A. Nichols v. WCAB (S.D. of Philadelphia) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela Nichols, :
:
Petitioner :
:
v. : No. 777 C.D. 2020
: Submitted: February 19, 2021
Workers’ Compensation Appeal :
Board (School District of :
Philadelphia), :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 9, 2022
Angela Nichols (Claimant), pro se, petitions for review of an order of
the Workers’ Compensation Appeal Board (Board), which affirmed a decision of a
Workers’ Compensation Judge (WCJ) denying her Claim Petition filed against the
School District of Philadelphia (Employer) because she did not meet her burden of
proving that she sustained a disabling work-related injury. On appeal, Claimant
contends that she did meet her burden of proof, and that Employer’s medical expert
was not qualified to render an opinion regarding her injuries. For the following
reasons, we affirm the Board’s order.
On December 6, 2017, Claimant filed a Claim Petition, seeking
compensation under the Workers’ Compensation Act (Act),1 and asserting that she
sustained injuries to her lower back, upper back, neck, and right leg on September
25, 2017, while she was working for Employer as a special education classroom
assistant, earning $372.00 per week. Certified Record (C.R.) Item No. 2, at 2-3.2
She claimed that her injuries were caused by “REPETITIVE JOB ACTIVITIES
INCLUDING LIFTING, BENDING, [and] TRANSFERRING OF STUDENTS.”
Id. at 2. Claimant sought total disability benefits from September 25, 2017, and
ongoing. Id. at 4. Employer filed an Answer to the Claim Petition, denying all
material allegations, and the matter was assigned to a WCJ for disposition. C.R.
Item Nos. 3-4.
Claimant testified at two hearings held before the WCJ on January 3,
2018, and November 19, 2018. C.R. Item Nos. 10, 12. At the first hearing, Claimant
testified that she began working for Employer on September 15, 2016.3 C.R. Item
No. 10, 1/3/2018 Hearing Transcript (Hr’g Tr.) at 4-5. She explained that her duties
as a classroom assistant for special needs students, who are physically and mentally
handicapped, primarily involved “help[ing] with their personal care needs[.]” Id. at
5. For example, she assisted the students in the bathroom, pushed their wheelchairs,
changed their clothes, and helped them eat. Id. at 5-6. Claimant explained that many
of the students had limited mobility, so she had to manually lift and turn them. She
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041; 2501-2710.
2
On August 27, 2020, this Court granted Claimant leave to proceed in forma pauperis.
Claimant elected not to file a reproduced record. See Pa. R.A.P. 2151(b) (“If leave to proceed in
forma pauperis has been granted to a party, such party shall not be required to reproduce the
record.”).
3
Claimant was represented by counsel before the WCJ and the Board.
2
estimated the students’ average weight to be 75 pounds. Id. at 7. Claimant further
stated that she had to stand and walk most of the day. Id. at 6.
Claimant testified that she developed pain in her back beginning in
March of 2017. 1/3/2018 Hr’g Tr. at 10. She explained that it became difficult for
her to bend, lift the students, and push the students in wheelchairs. Id. at 10. Over
time, her pain worsened, and on one occasion near the end of March of 2017, she
took three days off of work due to the pain. Id. at 10, 21. However, she managed to
work through June of 2017, when the school year ended and she had the summer
off. Id. at 10-11.
Claimant testified that she returned to work on August 28, 2017, for the
new school year, but she continued to have pain while performing her job duties and
also “noticed that the symptoms were getting worse and that the job was getting
more difficult to perform.” 1/3/2018 Hr’g Tr. at 11-12. Then, on September 25,
2017, Claimant explained that while she was lifting a student from a wheelchair to
a bed, she experienced severe pain in her lower back, as well as in her legs and feet.
Id. at 12-13. Claimant stated that she nevertheless completed her workday, but again
experienced extreme pain later that evening. Id. at 13. She claimed that her lifting
of the student impacted her back, neck, legs, feet, and hands. Id.
Within two days of the incident, Claimant stated that she contacted
Kathy Leonard, an administrator in the special education department, via telephone
to notify her of Claimant’s symptoms. 1/3/2018 Hr’g Tr. at 14. Leonard referred
Claimant to Worknet for medical treatment, and Worknet referred her to Michelle
Hirsch, M.D., Claimant’s family doctor. Id. at 14-15. Dr. Hirsch then referred
Claimant to an orthopedist, whom she saw twice. Id. at 15-16. The orthopedist told
Claimant that she could return to work but could not lift anything over 25 pounds.
3
Id. at 27. Claimant stated that she then attended 11 physical therapy sessions, but
her pain continued. Id. at 16. Claimant also testified that, at the time of the hearing,
she was treating with Jason Lazaroff, D.C., and attending physical therapy three days
a week. Id. at 17.
Claimant further testified that she was first treated for back and neck
pain about five years ago, due to a car accident. Id. at 17-18. She stated, however,
that she recovered from that accident and did not have any back or neck issues at the
time she began working for Employer. Id. at 18. Claimant testified that she has not
returned to work for Employer, or anywhere else, since September 25, 2017. Id. at
16-17.
Claimant testified before the WCJ a second time on November 19,
2018. C.R. Item No. 12, 11/19/2018 Hr’g Tr. at 1. Since her prior testimony, she
was evaluated by Matthew J. Tormenti, M.D., a neurosurgeon at Princeton Brain,
Spine & Sports Medicine. Id. at 7-8. Dr. Tormenti referred Claimant to one of his
colleagues, Mark McLaughlin, M.D., also a neurosurgeon, who recommended
surgery due to the severe condition discovered on a cervical magnetic resonance
imaging (MRI) scan of Claimant. Id. at 8-9. Claimant, however, could not get the
surgery because Dr. McLaughlin’s practice does not accept her medical insurance.
Id. at 9. Additionally, Claimant stated that she treats at ProHealth, where she
receives physical therapy, chiropractic services, acupuncture, and massage, which
provides temporary relief. Id. at 11-12.
Claimant stated that she has severe, continuous pain, which worsens
with physical activity. 11/19/2018 Hr’g Tr. at 13-14. If she stands for a long period
of time or walks more than three blocks, it is very painful; she feels a burn from her
low back to her feet. Id. at 14-15. It takes her two to three hours to shower and dress
4
due to the pain, and household cleaning takes all day because she needs to take many
breaks. Id. at 15. Claimant testified that she cannot return to work because she
cannot lift students, push wheelchairs, or stand for long periods of time. Id. at 16.
On cross-examination, Claimant was asked about her prior
consultations with Dr. Hirsch. Claimant admitted to telling Dr. Hirsch on September
21, 2017, that she “had a history of chronic mid and low back pain beginning around
2000 after a motor vehicle accident[]” and that the pain “had been worsening over
the past few months with no new injury.” 11/19/2018 Hr’g Tr. at 19. Claimant also
reported to Dr. Hirsch that she had numbness in her feet and swelling in her legs. Id.
at 19-20. Additionally, in December of 2017, Claimant informed staff at ProHealth
that she had prior back pain as a result of the motor vehicle accident. Id. at 20.
In support of her Claim Petition, Claimant presented the August 1, 2018
deposition testimony of Dr. Tormenti, who first treated Claimant on January 9, 2018.
C.R. Item No. 15, at 7. At that time, Claimant reported a prior motor vehicle accident
that caused back pain but claimed that she had been asymptomatic until the work
injury of September 25, 2017, which caused back pain with radiation into her legs
and arms. Id. at 7-8.
Dr. Tormenti examined Claimant’s medical records, including two
MRI scans. He opined that Claimant “had a Type 1 Chiari malformation with a
syrinx or a big fluid-filled cavity in the middle of her spinal cord that was expanding
out of her spinal cord.” C.R. Item No. 15, at 16. He explained that “[a] Chiari
malformation is when the cerebellum or the back part of the brain actually herniates
out through the bottom of the skull and into the spinal canal.” Id. Dr. Tormenti
further explained that Claimant’s malformation was cutting off some of her spinal
5
fluid flow, and was causing a syrinx in the middle of her spinal cord. Id. at 17. Dr.
Tormenti stated that this condition can cause pain, numbness, and tingling. Id.
Dr. Tormenti stated that no one knows the exact cause of a Chiari
malformation; some people are born with it, and it has been seen in children. C.R.
Item No. 15, at 17. Other people can develop it later in life. Id. Dr. Tormenti
explained that it is not a condition that he regularly treats. Id. However, he has
treated it in the past and understands the surgery, but the surgery required is
relatively involved. Id. He stated that his partner, Dr. McLaughlin, has more
expertise with the condition and surgery. Id. at 17-18. Dr. Tormenti thus
recommended Claimant to Dr. McLaughlin, who examined her and recommended
surgery. Id. at 17-18, 20-21.
When asked for his opinion in the case based on his review of the
history that he obtained from Claimant, his examinations of Claimant, and
Claimant’s other medical records and the diagnostic studies reviewed, Dr. Tormenti
opined that Claimant sustained a sprain and strain to her neck and low back on
September 25, 2017, and had disc bulging in her lumbar spine and cervical spine,
and the Chiari malformation. C.R. Item No. 15, at 24-25. Dr. Tormenti further
opined that Claimant’s Chiari malformation probably predated her work injury, “but
that she was asymptomatic until th[e work] event . . . [and] the [work] event did lead
to it acutely becoming a problem.” Id. at 25. Therefore, Claimant’s condition was
work related. Id. Dr. Tormenti also noted that because Claimant became
symptomatic as a result of the September 25, 2017 work event, surgical treatment is
necessary to correct the Chiari malformation, which “can be made significantly
worse by exertion, . . . even heavy coughing”; thus, he opined that Claimant’s
6
injuries have rendered her unable to perform her job since September 25, 2017, or
any physical job. Id. at 25-27.
Dr. Tormenti noted that Claimant’s cervical MRI also showed some
degeneration and disc bulging, which may contribute to the pain in her neck. C.R.
Item No. 15, at 15, 18. However, he did not focus on it because the Chiari
malformation was his primary concern. Id. at 18. Dr. Tormenti explained that the
Chiari malformation needs to be addressed because it can cause progressive
neurologic problems that may become irreversible if not treated. Id. at 18-19.
Employer presented the October 10, 2018 deposition testimony of John
Nolan, M.D., who is an orthopedic surgeon.4 C.R. Item No. 19. Dr. Nolan
conducted an independent medical examination (IME) of Claimant on February 28,
2018. Id. at 8. He reviewed Claimant’s medical records, but not her MRIs, and she
recounted her medical history. Id. Based on his examination, Dr. Nolan determined
that Claimant had no objective signs of impairment. Id. at 13. To the degree she
sustained any injury on September 25, 2017, however, he concluded that it was a
strain of her cervical or lumbar spine, from which she had fully recovered. Id.
Several months after the IME, Dr. Nolan had the opportunity to review
additional medical records, including Claimant’s x-rays and MRIs, based on which
he determined that Claimant had changes to her lumbar and cervical spine, which
were degenerative and not work related. C.R. Item No. 19, at 14-15. He observed
that Claimant’s October 30, 2017 MRI did show fluid inside her spinal cord, i.e., the
syrinx. Id. at 15. Dr. Nolan did not believe that the syrinx was work related,
however, because “[s]ome people feel that [it] can be caused by trauma,” and there
4
During his deposition, Dr. Tormenti was asked whether orthopedic surgeons are qualified
to treat a Chiari malformation, to which he responded that only neurosurgeons are so qualified.
C.R. Item No. 15, at 27.
7
was no work-related neck injury reported here, and because it generally would take
a fair amount of time to develop. Id. at 17. Dr. Nolan stated that he was familiar
with Chiari malformation, but he does not treat it and is “not an expert in it”; if he
had a patient with Chiari malformation, he would refer her to a neurosurgeon. Id. at
6-8, 17.
Dr. Nolan reviewed the transcript of Dr. Tormenti’s deposition
testimony and stated that the history Dr. Tormenti obtained from Claimant differed
from the history she reported to Dr. Nolan and the history contained in her medical
records. C.R. Item No. 19, at 18. For example, Claimant told Dr. Tormenti that she
was asymptomatic for several years prior to September 25, 2017; however, her
medical records showed that she reported back pain to her family doctor on
September 21, 2017, four days prior to the alleged work incident. Id. Further, Dr.
Nolan disagreed that Claimant sustained sprains and disc bulging on September 25,
2017, that would make her Chiari malformation symptomatic. Id. at 18-19. He also
noted that Claimant’s MRIs showed that disc degeneration was already present and
symptomatic prior to the work event. Id. Moreover, her physical examination was
benign. Id. at 19. Therefore, Dr. Nolan found no objective reason why Claimant
could not perform her job duties. Id.
In a decision circulated on May 8, 2019, the WCJ determined that
Claimant failed to meet her burden of proving that she sustained a disabling work-
related injury on September 25, 2017. C.R. Item No. 5, WCJ Decision, Findings of
Fact No. 8. In doing so, the WCJ found Claimant not credible based on her demeanor
while testifying and because “[h]er testimony [was] internally inconsistent and
inconsistent with the various histories that she provided to her treating physicians.”
Id., Findings of Fact No. 6. The WCJ further found that Dr. Nolan’s testimony was
8
more credible and persuasive than Dr. Tormenti’s, because Dr. Tormenti’s opinions
were “based almost entirely on the history provided by Claimant, who [the WCJ
found] not credible.” Id., Findings of Fact No. 7(a). The WCJ explained that Dr.
Nolan’s opinions were “reasonably and logically explained” and “consistent with
his objectively normal examination [of Claimant,] as well as the objectively normal
examinations of Dr. Tormenti.” Id., Findings of Fact No. 7(b)-(c). Accordingly, the
WCJ denied and dismissed Claimant’s Claim Petition. Id., Conclusions of Law No.
2.
Claimant appealed to the Board. She first argued that substantial
evidence did not support the WCJ’s determination that she did not sustain a disabling
work injury on September 25, 2017. C.R. Item No. 6, at 2. Claimant further argued
that the WCJ erred in finding that her testimony was inconsistent, and in rejecting
Dr. Tormenti’s testimony in favor of Dr. Nolan’s testimony, when Dr. Nolan
acknowledged that, as an orthopedic surgeon, he does not treat Chiari malformation
with syrinx, while Dr. Tormenti, a neurosurgeon, does treat patients with that
condition. Id. Claimant asserted that the WCJ’s credibility findings are in error and
not supported by substantial evidence. Id.
The Board disagreed with Claimant and affirmed the WCJ’s decision
in an Opinion and Order issued on June 2, 2020. C.R. Item No. 8, at 3. In doing so,
the Board pointed out the various inconsistencies in Claimant’s testimony before the
WCJ, noting that Claimant first testified that her back pain began in March of 2017,
while bending, lifting, and twisting at work, and that it progressively worsened up
until September 25, 2017, when she was lifting a student to transfer the student from
a wheelchair to a bed and felt severe low back pain, which spread to her legs and
feet and worsened later that evening to the point she could not get up. Id. at 2-3.
9
The Board also noted Claimant’s acknowledgment that she injured her back
previously in a motor vehicle accident, but was treated and the pain went away. Id.
at 3. The Board next reviewed Claimant’s testimony from the November 19, 2018
hearing, stating that she informed Dr. Hirsch on September 21, 2017, of a history of
back pain from 2000 onward, due to a motor vehicle accident, and that the pain had
been worsening with no new injury. However, the Board noted, Claimant told Dr.
Tormenti that she was symptom free for some time before September 25, 2017. Id.
at 4. Upon review of the above testimony, the Board determined that the WCJ did
not err in denying Claimant’s Claim Petition, as she bore the burden of proving all
of the elements necessary to support an award, but failed to do so because the WCJ
rejected her testimony as incredible. Moreover, because the WCJ found Claimant
not credible, the Board concluded that it did not need to address her claim regarding
the WCJ crediting Dr. Nolan’s testimony over Dr. Tormenti’s testimony. Id. at 4
n.2.
Claimant now petitions for review to this Court, raising two issues.5
First, she claims that the Board erred by concluding that she did not meet her burden
of establishing that a disabling work injury occurred on September 25, 2017.
Second, she claims that Dr. Nolan is not a neurosurgeon and, thus, is not qualified
to render an opinion on Chiari malformation with syrinx.6
In her brief, Claimant argues that she met her burden of proving that
she sustained a disabling work injury on September 25, 2017, and that the WCJ’s
5
Our standard of review is limited to a determination of whether necessary findings of fact
are supported by substantial evidence, whether constitutional rights were violated, or whether an
error of law was committed. Morey v. Workmen’s Compensation Appeal Board (Bethenergy
Mines, Inc.), 684 A.2d 673, 676 n.6 (Pa. Cmwlth. 1996).
6
In her brief, Claimant argues these two issues as one. For ease of discussion, we address
them separately.
10
finding to the contrary is not supported by substantial evidence. Claimant’s Brief at
19. Specifically, she claims that after experiencing back and neck pain beginning in
March of 2017, her pain progressively worsened and ultimately culminated in her
suffering a disabling work injury on September 25, 2017, when she experienced a
severe onset of pain in her neck, back, and extremities while lifting a nearly 75-
pound student. Id. at 5, 10, 19. Her medical expert, Dr. Tormenti, opined that her
severe onset of pain was the result of a preexisting Chiari malformation that became
acutely symptomatic due to her work-related physical activities. Thus, she asserts
that her Claim Petition should have been granted.
Employer responds that the WCJ rejected Claimant’s testimony as not
credible based upon her demeanor while testifying and because her testimony
regarding the onset of her injuries was inconsistent. Employer additionally notes
that because Dr. Tormenti’s medical opinions were based almost exclusively on the
history provided to him by Claimant, his testimony was also rejected. Therefore,
Employer claims that Claimant failed to meet her burden of proving a disabling work
injury based on the WCJ’s credibility determinations.
In a claim petition proceeding, the burden of proving all necessary
elements to support an award rests with the claimant. Inglis House v. Workmen’s
Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). The claimant
must establish that her injury was sustained in the course and scope of her
employment and is causally related thereto, and that the injury resulted in a
disability. McCabe v. Workers’ Compensation Appeal Board (Department of
Revenue), 806 A.2d 512, 515-16 (Pa. Cmwlth. 2002).7 The claimant must also
establish that the disability continues through the pendency of the claim petition
7
In this context, disability is synonymous with a loss of earning power. McCabe, 806 A.2d
at 515-16.
11
proceedings. Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes
Engineering Associates), 33 A.3d 702, 707 (Pa. Cmwlth. 2011). Where the causal
relationship between the work incident and the injury is not obvious,8 unequivocal
medical evidence is necessary to establish that relationship. Roundtree v. Workers’
Compensation Appeal Board (City of Philadelphia), 116 A.3d 140, 145 (Pa.
Cmwlth. 2015).
In reviewing a substantial evidence9 challenge, we “consider the
evidence as a whole, view the evidence in a light most favorable to the party [that]
prevailed before the WCJ, and draw all reasonable inferences which are deducible
from the evidence in” that party’s favor. Frog, Switch & Manufacturing Co. v.
Workers’ Compensation Appeal Board (Johnson), 106 A.3d 202, 206 (Pa. Cmwlth.
2014) (internal quotation marks omitted). Where both parties present evidence, it
does not matter if there is evidence that supports a contrary finding; the only question
is whether there is evidence that supports the findings that were made. McCabe, 806
A.2d at 515. This Court must accept the WCJ’s findings if, upon consideration of
the evidence as a whole, the findings are supported by competent evidence of record.
Inglis House, 634 A.2d at 595. “The WCJ is the ultimate fact finder and has
complete authority for making all credibility” and evidentiary weight
determinations. Rife v. Workers’ Compensation Appeal Board (Whitetail Ski Co.),
8
“An obvious relationship exists where the claimant’s injuries immediately and directly or
naturally and probably result from a work incident; in such cases, the fact finder is not required to
depend alone, or at all, upon medical testimony to find the causal connection.” Metelo v.
Workmen’s Compensation Appeal Board (Old Original Bookbinders Restaurant), 642 A.2d 653,
655 (Pa. Cmwlth. 1994).
9
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Philadelphia v. Workers’ Compensation Appeal Board
(Kriebel), 29 A.3d 762, 769 (Pa. 2011).
12
812 A.2d 750, 755 (Pa. Cmwlth. 2002). It is well settled that a “WCJ may reject the
testimony of any witness in whole or in part, even if that testimony is
uncontradicted.” Hoffmaster v. Workers’ Compensation Appeal Board (Senco
Products, Inc.), 721 A.2d 1152, 1156 (Pa. Cmwlth. 1998). In the rare instances
where we review a credibility determination, “[w]e must view the reasoning as a
whole and overturn the credibility determination only if it is arbitrary and capricious
or so fundamentally dependent on a misapprehension of material facts, or so
otherwise flawed, as to render it irrational.” Casne v. Workers’ Compensation
Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
In her brief, Claimant contends that she met her burden of proof because
her testimony established that a disabling work injury occurred on September 25,
2017, when she suffered pain after lifting a student, and her medical expert, Dr.
Tormenti opined that the pain was a result of a Chiari malformation revealed on her
MRI that became symptomatic due to the physical nature of her job. As such, she
asserts that she presented sufficient evidence of her claim. However, as noted above,
it does not matter that there is evidence in the record which supports a factual finding
contrary to that made by the WCJ; rather, the pertinent inquiry is whether there is
any evidence in the record that supports the WCJ’s factual finding. McCabe, 806
A.2d at 515. Moreover, here, the WCJ did not find that Claimant presented
insufficient evidence to support her claim; rather, the WCJ found that the evidence
Claimant presented was simply not credible.
Claimant testified before the WCJ on two occasions. When a witness
testifies live before a WCJ, the WCJ’s observation of the witness’s demeanor alone
is sufficient reason to support his determination of credibility. Casne, 962 A.2d at18 (citing Daniels v. Workers’ Compensation Appeal Board (Tristate Transport),
13
828 A.2d 1043 (Pa. 2003)). Here, the WCJ stated that “[h]aving observed
Claimant’s comportment and demeanor during [her] testimony and having reviewed
the evidence of record in its entirety, this [WCJ] rejects Claimant’s testimony as not
credible.” C.R. Item No. 5, WCJ Decision, Findings of Fact No. 6. This finding
alone is sufficient to support the WCJ’s rejection of Claimant’s testimony.
Additionally, the WCJ found Claimant not credible because “[h]er
testimony [was] internally inconsistent and inconsistent with the various histories
that she provided to her treating physicians.” C.R. Item No. 5, WCJ Decision,
Findings of Fact No. 6. Before this Court, Claimant does not challenge the WCJ’s,
and thus the Board’s, finding that her testimony was inconsistent. Instead, in her
brief, she attempts to counter her inconsistencies by offering explanations for the
inconsistencies that were not presented to the WCJ or the Board. For example,
Claimant now claims on appeal to this Court that she informed Dr. Tormenti that she
was asymptomatic for back pain for several years before September 25, 2017,
because the pain that developed that day was more severe than her prior pain.
Claimant’s Brief at 12-13. Thus, the pain that began developing in March of 2017
did not seem important to mention. Id. This Court cannot consider “factual
averments contained in a brief which were not part of the record before the
administrative agency . . . .” Anam v. Workmen’s Compensation Appeal Board
(Hahnemann), 537 A.2d 932, 934 (Pa. Cmwlth. 1988). As such, we reject
Claimant’s belated attempt to explain why her testimony was inconsistent.
The Board held that the WCJ’s finding that Claimant was not credible
negated her ability to sustain her burden of proof. The finding that Claimant was
not credible also led the WCJ to find Dr. Tormenti’s testimony not credible because
“his opinions [were] based almost entirely on the history provided by Claimant[.]”
14
C.R. Item No. 5, WCJ Decision, Findings of Fact No. 7(a). Claimant had the burden
of proving that her Chiari malformation became symptomatic during her
employment and was causally related to her employment. McCabe, 806 A.2d at
515-16. Because her testimony regarding the onset of her pain, and Dr. Tormenti’s
testimony relating the Chiari malformation to her employment, were rejected by the
WCJ, Claimant could not meet that burden. As such, we reject Claimant’s
contention that she sustained her burden of proving a disabling work injury.
Claimant’s second claim is that the WCJ erred by accepting the
testimony of Dr. Nolan over that of Dr. Tormenti because Dr. Nolan is not a
neurosurgeon, has not treated patients with Chiari malformation with syrinx, and is
not capable of performing the corrective surgery. Employer responds that Dr. Nolan
is a medical doctor who sees patients with Chiari malformation with syrinx, is
familiar with the condition, and is trained in the treatment of spine disorders. As
such, according to Employer, Dr. Nolan was qualified to render an opinion.
The Board did not discuss Dr. Nolan’s qualifications in its decision, but
instead concluded that because the WCJ deemed Claimant and her medical expert
not credible, it was irrelevant whether Dr. Nolan was qualified to render an opinion
regarding her Chiari malformation with syrinx. We agree with the Board. A
claimant has the burden at all stages of “a claim petition proceeding, [and] the burden
never shifts to [the] employer to show that the disability has ceased or been reduced.”
Soja, 33 A.3d at 707. Here, Claimant had the burden to establish that she sustained
a disabling work injury. Specifically, she claimed that the pain caused by her Chiari
malformation with syrinx was a result of her physical job duties. It is impossible for
her to sustain her burden of proof, however, when the WCJ found that both she and
her medical expert were not credible.
15
However, even if we reached the issue, Claimant would not prevail. In
workers’ compensation cases, “[a]n expert medical witness . . . is qualified to testify
outside of his medical specialty, and any objection to that testimony goes to the
weight of the evidence, not its competency.” Williams v. Workers’ Compensation
Appeal Board (USX Corporation-Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth.
2004) (a claim that the WCJ could not credit an anesthesiologist over a psychologist
with regard to the claimant’s psychological injuries was rejected by this Court). The
WCJ, not this Court, determines the weight of the evidence. Id.For the above reasons, Claimant has not established that the Board erred
in determining that she failed to meet her burden of proving the elements of her
Claim Petition. Accordingly, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela Nichols, :
:
Petitioner :
:
v. : No. 777 C.D. 2020
:
Workers’ Compensation Appeal :
Board (School District of :
Philadelphia), :
:
Respondent :
ORDER
AND NOW, this 9th day of February, 2022, the order of the Workers’
Compensation Appeal Board, dated June 2, 2020, is hereby AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge