N. Green v. WCAB (The Salvation Army) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Naftale Green, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (The Salvation Army), : No. 1259 C.D. 2018
Respondent : Submitted: March 29, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: July 23, 2019
Naftale Green (Claimant) petitions for review of the August 16, 2018
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of Workers’ Compensation Judge Patricia Bachman (WCJ) that (1)
granted the Petition to Terminate Compensation Benefits (Termination Petition)
filed by The Salvation Army (Employer) against Claimant pursuant to the Workers’
Compensation Act (Act),1 (2) granted a Petition to Review (Review Petition) filed
by Claimant pursuant to the Act, and (3) denied two Petitions to Review Utilization
Review Determinations (UR Review Petitions) filed by Claimant under the Act. We
affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
On January 15, 2016, while working as a truck driver for Employer,
Claimant fell from the back of a truck, injuring both ankles and his lower back. WCJ
Decision dated August 4, 2017 (WCJ Decision), Reproduced Record (R.R.) at 173a-
90a, Findings of Fact (F.F.) 1. On February 2, 2016, Employer issued a Notice of
Temporary Compensation Payable that acknowledged as compensable Claimant’s
right ankle fracture and left ankle strain.2 F.F. 1; see also Notice of Temporary
Compensation Payable, R.R. at 1a-2a.
On June 23, 2016, Employer filed the Termination Petition alleging
Claimant had fully recovered from his work injuries as of May 24, 2016. Board
Opinion dated August 16, 2018 (Board Opinion) at 1; F.F. 2. On August 1, 2016,
Claimant filed a UR Review Petition regarding the treatment of his chiropractor,
Thomas Fagan, D.C. Board Opinion at 1; F.F. 2. On August 31, 2016, Claimant
filed the Review Petition, seeking expansion of the description of his work injury to
include a lower back injury. Board Opinion at 1; F.F. 2. Additionally, on December
12, 2016, Claimant filed a second UR Review Petition regarding treatment rendered
by his medical doctor, Michael McCoy, M.D. Board Opinion at 1; F.F. 2.
After consolidating the petitions and conducting a hearing on the matter
on March 16, 2017, the WCJ decided the Termination, Review, and UR Review
Petitions by decision issued on August 4, 2017. See WCJ Decision. In the WCJ
Decision, the WCJ found Employer met its burdens of proving (1) that Claimant had
fully recovered from his entire work injury as of May 24, 2016, and (2) that the
medical treatment rendered by Claimant’s chiropractor and medical doctor were
both unnecessary and unreasonable. WCJ Decision at 8; Board Opinion at 1-2.
2
The Notice of Temporary Compensation Payable was later converted to a Notice of
Compensation Payable.
2
Accordingly, the WCJ granted the Termination Petition and denied both of the UR
Review Petitions. WCJ Decision at 8; Board Opinion at 1-2.3 Claimant appealed
the WCJ’s rulings, and the Board affirmed by opinion dated August 16, 2018. See
generally Board Opinion, R.R. at 191a-200a. Claimant timely petitioned this Court
for review.4
Claimant makes three claims on appeal. First, Claimant alleges that the
Board erred in affirming the WCJ’s grant of the Termination Petition because
Employer’s medical expert did not provide an adequate medical opinion that
Claimant had fully recovered from his work injury. See Claimant’s Brief at 6 & 11-
12. Next, Claimant alleges the Board erred by affirming the WCJ’s denial of the UR
Review Petitions. See Claimant’s Brief at 6 & 15-16. Additionally, Claimant argues
this Court should remand the matter to allow Claimant to enter, and the WCJ to
consider, evidence of a surgery Claimant underwent following the close of the record
in this matter. See Claimant’s Brief at 6 & 13-14.
3
The WCJ granted the Review Petition by agreement of the parties. See WCJ Decision at
9; Board Opinion at 1. No party challenges this determination on appeal.
4
In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workmen’s Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).
Substantial evidence is such relevant evidence a reasonable person might
find sufficient to support the WCJ’s findings. In determining whether a finding of
fact is supported by substantial evidence, this Court must consider the evidence as
a whole, view the evidence in a light most favorable to the party who prevailed
before the WCJ, and draw all reasonable inferences which are deducible from the
evidence in favor of the prevailing party.
Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).
