Opinion
No. 1211 C.D. 2012
06-20-2013
Fausto Cadena, Petitioner v. Workers' Compensation Appeal Board (Acme Markets, Inc./Supervalu and Specialty Risk Services), Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Fausto Cadena, petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the partial grant of his claim petitions, the denial of his modification petition and the partial denial of his employer's termination petition. While a variety of issues have been raised on appeal, the only issue properly preserved is whether the termination of claimant's benefits is supported by competent, unequivocal medical evidence. We affirm.
Claimant's appellate brief sets forth eight questions presented.
Cadena sustained a work-related low back injury in August 2008 (August injury) while employed by Acme Markets, Inc./Supervalu (Employer). It is undisputed that Employer issued a "medical only" notice of compensation payable (NCP) describing the injury as a strain to the lumbar spine. In September 2008, Cadena sustained a second injury to his low back (September injury), and a second medical only NCP was issued, describing the injury as a sprain/strain to the lumbar region. According to the findings of the Workers' Compensation Judge (WCJ) assigned to resolve the petitions, in early 2009 Cadena filed a modification petition regarding his August injury alleging that his condition had worsened and/or he had sustained a decrease in his earning power. Thereafter, Cadena filed a claim petition for each injury, seeking total disability benefits as of July 23, 2009. Employer followed with two termination petitions, asserting that Cadena had fully recovered from both injuries as of January 6, 2010.
Following his injury, Cadena worked in a light-duty capacity with restrictions and then ceased working entirely in late July.
In addition to testifying, Cadena presented, among other things, the testimony of his treating physician, Amir Katz, M.D. Employer presented the testimony of Philip Perkins, M.D., who treated Cadena for a period of time following his injuries, as well as Robert Mauthe, M.D., who examined Cadena at Employer's request. Notably, Dr. Perkins testified that when he last saw Cadena on July 7, 2009, he was capable of performing light duty work with restrictions pertaining to lifting and body position. Dr. Mauthe opined, in pertinent part, that Cadena's August injury was a lumbar strain and that he had fully recovered from that injury as of January 6, 2010, and was capable of returning to work without any restrictions at that time. Employer also adduced the testimony of Kevin Keith, its safety and training coordinator. According to Keith, in August 2009, it offered Cadena, who was not working, the opportunity to return to work in a position that met the restrictions identified by both Drs. Perkins and Mauthe.
Dr. Mauthe also opined that Cadena was capable of working in May 2009 in a light-duty capacity with restrictions.
The WCJ credited the opinion of Dr. Mauthe, and to the extent not inconsistent, the opinions of Drs. Katz and Perkins. In noting his credibility findings, the WCJ specifically stated that he rejected Dr. Katz's opinion that Cadena's August injury caused a herniated disc at L4-L5 and bilateral lumbosacral radiculopathy and that, as of August 2009, Cadena was not capable of performing light-duty work. Accordingly, based upon the credited evidence, the WCJ found that Cadena suffered a work-related lumbar strain in August 2008 and that he had fully recovered from that injury by January 6, 2010. The WCJ further found that Cadena did not sustain a loss of earnings or earning power as a result of his injuries because he initially worked in a light-duty position, he remained capable of performing light-duty work and such work remained available to him after he stopped working in July 2009. Consequently, the WCJ granted Cadena's claim petitions and suspended wage loss benefits on the date of each injury. The WCJ further denied Cadena's modification petition. Finally, the WCJ granted Employer's termination petition regarding the August injury as of January 6, 2010, but denied the termination petition regarding the September injury.
Consistent with the second medical-only NCP, the WCJ also found that the September injury resulted in a lumbar sprain/stain.
Both parties appealed to the Board. In his pro se appeal, Cadena challenged the WCJ's finding of fact number 6 (which summarized in part Cadena's testimony that he did not miss any time from work after undergoing a discogram), specifically noting the dates that he was out of work following his discogram on March 9, 2009. Cadena also challenged finding of fact number 20 (which summarized Dr. Mauthe's testimony, including his opinion that Cadena had fully recovered from his injury by January 2010 and could work without restriction), noting that he still suffers pain from his injury and cannot work. Finally, Cadena challenged finding of fact number 22, particularly that light-duty work was available to him. In this regard, he asserted that Employer informed him that work was not available to him because he was using a cane. More than three months later, a counseled amended appeal raising numerous other issues was filed on behalf of Cadena. While the Board did not grant Employer's subsequent motion to quash the appeal, it limited its review to the issues raised in Cadena's pro se appeal and affirmed the WCJ's decision and order. This counseled appeal followed.
The issues raised by Employer are not relevant here.
On appeal, Cadena challenges the WCJ's acceptance of Dr. Mauthe's opinion that he suffered only a lumbar strain in August 2008 and that he had fully recovered from that injury by January 6, 2010. Cadena suggests that Dr. Mauthe's opinion that he only sustained a lumbar strain is not credible because various diagnostic tests demonstrated a more severe injury. Specifically, he notes that MRIs of the lumbar spine first depicted a herniated disc at L4-L5 and later demonstrated an annular tear at that same level, an electromyogram and nerve conduction study demonstrated L4 and L5 radiculopathy, and a discogram of the lumbar spine revealed an abnormality at the L4-L5 level. Cadena also argues that Dr. Mauthe (as well as Dr. Perkins) was not competent to suggest or imply that Cadena was exaggerating his symptoms because he lacks any specialized training to make such an assessment (according to his curriculum vitae) and the tests underlying such conclusions lack accuracy and acceptance. He further suggests that Dr. Mauthe's opinion is equivocal because the doctor initially opined that Cadena suffered from intervertebral disc syndrome, not a strain, and he failed to review the films from an MRI performed on July 28, 2009. These arguments are meritless.
It is beyond peradventure that issues not raised before the Board are waived for purposes of appellate review. See Myers v. Workers' Comp. Appeal Bd. (Family Heritage Rest.), 728 A.2d 1021 (Pa. Cmwlth. 1999). Accordingly, we have limited our review to the only issues possibly suggested by Cadena's pro se appeal to the Board.
Dr. Mauthe noted that upon examination, Cadena had nonphysiologic findings and Waddell's testing was positive. Apparently, Waddell's testing is a series of tests administered during a physical examination to determine whether a patient's response to certain movements is inappropriate or contrary to the expected response.
An employer is entitled to terminate benefits when it demonstrates that the claimant is fully recovered from the work-related injury and all disability related to the injury has resolved. Hall v. Workers' Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734, 740 (Pa. Cmwlth. 2010) (reargument denied). The employer satisfies its burden with unequivocal, competent medical evidence. Id. The WCJ is the ultimate fact finder in these proceedings and questions of credibility and weight of the evidence are for the WCJ, who may accept or reject the testimony of any witness in whole or in part. Jenkins v. Workmen's Comp. Appeal Bd. (Woodville State Hosp.), 677 A.2d 1288, 1292 (Pa. Cmwlth. 1996). Further, the WCJ's "acceptance of one medical opinion over another is not the basis for reversible error." Id. at 1293 (citation omitted).
After a review of Dr. Mauthe's testimony, which was credited by the WCJ, we conclude that it constitutes a competent, unequivocal medical opinion sufficient to support the finding that Cadena had fully recovered from his August injury as of January 6, 2010. Dr. Mauthe unequivocally opined that the August injury was a lumbar strain and that Cadena had fully recovered from that work-related condition. Dr. Mauthe's interpretation and reliance on the various diagnostic tests is a matter that affects the weight and credibility of his opinion, not its competency. According to Dr. Mauthe, while he initially diagnosed intervertebral disc syndrome, he changed his opinion in that regard when the subsequent discogram did not confirm the disc was the source of Cadena's complaints. Dr. Mauthe opined in pertinent part:
Indeed, the tests themselves only indicate the presence or absence of objective criteria or conditions; the import of such findings is a matter of interpretation for the medical expert.
It's my opinion now, based on the fact that here's a pre-existing condition of low back pain, that the MRI was just degenerative and it wasn't the disc that was the source of his pain. In the presence of severe symptom magnification and no objective impairment, it was my opinion that he completely and fully recovered from any and all injuries sustained on or about 8/13/08.
. . . .
Reproduced Record (R.R.) at 436-37a. Dr. Mauthe also opined on the significance of the EMG and nerve conduction test, stating:
[The fact that claimant did not improve with any therapy or injections] indicates to me that the lumbar spine is not the source of his pain, it's not consistent with an ongoing injury, but that he does have an underlying degenerative condition which is nonwork related.
An EMG is a sampling of the muscles by inserting a small wire electrode. In order to have a positive EMG that is consistent with radiculopathy, there has to be evidence of compression of the nerve root on the imaging study.Id. at 438-39a. Thus, Dr. Mauthe fully explained how the test results influenced his diagnosis as well as the reason behind his change in diagnosis. As noted, these are matters that affect the weight and credibility of his opinion; they do not render it incompetent or equivocal.
We know from two studies done, both the MRI and the discogram, that there's no involvement of the nerve root. His physical exam fails to reveal any atrophy, weakness, or true sensory loss. The findings that Dr. Katz comments on cannot have arisen from a lumbar spine compressive lesion because none such exists. So those results in and of themselves have to be interpreted with caution.
There are other reasons you can get positive EMG findings in the absence of a compressive lesion. Those would include infection, local trauma, diseases. But without evidence of a disc herniation compressing the nerve root, it can't come from the spine.
We also reject the argument that Dr. Mauthe was not qualified to opine on whether Cadena demonstrated signs of symptom magnification. Dr. Mauthe is board-certified in physical medicine and rehabilitation and a certified electromyographer; his practice entails nonsurgical management of pain arising from the skeletal system. According to Dr. Mauthe, almost all of his patients are involved in some type of work injury or personal injury and he is responsible for the diagnosis and treatment of such conditions, with the goal of achieving the highest possible level of function. See R.R. at 427a. Dr. Mauthe's medical report noted his impression of symptom magnification and no objection was articulated to his qualifications in general or when he testified to his opinion regarding the presence of symptom magnification. Accordingly, the issue is waived. Notwithstanding waiver, we note that in the absence of any authority to support the assertion, we conclude that a physician who is board-certified in physical medicine and rehabilitation is competent to render an opinion on whether a patient is demonstrating signs of symptom exaggeration. Indeed, this skill seems intrinsically related to the proper diagnosis and treatment of a disorder.
Counsel has not pointed to or offered any legal or medical basis to support his contention that a physician, such as Dr. Mauthe, who routinely treats injured workers, requires additional, specialized training to opine on whether a patient is demonstrating nonphysiologic complaints of pain, and we are unaware of any. --------
Based upon the foregoing, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 20th day of June, 2013, the order of the Workers' Compensation Appeal Board in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge