M. Zito v. WCAB (Northeastern PA Health Alliance) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marie Zito, :
Petitioner :
:
v. : No. 138 C.D. 2017
: Submitted: July 14, 2017
Workers’ Compensation Appeal :
Board (Northeastern Pennsylvania :
Health Alliance), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: September 14, 2017
Marie Zito (Claimant) petitions for review of a January 13, 2017 Order of
the Workers’ Compensation Appeal Board (Board) affirming a July 6, 2016 Order
of the Workers’ Compensation Judge (Second WCJ) denying Claimant’s petitions
to review compensation benefits (Review Petition) and medical treatment and/or
billing (Medical Petition). On appeal, Claimant contends that there is not
substantial evidence to support the Second WCJ’s conclusion that Claimant failed
to prove a causal relationship between her workplace accident and her expanded
description of her injuries, and that the Second WCJ capriciously disregarded a
prior determination of a different WCJ (First WCJ) on the mechanism of
Claimant’s injury. Upon review, we affirm.
On October 7, 2010, Claimant, a registered nurse working in the intensive
care unit of Hazleton General Hospital, was assisting in the transport of a patient to
Lehigh Valley Hospital.1 While Claimant was performing chest compressions on
the patient, the driver of the ambulance slammed on the brakes, throwing Claimant
into a wall of cabinets. On November 8, 2010, Greater Hazleton Health Alliance,
under a Notice of Compensation Payable (NCP), recognized that Claimant suffered
a work-related injury to her right hand.
On April 15, 2014, the First WCJ reinstated Claimant’s benefits, which had
previously been suspended. (First WCJ Decision, Conclusions of Law (COL) ¶ 3,
Apr. 15, 2014.) In doing so, the First WCJ described the mechanism of Claimant’s
injury, that is, the manner in which the injury occurred, as follows: “While she
was administering CPR, the driver of the ambulance slammed on the brakes and
she was thrown into a cabinet with her hand extended, injuring her right hand and
wrist.” (Id., Findings of Fact (FOF) ¶ 18 (emphasis added).) The First WCJ
expanded the description of Claimant’s work-related injury to include a
“scapholunate ligament tear, status post scope and debridement, status post recent
capsulodesis, de Quervain’s tendonitis, index trigger, and cubital tunnel.”2 (Id.,
COL ¶ 1.)
1
At the time, Claimant was concurrently employed by Greater Hazleton Alliance and
Lehigh Valley Hospital, Inc.
2
Jay S. Talsania, M.D., performed a diagnostic arthroscopy on November 29, 2010,
during which he noted a scapholunate ligament tear. Based on that tear, Dr. Talsania cut two
small nerves and additionally released Claimant’s de Quervain’s tendonitis and right index
trigger. On December 11, 2012, Lee Osterman, M.D., performed a revision arthroscopy,
synovectomy, capsulodesis, ulnar nerve release, and cleaning of the tendons of the index finger.
2
On June 30, 2015, Claimant submitted the Review and Medical Petitions.
Both the Review and Medical Petitions sought “to expand the description of [her
work-related] injury to include brachial plexopathy, neuropathic pain, cervical
radiculitis, rotator cuff injury, and possible complex regional pain syndrome
[(CRPS)] of the right upper extremity.” (Review and Medical Petitions, June 30,
2015, at 1.)
A hearing ensued before the Second WCJ on December 29, 2015, during
which Claimant testified that her workplace injury occurred when the driver of the
ambulance “hit the brakes . . . which threw [her] into the wall of cabinets in the
ambulance rig.” (R.R. at 27a.) She experienced “[s]evere pain, significant
swelling” in her right wrist, hand, and forearm. (Id.) She denied that there was
any initial pain in her right shoulder or neck. Rather, “[i]t was all in the wrist.”
(Id.) Claimant testified that Shailen Jalali, M.D., an anesthesiologist, first
examined her on March 31, 2015, and diagnosed her with brachial plexopathy,
neuropathic pain, cervical radiculitis, rotator cuff injury, and possible CRPS. This
was the first time she had received such a diagnosis.
In support of Claimant’s Review and Medical Petitions, she submitted the
deposition testimony of Dr. Jalali. He testified that Claimant told him that she was
injured when the driver of the ambulance hit the brakes hard, she fell forward to
the front of the ambulance, and then “broke her fall by her outstretched arm.” (Id.
at 46a (emphasis added).) Claimant told Dr. Jalali that following the accident, she
had more complaints of pain in her right wrist, but she also had “descriptions of
pain in [the shoulder and chest wall] from the beginning.” (Id. at 73a (emphasis
added).) It was not as if the providers treating Claimant failed to recognize the
pain in Claimant’s right shoulder, it was just “lower on the priority scale.” (Id.)
3
Based on, inter alia, Claimant’s description of the pain, the location of the pain,
the type of injury that occurred, and the fact that Claimant had pain in her shoulder
from the beginning, Dr. Jalali concluded, to a reasonable degree of medical
certainty, that Claimant has a brachial plexopathy, neuropathic pain, cervical
radiculitis, a rotator cuff injury, a labral tear, and possible CRPS, and that they
were caused by her workplace accident. (Id. at 54a, 72a-74a.) On cross
examination, Dr. Jalali conceded that it was difficult for him to attribute the labral
tear and rotator cuff injury in Claimant’s right shoulder to her workplace accident
because he is not an orthopedic surgeon. (Id. at 94a.) Dr. Jalali acknowledged that
he did not review medical records from some of Claimant’s medical providers,
such as Dr. Gorski, Gregor Hawk, M.D., and Lee Osterman, M.D., and that
Claimant had provided him with most of the information he possessed. (Id. at
84a.)
In further support of Claimant’s Review and Medical Petitions, she
submitted the deposition testimony of Dr. Hawk. Dr. Hawk, an orthopedic
surgeon, testified that when he examined Claimant on August 31, 2015, she told
him that the ambulance in which she was riding came to a sudden stop, “she was
thrown and she put her right upper extremity out to try and stop herself. She
had injuries to her right wrist, right elbow as well as pain in the right shoulder.”
(Id. at 244a (emphasis added).) Dr. Hawk’s examination of Claimant involved
only her right shoulder. Ultimately, after performing a physical examination and
reviewing some of Claimant’s medical records, Dr. Hawk concluded, to a
reasonable degree of medical certainty, that Claimant has right shoulder
impingement syndrome or rotator cuff tendinitis, another name for which is
bursitis. Dr. Hawk attributed these conditions to Claimant’s workplace accident,
4
specifically citing the onset of her right shoulder complaints and the manner in
which the accident happened. Regarding the manner in which the accident
happened, Dr. Hawk testified that Claimant “describe[d] being thrown and putting
her arm straight out in an elevated position to stop her fall or deceleration as the
vehicle stopped and that put her shoulder in a position of injury, which is an
elevated position, which is a very good mechanism to cause a compression injury
to the rotator cuff.” (Id. at 253a.) Dr. Hawk specified that he had reviewed the
records of Jay S. Talsania, M.D., an April 15, 2015 MRI of Claimant’s right
shoulder, and the deposition testimony of Bryan X. DeSouza, M.D., a neurologist,
who conducted an independent medical examination (IME) of Claimant.
In support of the position of Northeastern Pennsylvania Health Alliance
(Employer), it submitted the deposition testimony of Dr. DeSouza. Dr. DeSouza
examined Claimant on October 2, 2015. She told him that she was doing chest
compressions in the ambulance when it swerved and “she hit her wrist against the
wall,” resulting in an injury to her hand. (Id. at 133a-34a.) Later, on cross-
examination, Dr. DeSouza agreed that counsel’s description of Claimant’s
workplace accident – that when the driver slammed on the brakes, Claimant was
thrown forward and braced herself with her arm as she was thrown into the far wall
– was consistent with Dr. DeSouza’s understanding of the mechanism of
Claimant’s injury. (Id. at 188a.) Dr. DeSouza testified that Claimant’s hand was
“the only thing that she said she injured at that time.” (Id. at 134a (emphasis
added).) In fact, in reviewing over 1,000 pages of Claimant’s medical records, Dr.
DeSouza noticed that she had no numbness or problems moving her right shoulder
or arm, even though she was specifically checked for those issues for 2 years
following her workplace accident. (Id. at 149a.)
5
At the examination, Claimant complained to Dr. DeSouza of pain in her
chest wall, armpit, biceps, forearm, and in her last two fingers. She said that heat,
especially moist heat, helps the pain. Dr. DeSouza observed that Claimant
“guard[ed]” her right arm, which is a sign of anticipatory pain. (Id. at 139a.)
However, when Claimant was distracted, for example, when she went to remove a
list of medications from her pocketbook, she was able to move her arm better and
with much less pain. Dr. DeSouza had Claimant move a blood pressure stand
around the room and a stool out of the way, which she did without difficulty. On
the “medical objective exam,” Dr. DeSouza did not observe any signs of nerve
damage, “such as atrophy of a muscle, loss of a reflex, loss of sensory in a pattern
of nerve root, nerve distribution, or a plexus.” (Id. at 145a.) Thus, Dr. DeSouza
could not find a neurological cause for Claimant’s pain symptoms. He concluded
that her pain was muscular, highlighting that moist heat helps relieve her pain,
which would not be true if her pain was neurological. Dr. DeSouza concluded that
Claimant’s workplace accident caused a right-hand injury, but not a brachial
plexopathy, neuropathic pain, cervical radiculitis, a rotator cuff injury, or possible
CRPS.
The Second WCJ denied Claimant’s Review and Medical Petitions,
concluding that Claimant had not satisfied her burden of proof. (Second WCJ
Decision, COL ¶ 2, July 6, 2016.) The Second WCJ found that Claimant’s
testimony was credible. (Id., FOF ¶ 3.) However, the Second WCJ discredited
Claimant’s witnesses, Drs. Jalali and Hawk, because their testimony on both the
mechanism and the nature of Claimant’s injury was inconsistent with her own
testimony. (Id. ¶¶ 12, 15.) Drs. Jalali and Hawk both testified that Claimant
injured herself when she broke her fall with an outstretched arm and that she had
6
pain in her shoulder from the beginning, whereas Claimant testified that she hit her
wrist when she was thrown against a wall of cabinets and that she initially had pain
only in her right wrist. (Id.) The Second WCJ highlighted that no doctor had
diagnosed Claimant with the conditions alleged in the instant Review and Medical
Petitions or attributed those conditions to her workplace accident until March 31,
2015, which was four and a half years later. In addition, Dr. Jalali was not credible
because he did not review many of Claimant’s medical records, and most of his
information came from her. (Id. ¶ 12.) Dr. Jalali additionally testified
inconsistently about whether the labral tear and rotator cuff injury in Claimant’s
right shoulder were related to her workplace accident. (Id.) Dr. Jalali testified on
direct examination that “Claimant’s work injury included a right rotator cuff
injury, but on cross-examination, when questioned about the labral tear and the
rotator cuff injury, he agreed that he could not determine whether they were related
to the work injury because he was not an orthopedic surgeon.” (Id.) Dr. Hawk
was additionally not credible because his review of Claimant’s medical records
was limited to that of Dr. Talsania and the deposition testimony of Dr. DeSouza.
(Id. ¶ 15.) In contrast, Dr. DeSouza’s opinion was “credible, logical, internally
consistent, and persuasive.” (Id. ¶ 18.) His understanding of the mechanism and
nature of Claimant’s injury was consistent with her testimony, namely, that “she
hit her wrist against the wall of cabinets” and that she suffered an injury to her
right hand and wrist but nowhere else. (Id.) Therefore, the Second WCJ
concluded that Claimant had not carried her burden on her Review and Medical
Petitions, and the Second WCJ denied them. (Id., COL ¶ 2.)
Claimant appealed to the Board, which affirmed the Second WCJ’s Decision
and Order. (Board Op. at 7.) The Board held that the Second WCJ’s reasons for
7
discrediting Drs. Jalali and Hawk were reasonable. (Id. at 5-6.) While Claimant
argued that Drs. Jalali and Hawk described the mechanism of Claimant’s injury
consistent with her testimony, the Board found that the Second WCJ’s credibility
determinations had to be taken as a whole. (Id. at 6.) Because the Second WCJ
provided other objective reasons for discrediting Drs. Jalali and Hawk, the Board
would not disturb the Second WCJ’s credibility determinations. (Id.) Claimant
now petitions this Court for review.
On appeal to this Court,3 Claimant raises the following contentions in
arguing that there is not substantial evidence to support the Second WCJ’s
determinations. She argues that Drs. Jalali and Hawk’s description of the
mechanism of Claimant’s injury was consistent with how the First WCJ described
it, that Claimant was “administering CPR, the driver of the ambulance slammed on
the brakes and she was thrown into a cabinet with her hand extended, injuring her
right hand and wrist.” (First WCJ Decision, FOF ¶ 18.) That decision was never
appealed, making the description of the mechanism of Claimant’s injury the law of
the case. Dr. DeSouza also stated that this description was consistent with his
understanding of the mechanism of Claimant’s injury. She contends the Second
WCJ acted arbitrarily and capriciously in rejecting the testimony of Drs. Jalali and
Hawk, and accepting Dr. DeSouza’s testimony solely based on the Second WCJ’s
3
Appellate review in a workers’ compensation case is limited to determining whether an
error of law was committed, whether constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. § 704. Further, in Leon E. Wintermyer, Inc. v. Workers’ Compensation
Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002), our Supreme Court held that “review
for capricious disregard of material, competent evidence is an appropriate component of
appellate consideration in every case in which such question is properly brought before the
court.”
8
misapprehension of the previously adjudicated mechanism of injury. Moreover,
Dr. DeSouza’s opinion was not unequivocal, nor supported by substantial
evidence.
In addressing Claimant’s arguments, we apply the following principles. A
claimant seeking to expand the description of injury in a NCP bears the burden of
proof. Commercial Credit Claims v. Workmen’s Comp. Appeal Bd. (Lancaster),
728 A.2d 902, 905-06 (Pa. 1999). A claimant must establish by competent
evidence that the injury was caused by and arose out of the work-related accident.
Degraw v. Workers’ Comp. Appeal Bd. (Redner’s Warehouse Mkts., Inc.), 926
A.2d 997, 1000 (Pa. Cmwlth. 2007). A claimant must do so by unequivocal
medical evidence unless the relationship is obvious. Jeannette Dist. Mem’l Hosp.
v. Workers’ Comp. Appeal Bd. (Mesich), 668 A.2d 249, 251 (Pa. Cmwlth. 1995).
Questions of credibility and evidentiary weight are within the exclusive
province of the WCJ. A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi),
78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The authority of the WCJ “over
questions of credibility, conflicting evidence and evidentiary weight is
unquestioned.” Id. The WCJ is free to “accept or reject testimony of any witness,
including a medical witness, in whole or in part.” Id. The credibility
determinations of the WCJ are binding on us. Id.Moreover, it does not matter if “‘the record contains evidence to support
findings other than those made by the WCJ; the critical inquiry is whether there is
evidence to support the findings actually made.’” Id. (citation omitted). “We
examine the entire record to see if it contains [substantial] evidence . . . to support
the WCJ’s findings.” Id. “Substantial evidence is relevant evidence that a
reasonable person might accept as adequate to support a conclusion.” Lindemuth
9
v. Workers’ Comp. Appeal Bd. (Strishock Coal Co.), 134 A.3d 111, 125 n.12 (Pa.
Cmwlth. 2016). If the record does contain substantial evidence to support the
WCJ’s findings, then the findings must be upheld, even if the record contains
conflicting evidence. A & J Builders, Inc., 78 A.3d at 1238-39. In undertaking
substantial evidence review, “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.” Id. at 1239.
A capricious disregard of evidence occurs when the fact-finder deliberately
ignores relevant, competent evidence “that one of ordinary intelligence could not
possibly have avoided in reaching a result.” Wise v. Unemployment Comp. Bd. of
Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). This requires “a deliberate and
baseless disregard of apparently trustworthy evidence.” Williams v. Workers’
Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth.
2004). If there is substantial evidence to support the WCJ’s factual findings, and
those findings support the WCJ’s conclusions, “it should remain a rare instance in
which an appellate court would disturb an adjudication based upon the capricious
disregard of material, competent evidence.” Id. (emphasis omitted).
Here, the Second WCJ found Drs. Jalali and Hawk to be not credible for
multiple reasons. The Second WCJ found Dr. Jalali to be not credible because Dr.
Jalali misunderstood both the mechanism of Claimant’s injury and whether she had
pain in her shoulder from the beginning. In addition, the Second WCJ discredited
Dr. Jalali because he relied predominantly on Claimant for information, and not
her medical records, and Dr. Jalali testified inconsistently about whether there was
a causal relationship between Claimant’s workplace accident and the labral tear
and rotator cuff injury in Claimant’s right shoulder. The Second WCJ found Dr.
10
Hawk to be not credible because Dr. Hawk misunderstood both the mechanism of
Claimant’s injury and whether Claimant had pain in her shoulder from the
beginning. In addition, the Second WCJ discredited Dr. Hawk because his review
of Claimant’s medical records was limited.
Substantial evidence supports the Second WCJ’s determination to discredit
Drs. Jalali and Hawk because they mistakenly thought that Claimant had
complained of shoulder pain at the time of her workplace accident. Dr. Jalali
testified that “[Claimant] had descriptions of pain in [the shoulder and chest wall]
from the beginning[,]” (R.R. at 73a), while Dr. Hawk testified that Claimant had
“pain in the right shoulder” at the onset, (id. at 244a). Claimant, however, testified
that, at first, she did not have pain in the shoulder or neck; rather, “[i]t was all in
the wrist.” (Id. at 27a.) Dr. DeSouza confirmed as much through his review of
over 1,000 pages of Claimant’s medical records, testifying that “at the onset of the
trauma, there was no numbness or problems with moving the right shoulder and
arm[,]” and that Claimant’s right shoulder and arm were “specifically checked on
all exams, from the first exam on the date of the injury through October 9, 2012,
two years later.” (Id. at 149a-50a.) All those evaluations, Dr. DeSouza said, “were
negative for numbness or any suggestion of a nerve injury, such as brachial plexus
traction, or a cervical radiculopathy, or [CRPS], or [reflex sympathetic
dystrophy].” (Id. at 150a.) Dr. DeSouza continued, stating “[s]o even with the
review of systems, where the doctor is asking the patient to describe all the areas
that’s bothering [her], it was negative.” (Id. at 150a.) Thus, substantial evidence
supports the Second WCJ’s finding that Drs. Jalali and Hawk mistakenly thought
that Claimant had complained of shoulder pain at the time of her workplace
11
accident, and it was not error for the Second WCJ to discredit Drs. Jalali and Hawk
on this basis.
There is also substantial evidence to support the Second WCJ’s finding that
Dr. Jalali testified inconsistently about whether there was a causal relationship
between Claimant’s workplace accident and the labral tear and rotator cuff injury
in her right shoulder, and it was not error for the Second WCJ to discredit Dr. Jalali
on this basis as well. See Daniels v. Workers’ Comp. Appeal Bd. (Tristate
Transp.), 828 A.2d 1043, 1053 (Pa. 2003) (stating that a WCJ may validly
discredit a medical witness because the witness betrays a bias or is impeached with
an inconsistency in his or her testimony). On direct examination, Dr. Jalali
testified, to a reasonable degree of medical certainty, that the labral tear and rotator
cuff injury in Claimant’s right shoulder were caused by her workplace accident.
(R.R. at 73a-75a.) On cross-examination, however, Dr. Jalali acknowledged that it
was “hard for [him] to say that” these injuries were related to her workplace
accident because Dr. Jalali is “not an orthopedic surgeon.” (Id. at 94a.) Based on
this testimony, substantial evidence supports the Second WCJ’s decision to
discredit Dr. Jalali on this basis.
Another reason the Second WCJ discredited Dr. Jalali was because Dr. Jalali
relied mostly on information from Claimant, and not her medical records.
Substantial evidence supports the Second WCJ’s determination to discredit Dr.
Jalali on this basis as well, since he acknowledged as much during his cross-
examination testimony. (Id. at 84a.) Dr. Jalali testified that he did not receive any
records from Dr. Gorski, Dr. Osterman, or Dr. Hawk. (Id.)
As for Dr. Hawk, substantial evidence supports the Second WCJ’s
determination to discredit him on the basis that his review of Claimant’s medical
12
records was limited. Dr. Hawk testified that he reviewed only Dr. Talsania’s
records, an April 15, 2015 MRI of Claimant’s right shoulder, and the deposition
testimony of Dr. DeSouza, who performed the IME. See Daniels, 828 A.2d at
1053 (noting that a WCJ may discredit a medical witness because the witness “had
less interaction with the subject”).
We agree, however, with Claimant’s assertion that substantial evidence does
not support the Second WCJ’s determination to discredit Drs. Jalali and Hawk
because they misunderstood the mechanism of Claimant’s workplace injury. Drs.
Jalali and Hawk both explained that Claimant was injured when she broke her fall
by extending her right arm. The testimony of Drs. Jalali and Hawk was consistent
with the First WCJ’s finding of fact on this point, which stated that: “While
[Claimant] was administering CPR, the driver of the ambulance slammed on the
brakes and she was thrown into a cabinet with her hand extended, injuring her right
hand and wrist.”4 (First WCJ Decision, FOF ¶ 18.) Claimant’s testimony on the
instant Review and Medical Petitions as to the mechanism of her injury was not as
clear because she testified that the driver of the ambulance “hit the brakes . . .
which threw [her] into the wall of cabinets in the ambulance rig . . . [and she]
sustained a right wrist injury.” (R.R. at 27a.) Although Claimant’s testimony here,
by itself, left it open to interpretation as to whether she hit her wrist against the
wall of cabinets in the ambulance or broke her fall with her right, outstretched arm,
the First WCJ’s finding regarding how Claimant injured her wrist is the law of the
case and should have been followed. See Marian v. Workers’ Comp. Appeal Bd.
(Scott Twp.) (Pa. Cmwlth., No. 1616 C.D. 2009, filed Feb. 24, 2010), slip op. at 15
4
The First WCJ summarized Claimant’s testimony but did not quote from it.
13
(stating that Second WCJ rightly recognized that First WCJ’s findings on causation
were the law of the case).5
Moreover, while Dr. DeSouza initially testified that Claimant “hit her wrist
against the wall,” on cross-examination, he agreed with Claimant’s counsel’s
description that Claimant “was thrown forward and braced herself with her arm as
she was thrown into the far wall[.]” (R.R. at 133a-34a, 188a.) Thus, on cross-
examination, Dr. DeSouza’s testimony on how Claimant injured her wrist was
consistent with that of Drs. Jalali and Hawk. Therefore, the Second WCJ should
not have discredited Drs. Jalali and Hawk on the basis that they misunderstood the
mechanism of Claimant’s injury, and doing so was error.
However, as explained above, the Second WCJ discredited Drs. Jalali and
Hawk for multiple reasons, and those reasons, with the exception of their
understanding of the mechanism of Claimant’s injury, are supported by substantial
evidence. Most notably, the Second WCJ rejected the testimony of Drs. Jalali and
Hawk because they stated that Claimant had shoulder pain at the onset of her
workplace accident. The misunderstanding of Drs. Jalali and Hawk regarding
when the pain in Claimant’s right shoulder developed called into question their
conclusion on causation, since pain from the onset shows a much clearer causal
relationship. See Tobias v. Workmen’s Comp. Appeal Bd. (Nature’s Way Nursery,
Inc.), 595 A.2d 781, 784-85 (Pa. 1991) (providing as an example of an obvious
causal connection, “an immediate back injury following heavy lifting”). Indeed,
Dr. Jalali’s testimony was that he concluded, in part, that there was a causal
5
Marian is cited in accordance with Section 414(a) of this Court’s Internal Operating
Procedures, which provides that an unreported panel decision issued by this Court after January
15, 2008, may be cited “for its persuasive value, but not as binding precedent.” 210 Pa. Code
§ 69.414(a).
14
relationship between Claimant’s workplace accident and her shoulder pain because
“[s]he had descriptions of pain in that region from the beginning.” (R.R. at 73a);
see Daniels, 828 A.2d at 1053 (noting that it is valid for a WCJ to discredit a
medical witness because the witness’s opinion is based on an erroneous factual
assumption). Neither Dr. Jalali nor Dr. Hawk explained that there could be a
causal relationship between Claimant’s right shoulder injuries and her workplace
accident even if the injuries to her shoulder did not manifest themselves until years
later. Moreover, it is evident from the Second WCJ’s Decision that the timing of
Claimant’s first complaints of shoulder pain was critical to the Second WCJ’s
credibility determinations. Twice the Second WCJ mentioned in her decision that
no medical provider diagnosed Claimant with the conditions alleged in the instant
Review and Medical Petitions or attributed those conditions to the workplace
accident until Dr. Jalali did so on March 31, 2015, which was four and a half years
after Claimant’s accident. (Second WCJ Decision, FOF ¶¶ 6, 9.)
Therefore, although Drs. Jalali and Hawk should not have been discredited
on the basis that they misunderstood the mechanism of Claimant’s injury, we find
this error is harmless. An error is harmless if it “is not necessary to the
adjudication.” Monaghan v. Bd. of Sch. Dirs. of Reading Sch. Dist., 618 A.2d
1239, 1243 (Pa. Cmwlth. 1992); see Lashlee v. Workers’ Comp. Appeal Bd. (G.M.
McCrossin, Inc.) (Pa. Cmwlth., No. 1725 C.D. 2007, filed Feb. 25, 2008), slip op.
at 6-7 (applying Monaghan in a workers’ compensation case); see also Drago v.
Workers’ Comp. Appeal Bd. (Channellock, Inc.) (Pa. Cmwlth., No. 61 C.D. 2008,
filed July 3, 2008), slip op. at 11-12 (analogizing harmless error in a workers’
compensation case to harmless error in a criminal case – whether the error
15
contributed to the WCJ’s decision – but acknowledging that the standards are “not
exactly the same”).
When the significance of the Second WCJ’s determination to discredit Drs.
Jalali and Hawk, because they mistakenly thought Claimant had pain in her right
shoulder from the beginning, is considered in combination with the other
independent bases the Second WCJ set forth for discrediting Drs. Jalali and Hawk,
which are all supported by substantial evidence, these reasons are sufficient to
support the Second WCJ’s determination. Previously we have held that where a
WCJ provides several reasons for rejecting a witness’s testimony and one of those
reasons is erroneous, the other reasons may render the error harmless. For
example, in Norristown State Hospital/Compservices v. Workers’ Compensation
Appeal Board (Irwin) (Pa. Cmwlth., Nos. 2160 C.D. 2008, 2256 C.D. 2008, filed
Nov. 2, 2009), slip op. at 6-7, the WCJ mistakenly found that claimant’s medical
witness, Dr. Elisabeth Cousens, attributed claimant’s radiculopathy to a 1982
motor vehicle accident that was unrelated to his work and predated his work-
related injury. The Board determined that this error was harmless because the
WCJ provided two other independent reasons for rejecting Dr. Cousens’ testimony;
namely, that there were no objective studies to support claimant’s complaints of
pain and the employer’s medical witness had qualifications that were superior to
that of Dr. Cousens. Id. at 7. On appeal, we agreed with the Board, stating that
these independent bases for rejecting Dr. Cousens’ opinion testimony made the
WCJ’s error harmless. Id.
Similarly, in Soto v. Workers’ Compensation Appeal Board (Price Chopper
Operating Company of Pennsylvania) (Pa. Cmwlth., No. 611 C.D. 2015, filed Nov.
24, 2015), slip op. at 6, the WCJ erroneously found that the opinion of one of
16
claimant’s medical witnesses, Dr. Yasin Khan, was equivocal. The Board,
nevertheless, affirmed the WCJ’s determination because the WCJ provided other
independent reasons for discrediting Dr. Khan. Id. at 7. Dr. Khan’s account of the
claimant’s back injury, that it was the result of repeated heavy lifting, twisting, and
turning, was inconsistent with claimant’s account that his injury was the result of
an acute event. Id. at 1-2, 4, 9. In addition, claimant had indicated on intake forms
from Dr. Khan that the pain had been going on for many years and that claimant’s
condition was not work-related. Id. at 4-5. We agreed with the Board, holding that
“[w]here a WCJ erroneously rejects medical testimony on the basis that it is
equivocal but also rejects the testimony as not credible for independent reasons, the
error is not reversible.” Id. at 10; see Patton v. Workers’ Comp. Appeal Bd. (Lane
Enter., Inc.), 958 A.2d 1126, 1135 (Pa. Cmwlth. 2008) (holding that even though
the WCJ did not correctly apply the law of the case doctrine in discrediting the
testimony of claimant’s medical witness, the WCJ set forth additional reasons for
discrediting the witness, such as doctor’s lack of qualifications to interpret chest x-
rays, and, therefore, any error was harmless); cf. Drago, slip op. at 11-12 (holding
that other bases for discrediting witness did not render the WCJ’s error in taking an
adverse inference harmless but implying that had the other bases for discrediting
claimant’s medical witness been objective and not based on speculation, it might
have been harmless).
As in these cases, here, the Second WCJ provided independent reasons for
rejecting the testimony of Drs. Jalali and Hawk, and those other reasons were
significant, particularly their mistaken belief that Claimant had pain in her right
shoulder from the beginning. Therefore, the other reasons the Second WCJ
provided for rejecting the testimony of Drs. Jalali and Hawk render the Second
17
WCJ’s error in rejecting their testimony on the basis that they misunderstood the
mechanism of Claimant’s injury harmless.
In short, while the Second WCJ erred in discrediting Drs. Jalali and Hawk
on the basis that they misunderstood the mechanism of Claimant’s injury, there
were other valid bases for discrediting them. Thus, there is substantial evidence to
support the Second WCJ’s credibility determinations, and, because the Second
WCJ’s error did not affect her credibility determinations, the error is harmless.
Moreover, here, Claimant had the burden of proof because she was attempting to
expand her accepted injury in the Review and Medical Petitions. Commercial
Credit Claims, 728 A.2d at 905-06. Because the Second WCJ found Claimant’s
medical witnesses to be not credible, Claimant failed to carry her burden of proof.
See Stalworth v. Workers’ Comp. Appeal Bd. (Cnty. of Delaware), 815 A.2d 23,
29-30 (Pa. Cmwlth. 2002) (noting that it was irrelevant whether employer’s
medical expert was incompetent since WCJ found claimant’s medical expert not
credible and, thus, claimant did not meet her burden of proof).
Further, the Second WCJ did not capriciously disregard evidence. Claimant
mischaracterizes the Second WCJ’s determination, arguing that the testimonies of
Drs. Jalali and Hawk were rejected and the testimony of Dr. DeSouza was accepted
“solely” based upon the Second WCJ’s misapprehension of the previously
adjudicated mechanism of injury. As already discussed, the Second WCJ offered
several independent and valid reasons why she discredited Drs. Jalali and Hawk
and credited Dr. DeSouza. Since substantial evidence supports the Second WCJ’s
credibility determinations, we will not disturb the Second WCJ’s adjudication
based on capricious disregard. See Williams, 862 A.2d at 144 (emphasis omitted)
(“[I]t should remain a rare instance in which an appellate court would disturb an
18
adjudication based upon the capricious disregard of material, competent
evidence.”). Therefore, for the foregoing reasons, we affirm the Board’s Order.6
_____________________________________
RENÉE COHN JUBELIRER, Judge
6
As an alternative basis for affirming the Board’s Order, Employer argues that res
judicata precludes review of Claimant’s new Review and Medical Petitions, alleging a shoulder
and neck injury because, as Drs. Jalali and Hawk testified, Claimant had pain in her right
shoulder from the onset of her accident but did not seek recovery for it in her initial petition. As
a matter of fact, the Second WCJ found that Claimant did not have pain in her shoulder from the
onset of her accident and, therefore, res judicata did not bar her from seeking to recover for such
an injury when it arose later. Cf. Weney v. Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys.,
Inc.), 960 A.2d 949, 955-56 (Pa. Cmwlth. 2008) (holding that claimant’s second petition was
barred because he experienced pain in his neck following his work incident and reported that
pain to his treating doctors but did not seek to recover for that injury in his first petition).
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marie Zito, :
Petitioner :
:
v. : No. 138 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Northeastern Pennsylvania :
Health Alliance), :
Respondent :
ORDER
NOW, September 14, 2017, the January 13, 2017 Order of the Workers’
Compensation Appeal Board, entered in the above-captioned matter, is hereby
AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marie Zito, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Northeastern Pennsylvania :
Health Alliance), : No. 138 C.D. 2017
Respondent : Submitted: July 14, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING
OPINION BY JUDGE COSGROVE FILED: September 14, 2017
While I agree with the Majority that the law of the case doctrine
should have prevented the discrediting of the testimony of Drs. Jalali and Hawk, I
cannot find this discrediting to be harmless error.
___________________________
JOSEPH M. COSGROVE, Judge