W. Simpkins v. WCAB (Human Achievement Project, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wendy Simpkins, :
Petitioner :
:
v. : No. 2112 C.D. 2015
: Submitted: April 8, 2016
Workers’ Compensation Appeal :
Board (Human Achievement Project, :
Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON1 FILED: October 21, 2016
Wendy Simpkins (Claimant) petitions for review of the Workers’
Compensation Appeal Board’s (Board) order that affirmed a Workers’
Compensation Judge’s (WCJ) decision granting in part and denying in part
Claimant’s petition to review compensation benefits (review petition) and granting
Human Achievement Project, Inc.’s (Employer) termination petition. Claimant
contends the Board erred in affirming the WCJ’s termination of benefits because
Claimant’s work-related injury included a right labral tear, and the record lacked
sufficient competent evidence demonstrating Claimant’s full recovery from her
right labral tear. In particular, Claimant argues Employer’s medical expert, Dr.
Dennis Ivill (Employer’s Expert), failed to opine that Claimant fully recovered
from the diagnosed right labral tear. For the reasons that follow, we affirm.
1
This case was reassigned to the author on July 19, 2016.
I. Background
In July 2011, while working for Employer, Claimant sustained an
injury lifting a client from a tub to a wheelchair. In November 2011, Employer
filed a notice of temporary compensation payable (NTCP), acknowledging the
injuries as a right rotator cuff/shoulder tear/strain. In January 2012, the NTCP
converted to a notice of compensation payable (NCP).
In August 2013, Claimant filed her review petition alleging the
description of her work injury should be amended to include: a right shoulder
labral and rotator cuff tear, right elbow lateral epicondylitis, a C3-C4 central disc
herniation, right carpal tunnel syndrome, myofascial pain syndrome, right brachial
plexopathy and pain axillary to chest and right arm. Employer filed an answer
denying Claimant’s allegations.
In November 2013, the WCJ held a hearing. Thereafter, Claimant
submitted a deposition from Dr. Thomas Whalen (Claimant’s Expert). In
December 2013, Employer’s Expert, a physician board certified in physical
medicine and rehabilitation, performed an independent medical examination (IME)
of Claimant. In February 2014, Employer filed its termination petition alleging
Claimant fully recovered from her work injuries. In support, Employer submitted
its Expert’s deposition.
In October 2014, the WCJ granted Claimant’s review petition in part
accepting the right shoulder injuries (right rotator cuff tear, right shoulder sprain,
right labral tear) and right elbow injury (right epicondylar tear). However, the
2
WCJ denied Claimant’s review petition in part regarding injuries to other parts of
the body. In addition, the WCJ granted Employer’s termination petition,
determining Claimant fully recovered from her July 2011 work injuries as of
Employer’s Expert’s December 2013 IME.
On appeal, the Board affirmed. Claimant petitions for review.2
II. Discussion
At one point this was a dispute about injuries to various parts of
Claimant’s body, including the right shoulder, right elbow, neck, right arm, right
chest and right hand/wrist, and general myofascial pain syndrome. It is now
narrowed to whether Claimant recovered from a component of her right shoulder
injury, a tear to the labrum (soft tissue) in the shoulder socket. There appears to be
no real dispute that this tear was surgically repaired at the same time the right
rotator cuff tear was repaired. Dep. of Dr. Ivill, 3/3/14 (Ivill Dep.) at 23, 36-37.
Viewed in a light most favorable to the party prevailing below, Employer, we
conclude that substantial evidence supports a finding of recovery from the right
labral tear.
Claimant contends the Board erred in affirming the WCJ’s decision
terminating Claimant’s benefits where the evidence did not establish her full
recovery from her right labral tear. Claimant asserts an employer seeking a
termination of benefits must prove that all disability related to the work injury
2
This Court’s review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed or whether
constitutional rights were violated. 2 Pa. C.S. §704; Phoenixville Hosp. v. Workers' Comp.
Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).
3
fully resolved. Udvari v. Workmen's Comp. Appeal Bd. (USAir, Inc.), 705 A.2d
1290 (Pa. 1997); Giant Eagle, Inc. v. Workmen's Comp. Appeal Bd. (Chambers),
635 A.2d 1123 (Pa. Cmwlth. 1993).
Further, Claimant argues, in a termination proceeding, the employer’s
medical expert must recognize all accepted work injuries and render an opinion
that the claimant fully recovered from those injuries. GA & FC Wagman, Inc. v.
Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001); see
also Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195 (Pa.
Cmwlth. 2007) (at the minimum, the employer’s expert must know the nature of
the claimant’s work-related injury and competently testify she fully recovered from
it).
In workers’ compensation cases, the WCJ is the ultimate fact-finder
and has exclusive province over questions of credibility and evidentiary weight.
A&J Builders, Inc. v. Workers' Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa.
Cmwlth. 2013). The WCJ may accept the testimony of any witness, including a
medical witness, in whole or in part. Id. We are bound by the WCJ’s credibility
determinations. Id.
Moreover, it is irrelevant whether the record contains evidence
supporting findings other than those made by the WCJ; the crucial inquiry is
whether the evidence supports the findings actually made. Id. Therefore, we must
examine the entire record to see if it contains evidence a reasonable person might
find sufficient to support the WCJ’s findings. Id. If the record contains such
4
evidence, the findings must be upheld, even though the record may contain
conflicting evidence. Id. Additionally, we must view the evidence in the light
most favorable to the prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence. Wagner v. Workers’ Comp. Appeal Bd.
(Anthony Wagner Auto Repairs & Sales, Inc.), 45 A.3d 461 (Pa. Cmwlth. 2012).
In the present case, the WCJ found Claimant sustained work injuries
in the area of her right elbow (epicondylar tear) and in the area of her right
shoulder (right rotator cuff tear, right shoulder sprain, right labral tear). More
specifically, the WCJ found (with emphasis added):
12. Based upon a review of the evidentiary record as a
whole, the Judge accepts the testimony of [Claimant’s
Expert] that Claimant sustained an epicondylar tear and a
labral tear causally related to the 7/29/11 work injury as
more credible and persuasive than the contrary
testimony of [Employer’s Expert]. Significant in
reaching this determination is the mechanism of
Claimant’s work injury and these diagnoses were
confirmed by diagnostic studies performed within
months of Claimant’s work injury. Moreover, Claimant
had an epicondylar injection during the 10/5/11 shoulder
surgery. Additionally, Claimant didn’t have any injuries
to these areas of her body before the work accident.
Notably, the labral tear was surgically repaired.
13. Based on [Claimant’s Expert’] testimony, Claimant
was fully recovered from the epicondylar tear no later
than the date of his deposition wherein he testified that
Claimant no longer has symptoms of epicondylitis.
****
17. Based upon a review of the evidentiary record as a
whole, the Judge accepts the testimony of [Employer’s
Expert] that Claimant is fully recovered from her right
5
rotator cuff tear and right shoulder sprain as more
credible than any contrary testimony of [Claimant’s
Expert]. Significant in reaching this determination is that
[Employer’s Expert’s] testimony is based on and
supported by the examination performed whereas
[Claimant’s Expert] essentially relies on Claimant’s
subjective complaints.
18. Claimant sustained a right rotator cuff tear, right
shoulder sprain, a right labral tear and a right epicondylar
tear in the course of her employment on 7/29/11.
19. Claimant was fully recovered from her 7/29/11 work
injuries as of 12/16/13.
WCJ’s Op., 10/10/14, Findings of Fact (F.F.) No. 12, 13, 17, 18, 19.
Regarding Claimant’s right shoulder injuries, and her recovery from
them, on direct examination Employer’s Expert testified as follows:
Q. [Employer’s Counsel]. Okay. Now, do you have an
opinion, Doctor, to a reasonable degree of medical
certainty whether Claimant sustained a work-related
injury?
A. Yes.
Q. And what’s the injury that you believe [Claimant]
sustained?
A. Right rotator cuff shoulder tear/sprain, which has
resolved.
She also carried … diagnoses including right
shoulder and labral rotator cuff tears, C3-4 central disc
herniation, right carpel tunnel syndrome, right brachial
plexopathy and pain, axillary to the chest, as causally
related to her [July 29, 2011] injury. She does not carry
those. Sorry about that.
****
6
Q. Okay. Now, with regard to -- I just want to break it
down and go through this.
With regard to the right shoulder and labral rotator
cuff tears, that you find is work-related or not?
A. The right rotator cuff and shoulder tear[/]sprain are
work-related. All others are not.
Ivill Dep. at 25-26 (emphasis added).
Moreover, on cross-examination, Employer’s Expert testified he
reviewed a report from another IME Physician, Dr. Mitchell K. Freedman, and he
agreed that Claimant’s work-related surgeries included a right rotator cuff repair
and superior labral repair. In particular, Employer’s Expert stated:
Q. [Claimant’s Counsel]. If you reviewed Dr.
Friedman’s [sic] report, did you draw any conclusions as
to whether you agreed with certain diagnoses that he
attributed to the July 29, 2011 work injury suffered by
[Claimant]?
A. I disagreed with him.
Q. Could you identify what portions of his diagnoses that
he attributed to the July 29, 2011 accident?
A. I’m basing this on my physical exam of 12/16/13. His
diagnoses included myofascial pain ….
I do agree with his status–post shoulder
arthroplasty with rotator cuff repair, superior labral repair
and subacromial decompression. I disagree that the right
elbow lateral epicondylar tenotomy release and repair
was a diagnosis. She didn’t have those complaints at the
time of the injury and they had resolved by the time I saw
her. And those are the only diagnoses he listed.
7
Ivill Dep. at 36-37(emphasis added).
As reflected by the above testimony, Employer’s Expert
acknowledged on direct examination that Claimant’s shoulder injuries, including a
“right rotator cuff shoulder tear/sprain” were work-related. Ivill Dep. at 25. When
asked specifically if Claimant’s right shoulder and “labral rotator cuff tears” were
work related, Employer’s Expert replied, the “right rotator cuff and shoulder tear
sprain are work-related.” Id. at 25-26 (emphasis added).
We recognize it may appear at first glance that Employer’s Expert
testified on direct that Claimant did not “carry” a diagnosis of a “right shoulder and
labral rotator cuff tears.” Id. at 25. However, when Employer’s counsel broke
down the components of the shoulder injury, Employer’s Expert plainly testified
that Claimant’s right rotator cuff and shoulder tear sprain were work-related.3 Id.
at 26. As fact-finder, the WCJ was authorized to give more weight to any part of
any witness’ testimony.
Moreover, Employer’s Expert further clarified his opinions on cross-
examination. He attributed Claimant’s “status-post shoulder arthroplasty with
rotator cuff repair, superior labral repair, a subacromial decompression” to her July
3
We note the WCJ found “[Employer’s Expert] is of the opinion that Claimant doesn’t
have a right shoulder labral tear, C3-4 herniation, right CTS, right brachial plexopathy and pain
axillary to the chest causally related to her 7/29/11 work injury.” F.F. No. 8j. For the reasons
stated above, the finding regarding the right shoulder labral tear is not supported by the record.
Rather, we believe a reasonable interpretation of Employer’s Expert’s testimony to be that he
considered Claimant’s right shoulder labral tear to be part of Claimant’s right rotator cuff and
shoulder tear sprain; whereas he disagreed with diagnoses involving other parts of the body, such
as the neck, wrist/hand, and chest. Ivill Dep. at 25-26.
8
2011 work injury. Ivill Dep. at 36. As such, Employer’s Expert acknowledged
Claimant’s right labral repair as work-related. Further, Employer’s Expert opined
that Claimant’s “right rotator cuff shoulder tear/sprain” resolved as of the time of
his December 2013 IME. Id. at 25.
Claimant’s argument appears to be that Employer’s Expert didn’t use
the word “labral” enough when he referred to the accepted injuries and the injuries
from which Claimant recovered. We view this approach as unreasonably narrow.
Employer’s Expert consistently referred to “right rotator cuff shoulder tear/sprain,”
which can easily be viewed as referring to all the components of Claimant’s
accepted injury: a right rotator cuff injury and a shoulder tear/sprain. When read as
a whole, including references to the surgical repairs, and read in a light most
favorable to the prevailing party, we conclude that Employer’s Expert’s testimony
supports the WCJ’s findings.
In sum, Employer’s Expert recognized that Claimant’s work-related
shoulder injury, as found by the WCJ, included a right labral and rotator cuff tear.
Employer’s Expert opined these accepted injuries resolved as of his December
2013 IME. Ultimately, the WCJ accepted Employer’s Expert’s testimony that
Claimant “fully recovered from her right rotator cuff tear and right shoulder sprain
as more credible than any other contrary testimony of [Claimant’s Expert].” F.F.
No. 17. In making this determination, the WCJ noted that Employer’s Expert’s
testimony was based on and supported by his December 2013 examination. Id.
Consequently, Employer’s Expert’s testimony provides competent medical
evidence supporting the WCJ’s Finding of Fact No. 19, that Claimant fully
9
recovered from her July 2011 work injuries. Thus, the WCJ did not err or abuse
her discretion in granting Employer’s termination petition. Udvari; Giant Eagle.
For these reasons, we affirm the Board’s order.
ROBERT SIMPSON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wendy Simpkins, :
Petitioner :
:
v. : No. 2112 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Human Achievement Project, :
Inc.), :
Respondent :
ORDER
AND NOW, this 21st day of October, 2016, for the reasons stated in
the foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wendy Simpkins, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Human Achievement :
Project, Inc.), : No. 2112 C.D. 2015
Respondent : Submitted: April 8, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY
JUDGE COVEY FILED: October 21, 2016
I respectfully dissent from the Majority’s conclusion that substantial
evidence supported a finding that Wendy Simpkins (Claimant) fully recovered from
her work-related injury, including her right labral tear. The issue before the Court is
whether the Workers’ Compensation (WC) Appeal Board (Board) erred in affirming
the Workers’ Compensation Judge’s (WCJ) decision granting Human Achievement
Project, Inc.’s (Employer) Petition to Terminate Compensation Benefits (Termination
Petition). Because the Employer carries the burden of providing unequivocal,
competent medical evidence that Claimant fully recovered from all work-related
injuries, and Employer’s medical expert expressly refused to accept the WCJ’s
expansion of Claimant’s work injury to include a right labral tear, there is no record
evidence to support the WCJ’s finding of Claimant’s recovery from the right labral
tear. Based upon well-established law, I would reverse the Board’s order affirming
the WCJ’s granting of Employer’s Termination Petition.
It is undisputed that Claimant sustained an injury lifting a client from a
tub to a wheelchair while working for Employer. The original work-related injury
Employer accepted in the Notice of Temporary Compensation Payable was a right
rotator cuff/shoulder tear/strain. Thereafter, Claimant filed a Petition to Review
Compensation Benefits (Review Petition), wherein, she sought to amend the work-
related injury to include: right shoulder labral and rotator cuff tear, right elbow lateral
epicondylitis, C3-C4 central disc herniation, right carpal tunnel syndrome, myofascial
pain syndrome, right brachial plexopathy and pain axillary to chest and right arm.
Employer denied Claimant’s allegations and a hearing was held during which
Claimant submitted her medical expert Dr. Thomas Whalen’s deposition and
Employer submitted its medical expert Dr. Dennis Ivill’s (Employer’s Expert)
deposition.
The WCJ determined that Claimant sustained four distinct injuries,
specifically three to the shoulder and one to the elbow. The WCJ found as a fact:
“Claimant sustained a right rotator cuff tear, right shoulder sprain, a right labral tear
and a right epicondylar tear in the course of employment on [July 29, 2011].
Claimant sustained no other work[-]related injuries on [July 29, 2011].” WCJ Dec. at
9, Finding of Fact (FOF) 18 (emphasis added).
This Court has consistently held that an employer’s medical expert
must recognize a specific work injury as accepted and demonstrate that “[the
c]laimant has [fully] recovered from this injury.” GA & FC Wagman, Inc. v.
Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087, 1092 (Pa. Cmwlth. 2001)
(emphasis added); see also Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.),
936 A.2d 1195 (Pa. Cmwlth. 2007). We have explained that “[a]t a bare minimum,
the expert must know what the accepted work-related injury was to be competent to
testify that a claimant has fully recovered from a work-related injury.” Id. at 1200.
Without recognizing the specific work-related injury, a medical expert’s opinion is
AEC - 2
insufficient to support a finding that a claimant has fully recovered from the specific
work-related injury.1 Id.
The Majority states that the Employer’s Expert, during his direct
examination, acknowledged Claimant’s shoulder injuries as work-related. I disagree
that Employer’s Expert accepted the right labral tear as work-related. Employer’s
Expert testified as follows:
Q. [Employer’s Counsel] Okay. Now, do you have an
opinion, Doctor, to a reasonable degree of medical certainty
whether Claimant sustained a work-related injury?
A. Yes.
Q. And what’s the injury that you believe [Claimant]
sustained?
A. Right rotator cuff shoulder tear/sprain, which has
resolved. She also carried a diagnoses including right
shoulder and labral rotator cuff tears, C3-4 central disc
herniation, right carpel tunnel syndrome, right brachial
plexopathy and pain, axillary to the chest, as causally
related to her [July 29, 2011] injury. She does not carry
those. Sorry about that.
....
Q. Okay. Now, with regard to -- I just want to break it
down and go through this. With regard to the right shoulder
and labral rotator cuff tears, that you find is work-related or
not?
1
Notably, where a claimant’s established work injury was described as “chronic sciatica at
the L5-S1 distribution on the right side with disc bulging at L5-S1,” and a physician “expressly
testified that [a c]laimant suffered only [a] lumbar strain and sprain as the result of [the claimant’s]
work injury and that [c]laimant [had] recovered only from that lumbar strain and sprain,” the
physician’s testimony did not support the conclusion “that [the c]laimant fully recovered from
[claimant’s] established work-related injury.” Gillyard v. Workers’ Comp. Appeal Bd. (Pa.
Liquor Control Bd.), 865 A.2d 991, 996, 997 (Pa. Cmwlth. 2005) (bold emphasis added).
AEC - 3
A. The right rotator cuff and shoulder tear[/]sprain are
work-related. All others are not.
Notes of Testimony (N.T.), March 3, 2014 at 25-26 (emphasis added). When
Employer’s counsel specifically asked Employer’s Expert to “break it down,” he
expressly and specifically refused to accept that the labral tear was a work-
related injury.
Moreover, during cross-examination, Employer’s Expert clarified that
the injuries and recovery were limited to the right rotator cuff tear and shoulder
sprain. Employer’s Expert testified:
Q. [Claimant’s Counsel] The diagnosis you accepted was
limited to the right rotator cuff –
A. Correct.
Q. -- sprain, which you say was resolved as of the time of
the exam?
A. Right rotator cuff and shoulder tear[/]sprain, yes.
N.T., March 3, 2014 at 33 (emphasis added). Again, Employer’s Expert specifically
limited Claimant’s work-related injury which did not include the right labral tear.
Based on the above-quoted testimony, it is clear that, contrary to the
Majority’s opinion, Employer’s Expert did not accept the entire shoulder injury,
specifically the right labral tear. Although the right rotator cuff tear, right shoulder
sprain, and right labral tear all related to the shoulder, both the WCJ and
Employer’s Expert refer to them as three distinct injuries. The Majority
condenses the WCJ’s specific finding of four separate and distinct injuries and refers
to them in two broad categories, a shoulder injury and an elbow injury. This
grouping of the work-related injuries misrepresents the record.
AEC - 4
The Majority also attempts to recharacterize Employer’s Expert’s
testimony by asserting that “it may appear at first glance that Employer’s Expert
testified on direct that Claimant did not ‘carry’ a diagnosis of a ‘right shoulder and
labral rotator cuff tears[;]’” however, Employer’s Expert “plainly testified that
Claimant’s right rotator cuff and shoulder tear sprain were work-related.” Maj. Op. at
8. I agree that Employer’s Expert testified that Claimant did not carry a diagnosis of
a right labral tear and that Claimant’s work injury was a right rotator cuff tear and
shoulder sprain. Employer’s Expert’s testimony did not end there – he also
repeatedly refused to accept the right labral tear as a work injury. The fact that the
Majority qualifies Employer’s Expert’s testimony and prefaces how to interpret that
testimony reveals that Employer’s Expert’s testimony standing alone does not support
the Majority’s interpretation of the testimony given the legal standard that there be
“unequivocal[2] and competent medical evidence of the claimant's full recovery from
the work-related injury.” O’Neill v. Workers’ Comp. Appeal Bd. (News Corp. LTD.),
29 A.3d 50, 53 (Pa. Cmwlth. 2011) (emphasis added).
The Majority adds that on cross-examination Employer’s Expert testified
that he reviewed a report by another physician, Dr. Mitchell K. Freedman (Dr.
Freedman). When asked about Dr. Freedman’s report and his diagnoses of the injury,
Employer’s Expert stated:
A. I’m basing this on my physical exam of 12/16/13. His
diagnoses included myofa[s]cial pain ….
I do agree with his status–post shoulder arthroplasty with
rotator cuff repair, superior labral repair and subacromial
decompression. I disagree that the right elbow lateral
epicondylar tenotomy release and repair was a diagnosis.
She didn’t have those complaints at the time of the injury
2
Merriam-Webster’s Collegiate Dictionary (11th ed. 2004) defines “unequivocal” as
“leaving no doubt: clear, unambiguous[.]” Id. at 1366 (emphasis added).
AEC - 5
and they had resolved by the time I saw her. And those are
the only diagnoses he listed.
N.T., March 3, 2014 at 36-37 (emphasis added).3 The Majority states that this
testimony demonstrates Employer’s Expert’s acknowledgement of the three distinct
work-related shoulder injuries. However, Employer’s Expert merely recognized
Claimant’s “status” that Claimant underwent surgery for a right labral tear.
The testimony does not establish that Employer’s Expert accepted the injury as work-
related, but simply that a surgical repair procedure was performed. An
acknowledgement that a surgical repair procedure was performed is not equivalent to
the expert accepting the work injury and the expert agreeing that the surgical repair
resulted in Claimant’s recovery from that work injury. Thus, Employer’s Expert’s
recognition that the surgical procedure was performed was not sufficient to recognize
and accept the labral tear as a work-related injury, especially in light of his previous
testimony.
Moreover, the WCJ specifically found as a fact that Employer’s
Expert “is of the opinion that Claimant doesn’t have a right shoulder labral
tear[.]” WCJ Dec. at 7, FOF 8(j) (emphasis added). This further evidences that the
labral tear was a separate injury from the two other shoulder injuries and that
Employer’s Expert did not accept it.
The Majority notes that the WCJ found that Employer’s Expert did
not accept the right shoulder labral tear as causally related to Claimant’s work
injury. Again, in directing how to interpret Employer’s Expert’s testimony, and with
3
In fact, Dr. Freedman’s report describes his diagnosis as it pertains to Claimant’s shoulder
as “[s]tatus post shoulder arthroscopy with rotator cuff repair, superior labral repair, and
subacromial decompression; I no longer think that she is symptomatic from the rotator cuff
dysfunction based on her exam. She has more of a mild frozen shoulder.” N.T., March 3, 2014
Ex. C-1 at 5 (emphasis added). Importantly, Dr. Freedman concluded: “I do not feel that
[Claimant] has fully recovered[,]” noting that she was unable to reach overhead. Id. at 6
(emphasis added).
AEC - 6
no foundation, the Majority simply states that the WCJ’s finding “is not supported by
the record” and that a more “reasonable interpretation of Employer’s Expert’s
testimony to be that he considered Claimant’s right shoulder labral tear to be part of
Claimant’s right rotator cuff and shoulder tear sprain[.]” Maj. Op. at 8 n.3. Thus, the
Majority not only erroneously invalidates the WCJ’s factual finding that Employer’s
Expert did not accept the labral tear work injury, but then effectively makes a new
factual finding that Employer’s Expert did accept the injury. “Only a referee,[4] in
worker[s’] compensation cases, may make findings of fact; a reviewing court may
not.” Reilly v. Workmen’s Comp. Appeal Bd. (Gen. Elec. Co.), 584 A.2d 364, 367
(Pa. Cmwlth. 1990). Similarly, the Majority’s interpretation directly contradicts the
WCJ’s finding of three distinct shoulder injuries. The WCJ and Employer’s Expert
did not refer to one shoulder injury; rather, they expressly specify the distinct injuries.
Further, the Majority’s interpretation conflicts with Dr. Freedman’s report which also
recognized the various shoulder injuries and repairs thereto.
In addition, Employer’s Expert did not state that Claimant had recovered
from all potential work-related shoulder injuries. He only accepted two injuries - a
right rotator cuff tear and right shoulder sprain - and said that Claimant fully
recovered from those injuries. The Majority’s conclusion that Employer’s Expert
accepted the labral tear as work-related, completely contradicts Employer’s Expert’s
deposition testimony and the WCJ’s factual findings.
Lastly, the Majority states that “Claimant’s argument appears to be that
Employer’s Expert didn’t use the word ‘labral’ enough when he referred to the
accepted injuries and the injuries from which Claimant recovered.” Maj. Op. at 9.
While I disagree with this statement, and the Majority’s characterization of
Claimant’s argument, more importantly, it is clear throughout the entire record that
4
WCJs were formerly referred to as referees. See, e.g., Gen. Elec. Co. v. Workers’ Comp.
Appeal Bd. (Myers), 849 A.2d 1166, 1172 n.14 (Pa. 2004).
AEC - 7
Employer’s Expert rejected the right labral tear as attached to the work-related
diagnosis.
“[T]he Workers’ Compensation Act[5] is remedial legislation. . . . the
Act’s purpose [is to] benefit[] injured workers and their dependents.” Gallie v.
Workers’ Comp. Appeal Bd. (Fichtel & Sachs Indus.), 859 A.2d 1286, 1291-92 (Pa.
2004) (emphasis added). “[T]he statute’s purpose is clearly to further the interests of
claimants.” U.S. Steel Corp. v. Workmen’s Comp. Appeal Bd. (Mehalovich), 457
A.2d 155, 157 (Pa. Cmwlth. (1983). Accordingly, the employer has the burden to
provide evidence warranting the termination of benefits. See O’Neill. Employer
must present unequivocal and competent medical evidence. Id. The fact that the
Majority needs to provide direction on how to view and interpret Employer’s
Expert’s testimony is contrary to well-established law and demonstrates that
Employer failed to meet its burden.6 Because Employer failed to provide testimony
clearly explaining and evidencing Claimant’s recovery from all of the work-related
injuries found by the WCJ, it failed to meet its burden. Since Employer did not meet
its burden of proof, I would reverse the Board’s order affirming the WCJ’s granting
of Employer’s Termination Petition.
___________________________
ANNE E. COVEY, Judge
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4 , 2501-2708.
6
The Majority’s need to interpret Employer’s Expert’s testimony clearly evidences
Employer’s failure to meet its burden of providing unequivocal medical evidence. See O’Neill.
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