Opinion
No. 223 C.D. 2014
10-02-2014
Amro Elkabany, Petitioner v. Workers' Compensation Appeal Board (Ingram Micro), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Amro Elkabany (Claimant) petitions, pro se, for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting his claim for benefits for a closed period. In doing so, the Board affirmed the Workers' Compensation Judge's (WCJ) decision granting Claimant's claim petition, in part, and terminating Claimant's benefits upon his full recovery from the established work injury. Finding no error by the Board, we affirm.
Claimant worked for Ingram Micro (Employer) as a laborer responsible for loading trucks. On March 22, 2011, Claimant filed a claim petition alleging that on December 14, 2010, he sustained injuries to his right shoulder, neck and cervical spine after performing heavy lifting in the course of his employment. Claimant sought ongoing total disability benefits. Employer filed an answer denying Claimant's allegations and the matter was assigned to the WCJ.
At the hearing before the WCJ, Claimant testified, through an interpreter, that on December 14, 2010, he spent the day loading boxes onto trucks for Employer. After completing his shift, Claimant got into his car located in Employer's parking lot, tried to turn the steering wheel, and felt an excruciating pain in his right shoulder, chest and back. A friend drove Claimant home that night. Upon arriving at work the next day, Claimant informed his supervisor of the pain and was told to go to Good Samaritan Hospital, where he was prescribed a pain killer. Thereafter, Claimant was assigned light duty work folding boxes. He missed six or seven days of work, which he attributed to pain and being tired. On March 19, 2011, Employer fired Claimant for having accumulated 12 "points" on his attendance record. Claimant testified that he tried to remove several of the points because some of the absences were due to his work injury. Claimant has not worked since Employer discharged him.
Traci Faiola, an associate human resource generalist for Employer, testified that employees receive either a half point or a full point for unscheduled time off, depending on how much of their shift they miss. The only exception is where the employee is hospitalized. An employee is terminated when he accumulates 12 points within a rolling calendar year, beginning on his date of hire. Prescheduled days off do not result in a point. Claimant was aware of Employer's policy and was given warnings and explanations each time he received additional points.
Claimant was determined to be eligible for unemployment compensation benefits, but had not received any benefit payments as of the date of the May 17, 2011, hearing.
Joseph P. Guagliardo, D.O., a board certified orthopedic surgeon, testified on behalf of Claimant. Claimant was first seen by Dr. Guagliardo's associate, Dr. Allon, on March 31, 2011. When Dr. Guagliardo examined Claimant on April 20, 2011, Claimant stated that he was suffering right shoulder and neck pain. Observing that Claimant's movements were significantly restricted, Dr. Guagliardo recommended physical therapy and rest. Dr. Guagliardo opined that Claimant had been disabled from performing his pre-injury job since December 14, 2010, and ongoing. Dr. Guagliardo testified that his associate, Dr. Carabelli, had performed an electromyography (EMG) on Claimant and diagnosed him with a bilateral C7 radiculopathy and left carpal tunnel syndrome. Based upon his review of the results of Claimant's MRI and EMG, Dr. Guagliardo opined that Claimant sustained injuries to the musculature of his neck, a right shoulder strain and cervical disc injuries.
On cross-examination, Dr. Guagliardo admitted that he is not an expert in reading EMG results and that an EMG study cannot date the inception of the condition detected. He also admitted that he did not know that Claimant first complained of neck pain in February 2011, conceding that he would have expected such complaints to start much earlier, around the time of the injury. He conceded this delay in reporting pain would impact his opinion.
Employer presented the testimony of Robert W. Mauthe, M.D., who is board certified in physical medicine and rehabilitation as well as in pain medicine. He is also qualified to interpret an EMG study. Dr. Mauthe examined Claimant on July 21, 2011, and reviewed his medical history. Dr. Mauthe testified that Claimant had a normal musculoskeletal and neuralgic examination with no evidence of injury or impairment. Dr. Mauthe noted that Claimant was involved in a motor vehicle accident in May 2009, which caused neck, back and upper abdominal pain. Dr. Mauthe opined that Claimant likely suffered a right shoulder strain at work on December 14, 2010, from which he had fully recovered by July 21, 2011, when Dr. Mauthe saw him. Dr. Mauthe noted, further, that Claimant did not complain of neck pain at the emergency room in December 2010 or mention neck pain to any physician until February 24, 2011. Dr. Mauthe disagreed with Dr. Guagliardo's and Dr. Carabelli's interpretation of the EMG and opined, with absolute medical certainty, that the EMG was normal and did not show bilateral radiculopathy.
The WCJ partially credited Claimant's and Dr. Gaugliardo's testimony. Specifically, he found Claimant credible that he suffered a work-related right shoulder strain on December 14, 2010, but not credible that he sustained a work-related neck injury. The WCJ rejected as not credible Claimant's testimony that he suffered a neck injury in December 2010 because he had injured his neck in a car accident in May 2009 and did not report neck pain until February 2011. The WCJ credited Dr. Guagliardo's testimony that Claimant suffered a right shoulder injury but rejected his opinion that Claimant's neck injury was work-related. The WCJ credited Dr. Mauthe's testimony that Claimant suffered a right shoulder strain at work on December 14, 2010, and was fully recovered from that injury on July 21, 2011.
Based on these findings, the WCJ held that Claimant established a work-related right shoulder injury, but failed to prove a work-related injury to his neck or cervical spine. The WCJ further held that Claimant had not experienced a loss of earnings due to his work injury because Employer provided him with light duty work. Finally, the WCJ held that Claimant had fully recovered from his work injury as of July 21, 2011. The WCJ ordered Employer to pay for Claimant's medical treatment for the shoulder injury and to reimburse Claimant's counsel for litigation costs. Benefits were terminated as of July 21, 2011. Claimant appealed to the Board, which affirmed the WCJ's decision. Claimant then petitioned for this Court's review.
Our review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether the Board's procedures were violated, whether constitutional rights were violated, or whether an error of law was committed. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Graves v. Workers' Compensation Appeal Board (Philadelphia Housing Authority), 983 A.2d 241, 244 n.6 (Pa. Cmwlth. 2009).
Claimant raises several issues on appeal. First, Claimant argues that, due to the fault of his lawyer, the WCJ did not receive several relevant documents that would have affected the outcome of his case. Second, Claimant argues that the WCJ improperly focused on the May 2009 car accident and not his December 2010 job injury. Third, Claimant contends that Employer erroneously gave him "attendance points" for days when he should have been given sick leave. Employer counters that the Board's decision is supported by substantial evidence.
In his first issue, Claimant argues that the record is incomplete because his attorney failed to introduce several documents that Claimant believes would have changed the outcome of his claim petition proceeding. Claimant has appended the documents to his brief; however, we may not consider them. It is a fundamental rule of appellate review that a reviewing court is confined to the record made before the WCJ. PA. R.A.P. 1551(a). See also Pryor v. Workers' Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1201 (Pa. Cmwlth. 2006) (appellate court may not consider extra-record evidence in a party's brief). Moreover, if Claimant believed the record before the WCJ was incomplete, the time to raise that issue was in his appeal to the Board; the issue is waived.
The documents are: (1) a training sign-off sheet which Claimant argues shows he was working normal duty and not light duty in February 2011; (2) Claimant's attendance sheet, which Claimant argues shows that the points he received were related to his work injury; (3) a letter from Claimant's doctor showing that his injuries from the May 2009 motor vehicle accident were to his lower back and not his neck; (4) MRI results from May 2009 allegedly indicating a normal spine, which Claimant argues shows that the injuries indicated on the MRI taken after his work injury prove that he injured his neck in December 2010; (5) a letter from Claimant's roommate stating that he heard Claimant scream in pain from his neck and shoulder in early February 2011; (6) a letter regarding an investigation of Employer's company doctor based on Claimant's allegations that the doctor was indifferent to his pain; and (7) a document purportedly from a doctor advising Claimant to take a day off for which Employer later charged Claimant a point.
It states, in relevant part:
(a) Appellate jurisdiction petitions for review. Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit[.]
In his second issue, Claimant argues that the WCJ erred in considering his May 2009 car accident. Claimant argues that several of the attendance points he received were for absences related to his work injury and should not have counted. We will consider these arguments together because they challenge whether the WCJ's findings are supported by substantial evidence. In essence, Claimant's argument is that his neck pain was related to his work injury on December 14, 2010, and not to his May 2009 car accident. We also infer from Claimant's arguments that he believes he is not fully recovered from this injury. Employer counters that the WCJ considered all the evidence, including the evidence offered by Claimant, and concluded that Claimant suffered a work-related right shoulder injury; had recovered from his work injury on July 21, 2011; and that Claimant's neck injury was not work-related.
The claimant has the burden of establishing all the elements necessary to support an award of compensation. Southern Chester County Hospital v. Workmen's Compensation Appeal Board (Sinsheimer), 676 A.2d 315, 316 (Pa. Cmwlth. 1996). To establish entitlement to an award of compensation, a claimant must prove that there is a causal connection between the alleged disability and injury sustained at work. Calex, Inc. v. Workers' Compensation Appeal Board (Vantaggi), 968 A.2d 822, 826 (Pa. Cmwlth. 2009).
Substantial evidence is such relevant evidence that a reasonable person might find sufficient to support the WCJ's findings. Rosenberg v. Workers' Compensation Appeal Board (Pike County), 942 A.2d 245, 249 n.4 (Pa. Cmwlth. 2008). The ultimate fact finder is the WCJ. Magayna v. Workmen's Compensation Appeal Board (Jones & Laughlin Steel Corp.), 539 A.2d 952, 954 (Pa. Cmwlth. 1988). The WCJ is free to accept, in whole or in part, the testimony of any witness, including medical witnesses. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995).
Here, the WCJ considered the testimony of Claimant's medical expert, Dr. Guagliardo, but found him not credible, at least in part. Specifically, the WCJ rejected Dr. Guagliardo's testimony that Claimant's neck injury was work-related because there was no mention of neck pain in the initial incident report or in Claimant's medical records from December 2010. The first documented complaints of Claimant's neck pain occurred two months later in February 2011. Dr. Guagliardo acknowledged on cross-examination that such information would have affected his opinion. We conclude that Claimant did not meet his burden of proving that his neck pain was related to his work injury. Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking Corp.), 692 A.2d 1062, 1066 (Pa. 1997) (noting that a physician's testimony is not competent evidence when it is not supported by the medical record or factual history). The credited testimony of Employer's expert, Dr. Mauthe, provides substantial evidence to support the WCJ's determination that Claimant sustained only a right shoulder injury at work on December 14, 2010.
The record also supports the WCJ's finding that Claimant had recovered from his work-related injury as of July 21, 2011. The WCJ accepted as credible Dr. Mauthe's testimony that Claimant had fully recovered as of that date. Claimant's current complaints of pain appear to relate to his neck, which, as discussed above, is not a work-related injury but rather a pre-existing or superseding ailment. Frye v. Workmen's Compensation Appeal Board (Lafferty Trucking Co.), 467 A.2d 659, 661 (Pa. Cmwlth. 1983). Consequently, the WCJ appropriately terminated Claimant's benefits as of July 21, 2011.
For these reasons, we affirm the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 2nd day of October, 2014, the order of the Workers' Compensation Appeal Board dated January 30, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
PA. R.A.P. 1551(a) (emphasis added).