O. Medina v. WCAB (F&P Holding Co., Inc,) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Olga Medina, :
Petitioner :
:
v. : No. 799 C.D. 2017
: Submitted: October 20, 2017
Workers’ Compensation Appeal :
Board (F&P Holding Co., Inc.), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 26, 2018
Olga Medina (Claimant) petitions for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) that denied Claimant’s claim
petition and granted F&P Holding Company, Inc.’s (Employer) termination
petition.1 In doing so, the Board affirmed the decision of the Workers’
Compensation Judge (WCJ). Claimant contends the Board erred because the WCJ
improperly disallowed relevant testimony, made factual findings not supported by
substantial evidence and produced a non-reasoned decision. Discerning no merit to
Claimant’s assignments of error, we affirm.
Claimant worked for Employer on an assembly line where she pulled
and weighed containers of mushrooms. On October 27, 2011, Claimant sustained
an injury to her dominant right wrist. Claimant notified Employer and was referred
1
The Board’s order also remanded the matter to the WCJ for further evidence and findings of fact
concerning Employer’s Utilization Review petition. Board Order at 17; Reproduced Record at
314a (R.R. __). Employer’s Utilization Review Petition is not at issue in this appeal.
to a panel physician, who recommended a light-duty work assignment. Claimant
continued to work for Employer in a light-duty capacity as a scaler,2 and Employer
issued a medical-only Notice of Compensation Payable accepting Claimant’s right
wrist injury.
On June 6, 2012, Claimant gave Employer a note from her doctor that
she could no longer work in a light-duty capacity. Claimant subsequently filed a
claim petition alleging an injury to her right wrist and other injuries to her “right
upper extremity [] and right shoulder.” R.R. 2a. The claim petition sought total
disability benefits from July 6, 2012, and ongoing. Employer filed an answer
acknowledging Claimant’s right wrist injury but denying the alleged injuries to
Claimant’s right arm and shoulder. Employer also denied that Claimant was
disabled as a result of the accepted right wrist injury, or any other alleged work-
related injury. On October 8, 2012, a hearing was held before a WCJ.
Claimant testified that on October 27, 2011, she injured her right wrist
while weighing mushrooms at work. She notified Employer and began therapy with
Employer’s panel physician, Jonathan Dreazen, M.D. He recommended a light-duty
position and referred her to Leonard D’Addesi, M.D., with whom she treated in
November and December 2011. Claimant testified that over time her symptoms
worsened, with pain spreading to her right elbow and entire right arm. In April 2012,
she sought medical treatment for these symptoms and began physical therapy with
Norman Stempler, D.O. On July 6, 2012, she gave Employer a note from Dr.
Stempler stating she could no longer work in any capacity. Since July 6, 2012,
2
A scaler weighs mushrooms, but the job requires less lifting. Notes of Testimony (N.T),
10/8/2012, at 13; R.R. 34a.
2
Claimant has continued therapy with Dr. Stempler three times per week and is taking
Tramadol for pain.
Claimant explained that in 2009, two years before her work injury, she
had experienced pain in her right wrist and arm, but it was not treated. She continued
to work. Except for the symptoms she experienced in 2009, she did not otherwise
have problems with her right shoulder, arm, or hand. Claimant opined that she was
not capable of going back either to her pre-injury or to a light-duty position with
Employer.
On cross-examination, Claimant explained that Dr. Dreazen restricted
her to the light-duty scaler position, with the direction that she not use her right hand
at all. Claimant testified that even though she could perform the scaler position with
her left arm, it was not suitable:
[Counsel]: Are you telling us that you cannot go back to a job
that only requires you to use your left arm?
[Claimant]: I can’t, because I cannot work with the left hand.
[Counsel]: You can’t work with the left hand?
[Claimant]: No.
[Counsel]: Well, correct me if I’m wrong, but you worked for
about seven or eight months with your left hand; isn’t that true?
[Claimant]: Yes, but it was getting tired and it was starting to
cause pain.
[Counsel]: So your left hand started causing you pain?
[Claimant]: Yes.
[Counsel]: Did you tell Dr. Stempler that?
[Claimant]: No.
3
[Counsel]: Have you told the company that?
[Claimant]: No.
N.T., 11/8/2012, at 26-27; R.R. 47a-48a.
Claimant offered the deposition testimony of Dr. Stempler, a board
certified orthopedic surgeon, who testified as follows about his first visit with
Claimant on April 13, 2012:
[Dr. Stempler]: She told me she was 40 years old and she worked
at a mushroom farm. She had to carry cases and boxes and tills
of mushrooms. She would do a lot of pushing, pulling and
lifting.
She related on [10/27/11], she was trying to grab a large box of
mushrooms and felt a sudden sharp pain in her wrist initially.
She did report it, but no treatment was offered. She did have a
past history of a similar incident resulting in wrist pain and she
relayed that it never completely resolved. Her past medical
history was not contributory.
She also had pain up towards her right elbow and she complained
of numbness and tingling of her ring and fifth finger, which is
the ulnar side of the hand, which she relates that she didn’t have
a problem with for two years, the incident of two years prior. She
denied taking medication and allergies.
She didn’t speak English, her poor English [sic] and we did have
a translator available. She stated that she did have some
diagnostic [test results], however, at that first visit they weren’t
available. She writes that she was working at that time doing a
modified duty, which is moving light boxes of mushrooms while
seated. She was using only her left hand. She compared [sic] to
be tolerating it at that time. In regards to her right wrist and
elbow, she had pain and difficulty with most activities, pushing,
pulling, lifting, reaching and then we went on to examine her.
4
Stempler Deposition at 8-9; R.R. 62a-63a. Following Claimant’s physical
examination, Dr. Stempler diagnosed her with “a right ulnar neuropathy at the
elbow, ligament injury to the right wrist.” Id. at 10; R.R. 64a. Because she was
tolerating her light-duty position at the time, Dr. Stempler allowed her to continue
working.
When Dr. Stempler next saw Claimant on May 25, 2012, she
complained of pain in her right elbow and wrist. Dr. Stempler wrote a note limiting
Claimant to no more than 40 hours of work per week. At their next visit on July 6,
2012, Dr. Stempler advised Claimant to stop working because the light-duty position
was “just exacerbating her symptoms.” Stempler Deposition at 12; R.R. 66a.
Dr. Stempler next saw Claimant on August 17, 2012. Based on his
review of Claimant’s MRI results, he determined that the repetitive nature of
Claimant’s job was causing her shoulder pain:
[Dr. Stempler]: I saw her on August 17th of that year with
continued symptoms involving her right upper extremity from
her shoulder on down. Difficulty with the same activities,
holding, pushing, pulling, lifting, reaching; and at that time we
had an MRI of the shoulder and I felt that, my review of the disk,
she had a partial tear of the tendons of the rotator cuff. She had
some evidence of thickening consistent with inflammation in a
prior tear and there was also what looked to me like she had a
labral defect in that shoulder as well.
[Counsel]: What is that?
[Dr. Stempler]: That’s a cartilage, a little cushion cartilage, that
sits between the ball and the socket of the joint; and there is one
in the hip and one in the shoulder.
[Counsel]: Do you have an opinion as to what that was caused
by?
[Dr. Stempler]: Repetitive activities with use of her extremity.
5
[Counsel]: Would that be at work?
[Dr. Stempler]: Yes, repetitive work activities.
Stempler Deposition at 13-14; R.R. 67a-68a.
Dr. Stempler ultimately diagnosed Claimant with “left heavy tendonitis
peritendinitis of her [right] shoulder with internal derangement and partial tear,”
right carpal tunnel syndrome, and right ulnar nerve entrapment syndrome at the
elbow with ulnar neuropathy. Stempler Deposition at 21; R.R. 75a. He opined
Claimant could not return to work.
At a second hearing before the WCJ on December 6, 2012, Employer
presented the testimony of Mary Gonzalez, Employer’s Human Resources Manager.
Gonzalez testified that she learned of Claimant’s work injury in October 2011, and
assigned her to the light-duty scaler position to accommodate her work restrictions.
She described the light-duty position as similar to Claimant’s regular job, but it was
done at a slower pace and could be done with one hand. Gonzalez testified that she
interacted regularly with Claimant during her time on light duty, and Claimant never
complained of any difficulties. Gonzalez further testified that Employer requires
modified-duty employees to complete bi-weekly forms noting any problems with
their restricted positions. Claimant’s forms did not indicate any problems with the
scaler position.
Employer offered the deposition testimony of S. Ross Noble, M.D.,
who performed an Independent Medical Examination (IME) of Claimant on
February 12, 2013. Dr. Noble testified that Claimant presented with the following
complaints:
[Dr. Noble]: Her current complaints included stabbing pains in
the right elbow, the right shoulder, pain in the whole right arm, a
burning sensation into her head and neck, pain in the fingertips
6
of the third, fourth, and fifth fingers of the right hand, pain
around her right ear when she chews, difficulty breathing, and
pain in her right armpit.
Noble Deposition at 7; R.R. 192a.
Dr. Noble testified that during the physical exam, Claimant used her
right arm in ways that were inconsistent with her complaints:
[Dr. Noble]: The only thing I noted when I initially had her stand
up was although, she’s had no lower extremity problem, she’s
telling me the use of the right arm is painful, that she can’t use
her right arm for anything and her husband had to do everything.
She had to grip the arm of the exam chair with her right hand
when going from sit to stand and she told me that she has pain in
her entire right arm and into her neck and head when she puts her
hand on the armrest of the exam chair and pushes to get up to a
standing position. I think the significance of that is taking the
subjective complaints with a little bit of a grain of salt because
there’s also no reason for her to be pushing up with an arm that
she says she can’t use. I mean, she showed good function of the
arm in doing that quite frankly.
Noble Deposition at 15-16; R.R. 200a-01a.
Dr. Noble’s review of Claimant’s medical history and diagnostic test
results confirmed the opinions he formed during Claimant’s examination.
Regarding an MRI of Claimant’s right wrist taken on November 3, 2011, Dr. Noble
testified that it showed small abnormalities attributable to aging, but nothing that
would limit the function of her right wrist. A second MRI of Claimant’s right wrist,
taken on July 13, 2013, supported Dr. Noble’s opinion that there were no signs of
trauma and all other findings were age-related but of no clinical significance.
Finally, Dr. Noble reviewed an MRI of Claimant’s right shoulder taken on July 13,
2013; it also revealed no evidence of traumatic injury.
7
Dr. Noble concluded that Claimant’s subjective complaints of pain
were not borne out by any objective evidence. Further, she was not entirely
forthcoming with her medical history. Acknowledging that Claimant suffered a
wrist sprain on October 27, 2011, Dr. Noble opined that it did not cause underlying
damage and that she had fully recovered from the sprain.
On March 2, 2013, Employer filed a petition to terminate Claimant’s
benefits for her right wrist injury. The termination petition alleged Claimant was
fully recovered and able to return to work without restriction.
A final hearing on Employer’s termination petition was held on August
1, 2013. Claimant testified that she had still not recovered from her October 27,
2011, work injury and could not return to work for Employer in any capacity.
On January 3, 2014, the WCJ denied Claimant’s claim petition and
granted Employer’s termination petition. The WCJ determined that Claimant’s
testimony was not credible based on her demeanor during the hearing. The WCJ
credited the testimony of Mary Gonzalez, Employer’s Human Resources Manager,
based on her demeanor. The WCJ found the testimony of Dr. Noble more credible
and persuasive than that of Dr. Stempler. Based on these findings of fact, the WCJ
held that Claimant did not sustain her burden of proof on the claim petition.
Employer, on the other hand, successfully established that Claimant had recovered
from her October 27, 2011, right wrist injury. The WCJ terminated benefits for
Claimant’s work-related wrist sprain.
Claimant appealed to the Board, asserting that the WCJ’s decision was
not reasoned and not supported by substantial evidence. She further asserted that
the WCJ erred by not allowing her to testify about her current treatment for her right
wrist. The Board affirmed the WCJ, and Claimant petitioned for this Court’s review.
8
On appeal,3 Claimant raises the issues she presented to the Board,
which we have reordered for purposes of our review. First, Claimant asserts that the
WCJ did not issue a reasoned decision in accordance with Daniels v. Workers’
Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003).
Second, Claimant argues that the WCJ’s findings of fact are not supported by
substantial evidence. Third, Claimant argues the WCJ erred by denying her the
opportunity to testify at the August 1, 2013, hearing on Employer’s termination
petition about the medical treatment she was receiving from a new doctor. Employer
responds that the WCJ’s decision is amply supported by the record. Claimant’s real
complaint is with the WCJ’s credibility determinations, which are beyond the scope
of appellate review. We consider Claimant’s issues seriatim.
Claimant first challenges the WCJ’s finding that her testimony was “not
credible based on [the WCJ’s] personal observation during her direct and cross-
examination.” WCJ Decision at 4, Finding of Fact No. 10; R.R. 290a. Claimant
argues that the WCJ’s finding, based solely on Claimant’s demeanor, is not
“reasoned” under the standards enunciated by our Supreme Court in Daniels.4
3
“This Court’s review of an order of the Board is limited to determining whether the necessary
findings of fact are supported by substantial evidence, whether Board procedures were violated,
whether constitutional rights were violated or [whether] an error of law was committed.” Walker
v. Workers’ Compensation Appeal Board (Health Consultants), 42 A.3d 1231, 1235 n.4 (Pa.
Cmwlth. 2012).
4
The “reasoned decision” requirement, explained by the Supreme Court in Daniels, is a statutory
mandate found in Section 422(a) of the Workers’ Compensation Act, Act of June 2, 1915, P.L.,
736, as amended, 77 P.S. §834, which provides:
Neither the board nor any of its members nor any workers’ compensation judge
shall be bound by the common law or statutory rules of evidence in conducting any
hearing or investigation, but all findings of fact shall be based upon sufficient
competent evidence to justify same. All parties to an adjudicatory proceeding are
entitled to a reasoned decision containing findings of fact and conclusions of law
9
At issue in Daniels was whether a WCJ’s decision to credit an expert
opinion without explanation satisfied the reasoned decision requirement in Section
422(a) of the Act. The Supreme Court explained that
absent the circumstance where a credibility assessment may be
said to have been tied to the inherently subjective circumstances
of witness demeanor, some articulation of the actual objective
basis for the credibility determination must be offered for the
decision to be a “reasoned” one which facilitates effective
appellate review.
Daniels, 828 A.2d at 1053. In short, a WCJ must explain “the why” behind
credibility determinations based on a deposition. However, where the factfinder has
seen the witness testify, an abbreviated discussion of the witness’s credibility “could
be sufficient to render the decision adequately ‘reasoned.’” Id.
Here, Claimant testified in the presence of the WCJ. The WCJ rejected
her testimony as not credible based on the WCJ’s personal observation of her
demeanor. This was appropriate. No further explanation is required in order for this
Court to conduct its appellate review.
In her next issue, Claimant argues that the WCJ’s findings of fact are
not supported by substantial evidence. Substantial evidence is such relevant
based upon the evidence as a whole which clearly and concisely states and explains
the rationale for the decisions so that all can determine why and how a particular
result was reached. The workers’ compensation judge shall specify the evidence
upon which the workers’ compensation judge relies and state the reasons for
accepting it in conformity with this section. When faced with conflicting evidence,
the workers’ compensation judge must adequately explain the reasons for rejecting
or discrediting competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’ compensation judge must
identify that evidence and explain adequately the reasons for its rejection. The
adjudication shall provide the basis for meaningful appellate review.
77 P.S. §834.
10
evidence as a reasonable mind might accept to support a finding of fact. Berardelli
v. Workmen’s Compensation Appeal Board (Bureau of Personnel State Workmen’s
Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth. 1990). In evaluating a
substantial evidence challenge, the appellate court does not reweigh the evidence or
review credibility determinations. Bethenergy Mines, Inc. v. Workmen’s
Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992). Further, the
court “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’ Compensation Appeal Board (Anthony Wagner Auto Repairs & Sales,
Inc.), 45 A.3d 461, 465 n.5 (Pa. Cmwlth. 2012). Last, “it is irrelevant whether 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.”
Minicozzi v. Workers’ Compensation Appeal Board (Industrial Metal Plating, Inc.),
873 A.2d 25, 29 (Pa. Cmwlth. 2005) (quoting Delaware County v. Workers’
Compensation Appeal Board (Baxter Coles), 808 A.2d 965, 969 (Pa. Cmwlth.
2002)).
Claimant asserts that Dr. Noble’s testimony was insufficient to
establish that she recovered from her work-related right wrist sprain because it was
contradicted by the medical opinions of her treating physicians. Specifically,
Claimant argues that Dr. Noble’s opinion of full recovery conflicted with the
opinions of Dr. Dreazen, Employer’s physician, whom she saw immediately after
the October 27, 2011, work injury, and Dr. D’Adessi, Employer’s panel doctor
whom she saw in November and December of 2011. At that time, Dr. Dreazen
suggested diagnostic testing, and Dr. D’Adessi recommended surgery.
11
Claimant is challenging the WCJ’s decision to credit Dr. Noble’s
testimony as opposed to her experts’ testimony. It is well settled that the “WCJ, as
fact-finder, has complete authority over questions of witness credibility and
evidentiary weight.” Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal
Board (Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). Moreover, “the WCJ is
entitled to accept or reject the testimony of any witness, including a medical witness,
in whole or in part.” Ausburn v. Workers’ Compensation Appeal Board (Merrell &
Garaguso), 698 A.2d 1356, 1358 (Pa. Cmwlth. 1997). The WCJ credited Dr.
Noble’s opinion that Claimant had fully recovered as of the date of his IME,
February 12, 2013. The opinions of Dr. Dreazen and Dr. D’Adessi were dated to
2011, just after her injury occurred. Neither doctor discussed Claimant’s medical
status in 2013. Dr. Noble reviewed all of Claimant’s medical records before
rendering his conclusion that Claimant had fully recovered from her right wrist
sprain. This testimony was credited by the WCJ, and we will not disturb that
credibility determination on appeal.
In her final argument, Claimant contends that the WCJ erred by
refusing to allow her to testify at the termination hearing about her current treatment
with a new treating physician, Dr. Randy Hauck, for her right wrist. Employer
objected to Claimant’s proffered testimony because she had not produced any
medical records from Dr. Hauck. Claimant’s Counsel conceded there were no
records and that he only recently learned of Claimant’s treatment with Dr. Hauck.
The WCJ sustained Employer’s objection, but allowed Claimant to testify about her
current symptoms and how they affected her ability to work.
The “admission of evidence is committed to the sound discretion of the
WCJ.” Atkins v. Workers’ Compensation Appeal Board (Stapley in Germantown),
12
735 A.2d 196, 199 (Pa. Cmwlth. 1999). The Board, when presented with Claimant’s
challenge, explained as follows:
At the last hearing when Claimant testified she treated with a Dr.
Randy Hauck for her right wrist, [Employer] objected because it
had no records from that doctor. The WCJ sustained the
objection because Claimant’s counsel did not even have any
records concerning this evaluation and Claimant’s testimony at
that time was supposed to go toward the Termination Petition
filed approximately five months earlier. We see no abuse of
discretion in this respect. At the previous hearing on April 2,
2013, Claimant was given until July 10, 2013 to present medical
testimony with regard to the Termination Petition. However,
there is no indication that she attempted to present testimony
from this doctor or any other. Further, she repeatedly testified
that she continues to have problems with her right upper
extremity and presented Dr. Stempler’s testimony with regard to
his opinion on the nature of her injury and need for continuing
treatment and surgery. Given everything, we see no basis upon
which to disturb the Decision.
Board Opinion at 14-15; R.R. 311a-12a (internal citations omitted). We agree with
the Board. Claimant had adequate time to proffer medical evidence in response to
Employer’s termination petition, and she chose to do so through Dr. Stempler’s
deposition. Her testimony on August 1, 2013, where she attempted to relay the
medical opinion of a new treating physician with no supporting medical records was
properly rejected.
For all these reasons, we affirm the order of the Board.
______________________________________
MARY HANNAH LEAVITT, President Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Olga Medina, :
Petitioner :
:
v. : No. 799 C.D. 2017
:
Workers’ Compensation Appeal :
Board (F&P Holding Co., Inc.), :
Respondent :
ORDER
AND NOW, this 26th day of February, 2018, the order of the Workers’
Compensation Appeal Board dated June 7, 2017 in the above-captioned matter is
AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge