J.D. Bertasavage v. WCAB (Wal Mart Stores, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey D. Bertasavage, :
Petitioner :
:
v. : No. 848 C.D. 2015
: Submitted: October 9, 2015
Workers’ Compensation Appeal :
Board (Wal Mart Stores, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: January 6, 2016
Jeffrey D. Bertasavage (Claimant) petitions for review of the
adjudication of the Workers’ Compensation Appeal (Board) that awarded him
compensation benefits for a closed period of time. In doing so, the Board affirmed
the decision of the Workers’ Compensation Judge (WCJ). Claimant contends the
Board erred by disregarding the evidence that proved that he suffered an
aggravation of his pre-existing lumbar spinal stenosis, from which he continues to
be disabled. We affirm.
Claimant worked full-time for approximately six years as a truck
driver for Wal Mart Stores, Inc. (Employer). On November 28, 2012, after lifting
the 100-pound door on the trailer to the truck, he developed pain in his back, right
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
groin, and right leg. On December 21, 2012, Claimant filed a claim petition under
the Workers’ Compensation Act (Act),2 alleging that his work-related testicular
and low back injuries rendered him unable to work.3 Employer filed an answer
denying the material allegations of the claim petition, and a hearing was held
before the WCJ.
Claimant testified that the pain he developed on November 28, 2012,
was so severe that he was unable to drive the truck to his final stop. Instead, his
transportation manager, Jim Farrell, met him in Employer’s parking lot and drove
him to the hospital.
At the hospital, Claimant underwent diagnostic studies and received
medication. His family doctor referred him to a urologist, who has been unable to
help, and his attorney referred him to Robert W. Mauthe, M.D. Claimant
continues to treat with Dr. Mauthe and a pain management specialist.
Claimant testified that he had treatments for low back pain in July
2011, when he slipped on a carpet. This low back pain never resolved completely,
but it was minimal at the time of the November 2012 incident at work.
Approximately one week before the work injury, Claimant developed pain in his
right groin area. However, that pain did not radiate into his leg until he lifted the
trailer door.
Claimant introduced the deposition testimony of Dr. Mauthe, who
first treated Claimant on January 4, 2013. Dr. Mauthe testified that Claimant told
him that he had no prior history of back or groin pain. Dr. Mauthe opined that
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.1, 2501-2708.
3
Claimant also filed a penalty petition. The WCJ did not award a penalty, and this
determination was not appealed.
2
Claimant suffered a work-related groin strain, which had resolved. However, the
work injury had also aggravated Claimant’s underlying lumbar stenosis from
which Claimant had not fully recovered. Dr. Mauthe believed Claimant could not
do his prior job but could work in a light-duty position. Dr. Mauthe explained that
Claimant was capable of driving a truck but unable to load or unload freight or do
any heavy lifting.
On cross-examination, Dr. Mauthe agreed that Claimant’s emergency
room record of his November 28, 2012, visit reported pain in Claimant’s testicular
region for a week prior to the work injury. Claimant had not reported this pain nor
his history of back pain to Dr. Mauthe. Dr. Mauthe opined, nevertheless, that
lifting the trailer door caused Claimant to seek medical care. Dr. Mauthe also
confirmed that Claimant had undergone a neurosurgical evaluation, but his
physician did not recommend surgery. In fact, Claimant’s neurologic exams for
lumbar radiculopathy were normal.
Employer presented the deposition testimony of Scott Naftulin, D.O.,
who conducted an independent medical examination (IME) on March 5, 2013. At
the time of the IME, Claimant complained primarily of groin pain in the scrotal
and peri-inguinal areas, radiating into his low back. Dr. Naftulin opined that
Claimant’s ongoing subjective complaints were related to pre-existing conditions,
which included degenerative disc disease and spondylosis. Dr. Naftulin did not
believe any of the pre-existing conditions were aggravated by the work injury.
This opinion was based on a lack of any objective findings of an ongoing injury
during the IME.
The WCJ found Claimant credible in part. The WCJ accepted
Claimant’s testimony that the work injury caused an increase in groin symptoms
3
and low back symptoms that disabled him from working through March 4, 2013.
However, the WCJ rejected Claimant’s testimony that he remained disabled due to
the work injury.
The WCJ noted that both Dr. Mauthe and Dr. Naftulin agreed that
there were no objective bases for Claimant to be unable to work as of March 2013.
The WCJ credited Dr. Mauthe’s conclusion that Claimant suffered a work injury
on November 28, 2012, but he rejected Dr. Mauthe’s opinion that the work injury
caused an aggravation of Claimant’s degenerative disc disease that resulted in an
inflammatory condition of the spine. The WCJ reasoned that Dr. Mauthe’s opinion
was based on an inaccurate medical history provided by Claimant. Further, there
was inconsistent testimony by Claimant and Dr. Mauthe about the efficacy of Dr.
Mauthe’s treatment. Claimant testified that injections to the L5-S1 region did not
give him relief, but Dr. Mauthe testified that these injections did relieve Claimant’s
pain. Dr. Mauthe based his opinion that Claimant suffered an inflamed spine on
his belief that injections had relieved Claimant’s symptoms, but this belief was
unfounded.
The WCJ credited Dr. Naftulin’s opinion that Claimant’s pre-existing
conditions were not aggravated by the work injury because his opinion was based
upon Claimant’s objectively normal IME findings. However, the WCJ rejected Dr.
Naftulin’s determination that Claimant had not suffered a work injury on
November 28, 2012.
In sum, the WCJ found that Claimant established a work injury on
November 28, 2012, consisting of a groin and lumbar strain, which disabled him
from working through March 4, 2013. Claimant failed to establish that he suffered
4
any disability from March 5, 2013, onward. Thus, Claimant was determined to be
fully recovered as of that date, which terminated benefits.
Claimant appealed to the Board, asserting that the WCJ disregarded
the evidence of record. The Board held that the WCJ did not disregard the record
evidence. Rather, the WCJ made credibility determinations, which were supported
by the record. Claimant petitioned for this Court’s review.4
On appeal, Claimant contends that the Board erred because the WCJ
disregarded substantial evidence that proved that Claimant suffered an aggravation
of a pre-existing condition.
The claimant has the burden of proving all elements necessary to
support an award of benefits. Inglis House v. Workmen’s Compensation Appeal
Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). “To establish a work-related
aggravation of a pre-existing condition, a claimant must show a causal connection
between work and the aggravation.” Dorsey v. Workers’ Compensation Appeal
Board (Crossing Construction Company), 893 A.2d 191, 195 n.5 (Pa. Cmwlth.
2006). This is established by showing “the aggravation arose in the course of
employment and was related thereto.” Id.
The WCJ is the ultimate fact finder and is authorized “to determine
witness credibility and evidentiary weight.” Shannopin Mining Company v.
Workers’ Compensation Appeal Board (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth.
2011). As such, the WCJ “is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Id. (quoting Griffiths v.
4
This Court’s review of a workers’ compensation adjudication determines whether an error of
law or a constitutional violation was committed or whether the findings of fact are supported by
substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of
Pennsylvania and Alexsis, Inc.), 782 A.2d 1108, 1110 n. 1 (Pa. Cmwlth. 2001).
5
Workers’ Compensation Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa.
Cmwlth. 2000)).
Claimant argues that he presented ample evidence to establish that his
work injury included an aggravation of his degenerative lumbar stenosis, which
was disregarded by the WCJ. Claimant contends there is no explanation for his
inability to work other than the aggravation of his pre-existing injury. Employer
responds that the WCJ is the finder of fact and credibility.
Dr. Mauthe testified that the work injury caused an aggravation of
Claimant’s underlying degenerative lumbar stenosis. However, the WCJ rejected
this opinion because it was based, in part, on Claimant’s inaccurate report to Dr.
Mauthe that he did not have a history of back pain. Dr. Mauthe also opined that
the relief Claimant experienced after therapeutic injections at the L5-S1 area
established Claimant had an inflammatory condition of the spine. However,
Claimant credibly testified the injections did not provide him with relief, the effect
of which was to undermine Dr. Mauthe’s opinion that Claimant’s spine was
inflamed.
Dr. Naftulin testified that Claimant reported to him that he had never
suffered back pain. However, Claimant’s treatment history established the
contrary. Imaging studies revealed Claimant’s degenerative disc and arthritic
changes, i.e., spondylosis. Dr. Naftulin disagreed with Dr. Mauthe’s diagnosis of
an aggravation of lumbar stenosis, explaining that the mechanism of Claimant’s
injury and his subsequent symptomology did not support that diagnosis. Further,
the performance of a lumbar epidural steroid injection, whether or not there was
improvement thereafter, would not establish lumbar stenosis to a medical certainty.
6
Employer presented sufficient evidence in support of its claim that
Claimant did not sustain an aggravation of a pre-existing condition. Claimant does
not argue that Employer’s evidence is insufficient. Instead, he focuses on his
evidence, which he claims the WCJ failed to consider. Here, each party presented
evidence that, if accepted by the WCJ, was sufficient to support their respective
claims. However, on the issue of aggravation, it was Employer’s evidence that
was found credible.
As held by the Board, the WCJ did not disregard compelling
evidence. The WCJ simply accepted the testimony of Employer’s medical expert
over that of Claimant’s medical expert on the issue of aggravation. The WCJ is
free to accept the testimony of any medical witness, in whole or in part. Shannopin
Mining Company, 11 A.3d at 627. Claimant has failed to establish error.
Accordingly, the order of the Board is affirmed.
______________________________
MARY HANNAH LEAVITT, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey D. Bertasavage, :
Petitioner :
:
v. : No. 848 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Wal Mart Stores, Inc.), :
Respondent :
ORDER
AND NOW, this 6th day of January, 2016, the order of the Workers’
Compensation Appeal Board, dated April 28, 2015, is AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge