C. Weston-Young v. WCAB (Central Bucks SD) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carol Weston-Young, :
:
Petitioner :
:
v. : No. 773 C.D. 2017
: Submitted: October 27, 2017
Workers’ Compensation Appeal :
Board (Central Bucks School :
District), :
:
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 JUDGE WOJCIK FILED: January 30, 2018
Carol Weston-Young (Claimant) petitions for review from an order of
the Workers’ Compensation Appeal Board (Board) that affirmed a Workers’
Compensation Judge’s (WCJ) decision granting Central Bucks School District’s
(Employer) Petition to Terminate Compensation Benefits (Termination Petition).
Claimant challenges the WCJ’s reliance on the testimony of Employer’s medical
expert in determining that she fully recovered from her accepted work injury. Upon
review, we affirm.
I. Background
Claimant worked for Employer for 12 years as a bus driver. On January
15, 2014, Claimant sustained a work-related injury described in a Notice of
Temporary Compensation Payable (NTCP) as a cervical strain/thoracic strain.
In November 2015, Employer filed a Termination Petition alleging that
Claimant fully recovered from her work injury and was able to return to unrestricted
work as of October 1, 2015. Claimant denied the allegations. A hearing ensued
before a WCJ. The WCJ made the following findings.
Claimant testified that, on January 15, 2014, she sustained a work injury
to her cervical and thoracic spine while attempting to pull open a large rolling gate,
which was 20-25 feet high and wide enough for two school buses to pass through.
She experienced pain located in her thoracic spine -- the area behind her heart or
chest wall. She acknowledged prior problems with her thoracic spine, predating the
January 15, 2014 work injury. In February 2011, she underwent surgery on her
thoracic spine. She returned to work but continued to have issues while driving. In
spring 2013, Claimant underwent another surgery on her thoracic spine. She
returned to work and continued working until the January 15, 2014 incident. Prior
to starting her employment with Employer, Claimant experienced no back pain.
WCJ’s Opinion, 6/30/16, Finding of Fact (F.F.) No. 4.
Claimant testified that, after the work incident, the symptoms in her
chest increased, causing difficulty in performing her daily activities. She sees a
neurologist, takes medication, and receives injections. Although she returned to
work in a light-duty position after the incident, Employer terminated her
employment because she was unable to return to her full-duty position. Claimant
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testified that no physician ever diagnosed her with Scheuerman’s Disease. F.F. No.
4.
In support of its Termination Petition, Employer presented the
deposition testimony of Donald Leatherwood, M.D. (Employer’s Physician), who is
board certified in orthopedic surgery. He examined Claimant on October 1, 2015,
reviewed her medical records, and accepted a history from her. Employer’s
Physician opined that it was obvious that Claimant had a longstanding history of
Scheuerman’s Disease, which is an increased kyphosis of the thoracic spine. He
explained that the disease is a congenital developmental process that has nothing to
do with her work injury. He recognized that Claimant could have sustained a
cervical strain/thoracic strain, superimposed on an underlying thoracic disease.
However, he testified that the mechanism of injury as described by Claimant –
opening a gate – was not the type of mechanism that would cause her injury.
Notwithstanding, he opined that Claimant had fully recovered from the accepted
injury as of the date of his exam on October 1, 2015. He further opined that any
treatment Claimant needs for her thoracic spine is not related to the work injury but
to her underlying condition. According to Employer’s Physician, Claimant is
capable of returning to work having found no objective medical evidence that would
preclude Claimant from doing her job. F.F. No. 3.
Claimant offered the deposition testimony of Todd Bromberg, M.D.
(Claimant’s Physician), who is board certified in neurology and in pain management.
He diagnosed Claimant with a herniated disc with thoracic radiculopathy, thoracic
facet arthritis, and myofascial pain. He opined that Claimant’s work injury caused
an acute aggravation of her pre-existing condition. He initiated medication and
suggested thoracic radiofrequency rhizotomy. Claimant’s Physician testified that
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Claimant has not fully recovered from her work injury. Based on her condition, he
opined that Claimant was not capable of returning to work as a bus driver. F.F. No.
5.
Claimant’s Physician did not consider or otherwise diagnose Claimant
with Scheuerman’s Disease or treat her for this condition, noting that the disease is
typically a condition diagnosed in the pediatric population and more commonly
affects the lumbar and sacral region. Claimant’s Physician acknowledged he did not
review any records predating Claimant’s injury because they were not available to
him. He had no records with regard to either of Claimant’s surgeries prior to the
work injury. He did not know how long Claimant experienced thoracic spine pain
prior to the work injury. He acknowledged Claimant had degeneration in her
thoracic spine. Claimant’s Physician admitted that the comparison of a 2012 MRI
to a 2014 MRI showed the disc herniation to be unchanged. He admitted that any
cervical spine condition or injury had resolved. F.F. No. 5.
To the extent the medical experts disagreed, the WCJ found the
opinions of Employer’s Physician to be more credible than the opinions of
Claimant’s Physician. F.F. No. 6. In reaching this credibility determination, the
WCJ noted Claimant’s two thoracic surgeries prior to the work injury; Claimant’s
Physician’s attempt to expand the description of the work injury to include, inter
alia, a herniated disc, while simultaneously admitting that the condition of the disc
was unchanged between pre- and post-injury MRIs; and Claimant’s Physician’s
admission that Claimant’s problems could be caused by her pre-existing
degenerative condition. F.F. No. 6. In addition, the WCJ found Claimant’s
testimony generally credible, but to the extent Claimant related her current
difficulties to pulling a rolling gate, rather than her degenerative condition and
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previous surgeries, he found her testimony to be unpersuasive in consideration of
Employer’s Physician’s testimony. F.F. No. 7.
Based on these findings, the WCJ determined that Employer proved
through credible, competent expert evidence that Claimant fully recovered from her
work injury and was able to return to unrestricted work as of October 1, 2015. The
WCJ also concluded that Claimant failed to expand the scope of her injury beyond
the accepted work injury of cervical and thoracic strain. Thus, the WCJ granted
Employer’s Termination Petition. The Board affirmed the WCJ’s decision on appeal
and Claimant now petitions this Court for review.1
II. Issue
On appeal, Claimant argues that the WCJ erred in granting the
Termination Petition because Employer did not present unequivocal medical
evidence that Claimant’s ongoing complaints, which are in the same part of her body
as the accepted work injury, were unrelated to the work injury. Employer’s
Physician merely testified that Claimant’s work injury was superimposed upon an
underlying degenerative process. However, he did not explain how Claimant’s
ongoing symptoms were no longer related to her work injury. Thus, Claimant argues
Employer’s Physician’s testimony did not constitute competent medical evidence to
support the WCJ’s decision.
1
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. 2 Pa. C.S. § 704; Department of Transportation v. Workers’ Compensation Appeal
Board (Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).
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III. Discussion
Initially, we note, as the ultimate fact-finder in workers’ compensation
cases, the WCJ “has exclusive province over questions of credibility and evidentiary
weight . . . .” A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi),
78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ may accept or reject the
testimony of any witness in whole or in part. Id.Moreover, “[i]t 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.” Furnari v. Workers’
Compensation Appeal Board (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014)
(citation omitted). We examine the entire record to see if it contains evidence that a
reasonable person might find sufficient to support the WCJ’s findings. Id. If the
record contains such evidence, the findings must be upheld, even though the record
may contain conflicting evidence. Id. Additionally, we must view the evidence in
the light most favorable to the prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence. Id.In order to secure a termination of benefits, an employer “must prove
that a claimant’s disability has ceased, or that any existing injury is not the result of
the work-related injury. An employer may satisfy this burden by presenting
unequivocal and competent medical evidence of the claimant’s full recovery from
the work-related injury.” O’Neill v. Workers’ Compensation Appeal Board (News
Corp. LTD.), 29 A.3d 50, 53 (Pa. Cmwlth. 2011) (citations omitted). Where a
claimant complains of continued pain, the burden in a termination petition is met
when “an employer’s medical expert unequivocally testifies that it is his opinion,
within a reasonable degree of medical certainty, that the claimant is fully recovered,
can return to work without restrictions and that there are no objective medical
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findings which substantiate the claims of pain or connect them to the work injury.”
Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1293 (Pa. 1997); accord Marks v. Workers’ Compensation Appeal Board (Dana
Corp.), 898 A.2d 689, 693 (Pa. Cmwlth. 2006). The burden does not shift to the
claimant because the disability is presumed to continue until proven otherwise.
Marks, 898 A.2d at 693.
Whether a medical opinion is equivocal is a question of law fully
reviewable on appeal. O’Neill, 29 A.3d at 57. A determination as to equivocality
must be based on a review of the entire testimony. Id. Medical testimony is
unequivocal if a medical expert testifies, after providing a foundation for the
testimony, that in his professional opinion, he believes or thinks a fact exists. Id.However, to be unequivocal, every word of a medical expert’s testimony or opinion
“does not have to be certain, positive, and without reservation or semblance of
doubt.” Id.Here, the WCJ credited Employer’s Physician’s opinion that Claimant
fully recovered from her accepted work injury, a cervical strain/thoracic strain, and
that any remaining condition is unrelated to the work injury. F.F. Nos. 3, 6.
Employer’s Physician’s credible testimony established that Claimant fully recovered
from her work-related injury; Claimant required no further treatment related to her
work injury; and, Claimant could return to work without restrictions. With regard
to Claimant’s underlying condition, Employer’s Physician testified:
[Claimant] has a longstanding history of what’s called
[Scheuerman’s] disease, which is an increased kyphosis of
the thoracic spine. It is a congenital developmental
process. It has nothing to do with injury. That’s why she
required her surgery and fusion. Basically, it means the
spine curves in a forward direction, and the issue or
problem is either actual pain in the thoracic spine itself, or
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in significant cases can be [a] compromise of lung
function. I don’t think she had any of that, but I think she
probably had pain at that one level. So, it’s called
[Scheuerman’s] disease. It’s a process that goes on
through a person’s lifetime. It’s not curable with any kind
of medicine or pills or anything, and usually if it’s treated,
surgery is what’s required in terms of fusion.
Reproduced Record (R.R.) at 103a.
As to Claimant’s work injury, Employer’s Physician testified that,
based upon the mechanism of injury, it appears that Claimant “sustained a
sprain/strain of her lower cervical region and thoracic region, superimposed upon
this underlying thoracic disease process.” R.R. at 103a. He limited the diagnosis to
the cervical and thoracic sprain injury, explaining that the mechanism of injury
would not have caused a cervical or a thoracic disc herniation. R.R. at 104a.
When asked why there was not an aggravation of her underlying disease
process or degenerative condition, Employer’s Physician responded:
Well, two things: It goes back to more or less what I just
testified to, but I’ll put it together. One is mechanism of
injury. There’s simply not a mechanism here to cause a
significant anatomic derangement to either the thoracic or
cervical spine. These are areas that are very well invested
with musculature and ligamentous support. They don’t get
injured simply by opening a door, even if they have
underlying processes. That’s number one.
The second thing is there is no evidence in this case
whatsoever that there was any furthering of the disease
process by virtue of this injury. One has to -- for an
aggravation, I believe one has to see that the disease
process is affected by the injury, and it is made to go more
quickly, let’s say. And there’s absolutely no evidence of
that whatsoever. The MRI scans very clearly show that
there’s no anatomic derangement of any sort, so there’s no
furthering of the disease process by virtue of anatomy, and
therefore, there’s no furthering of the disease process by
8
this injury. The injury certainly could be superimposed
upon it, but the disease process was not changed by it.
R.R. at 105a.
Further, Employer’s Physician testified that the typical recovery time
for a cervical or thoracic sprain/strain type injury was six weeks. R.R. at 107a, 120a.
He opined that, as of the date of his examination on October 1, 2015, Claimant had
fully recovered from the cervical2 and thoracic strain and was capable of returning
to work without restrictions. R.R. at 103a, 106a, 107a, 121a, 139a. Although
Employer’s Physician recognized that Claimant may have ongoing symptoms in the
thoracic spine, he related these problems to her underlying disease and not to the
work injury, which had resolved. R.R. at 106a, 120a, 122a.
Upon review, Employer’s Physician competently testified within a
reasonable degree of medical certainty that Claimant fully recovered from the work
injury, and he adequately explained why Claimant’s current thoracic spine
complaints are not related to the work injury. R.R. at 107a-108a. The WCJ properly
concluded that this unequivocal, credible medical testimony was sufficient to satisfy
the burden of proof on Employer’s Termination Petition. Although Claimant assigns
error in the WCJ’s decision to credit Employer’s Physician’s opinions over those
offered by Claimant’s Physician, we may not disturb the WCJ’s credibility
determinations or his resolution of conflicting medical testimony, which is within
the WCJ’s exclusive province as fact-finder. See Furnari; A & J Builders.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
2
Claimant’s Physician also opined that Claimant’s cervical injury had resolved. R.R. at
71a.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carol Weston-Young, :
:
Petitioner :
:
v. : No. 773 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Central Bucks School :
District), :
:
Respondent :
ORDER
AND NOW, this 30th day of January, 2018, the order of the Workers’
Compensation Appeal Board, dated May 10, 2017, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge