B. Sweitzer v. WCAB (Lehigh Valley Physicians Group) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Barbara Sweitzer, :
Petitioner :
:
v. : No. 847 C.D. 2020
: Submitted: January 22, 2021
Workers’ Compensation Appeal :
Board (Lehigh Valley Physicians :
Group), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: April 30, 2021
Barbara Sweitzer (Claimant) petitions for review of the adjudication of
the Workers’ Compensation Appeal Board (Board) that terminated her workers’
compensation benefits under authority of Section 413 of the Workers’ Compensation
Act (Act).1 In doing so, the Board affirmed the decision of the Workers’
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710. Section 413 of the
Act states in pertinent part:
A workers’ compensation judge designated by the [D]epartment [of Labor and
Industry] may, at any time, modify, reinstate, suspend, or terminate a notice of
compensation payable, an original or supplemental agreement or an award of the
department or its workers’ compensation judge, upon petition filed by either party
with the [D]epartment, upon proof that the disability of an injured employe has
increased, decreased, recurred, or has temporarily or finally ceased, or that the
status of any dependent has changed. Such modification, reinstatement, suspension,
or termination shall be made as of the date upon which it is shown that the disability
of the injured employe has increased, decreased, recurred, or has temporarily or
finally ceased, or upon which it is shown that the status of any dependent has
changed....
77 P.S. §772.
Compensation Judge (WCJ) that Claimant had fully recovered from her work injury,
which was a right wrist strain. Claimant contends that the WCJ erred by not
expanding the scope of her work injury and that the Board erred in affirming the
WCJ. We affirm.
For eight years, Claimant was employed as an ultrasound sonographer
for Lehigh Valley Physicians Group (Employer). On May 25, 2017, while
performing an ultrasound, Claimant felt a pop in her right wrist. After treatment
onsite, Claimant returned to work. However, Claimant continued to experience pain
in her right wrist.
On August 27, 2017, Claimant had an MRI, and two days later she was
examined by Paul Sibley, D.O., a board-certified orthopedic surgeon. Dr. Sibley
concluded that Claimant’s pain was caused by a triangular fibrocartilage complex
(TFCC) tear and ulnocarpal impaction, i.e., Claimant’s “ulna bone was longer than
her radius bone.” Reproduced Record at 85a (R.R. ___). Dr. Sibley treated
Claimant with steroid injections and a wrist strap. After two weeks off work,
Claimant returned to work in a full-time clerical position. Two weeks later, Claimant
returned to her pre-injury job. Because Claimant continued to complain of pain, Dr.
Sibley recommended surgery.
On December 4, 2017, Dr. Sibley performed a wrist arthroscopy.
During this procedure, he removed torn tissue from the wrist and “shave[d] down
the head of the ulna to make it less prominent.” R.R. 90a-91a. The surgery caused
Claimant to miss work for approximately three months.
Employer accepted liability for Claimant’s work injury, which its
Notice of Compensation Payable (NCP) defined as a wrist strain or tear, and
Employer paid Claimant disability compensation during the time she was unable to
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work. When Claimant returned to work, she divided her time between doing
ultrasounds and clerical work.
On August 13, 2018, William H. Kirkpatrick, M.D., a board-certified
orthopedic surgeon, did an independent medical examination (IME) of Claimant.
On August 31, 2018, Employer filed a petition to terminate compensation benefits,
alleging that Claimant was fully recovered from her work injury as of the date of Dr.
Kirkpatrick’s examination.
On October 4, 2018, Dr. Sibley did a second surgery to shorten
Claimant’s ulna bone. Claimant has not worked since this second surgery.
On January 31, 2019, the WCJ held a hearing on Employer’s
termination petition. The dispute centered on the cause of Claimant’s pain and
whether she was fully recovered from the work injury that occurred on May 25,
2017.
Claimant testified that prior to the work injury she had no problems
with her right wrist. She explained that an MRI done in 2015 related to the left side
of her wrist, whereas the work injury affected the right side of her wrist. Dr. Sibley
treated only the right side of the wrist. When the first surgery did not resolve
Claimant’s wrist pain, Dr. Sibley did the more invasive surgery in October 2018.
Claimant testified that she continues to treat with Dr. Sibley for ongoing pain and is
not fully recovered from her work injury.
Claimant also presented the deposition testimony of Dr. Sibley. He
diagnosed Claimant with ulnar side wrist pain, caused by a TFCC tear, which he
treated with a wrist arthroscopy. Dr. Sibley opined that the TFCC tear was related
to the work incident because Claimant had no pain prior thereto. He also opined that
3
Claimant’s second surgery related to the work injury. Because she continues to have
pain, Dr. Sibley has not released Claimant to return to work.
On cross-examination, Dr. Sibley acknowledged that his report from
Claimant’s first surgery stated that Claimant’s wrist condition could be chronic,
acute or subacute. He also acknowledged that the radiologist did not report an
abnormality in Claimant’s right wrist after reviewing the 2015 or the 2017 MRI.
Nevertheless, Dr. Sibley testified that he saw thinning of the TFCC in the 2017 MRI,
which he confirmed in the surgery. Dr. Sibley explained that Claimant’s variance
in her ulna was congenital, i.e., a pre-existing condition.
In support of its petition, Employer presented the deposition of Dr.
Kirkpatrick. He testified that at his IME, he took Claimant’s medical history,
examined her, and reviewed her medical records. Claimant’s physical examination
did not show any evidence of dystrophy in her hand. Her strength was normal, and
Claimant complained only of mild discomfort in her index finger when he pressed
on it. Dr. Kirkpatrick opined that Claimant had fully recovered from her work injury,
which was a right wrist strain. He also opined that Claimant’s first surgery was not
related to the work injury because the surgeon reported a “chronic” condition
relating to ulnocarpal impaction of the right wrist. Notes of Testimony (N.T.),
12/6/2018, at 14-15; R.R. 237a-38a. Further, Dr. Sibley’s surgical notes reported
that the 2015 MRI showed cartilage changes and bony edema, which supported Dr.
Kirkpatrick’s diagnosis of a pre-existing condition.
The WCJ found Claimant “generally credible,” except to the extent she
related her current wrist pain to her work injury. WCJ Decision, 8/26/2019, at 4;
Finding of Fact (F.F.) No. 7. The WCJ found Dr. Kirkpatrick’s opinion more
credible than that of Dr. Sibley, who admitted that Claimant’s condition pre-existed
4
the work incident. Based on these findings, the WCJ granted Employer’s
termination petition.
Claimant appealed to the Board, and it affirmed the WCJ. The Board
explained:
[Employer] was able to meet its burden of proof because the WCJ
accepted Dr. Kirkpa[t]rick’s expert medical opinion that
Claimant is fully recovered, could return to work without
restrictions, and had no objective medical findings that either
substantiated the claims of pain or connected them to the work
injury.
Board Adjudication, 8/5/2020, at 4 (emphasis added). The Board observed that
Claimant simply challenged the WCJ’s decisions on credibility and the weight to
assign the evidence, which matters are committed to the fact-finder. Claimant
petitioned for this Court’s review.2
On appeal, Claimant raises two issues. First, she asserts that the WCJ’s
finding that Claimant was fully recovered from her work injury is not supported by
substantial evidence. Second, she asserts that the WCJ erred by not amending the
NCP to include all of Claimant’s injuries, i.e., a TFCC tear and ulnocarpal impaction
syndrome.
In a termination proceeding, the employer bears the burden of
establishing that the work injury has fully ceased. Udvari v. Workmen’s
Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
Further,
2
This Court reviews the Board’s adjudication to determine whether the necessary findings of fact
are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. MV Transportation
v. Workers’ Compensation Appeal Board (Harrington), 990 A.2d 118, 120 n.3 (Pa. Cmwlth.
2010).
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[i]n a case where the claimant complains of continued pain, this
burden is met when 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, can 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. If the WCJ credits this
testimony, the termination of benefits is proper.
Id. (footnote omitted) (emphasis added). This Court will not disturb the WCJ’s
findings on appeal where they are supported by substantial, competent evidence.
Greenwich Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d
703, 706 (Pa. Cmwlth. 1995). Substantial evidence is such relevant evidence as a
reasonable person might accept as adequate to support a conclusion. Saville v.
Workers’ Compensation Appeal Board (Pathmark Stores, Inc.), 756 A.2d 1214,
1216 (Pa. Cmwlth. 2000) (citations omitted). Further, this Court must view a
substantial evidence challenge in a light favorable to the prevailing party. Id. at
1217. With these principles in mind, we address Claimant’s arguments.
In her first issue, Claimant asserts that the WCJ’s finding that she was
fully recovered from her work injury as of August 13, 2018, is “totally unsupported”
by substantial evidence. Claimant Brief at 12. Claimant asserts that the WCJ’s
findings on the expert testimony were “incomplete and inaccurate.” Id.Accordingly, Claimant contends that Employer did not meet its burden of proof with
Dr. Kirkpatrick’s expert opinion.
Specifically, Claimant challenges Finding of Fact No. 5g, which states
as follows:
Dr. Kirkpatrick reviewed Dr. Sibley’s report of September 19,
2018[,] in which Dr. Sibley reviewed a prior MRI done in 2015[,]
before the work injury. In comparing the two MRIs, Dr. Sibley
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noted cartilage changes and bony edema in the 2015 MRI. This
confirmed that the condition was preexisting.
WCJ Decision at 4; F.F. No. 5g (emphasis added). In his progress note dated
September 19, 2018, Dr. Sibley stated that a 2015 MRI showed “cartilage ... changes
and bony edema on the ulnar proximal aspect of the lunate on those films, so this
continues to prove the ‘pre-existing nature’ affirmed by her IME.” N.T., 12/6/2018,
Ex. 4, at 6; R.R. 303a. This documentary evidence fully supports Finding of Fact
No. 5g.
Claimant also argues that the record is clear that prior to the work
injury, she worked full time and that her MRI of 2015 was normal. After the injury,
Claimant “had pain requiring medical treatment, including injections and surgery
and restrictions on her ability to work.” Claimant Brief at 14. Claimant asserts,
based on these facts, that “surely a reasonable person would find that the evidence
is not adequate to support a finding of full recovery.” Id.Claimant seems to argue that the wrist sprain aggravated her pre-
existing condition and that this aggravation constituted the work injury. However,
in his cross-examination, Dr. Sibley testified that Claimant’s pre-existing condition
“could have been exacerbated” by the work injury. N.T., 4/5/2019, at 37; R.R. 113a.
As noted by the Board, Dr. Sibley did not “definitively” testify that Claimant’s work
injury consisted of an aggravation of her pre-existing condition. Board
Adjudication, 8/5/2020, at 4. The WCJ cannot be faulted for the equivocal opinion
of Dr. Sibley.
Where both parties present evidence, it is irrelevant that the record
contains evidence that supports a finding contrary to that made by the WCJ; rather,
the pertinent inquiry is whether evidence exists to support the WCJ’s findings.
Saville, 756 A.2d at 1217. Dr. Kirkpatrick opined that Claimant fully recovered
7
from the work injury and his opinion was credited by the WCJ and accepted. This
Court, on appeal, cannot overturn the WCJ’s credibility determinations or reweigh
the evidence. Greenwich Collieries, 664 A.2d at 706.
Finally, Claimant argues that the WCJ erred because Employer did not
prove an independent cause of her complaints, as is required in a termination
proceeding. She contends that Dr. Kirkpatrick’s testimony did not satisfy this
burden:
While Dr. Kirkpatrick wants this Court to believe that Claimant’s
conditions are degenerative, he cannot possibly expect the Court
to believe that Claimant’s degenerative conditions suddenly and
coincidentally became symptomatic at the exact same time as the
work injury.
Claimant Brief at 15. However, both Claimant’s own expert and Dr. Kirkpatrick
explained the independent cause for Claimant’s continuing pain, i.e., her pre-existing
condition and pain from the surgery done to treat that condition.
The WCJ credited the testimony of Dr. Kirkpatrick, who opined, within
a reasonable degree of medical certainty, that Claimant was fully recovered from her
work injury and did not require any work restrictions or medical treatment as of
August 13, 2018. He testified that there were “no objective findings” of a right wrist
strain at her physical examination. N.T., 12/6/2018, at 16; R.R. 239a. Though
Claimant had ongoing symptoms,
there was no evidence of any traumatic injuries, specifically to
the wrist, that [would] [have] been leading to her described
symptoms. It was my opinion that the symptoms that she did
describe when I saw her were related to her post-operative
changes and her ulnocarpal impaction, largely--probably more
the post-operative changes relating to scarring, et[.] cetera.
8
But otherwise, there was no evidence of any ongoing post-
traumatic concern related to the work injury.
N.T., 12/6/2018, at 17; R.R. 240a (emphasis added). Dr. Kirkpatrick’s credited
testimony satisfied Employer’s burden.
In her second issue, Claimant contends that the WCJ erred by not
amending the NCP to include a TFCC tear and ulnocarpal impaction syndrome,
about which the WCJ made no express findings. Claimant contends that the
evidence required the WCJ to amend the NCP in accordance with Section 413 of the
Act.3
Claimant’s pre-existing condition is not in dispute. Dr. Sibley’s own
notes stated that cartilage changes and bone edema were present in the 2015 MRI,
and Dr. Sibley described the wrist condition as “chronic, acute or subacute.” N.T.,
4/5/2019, at 26; R.R. 102a. Dr. Kirkpatrick explained that Dr. Sibley’s findings were
“chronic findings, meaning that [Claimant] had evidence of ulnocarpal impaction in
the right wrist” and a central tear of the TFCC ligament. N.T., 12/6/2018, at 14-15;
R.R. 237a-38a. Dr. Kirkpatrick opined that the second surgery “related to the
ulnocarpal impaction, which [we have] seen was a pre-existing condition and which
was also recognized by Dr. Sibley as a pre-existing condition prior to the work injury
of 2017.” N.T., 12/6/2018, at 22; R.R. 245a.
3
It states as follows:
A workers’ compensation judge may, at any time, review and modify or set aside a
notice of compensation payable and an original or supplemental agreement or upon
petition filed by either party with the [D]epartment, or in the course of the
proceedings under any petition pending before such workers’ compensation judge,
if it be proved that such notice of compensation payable or agreement was in any
material respect incorrect.
77 P.S. §771.
9
The WCJ relied on Dr. Kirkpatrick’s testimony to find that Claimant’s
surgeries addressed her pre-existing condition, not her work injury. Claimant’s
contention that the NCP should have been amended to include the TFCC tear and
ulnocarpal syndrome lacks support in the record.
Based on the foregoing, we affirm the adjudication of the Board.
_________________________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Fizzano Cannon did not participate in the decision in this case.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Barbara Sweitzer, :
Petitioner :
:
v. : No. 847 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Lehigh Valley Physicians :
Group), :
Respondent :
ORDER
AND NOW, this 30th day of April, 2021, the adjudication of the
Workers’ Compensation Appeal Board dated August 5, 2020, is hereby
AFFIRMED.
_________________________________________________________
MARY HANNAH LEAVITT, President Judge Emerita