Philadelphia Housing Auth. v. WCAB (Butt) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Philadelphia Housing Authority, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Butt), : No. 633 C.D. 2020
Respondent : Submitted: February 26, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 22, 2021
The Philadelphia Housing Authority (Employer) petitions this Court for
review of the Workers’ Compensation (WC) Appeal Board’s (Board) June 11, 2020
order reversing Workers’ Compensation Judge (WCJ) Sandra Craig’s (WCJ Craig)
decision granting Employer’s Petition to Terminate WC Benefits (Termination
Petition). Employer presents one issue for this Court’s review: whether the Board
erred by concluding that the opinion of Employer’s expert, Dennis P. McHugh, D.O.
(Dr. McHugh), was incompetent and insufficient to support the Termination
Petition. Upon review, this Court reverses.
Shenecqua Butt (Claimant) was employed as a home inspector for
Employer.1 In February 2016, Claimant notified Employer that, while working, she
1
[Claimant’s] job duties require[d] her to inspect between 18 and 20
apartments per day, 8 hours a day, 5 days a week, with a [1]-hour
lunch break. She ha[d] to lift every window in the house, check
every electrical outlet in the unit, bend and look underneath the sinks
and toilets to make sure there were no pipes leaking. She walk[ed]
developed lower back and right leg pain that extended into her foot and caused her
to limp. Claimant had a long history of lumbar spondylosis and degenerative disc
disease,2 and also began treating with a rheumatologist for what was eventually
diagnosed as an autoimmune connective tissue disease (i.e., Sjorgren’s Disease). In
February 2016, her rheumatologist prescribed physical therapy and a muscle relaxer
for Claimant’s pain. On March 29, 2016, the rheumatologist completed Family and
Medical Leave Act (FMLA)3 forms for Claimant to be off work for 8 weeks to
undergo intensive physical therapy from March 29 to May 24, 2016, which forms
Claimant mailed to Employer.4 Claimant continued to work her full-duty job until
April 5, 2016, when she again experienced a sharp pain in her low back that radiated
into her right foot.
On April 8, 2016, Claimant treated at the emergency room for
continued back and leg pain. The emergency room physician gave her a note for
light-duty work. Claimant took the note to Employer and reported a work injury.
through the unit and the property perimeter, [went] up and down
stairs, ben[t], squat[ted] and lift[ed].
WCJ 8/11/2017 Dec. at 1, Reproduced Record (R.R.) at 450a.
2
Spondylosis is a condition caused by degenerative changes affecting the spine. See WCJ
7/19/2019 Dec. at 6, R.R. at 37a. Degenerative disc disease is a condition that specifically affects
the discs. See id.
Claimant suffered past work injuries with Employer including low
back injuries as a result of motor vehicle accidents on August 3,
2009 and July 24, 2012. Claimant was also out of work on a
[m]edical [l]eave of [a]bsence from November 19, 2013 to
December 14, 2014[,] and again May 1, 2015 through August 30,
2015.
WCJ 8/11/2017 Dec. at 4, R.R. at 453a.
3
29 U.S.C. §§ 2601-2654.
4
Claimant requested the FMLA forms at her February 2016 office visit, but her
rheumatologist did not complete them until March 29, 2016. Claimant requested 12 weeks off
from work, but her rheumatologist would only agree to 8 weeks. Employer approved Claimant’s
FMLA leave on April 22, 2016, and, as will be discussed below, Claimant worked until April 26,
2016.
2
Claimant worked light-duty for Employer from April 12 to April 26, 2016.
Claimant’s FMLA leave was approved on April 22, 2016. Also on April 22, 2016,
Employer denied Claimant’s WC claim. Claimant did not return to work after April
26, 2016.
On June 3, 2016, Claimant filed a claim petition, alleging therein that
she sustained an injury in the “lumbar region of the spine with pain radiating down
[her] right leg/foot” in the course of her employment on April 8, 2016. WCJ
8/11/2017 Dec. at 1, Reproduced Record (R.R.) at 450a. Employer opposed the
claim petition. On July 8, 2016, Claimant amended the claim petition to allege an
injury date of April 5, 2016, and Employer amended its answer accordingly.
Following several hearings, on August 11, 2017,5 WCJ Audrey Timm (WCJ Timm)
granted Claimant’s claim petition and awarded temporary total disability benefits
beginning April 26, 2016, concluding: “Claimant met her burden of proving that
she sustained an aggravation[6] of her pre[]existing lumbar degenerative disc
disease and spondylosis, as well as lumbar radiculopathy as a result of her . . .
work activities, which [we]re a substantial contributing factor in causing her []
disability.”7 WCJ 8/11/2017 Dec. at 9, R.R. at 458a (emphasis added). WCJ Timm
found: “Despite extensive treatment for back pain prior to April 5, 2016, Claimant
had not been diagnosed with lumbar radiculopathy into the right leg by any of her
physicians.” Id. Accordingly, WCJ Timm held that Claimant’s preexisting lumbar
5
According to the record, Employer terminated Claimant’s employment in January 2017.
See WCJ 7/19/2019 Dec. at 4, R.R. at 35a.
6
“It is well settled in Pennsylvania that an ‘aggravation of a pre[]existing condition’ is
deemed a new injury for purposes of [WC] law[.]” S. Abington Twp. v. Workers’ Comp. Appeal
Bd. (Becker & ITT Specialty Risk Servs.), 831 A.2d 175, 181 (Pa. Cmwlth. 2003).
7
WCJ Timm’s decision relied on the testimony of Claimant’s orthopedic surgeon Christian
I. Fras, M.D., (Dr. Fras) with whom Claimant began treating in July 2016. See WCJ 8/11/2017
Dec. at 9, R.R. at 458a; see also R.R. at 128a-150a.
3
degenerative disc disease and spondylosis were aggravated by Claimant’s work in
April 2016, and her lumbar radiculopathy was a new injury that resulted therefrom.
On June 5, 2018, Claimant underwent an independent medical
examination (IME) with Dr. McHugh. As part of Dr. McHugh’s examination he
reviewed Claimant’s medical records, obtained her medical history and physically
examined Claimant. In his IME report, Dr. McHugh opined: “[Claimant] is fully
recovered from the . . . aggravation of the pre[]existing lumbar degenerative
disc disease, spondylosis and lumbar radiculopathy.” R.R. at 443a (emphasis
added). Dr. McHugh, who is an orthopedic surgeon, explained: “At this point in
time, two years removed from the aggravation[,] . . . two years of full treatment along
with two years of not performing any activities at work[] has brought her back to her
baseline.” R.R. at 444a. Dr. McHugh declared that no further care was necessary,
and Claimant could return to full-duty work without restriction related to her April
2016 work injury. See R.R. at 443a-444a.
On June 21, 2018, Employer filed the Termination Petition,8 therein
asserting that Claimant fully recovered from her April 8, 2016 work injury as of June
5, 2018. Claimant opposed the Termination Petition. On February 8, 2019,
Claimant filed a Petition for Penalties (Penalty Petition), wherein she alleged that
Employer violated the WC Act (Act)9 by failing to pay her medical bills. Employer
denied the averments in the Penalty Petition. The Petitions were assigned to WCJ
Craig for disposition.
WCJ Craig conducted hearings on the Petitions on June 19, July 26,
and October 29, 2018, and February 13, 2019.10 On July 19, 2019, WCJ Craig
granted Employer’s Termination Petition, and denied and dismissed Claimant’s
8
Included in the Termination Petition was a request for supersedeas, which WCJ Craig
denied on August 17, 2018.
9
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
10
Claimant presented no evidence to support her Penalty Petition.
4
Penalty Petition. Claimant appealed to the Board, arguing that WCJ Craig
improperly relitigated Claimant’s work injury description and found Dr. McHugh’s
opinion credible.
On June 11, 2020, the Board reversed WCJ Craig’s decision, declaring
that WCJ Craig erroneously relied on Dr. McHugh’s opinion, which failed to
recognize Claimant’s judicially established work injury.11 The Board also modified
WCJ Craig’s decision wherein she ruled that Employer was no longer responsible
for paying medical expenses related to Claimant’s preexisting degenerative disc
disease because Dr. McHugh credibly opined that Claimant had fully recovered from
that condition. Employer appealed to this Court.12
Employer argues that the Board erred by concluding that Dr. McHugh’s
opinion that Claimant no longer suffered from lumbar radiculopathy was not
competent or sufficient to support the Termination Petition. Specifically, Employer
claims that since Dr. McHugh unequivocally testified that Claimant did not suffer
from any radiculopathy as of the time of her June 5, 2018 IME, whether Dr. McHugh
specifically recognized that Claimant’s judicially established April 8, 2016 work
injury caused new radiculopathy or aggravated her preexisting radiculopathy was of
no consequence.
Preliminarily, Section 413(a) of the Act states, in pertinent part:
A [WCJ] . . . may, at any time, . . . terminate . . . an award
of . . . [a WCJ], upon petition filed by either party . . . ,
upon proof that the disability of an injured employe has . .
. finally ceased . . . . Such . . . termination shall be made
11
The Board Chairman dissented.
12
“[This Court’s] review determines whether there has been a violation of constitutional
rights, whether errors of law have been committed, whether board procedures were violated, or
whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019).
5
as of the date upon which it is shown that the disability of
the injured employe has . . . finally ceased[.]
77 P.S. § 772. “Under [WC] law, the term ‘disability’ is synonymous with loss of
earning power.” Donahay v. Workers’ Comp. Appeal Bd. (Skills of Cent. PA, Inc.),
109 A.3d 787, 792 (Pa. Cmwlth. 2015).
Specifically, to succeed in a termination petition, an employer must
prove by substantial evidence that the claimant’s work-related injury has ceased, or
any remaining conditions are not related to her work injury. See Baumann v.
Workers’ Comp. Appeal Bd. (Kellogg Co.), 147 A.3d 1283 (Pa. Cmwlth. 2016). “An
employer may satisfy this burden by presenting unequivocal and competent medical
evidence of the claimant’s full recovery from her work-related injuries.”
Westmoreland Cnty. v. Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa.
Cmwlth. 2008). Medical expert testimony proffered in support of a termination
proceeding must recognize the claimant’s accepted work-related injury to be
competent to opine that the claimant has fully recovered therefrom. See Sarmiento-
Hernandez v. Workers’ Comp. Appeal Bd. (Ace Am. Ins. Co.), 179 A.3d 105 (Pa.
Cmwlth. 2018); see also Westmoreland Cnty.
Finally,
[i]t is well-settled that an employer may not re-litigate, by
way of a petition to terminate benefits, the original
medical diagnosis underlying a WCJ’s finding of a
claimant’s disability as of the date of the compensation
award. Hebden v. Workmen’s Comp[.] Appeal B[d.]
(Bethenergy Mines, Inc.), . . . 632 A.2d 1302, 1304 ([Pa.]
1993). To do so would violate the doctrine of collateral
estoppel, which ‘forecloses re-litigation in a later action,
of an issue of fact or law which was actually litigated and
which was necessary to the original judgment.’ Id.(quoting City of Pittsburgh v. Zoning B[d.] of Adjustment
of [the City of] Pittsburgh, . . . 559 A.2d 896, 901 ([Pa.]
1989)).
6
Inservco Ins. Servs. v. Workers’ Comp. Appeal Bd. (Purefoey), 902 A.2d 574, 578
(Pa. Cmwlth. 2006).
Here, Employer presented Dr. McHugh’s June 5, 2018 IME report and
testimony in support of the Termination Petition. Dr. McHugh recalled Claimant
informing him that she had experienced low back pain on and off for years but, in
the spring of 2016, she had increased low back pain that radiated into her right leg
while going up and down stairs at work. See R.R. at 405a. He testified that Claimant
described the April 2016 symptoms as the same as she had experienced in the past,
but to a more intense degree. See id. Dr. McHugh described that Claimant had been
treating with her rheumatologist monthly, and a neurosurgeon every couple of
months, both of whom gave her injections that afforded her little relief. He stated
that Claimant’s objective tests since 2009 reflected disc pathology and arthritic
issues with her low back, and rheumatology records since 2015 showed
progressively worsening joint pain. See R.R. at 409a-410a. Dr. McHugh reviewed
Claimant’s March 2016 blood test results that were positive for an autoimmune
issue, which her doctors felt contributed to her chronic back pain. See R.R. at 410a-
411a. He recollected that Claimant’s June 8, 2016 lumbar MRI demonstrated
degenerative disc protrusions and bulges. See R.R. at 411a. Dr. McHugh also
reviewed Claimant’s physical therapy and other medical records. According to Dr.
McHugh, an August 9, 2016 EMG conducted by her rheumatologist showed what
the rheumatologist interpreted as right L5-S1 acute radiculopathy. See id. Dr.
McHugh further recalled that Claimant was considering undergoing lumbar surgery
in 2018. See R.R. at 420a-421a, 440a.
Dr. McHugh testified that, during his IME, Claimant complained of low
back pain that radiated into different areas of her right leg at different times, which
he attributed to chronic degeneration of her lumbar spine. See R.R. at 406a-407a.
He described that Claimant exhibited limited lumbar range of motion, due to
7
stiffness and her obesity. See R.R. at 413a, 421a-422a. Dr. McHugh stated that
Claimant did not exhibit a radicular component in her legs at the IME, her subjective
complaints did not follow any specific dermatomal pathway, and she walked with a
normal gait. See R.R. at 413a-415a.
Based upon the IME, Dr. McHugh opined, within a reasonable degree
of medical certainty that, in April 2016, Claimant “did have an exacerbation of
the preexisting lumbar degenerative disc disease, the arthritis in her back and
the lumbar radiculopathy that had pre[-]dated this but had flared up due to
those work incidents[,]” but that, as of June 5, 2018, Claimant “was fully recovered
from that flare[-]up and [] she needed no further care related to that work issue.”
R.R. at 415a (emphasis added). He confirmed that the issues Claimant is currently
having are related to the degenerative findings and autoimmune issues that pre-date
her work injury, and her obesity. See R.R. at 417a-418a. Dr. McHugh reiterated
that Claimant could return to work without continuing treatment or restrictions
related to her April 2016 work injury, and he executed a physician’s affidavit of
recovery to that effect. See R.R. at 419a, 422a, 445a-446a.
Claimant testified that she still experiences low back pain radiating into
her right leg and foot with tingling and muscle spasms that have improved since she
stopped working. However, she does not feel capable of returning to her pre-injury
job due to the walking, squatting, bending and driving it requires.
Claimant also presented the October 19, 2016 and November 16, 2018
testimony of orthopedic surgeon Christian I. Fras, M.D. (Dr. Fras). Dr. Fras testified
that he first treated Claimant on July 26, 2016, and found that her condition was
consistent with radiculopathy. He recalled that, when he saw Claimant twice in
August 2016, her symptoms continued, and he diagnosed her with degenerative disc
disease, spondylosis, and lumbar radiculopathy. See R.R. at 132a, 134a. Dr. Fras
8
related that, when Claimant’s symptoms were unchanged in October 2016, Dr. Fras
referred her for injections to help with pain management.
Dr. Fras stated that he treated Claimant again on February 27, 2018, at
which time she still had low back and right leg pain complaints that physical therapy
and injections had not alleviated. He also treated her on May 1 and July 17, 2018.
Based on Claimant’s objective tests, medical history and physical examinations, he
declared that his diagnosis remained the same and he discussed additional treatment
options, including surgery. Dr. Fras concluded that Claimant continued to suffer
from her accepted work-related injuries, and she was not capable of returning to her
pre-injury work but, conceivably, could do a light-duty or sedentary job with
restrictions. See R.R. at 211a-212a, 237a. Dr. Fras disagreed with Dr. McHugh’s
opinions to the contrary. See R.R. at 213a.
“The WCJ is the ultimate factfinder and has exclusive province over
questions of credibility and evidentiary weight.” Univ. of Pa. v. Workers’ Comp.
Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011). “The WCJ,
therefore, is free to accept or reject, in whole or in part, the testimony of any witness,
including medical witnesses.” Griffiths v. Workers’ Comp. Appeal Bd. (Red
Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Here, based on the evidence presented, WCJ Craig found:
While Claimant’s testimony about her pain and disability
is not necessarily incredible, the issue of whether she is
fully recovered from the judicially determined work injury
of aggravation of pre[]existing lumbar degenerative disc
disease and spondylosis, and lumbar radiculopathy and
whether the cause of her current complaints is the work
injury or the underlying degenerative disc disease itself is
a medical issue.
WCJ 7/19/2019 Dec. at 8, R.R. at 39a. Regarding the medical testimony, WCJ Craig
made the following finding:
9
I have carefully reviewed the testimony of Dr. McHugh
and Dr. Fras. While both doctors have excellent
qualifications, I find the opinions of Dr. McHugh more
credible than those of Dr. Fras and reject the opinions of
Dr. Fras wherever they conflict with those of Dr. McHugh.