3
The Termination Petition
Claimant first claims the Board erred by affirming the WCJ’s grant of
the Termination Petition. See Claimant’s Brief at 11-12. Claimant argues that the
testimony of Employer’s expert medical witness, in which the expert gave his
diagnoses of Claimant’s right foot injury as “resolved contusion, sprain, avulsion
versus osteophyte[,]” “did not provide clear evidence that [] Claimant’s work-related
right foot fracture healed.” Claimant’s Brief at 12 (emphasis in original). Therefore,
Claimant concludes, “the [WCJ’s] reliance upon [Employer’s medical expert’s]
testimony for finding full recovery is inadequate as a matter of law.” Id. We
disagree.
As this Court has explained:
In a termination proceeding, the employer bears the
burden of proving that a work-related disability has
ceased. This burden can be met by presenting unequivocal
and competent medical evidence of a claimant’s full
recovery from a work-related injury.[5] A determination of
whether medical testimony is equivocal is a conclusion of
law fully reviewable by this Court. Credibility of
witnesses, however, is for the [WCJ] to evaluate and he or
she may accept the testimony of one witness over that of
another.
Koszowski v. Workmen’s Comp. Appeal Bd. (Greyhound Lines, Inc.), 595 A.2d 697,
699 (Pa. Cmwlth. 1991) (internal citations omitted). Additionally, “[t]he [Notice of
Compensation Payable] establishes the description of the work injury and the
employer must establish full recovery from the injury or injuries listed there.”
5
“Medical evidence is considered unequivocal if the medical expert, after providing a
foundation, testifies that in his medical opinion, he thinks the facts exist.” Craftsmen v. Workers’
Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 439 (Pa. Cmwlth. 2002).
4
Harrison v. Workers’ Comp. Appeal Bd. (Auto Truck Transp. Corp.), 78 A.3d 699,
703 (Pa. Cmwlth. 2013); see also Serrano v. Workers’ Comp. Appeal Bd. (Ametek,
Inc.), 154 A.3d 445, 453 (Pa. Cmwlth. 2017) (“[W]hen an employer seeks to
terminate benefits, it must show the claimant has recovered from each of the separate
work-related injuries for which the employer’s liability has been established.”).
Here, in support of the Termination Petition, Employer presented the
testimony of Ira Sachs, D.O. See F.F. 3. Dr. Sachs, a board-certified orthopedic
surgeon, testified that he examined Claimant on May 24, 2016, at which time
Claimant complained of right knee and hip pain, but had no complaints relative to
his right ankle. Id. Dr. Sachs explained that, despite subjective complaints of
considerable pain and wearing a walker boot on his left foot upon his arrival at the
examination, during the examination Claimant walked normally without any limp,
was able to stand on his heels and toes, and demonstrated excellent motor strength
in both feet and ankles. Id. Dr. Sachs noted Claimant’s lumbar examination was
completely normal. Id. Regarding Claimant’s ankles and feet, Dr. Sachs testified:
Claimant’s right foot and ankle examinations were
normal, with full range of motion and strength, and no
complaints of tenderness at the sites of the avulsion
fractures noted in the x-ray studies. The left foot
examination was positive for a complaint of tenderness
about the left heel area, but that finding[] was not
reproduced when Claimant was distracted, throwing doubt
on the veracity of the complaint.
Id. The WCJ noted that Dr. Sachs concluded that all Claimant’s work-related
injuries had resolved as follows:
Dr. Sachs found no objective abnormalities upon
examination of Claimant’s low back or lower extremities.
5
Dr. Sachs opined that Claimant sustained a right foot and
ankle contusion, sprain and probable avulsion fracture –
all of which had fully resolved. With regard to the left foot
and ankle, the diagnoses were contusion and sprain, all of
which had resolved. With regard to the back, Dr. Sachs
conceded that the medical records did show some early
treatment for a back sprain. At the time of the
examination, Claimant had fully recovered from that
injury as well.
Id.
Employer also submitted multiple surveillance DVDs that depicted
Claimant walking, driving, and running errands at various times throughout 2016
and into early 2017. F.F. 7. Claimant neither limps nor wears the walker boot during
the surveillance videos. Id. The WCJ determined the video was inconsistent with
Claimant’s claimed incapability to perform “any” activities and that Claimant finds
even walking short distances very difficult. Id. Dr. Sachs testified that the admitted
surveillance videos confirmed his conclusion that Claimant had fully recovered from
his work-related injuries. F.F. 3.
To contest Employer’s evidence, Claimant presented the testimony of
Michael McCoy, M.D. F.F. 6. Dr. McCoy is a family practitioner who began
treating Claimant in May 2016. Id. Dr. McCoy examined Claimant and diagnosed
him with bilateral ankle strains and sprains, right ankle fracture, and lumbar strain
and sprain, for which he prescribed Claimant a left ankle brace, physical therapy at
Dr. McCoy’s facility, and narcotic pain medication. Id. As of the last time he saw
Claimant in December 2016, Dr. McCoy opined that Claimant was unable to return
to his job as a truck driver for Employer at that time. Id.
Claimant also testified on his own behalf. F.F. 5. Claimant testified he
was injured on January 15, 2016 in the course of his employment, discussed his
treatment, and contested that he had fully recovered from his injuries. Id. Claimant
6
testified he has ongoing pain in his right foot and does not feel he is able to return to
his pre-injury job with Employer. Id.
Regarding the Termination Petition, the WCJ made the following
relevant determinations:
a. Claimant is not credible with regard to his reporting of
current symptoms or capabilities. I base this conclusion
upon my own personal observations of Claimant during
his testimony as well as my review of the surveillance
video, which contradicted Claimant’s testimony and his
history provided to multiple medical providers.
b. I find the testimony of Dr. Sachs to be more credible
and persuasive than that of Dr. McCoy. I base this finding
on several factors, including (1) Dr. Sachs’ superior
qualifications as an orthopedic surgeon, (2) Dr. McCoy
relied on Claimant’s allegations of pain and disability,
which are not credible, and (3) the surveillance video is
inconsistent with the conclusions reached by Dr. McCoy.
F.F. 8(a) & (b). Of course, the WCJ determines credibility and weight of evidence,
and neither the Board nor this Court may overturn those determinations on appeal.
Koszowski, 595 A.2d at 699; see also Hawbaker v. Workers’ Comp. Appeal Bd.
(Kriner’s Quality Roofing Servs. & Uninsured Employer Guar. Fund), 159 A.3d 61,
69 (Pa. Cmwlth.), reargument denied (Apr. 3), appeal denied, 173 A.3d 252 (Pa.
2017) (“Neither the Board nor this Court may reweigh the evidence or the WCJ’s
credibility determinations.”).
As a result of the WCJ’s credibility determinations, which we must
accept, as did the Board,6 we find that substantial record evidence supports the
WCJ’s findings of fact, specifically that Claimant had fully recovered from his
6
See Board Opinion at 4.
7
January 15, 2016 work-related injury as of May 24, 2016. Therefore, the WCJ
properly terminated Claimant’s compensation benefits from May 24, 2016 onward.
See WCJ Decision at 8 & Order. Further, despite Claimant’s argument to the
contrary, the Board found that Dr. Sachs’ testimony addressed Claimant’s entire
work injury. See Board Opinion at 4-5. The Board explained:
Dr. Sachs clearly opined that Claimant was fully recovered
from the right ankle aspect of his work injury, including
stating that there was “no clinical evidence at the time of
my evaluation for residual posttraumatic abnormality to
the right foot and ankle.” He further opined that Claimant
was recovered from “all work-related injuries.” Thus, Dr.
Sachs addressed the entire accepted injury and found
Claimant was fully recovered.
Board Opinion at 4-5 (internal record citation omitted). We agree with the Board’s
assessment that Dr. Sachs’ testimony, in its entirety, acknowledged and determined
that Claimant had fully recovered from all aspects of his January 15, 2016 work-
related injury. Consequently, the Board did not err in affirming the WCJ Decision
regarding the Termination Petition.
The UR Review Petitions
Next, Claimant argues that the Board erred by affirming the WCJ’s
denial of the UR Review Petitions. See Claimant’s Brief at 15-16. Claimant argues
that treatment may be deemed reasonable and necessary even if it merely manages
a claimant’s symptoms. Id. Therefore, Claimant argues that because he testified
that the treatments of Drs. Fagan and McCoy provide him with pain relief, the denial
of the UR Review Petitions should be reversed. Id. at 16. We do not agree.
This Court has explained:
8
It is accepted that, pursuant to Section 301(c) of the Act,
an employer is only liable to pay for a claimant’s medical
expenses that arise from and are caused by a work-related
injury. Although the burden is initially on the claimant to
establish that the injury is work-related, once the employer
acknowledges liability for the injury, the claimant is not
required to continually establish that medical treatment of
that compensable injury is causally related because the
injury for which the claimant is treating has already been
established. Accordingly, thereafter, the employer has the
burden of proving that a medical expense is unreasonable,
unnecessary, or is not related to the accepted work injury.
Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Hall), 198 A.3d 1195, 1200 (Pa.
Cmwlth. 2018) (internal citations, quotations, and brackets omitted). Additionally,
the report of a Utilization Review Organization (URO) tasked with determining
medical treatment is whether medical expenses are reasonable and necessary
becomes part of the record before the WCJ. 34 Pa. Code § 127.556. While not
bound by the URO report, the WCJ must consider it as evidence. Id.
Here, regarding the chiropractic treatment administered by Dr. Fagan,
Employer submitted the URO report of Gregg J. Fisher, D.C. See R.R. at 3a-13a;
F.F. 4(a). Dr. Fisher reviewed and noted that Dr. Fagan’s records contained no
detailed chiropractic history, no description of Dr. Fagan’s examinations of
Claimant, no documentation that the chiropractic treatment reviewed was beneficial
to Claimant, and no documentation of progress. Id. Therefore, Dr. Fisher found all
ongoing treatment of Claimant by Dr. Fagan from May 17, 2016 forward to be
unreasonable and unnecessary. Id. In response, Claimant submitted a written
statement of Dr. Fagan stating that the chiropractic treatment he was administering
was helping Claimant and was adequately documented in his notes. R.R. at 14a;
F.F. 4(a).
9
Likewise, regarding the treatment Claimant received from Dr. McCoy,
Employer submitted the URO report of Lawrence Axelrod, M.D. See R.R. at 77a-
101a; F.F. 4(b). Dr. Axelrod found all ongoing treatment by Dr. McCoy from
August 3, 2016 forward to be unreasonable and unnecessary, with a particular focus
on the amount of narcotic medications Dr. McCoy prescribed to Claimant without
monitoring his prescription drug use.7 Id. In rebuttal, Claimant again submitted a
written response from Dr. McCoy stating that the treatment he provided was helping
Claimant and that Claimant needed the continuing medication to treat his ongoing
symptoms. R.R. at 144a-46a; F.F. 4(b).
The WCJ reviewed this evidence and made the following
determination:
c. I find the opinions of the two utilization reviewers under
review, Dr. Lawrence Axelrod, and Dr. Gregory Fisher[],
to be credible and I accept it [sic] as fact. Both experts are
unbiased in this litigation, and received no compensation
from either side for their opinions. Moreover, their
opinions are corroborated by the testimony of Dr. Sachs
and the surveillance footage.
F.F. 8(c). The Board accepted, as it must, the WCJ’s credibility determination and
concluded that the WCJ did not err by denying the UR Review Petitions based on
the substantial evidence of the URO reports. Board Opinion at 6-7. We may not
reweigh these determinations. See Hawbaker. As such, based upon our review of
the record, we find that the Board did not err in affirming the WCJ Decision denying
the UR Review Petitions.
7
Dr. McCoy testified that he prescribed Claimant 60 to 90 Oxycodone tablets a month,
which prescription continued even after the Utilization Review without either monitoring by Dr.
McCoy or a firm plan to wean Claimant from the narcotics in the future. See F.F. 6.
10
Claimant’s Remand Request
Finally, Claimant argues this Court should remand this matter to allow
him to submit, and the WCJ to consider, evidence regarding the left ankle surgery
Claimant underwent following the close of the record in this matter. See Claimant’s
Brief at 13-14. We disagree.
Regarding his left ankle surgery, Claimant testified at the March 16,
2017 hearing in this matter as follows:
Q. You mentioned you had a [left ankle] surgery
scheduled. When was the surgery scheduled?
A. I was scheduled for the 13th of January [2017].
Q. Did that go forward?
A. No.
Q. Why not?
A. They wouldn’t pay for it.
Q. Have you rescheduled that surgery?
A. Yes, sir.
Q. When is it rescheduled?
A. April the 7th [of 2017].
Notes of Testimony, March 16, 2017 (N.T.), at 13-14; R.R. 160a-61a. At the
conclusion of the hearing, the WCJ closed the record. N.T. at 24; R.R. 171a. Three
weeks later, on April 7, 2017, Claimant underwent the left ankle surgery.8
8
Employer does not deny Claimant underwent a left ankle surgery on April 7, 2017. See
Employer’s Brief at 14.
11
Claimant argues that this Court should remand the matter with a
direction to the WCJ to (1) reopen the record to allow the entry of evidence regarding
the April 2017 left ankle surgery and then (2) reweigh the evidence, presumably to
determine both the Termination and the UR Review Petitions. See Claimant’s Brief
at 13-14. Claimant alleges his testimony established that the evidence before the
WCJ at the time she issued the WCJ Decision was that the prospective surgery on
Claimant’s left ankle had been cancelled because of insurance issues. Id. at 14.
Employer takes the position that there is no need to remand the matter.
See Employer’s Brief at 13-16. Contrary to Claimant’s suggestion, Employer argues
that the testimony actually revealed that Claimant testified that he had a surgery
scheduled in April 2017. Id. at 14-15. Thus, Employer argues that, even with the
understanding that Claimant had a surgery scheduled in the near future, the WCJ
still granted the Termination Petition and denied the UR Review Petitions. Id. at 15-
16. The actual occurrence of the surgery after the hearing in this matter was not,
Employer argues, “new evidence,” and admitting evidence about the surgery would
do nothing more than confirm the evidence already in the record that Claimant and
his medical professionals alleged he required continued treatment, including
surgery. Id. at 15.
“A WCJ has the discretion to reopen the record once closed.” Pryor v.
Workers’ Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1201–02 (Pa.
Cmwlth. 2006). A WCJ’s reopening of or failure to reopen a record will not be
reversed absent an abuse of discretion. Hammerle v. Workmen’s Comp. Appeal Bd.
(Dep’t of Agric., Bureau of Dog Law Enf’t), 490 A.2d 494, 497 (Pa. Cmwlth. 1985).
Additionally, “the grant or denial of a rehearing is left to the discretion of the Board
and this [C]ourt will not disturb that decision absent a clear abuse of discretion.”
12
Paxos v. Workmen’s Comp. Appeal Bd. (Frankford-Quaker Grocery), 631 A.2d 826,
831 (Pa. Cmwlth. 1993). “In deciding whether or not to grant a rehearing based on
after-discovered evidence, the Board has broad powers to grant a rehearing when
justice requires.” Id. However, this Court has further explained:
[t]he purpose of granting rehearing in workmen’s
compensation cases is to allow a party to present newly-
discovered, noncumulative evidence, and will not be
granted to permit the party to strengthen weak proofs
already presented. Thus, a rehearing petition may be
denied where the proposed after-discovered evidence is
cumulative.
Id. (internal citation omitted).
The WCJ heard testimony, prior to issuing her decision, that Claimant
had a surgery scheduled.9 See N.T. at 12-14; R.R. at 159a-61a. Therefore,
conducting a rehearing10 to admit evidence illustrating the occurrence of Claimant’s
April 7, 2017 surgery would serve the purpose of merely admitting cumulative
evidence to strengthen Claimant’s assertion that surgery was needed, a point already
presented by his testimony that the surgery was scheduled. See Paxos. Accordingly,
because the proffered evidence is cumulative, we find no error in the WCJ’s
9
We note that, in the instant matter, despite having the surgery scheduled at the time of the
hearing, Claimant agreed to the close of the record on March 16, 2017. N.T. at 24; R.R. 171a. At
no point in the nearly four months between Claimant’s April 7, 2017 surgery and the issuance of
the WCJ Decision on August 4, 2017 did Claimant request that the WCJ reopen the record to admit
evidence regarding his surgery.
10
To the extent Claimant requested that the Board grant a rehearing, we note that, in his
Appeal to the Board challenging the WCJ Decision, Claimant alleged that “[t]he [WCJ’s] finding
that [] Claimant’s ankle injuries have resolved should be remanded[] because he underwent ankle
surgery after the record closed.” Claimant’s On-Line Appeal dated August 23, 2017.
13
determinations or the Board’s refusal to grant a rehearing on the matter based on
Claimant’s April 2017 surgery, and no reason to remand the matter as requested.
For the reasons stated above, the Board’s order is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Naftale Green, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (The Salvation Army), : No. 1259 C.D. 2018
Respondent :
ORDER
AND NOW, this 23rd day of July, 2019, the August 16, 2018 order of
the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge