant was fully recovered from her work-related injury, that she could return to her time of injury job without restrictions, and found no objective basis for Claimant's complaints of pain. Dr. Leatherwood Deposition at 32-33; R.R. at 221a-222a. In general, Dr. Leatherwood's testimony referred to both accepted work injuries, the right shoulder and the lumbar spine. Specifically, in reference to the right shoulder, Dr. Leatherwood testified:
Further examination of the right shoulder revealed that it was universally tender and a universally positive exam. . . . In other words, on the right side everything I touched in every part of the shoulder was said to have a problem. . . . But when we see that the test is universally positive, I think it raises question as to the validity of the test itself.Dr. Leatherwood Deposition at 26-27; R.R. at 215a-216a.
In contrast, Dr. Park, specifically admitted that he did not have an opinion in regard to Claimant's right shoulder. Dr. Park Deposition at 72; R.R. at 72a.
The WCJ, as the ultimate finder of fact in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991). This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995). Although a WCJ may generally disregard the testimony of any witness, even if that testimony is uncontradicted, a WCJ does not have the discretion to capriciously disregard competent evidence without a reasonable explanation or without specifically discrediting it. Acme Markets, Inc. v. Workmen's Compensation Appeal Board (Pilvalis), 597 A.2d 294 (Pa. Cmwlth. 1991).
Here, the WCJ rejected Dr. Leatherwood's testimony where it conflicted with that of Dr. Park. Dr. Leatherwood was the only medical witness to opine on the status of Claimant's right shoulder. Therefore, the WCJ neither rejected nor accepted Dr. Leatherwood's testimony concerning the shoulder.
In Arvilla Oilfield Services, Inc. v. Workers' Compensation Appeal Board (Carlson), 91 A.3d 758 (Pa. Cmwlth. 2014), this Court addressed a similar issue. Paul Carlson (Carlson) had worked for Arvilla Oilfield Services, Inc. (Arvilla) as an oil field operator. On July 20, 2004, he suffered a work-related injury when he was struck by heavy tubing. Arvilla issued a notice of compensation payable and accepted the injury as a labral tear of the right hip as well as strains and contusions to the low back and right shoulder. In December 2009, Arvilla filed a modification petition and alleged that Carlson had fully recovered from the work injuries to his low back and right shoulder. Arvilla stipulated that Carlson had not recovered from his hip injury. Each party presented medical evidence with respect to the modification petition. Arvilla, 91 A.3d at 760-761.
With respect to this first modification petition, the Workers' Compensation Judge found that Carlson was fully recovered from his right shoulder injury and granted the modification petition as to that injury. The Workers' Compensation Judge found that Carlson had not fully recovered from his back strain and denied the modification petition with respect to that injury.
Before the modification petition was decided, Arvilla requested that Carlson undergo an Impairment Rating Evaluation (IRE) pursuant to Section 306(a.2) of the Workers' Compensation Act (Act). Jeffrey M. Moldovan, D.O. (Dr. Moldovan) conducted the IRE on June 3, 2010. Dr. Moldovan assigned a zero percent impairment rating to Carlson's right shoulder and low back and a twenty-five percent impairment rating to Carlson's hip and lower extremity for a total impairment rating of ten percent. Dr. Moldovan testified by deposition that Carlson had reached maximum medical improvement. Carlson did not present any evidence in opposition to the IRE report or deposition. Arvilla, 91 A.3d at 761-762.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511.2. This section was added by the Act of June 24, 1996, P.L. 350.
Under Section 306(a.2)(1) of the Act, an employer may petition to modify benefits from total to partial if the IRE results in an impairment rating of less than fifty percent. Then the IRE becomes an item of evidence just like the result of any medical examination, and the workers' compensation judge must make credibility findings related to the IRE and the examining physician and evidence introduced to rebut the findings of the IRE. Diehl v. Workers' Compensation Appeal Board (I.A. Construction), 5 A.3d 230 (Pa. Cmwlth. 2010). Impairment is defined in Section 306(a.2)(8)(i) of the Act, 77 P.S. §511.2(8)(i), as "an anatomic or functional abnormality or loss that results from the compensable injury and is reasonably assumed to be permanent." The American Medical Association Guides to the Evaluation of Permanent Impairment (Guides) are used under the Act to determine impairment. The Guides provide that if the claimant has not reached maximum medical improvement, an impairment rating is not valid. --------
The Workers' Compensation Judge rejected Dr. Moldovan's opinion that Carlson had reached maximum medical improvement and denied the petition. The Workers' Compensation Judge relied on the testimony of Carlson's treating physician, Dominic M. Sciamanda, D.O. (Dr. Sciamanda) that Carlson continued to make progress and to have setbacks. Arvilla, 91 A.3d at 762-763.
Arvilla appealed to the Board which affirmed. Arvilla then petitioned for review with this Court and contended that the Workers' Compensation Judge's finding that Carlson had not reached maximum medical improvement as of the IRE that took place on June 3, 2010, was unsupported by substantial evidence. Arvilla contended that the Workers' Compensation Judge capriciously disregarded the only competent medical evidence of record, the opinion of Dr. Moldovan, on whether Carlson had reached maximum medical improvement. Arvilla further argued that the finding that Carlson had not reached maximum medical improvement was unsupported by substantial evidence because the Workers' Compensation Judge relied on one phrase used by Dr. Sciamanda taken out of context and that Dr. Sciamanda did not address whether Carlson had reached maximum medical improvement at the time the IRE was conducted. Dr. Sciamanda's deposition was taken in opposition to the other modification petition. Arvilla, 91 A.3d at 763.
This Court noted that Section 422 of the Act, 77 P.S. §834, provides, "[u]ncontroverted 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." (Emphasis added by this Court in Arvilla). Arvilla, 91 A.3d at 764 n.8. This Court further determined:
In this case, the WCJ rejected Dr. Moldovan's opinion in favor of Dr. Sciamanda's testimony. However, Dr. Sciamanda did not testify on the issue of maximum medical improvement. Further, it cannot be inferred from Dr. Sciamanda's deposition that Claimant had not reached maximum medical improvement on the day Dr. Moldovan examined him . . . .
. . . .
First, Dr. Sciamanda was neither asked to render nor specifically offered his opinion on Claimant's [Carlson] maximum medical improvement as defined in the AMA Guides. Dr. Sciamanda stated that Claimant [Carlson] 'generally 'seems to be making progress' with his treatment goals although he 'certainly has setbacks at times' . . . . This opinion may support a finding that Claimant [Carlson] was not fully recovered, but that is not the inquiry of an IRE.
Second, Dr. Sciamanda last saw Claimant [Carlson] in February 2010 and gave his deposition on March 4, 2010, three months before Dr. Moldovan's IRE on June 3, 2010. The claimant's condition at the time of the IRE is critical. . . . Dr. Sciamanda's March 2010 testimony cannot support a finding that Claimant [Carlson] had not reached maximum medical improvement on June 3, 2010.
. . . .
The WCJ erred in relying on Dr. Sciamanda's testimony for the reasons discussed above. Employer [Arvilla] presented the only competent evidence of maximum medical improvement. The WCJ is permitted to reject uncontroverted evidence. However, if the WCJ chooses to do so, she must comply with the . . . requirement in
Section 422(a) of the Act. . . . (Citations and footnote omitted).Arvilla, 91 A.3d at 765-766.
This Court vacated and remanded to the Board to remand to the Workers' Compensation Judge to make a credibility determination based solely on Dr. Moldovan's deposition testimony and IRE report. If the Workers' Compensation Judge decided to reject this uncontroverted evidence, she would have to explain her reasons for doing so pursuant to Section 422(a) of the Act, 77 P.S. §834. Arvilla, 91 A.3d at 767.
Similarly, here, the WCJ rejected Dr. Leatherwood's opinion where it conflicted with Dr. Park's. Dr. Leatherwood presented the only medical evidence with respect to Claimant's shoulder injury. Dr. Park did not offer an opinion on Claimant's shoulder injury. As a result, this Court must vacate that portion of the Board's order with respect to this issue and remand to the WCJ for consideration of Dr. Leatherwood's uncontroverted evidence that Claimant was fully recovered from her shoulder injury. As in Arvilla, the WCJ is free to reject this testimony but must explain her reasons for doing so. Because a WCJ can credit a claimant's continued complaints of pain over a doctor's testimony and deny a termination petition, see Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503 (Pa. Cmwlth. 1998), on remand, the WCJ shall also evaluate the testimony of Claimant with respect to the shoulder injury, make specific credibility determinations regarding Claimant's and Dr. Leatherwood's testimony, and explain the reasons for the credibility determinations.
Claimant next contends that the Board's decision to reverse in part the WCJ's decision that granted Claimant's review petition and amended the description of injury to include cervical radiculopathy was in error because the WCJ's decision was supported by substantial evidence.
A review petition is appropriate where the claimant seeks to amend a notice of compensation payable to reflect further injuries and functions as a claim petition. When such a petition is filed the WCJ must treat the respective burdens of the parties as if the review petition were an original claim petition. Westinghouse Electric Corp/CBS v. Workers' Compensation Appeal Board (Korach), 883 A.2d 579 (Pa. 2005). In a claim petition, the claimant must establish not only that he sustained a compensable injury but also that the injury continues to cause disability through the pendency of the claim petition. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). Unless a causal connection between an injury and disability is obvious, unequivocal medical evidence is needed to establish that connection. Mensah v. Workers' Compensation Appeal Board (Norrell Temp Agency), 716 A.2d 707 (Pa. Cmwlth. 1998).
Here, there was no obvious connection between the cervical radiculopathy and the August 20, 2009, work injury. Dr. Park diagnosed Claimant with cervical radiculopathy. Dr. Park Deposition at 25-26; R.R. at 25a-26a. However, at no point in his deposition did Dr. Park state that the work injury caused the cervical radiculopathy. As a result, the Board did not err when it determined that Claimant failed to sustain her burden of proof to amend the NCP to include cervical radiculopathy as one of her injuries.
Accordingly, this Court vacates that portion of the Board's order that modified the WCJ's denial of the termination petition and remands this case to the Board to remand to the WCJ for consideration of the credibility of Dr. Leatherwood's testimony and Claimant's testimony regarding Claimant's right shoulder injury. This Court affirms the portion of the Board's order regarding Claimant's review petition.
/s/_________
BERNARD L. McGINLEY, Judge Judge Brobson Concurs in Result Only. ORDER
AND NOW, this 15th day of September, 2014, the order of the Workers' Compensation Appeal Board in the above-captioned matter is vacated and remanded in part and is affirmed in part. This Court vacates that portion of the Workers' Compensation Appeal Board's order that modified the Workers' Compensation Judge's decision on the termination petition. This case is remanded to the Workers' Compensation Appeal Board for further remand to the Workers' Compensation Judge for consideration of the credibility of Dr. Leatherwood's testimony and Priscilla Williams's testimony regarding Priscilla Williams's right shoulder injury. The Workers' Compensation Judge shall act on the basis of the existing record. The Workers' Compensation Judge shall explain the reasons for the credibility determinations. This Court affirms the portion of the Workers' Compensation Appeal Board's order which addressed Priscilla Williams's review petition. Jurisdiction relinquished.
/s/_________
BERNARD L. McGINLEY, Judge