Dr. McHugh’s opinions are supported by Claimant’s
medical records and by diagnostic studies performed
before the work injury, which document Claimant’s
longstanding history of low back complaints and
treatment. Dr. Fras acknowledged this history. The very
fact that Claimant visited her rheumatologist on March 29,
2016 (over a week before her April 8, 2016 work injury)
for the purpose of having F[M]LA forms completed in
order to take 12 weeks off work to have physical therapy,
at which time Claimant ‘was very insistent that she was
not able to work due to her pain’ and at which time she
received a work note excusing her from work until May
24, 2016[,] for physical therapy for chronic back pain,
indicates how severe her pre-injury condition was.[13]
WCJ 7/19/2019 Dec. at 8, R.R. at 39a. Thus, WCJ Craig found Dr. McHugh’s
testimony more credible than Dr. Fras’ testimony to the contrary, and concluded that
“Employer [] met its burden of proving that Claimant was fully recovered from her
April 2016 work injury as of June 5, 2018.” WCJ 7/19/2019 Dec. at 9, R.R. at 40a.
Neither the Board nor the Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
13
WCJ Craig clarified:
In finding credible Dr. McHugh’s opinion that Claimant is
fully recovered from the April 2016 aggravation of
preexisting lumbar degenerative disc disease, spondylosis,
and lumbar radiculopathy, it is not my intention in any way
to ignore, minimize, or rewrite [WCJ] Timm’s previous
determination that the work injury caused an aggravation
of Claimant’s pre[]existing condition. Her pre-injury
history of low back pain is referenced with regard to my
rejection of Dr. Fras’ opinion that[,] before April 2016[,]
Claimant’s low back pain was not severe.
WCJ 7/19/2019 Dec. at 8 n.2, R.R. at 39a.
10
A.2d 1246 (Pa. 2001). Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] does
not permit a party to challenge or second-guess the WCJ’s reasons for credibility
determinations. [Thus, u]nless made arbitrarily or capriciously, a WCJ’s credibility
determinations will be upheld on appeal.”14 Pa. Uninsured Emps. Guar. Fund v.
Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195
(Pa. Cmwlth. 2006) (citation omitted)).
Furthermore, this Court has held:
“In performing a substantial evidence analysis, this
[C]ourt must view the evidence in a light most favorable
to the party who prevailed before the factfinder [(i.e.,
Employer)].” “Moreover, we are to draw all reasonable
inferences which are deducible from the evidence in
support of the factfinder’s decision in favor of that
prevailing party.” It does not matter if there is evidence in
the record supporting findings contrary to those made by
the WCJ; the pertinent inquiry is whether the evidence
supports the WCJ’s findings.
3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting
Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168
(Pa. Cmwlth. 2003)).
Notwithstanding, the Board held:
Upon thorough review, we determine that [] WCJ [Craig]
erred in terminating Claimant’s benefits when Dr.
McHugh failed to recognize all of Claimant’s work
injuries, and therefore, failed to opine she recovered
therefrom. . . . Here, former litigation established
Claimant’s work injury as an ‘aggravation of her
14
Capricious disregard “occurs only when the fact-finder deliberately ignores relevant,
competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862
A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as
here, WCJ Craig expressly considered and rejected the evidence. Id.11
pre[]existing lumbar degenerative disc disease and
spondylosis, as well as lumbar radiculopathy.’ ([WCJ
8/11/2017 Dec. at 9, R.R. at 458a]). Moreover, WCJ
Timm accepted [that] the lumbar radiculopathy was a new
finding, rather than an aggravation. However, Dr.
McHugh testified that Claimant sustained work-related
exacerbations of her pre[]existing lumbar degenerative
disc disease, back arthritis, and lumbar radiculopathy, of
which she fully recovered as of the IME. Notably, Dr.
McHugh did not accept the entire judicially determined
work injuries including aggravation of spondylosis or that
the lumbar radiculopathy was a new injury, rather than a
pre-existing one which was exacerbated. This is an
important distinction because if Claimant had
pre[]existing lumbar radiculopathy, her baseline would be
different than where she had no prior lumbar
radiculopathy. Therefore, when Dr. McHugh testified that
Claimant was back to her baseline, he mischaracterized
her pre-injury condition. Because [a] defendant is barred
by res judicata from relitigating [a] claimant’s original
diagnosis during a termination petition, [Employer] is
barred here from asserting that Claimant never sustained
spondylosis and sustained an aggravation of lumbar
radiculopathy rather than a first-time injury of
radiculopathy. Hebden. Likewise, Dr. McHugh’s
testimony was insufficient to terminate Claimant’s
benefits and we must reverse in part. . . .[FN]6
[FN]6
Claimant also argues that [] WCJ [Craig]
erroneously re-litigated Claimant’s description of
injury as determined in WCJ Timm’s decision, and
was barred from finding a different injury existed
by the doctrine of res judicata. While we need not
reach this issue here where we have reversed for
other reasons, we do not find Claimant’s argument
persuasive. While [Employer] failed to
acknowledge the full judicially accepted work
injury description, [] WCJ [Craig] throughout the
[d]ecision consistently refers back to the original
injury description found by WCJ Timm. In fact, []
WCJ [Craig] specifically finds that Claimant fully
recovered from ‘aggravation of pre[]existing
lumbar degenerative disc disease and spondylosis,
and lumbar radiculopathy.’ (Finding of Fact 12).
Rather, [] WCJ [Craig] erred by accepting the
12
insufficient testimony of Dr. McHugh, who failed
to recognize all of the accepted work injuries.
Board Op. at 6-8, R.R. at 58a-60a (record citations omitted).
This Court acknowledges that Dr. McHugh testified that Claimant
suffered “an exacerbation of the preexisting lumbar degenerative disc disease, the
arthritis in her back and the lumbar radiculopathy that had predated” April 2016,
R.R. at 415a (emphasis added), and that he did not specifically use the term
spondylosis. However, in his June 5, 2018 IME report, Dr. McHugh specifically
declared: “[Claimant] is fully recovered from the . . . aggravation of the pre[]existing
lumbar degenerative disc disease, spondylosis and lumbar radiculopathy.” R.R. at
443a (emphasis added). Moreover, medical professionals may use the terms
spondylosis and arthritis interchangeably.15 Because Dr. McHugh clearly accepted
Claimant’s judicially determined preexisting spondylosis in rendering his opinion,
the Board erred by concluding otherwise.
This Court also recognizes that Dr. McHugh appears to have considered
Claimant’s lumbar degenerative disc disease, spondylosis and lumbar radiculopathy
as preexisting, and he did not separately refer to Claimant’s lumbar radiculopathy as
a new injury. See R.R. at 415a, 443a. However, Dr. McHugh ultimately opined with
unequivocal and competent medical testimony, which WCJ Craig accepted, that
Claimant fully recovered from all three conditions as of June 5, 2018, and any
disability (loss of earnings) thereafter was no longer related to her work. The fact
that Dr. McHugh construed Claimant’s lumbar radiculopathy in these circumstances
as a preexisting rather than new work injury did not render his testimony
incompetent.
15
Spondylosis has been defined as “degenerative spinal changes due to OSTEOARTHRITIS.”
Medical Dictionary, The Free Dictionary, https://medical-
dictionary.thefreedictionary.com/spondylosis (last visited Apr. 21, 2021) (emphasis added).
13
This Court has held that “a medical expert need not [even] necessarily
believe that a particular work injury actually occurred[;] . . . the expert’s opinion is
competent if he assumes the presence of a previously accepted work-related injury
and finds it to be resolved by the time of his examination.” O’Neill v. Workers’
Comp. Appeal Bd. (News Corp. Ltd.), 29 A.3d 50, 57 (Pa. Cmwlth. 2011); see also
Hall v. Workers’ Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734 (Pa. Cmwlth.
2010); To v. Workers’ Comp. Appeal Bd. (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth.
2003). Here, Dr. McHugh expressly acknowledged that Claimant suffered lumbar
radiculopathy related to her work activity in April 2016 but, based upon his review
of Claimant’s history, voluminous medical records, and physical examination,
concluded that, as of June 5, 2018, she had fully recovered from the judicially
accepted injuries and her inability to return to work was not related thereto. Thus,
Dr. McHugh’s opinion was not incompetent in this instance merely because he
construed Claimant’s lumbar radiculopathy as preexisting rather than a new work
injury.
Based on the foregoing, the Board erred by reversing WCJ Craig’s
decision on the basis that Dr. McHugh’s opinion was incompetent and insufficient
to support Employer’s Termination Petition. Viewing the evidence in a light most
favorable to Employer, and drawing all reasonable inferences in Employer’s favor,
as we must, we find that substantial record evidence supported WCJ Craig’s
findings. Accordingly, the Board’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Philadelphia Housing Authority, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Butt), : No. 633 C.D. 2020
Respondent :
ORDER
AND NOW, this 22nd day of April, 2021, the Workers’ Compensation
Appeal Board’s June 11, 2020 order is reversed.
_________________________________
ANNE E. COVEY, Judge