Express Employment Professionals/Express Svcs., Inc. DBA v. I. Caldero (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Express Employment Professionals/ :
Express Services, Inc. DBA, :
Petitioner :
:
v. : No. 880 C.D. 2021
: Argued: November 14, 2022
Isaiah Caldero (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge (P.)
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: January 20, 2023
Express Employment Professionals/Express Services, Inc. DBA (Employer)
petitions for review of the order of the Workers’ Compensation Appeal Board
(Board) affirming the decision of the Workers’ Compensation Judge (WCJ) to grant
Isaiah Caldero’s (Caldero) Claim Petition. The issue before this Court on appeal is
whether the WCJ’s finding Caldero met his burden of proving he experienced an
ongoing disability throughout the pendency of the claim is supported by substantial
evidence. Upon review, we affirm.
I. Background and Procedural History
Employer is a temporary employment agency. In early July 2017, Employer
placed Caldero in a laborer position at Reeb Millwork, where his tasks included
lifting and carrying doors weighing between 30 and 220 pounds. WCJ Decision
(WCJ Dec.) at 4. Four days into the job, on July 6, 2017, Caldero was pulling a
long, heavy wooden door and felt a jerk in his upper back. Id. After continuing to
work for two weeks to see if his pain would resolve, Caldero reported his injury to
his supervisor on July 19, 2017 and stopped working. Id. The supervisor referred
Caldero to St. Luke’s Occupational Medicine (St. Luke’s), where he received
treatment and was placed on restrictive work duties. Id. On August 10, 2017,
Employer issued a Notice of Temporary Compensation Payable, describing the
injury as an upper back area strain or tear. Reproduced Record (R.R.) at 3. Caldero
treated with St. Luke’s until the end of October 2017, at which time he was
discharged from treatment and released to full-duty work. WCJ Dec. at 4. Caldero
did not feel capable of returning to work because he continued to experience pain
and upper back problems. Id.
On November 19, 2019, Caldero filed his Claim Petition, asserting he
sustained work-related injuries to his upper back that prevented him from returning
to work.1 R.R. at 8. Caldero sought payment of ongoing temporary total disability
benefits beginning July 19, 2017, the last day he worked. Employer filed a timely
answer denying the material allegations. Id. at 12. Thereafter, the WCJ held two
hearings, at which Caldero testified and the parties presented the deposition
testimony of their experts.
In his testimony, Caldero described his work as a laborer, the history of his
work injuries and treatment, and how ongoing pain made him unable to work in his
preinjury position. WCJ Dec. at 4-5. In particular, Caldero testified about his initial
treatment by providers at St. Luke’s and by a physical therapist, a 15-pound lifting
1
Caldero also asserted he sustained lower back injuries, but the WCJ did not credit his evidence
and found no work-related lower back injuries. Caldero did not appeal this determination.
2
restriction, and Employer’s lack of light-duty work. Id. at 4. Caldero explained that
despite a physician at St. Luke’s releasing him to full-duty work in October 2017,
he continued to experience pain and problems in his upper back, particularly when
lifting, rendering him incapable of returning to his full-duty position. Id. Following
his discharge from care, Caldero sought relief for his ongoing back pain by
purchasing pain medication off the street. Id. Beginning in January 2018, Caldero
received treatment for 13 months for both back pain and an addiction to pain
medication. Id. Caldero began receiving additional treatment in May 2019, namely
trigger point injections and chiropractic care for his upper back area. Id. at 5.
Caldero ultimately treated with Bruce Grossinger, D.O, his current medical provider.
Id. at 4-5.
Dr. Grossinger described his treatment of Caldero, his review of Caldero’s
medical records, his multiple physical examinations of Caldero, and the diagnostic
tests he performed on Caldero, including an electromyography (EMG). Id. at 5-6.
Based on this review and his examinations, Dr. Grossinger opined Caldero sustained
injuries as a result of the July 2017 incident and was currently disabled. Dr.
Grossinger further opined Caldero had been unable to perform his preinjury position
since the date of the incident. Id. at 6. Dr. Grossinger acknowledged he did not
begin treating Caldero until October 2019. Id. at 5-6. However, Dr. Grossinger
explained he could opine to a reasonable degree of medical certainty Caldero had
been unable to work since the July 2017 work incident. Id. at 6.
Employer offered the deposition testimony of Robert Mauthe, M.D., who
performed an independent medical examination (IME) of Caldero on December 9,
2019, and Ge Ma, M.D., the physician at St. Luke’s who released Caldero to return
to full-duty work in October 2017. Dr. Mauthe testified regarding his examination
3
of Caldero and review of Caldero’s medical records, including the results of Dr.
Grossinger’s EMGs, which, in his view, did not support Dr. Grossinger’s diagnoses.
Id. at 7. According to Dr. Mauthe, Caldero may have suffered a thoracic strain but
had fully recovered, required no further medical treatment, and could return to his
preinjury position without restrictions. Id. at 7-8. Dr. Ma testified about treating
Caldero at St. Luke’s for a strained “muscle and tendon of [the] back wall of [the]
thorax,” imposing restrictions on Caldero’s work duties, and releasing Caldero to
full-duty work. Id. at 8. On the last point, Dr. Ma indicated that on October 24,
2017, his examinations showed no abnormal findings and Caldero wanted to return
to full-duty work. Id. at 9-10. Therefore, Dr. Ma discharged Caldero to full-duty
work. Dr. Ma admitted Caldero had work restrictions up until his last appointment
and Caldero had not met his physical therapy goals. Id. at 9. Dr. Ma also indicated
his reports reflect Employer did not offer light or modified duty to accommodate
work restrictions. Id. He also testified individuals with injuries like Caldero’s could
have good and bad days, and he never signed anything indicating Caldero had fully
recovered from the work injury. Id. Dr. Ma did not complete an Affidavit of Return
to Work and did not include an opinion of full recovery in his treatment records. Id.
at 11.
Caldero testified in response to Dr. Ma’s testimony. Caldero disagreed he
advised Dr. Ma he wanted to return to full-duty work and was not in pain. Id. at 9-
10. Caldero explained during his final appointment that Dr. Ma advised Caldero the
90 days of physical therapy was the best that could be done, there was nothing else
they could do, and Caldero’s “time was up.” Id. Caldero indicated he was surprised
to be released to full duty because he still experienced pain and, as of the date of his
testimony, he still experienced pain five days of the week. Id.
4
The WCJ found Caldero credible as to his job duties, the occurrence of the
injuries on July 6, 2017, his stopping work on July 19, 2017, and that he did not
formally treat the work injuries between the end of October 2017 until January 2019,
other than by taking pain medication. Id. at 10. The WCJ found “sufficient
consistency in the record that Caldero has an ongoing upper back problem arising
out of the work injury.” Id. The WCJ credited Dr. Grossinger’s testimony and
diagnoses as to the thoracic spine area injuries, finding it competent and persuasive,
and as establishing Caldero is disabled from his preinjury position. Id. at 11.
According to the WCJ, while Dr. Grossinger “did not see Caldero until October 7,
2019[, he] did have the opportunity to take a history that was consistent with
Caldero’s testimony [and] he also reviewed post-work injury treatment records,”
which substantiated Dr. Grossinger’s testimony. Id. The WCJ found Dr. Mauthe’s
deposition testimony unpersuasive, citing his financial bias. Id. The WCJ rejected
Dr. Mauthe’s testimony where it conflicted with Dr. Grossinger’s. Id. The WCJ
rejected Dr. Ma’s testimony Caldero was fully recovered as of October 24, 2017,
noting Dr. Ma’s records did not reflect this finding, and Dr. Ma did not complete an
Affidavit of Return to Work. Id. In addition, the WCJ found return to full-duty
work did not mean full recovery. Id. Based on these credibility determinations, the
WCJ concluded Caldero had met his burden of proving he sustained injuries “which
disabled him beginning July 19, 2017, to the present.” Id. at 12. Accordingly, the
WCJ granted the Claim Petition and awarded medical and ongoing indemnity
benefits to Caldero beginning July 20, 2017.
Employer appealed to the Board asserting the WCJ erred in awarding
indemnity benefits beginning July 20, 2017, arguing Dr. Grossinger’s testimony
could not support a finding Caldero was disabled before Dr. Grossinger treated him
5
in October 2019. The Board disagreed with Employer, concluding the WCJ’s
findings were supported by substantial evidence. Board Opinion (Bd. Op.) at 6. The
Board explained Employer “concedes that the evidence at most demonstrates
Caldero was disabled during the time he was under Dr. Ma’s care, from August 7,
2017 until October 24, 2017, as well as from October 7, 2019.” Id. The Board held
that in a claim petition a claimant must establish the length of the work-related
disability and the WCJ is authorized to decide the length of disability based on the
evidence before it, including testimony of a claimant and claimant’s medical
witnesses. Id. (citing Ricks v. Workers’ Comp. Appeal Bd. (Parkway Corp.), 704
A.2d 716, 719 (Pa. Cmwlth. 1997)). Here, the Board reasoned, the WCJ made a
factual determination as to the chronological length of disability based not only on
Caldero’s testimony but also on Dr. Grossinger’s testimony, which considered his
examinations of Caldero, the medical records, and Caldero’s complaints of pain. Bd.
Op. at 6-7. The Board concluded the evidence showed Caldero was disabled
beginning July 20, 2017. Id. at 7. The Board affirmed the decision and order of the
WCJ by order dated July 23, 2021. (Board’s Order). Board Chairman Alfonso
Frioni, Jr. dissented, stating Caldero’s evidence had “established two periods of
disability, but not disability throughout” the pendency of the Claim Petition. Id. at
8. Employer now petitions this Court for review.2
II. Discussion
On appeal, Employer argues Caldero’s evidence did not establish an ongoing
disability from the time of injury to the present. Employer asserts Dr. Grossinger’s
testimony was speculative, see Jones & Laughlin Steel Co. v. Workmen’s Comp.
Appeal Bd., 394 A.2d 1091 (Pa. Cmwlth. 1978); Gateway Coal Co. v. Workmen’s
2
Employer filed an application for supersedeas with this Court, which we denied by order dated
December 1, 2021.
6
Comp. Appeal Bd., 388 A.2d 1122 (Pa. Cmwlth. 1978). Employer also asserts Dr.
Grossinger’s testimony could not support a finding of disability before his treating
Caldero, particularly where no medical evidence explained the work restrictions
between Caldero’s release to full-duty work in October 2017 and Dr. Grossinger’s
treatment two years later. Employer asserts its argument is supported by Albert
Einstein Healthcare v. Workers’ Compensation Appeal Board (Stanford), 955 A.2d
478 (Pa. Cmwlth. 2008). In Stanford, this Court concluded the testimony of a
treating physician could not support a period of disability beginning before the
physician’s involvement. Employer maintains Caldero’s testimony, by itself, could
not meet his burden of proof because he admitted to being released to full-duty work
as of October 24, 2017, and not seeking treatment for 14 months. Employer
acknowledges determining the chronological length of a disability is within a WCJ’s
authority, but asserts such finding must be supported by substantial evidence, and
neither Dr. Grossinger’s nor Caldero’s testimony constitutes such evidence.
Employer accepts, at most, the evidence establishes Caldero’s disability for two
distinct periods: (a) from August 7, 2017 through October 24, 2017, and (b) from
October 7, 2019 and ongoing. Thus, Employer requests this Court modify the
Board’s Order affirming the award of ongoing indemnity benefits beginning on the
date of the work injury to reflect the two periods of disability.
Caldero argues the WCJ’s decision is supported by substantial evidence and
the Board’s Order should be affirmed. According to Caldero, Employer’s argument
that Dr. Grossinger’s opinions were speculative is without merit, and the cases
Employer relies upon for support are distinguishable. Caldero further asserts
Employer’s reliance on Stanford is misplaced because the expert in Stanford gave
the first date of disability as being the first day of treatment and there was no earlier
7
date of disability in the record. In contrast, Caldero argues, Dr. Grossinger opined
Caldero became disabled as of July 19, 2017, not the date of Dr. Grossinger’s first
examination. Caldero argues Dr. Grossinger’s testimony, along with Caldero’s,
substantially supports the WCJ’s findings. See Ricks, 704 A.2d at 719.
Employer responds by noting Caldero’s arguments do not rebut the
conclusion Dr. Grossinger’s opinions cannot support starting Caldero’s indemnity
benefits before he started treating Caldero. Employer contends Caldero’s medical
records do not support the length of disability the WCJ found, because while those
records reference Caldero’s pain complaints and treatment, they do not establish his
inability to work. Employer contends Ricks is distinguishable because the claimant
in that case testified of her attempts to return to full-duty work and her inability to
do so, but Caldero offered no such testimony. Last, Employer argues Caldero’s
testimony alone is insufficient because he bore the burden of proving a disabling
work injury by substantial medical evidence. Ingrassia v. Workers’ Comp. Appeal
Bd. (Universal Health Servs.), 126 A.3d 394, 402 (Pa. Cmwlth. 2015).
“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.” Frankiewicz v. Workers’ Comp.
Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991, 995 n.2 (Pa. Cmwlth. 2017). We
exercise plenary, de novo review over questions of law. Sedgwick Claims Mgmt.
Servs., Inc. v. Bureau of Workers’ Comp., Fee Rev. Hearing Off. (Piszel & Bucks
Cnty. Pain Ctr.), 185 A.3d 429, 433 n.2 (Pa. Cmwlth. 2018). Questions of
credibility, conflicting medical evidence, and evidentiary weight fall within the
WCJ’s authority, and the WCJ is free to accept the testimony of any witness,
8
including medical witnesses, in whole or in part. Ingrassia, 126
A.3d. at 399 n.5.
In a claim petition, a claimant has the burden of establishing a right to
compensation and must prove all the elements necessary to support an award of
benefits. Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595
(Pa. 1993). To do so, the claimant must establish he “sustained a work related injury
but also that such injury resulted in a disability, in the technical sense, as used within
the Workers’ Compensation arena, i.e., a loss of earnings or a loss of earning power.”
Sch. Dist. of Phila. v. Workers’ Comp. Appeal Bd. (Lanier), 727 A.2d 1171, 1172
(Pa. Cmwlth. 1999). The claimant also must establish the length of the work-related
disability. Stanford, 955 A.2d at 481.
The nature of a claimant’s injury and the timing of the disability determine
what constitutes sufficient evidence to support an award of benefits.
[A] claimant must establish a causal connection between the disability
and the work-related incident. What is required to establish this causal
connection is dependent upon whether or not the injury is obvious in
nature. An obvious injury is one “which immediately manifests itself
while [c]laimant is in the act of doing the kind of heavy work which
can cause such an injury.” A classic example would be the laborer who
grabs his back in pain after lifting his shovel full [of] wet concrete. In
such a case, the causal connection is so clear that a lay person can see
the connection. Under those circumstances, the claimant’s testimony
is sufficient to connect the injury to the claimant’s employment, and
additional medical testimony is not required. Conversely, where there
is no obvious causal connection between the disability and a work-
related injury, unequivocal medical testimony is required to establish
that causal connection.
Calcara v. Workers’ Comp. Appeal Bd. (St. Joseph Hosp.), 706 A.2d 1286, 1289
(Pa. Cmwlth. 1998) (citations omitted). If the injury does not immediately manifest
itself while the claimant is performing his job, then the injury is not obvious and,
9
therefore, requires expert testimony to support the causal connection. Stanford, 955
A.2d at 482. Moreover, even if the work-related nature of an initial injury is obvious,
the alleged ongoing disability may not be obvious and, in such cases, “there is a need
for more than lay evidence, i.e., for medical evidence.” Cromie v. Workmen’s Comp.
Appeal Bd. (Anchor Hocking Corp), 600 A.2d 677, 679 (Pa. Cmwlth. 1991).
There is no dispute Caldero is entitled to indemnity benefits from (a) August
7, 2017, when providers at St. Luke’s restricted Caldero’s work duties,3 to October
24, 2017, when Dr. Ma released Caldero to full-duty work, and (b) October 7, 2019
when Dr. Grossinger first examined Caldero, and ongoing. Rather, the question is
whether Caldero presented substantial evidence to support the award of indemnity
benefits for the time period between October 24, 2017 and October 7, 2019. Upon
review, we conclude Ricks and Ingrassia support a determination Caldero met his
burden of proving an ongoing disability through his and Dr. Grossinger’s credited
testimony.
In Ricks, we held a WCJ is free to determine the chronological length of a
claimant’s disability relying upon the evidence presented, which can include the
testimony of the claimant and the claimant’s medical witness. 704 A.2d at 719.
There, the Court relied on both the treating physician’s and the claimant’s testimony
to establish the chronological length of the claimant’s disability.
In Ingrassia, this Court held a physician’s lack of personal knowledge of a
claimant’s condition before the physician treated the claimant is not fatal to a
medical opinion. 126 A.3d at 405. The court concluded a medical expert is
permitted to base an opinion on the medical reports of other physicians, which
experts customarily rely upon in the practice of their profession. Id. Thus, this Court
3
Employer does not argue it offered, nor that Caldero refused, modified-duty work.
10
held that the physician’s testimony was competent and, if believed, could support a
finding of disability before the physician’s first examination. Id. at 405 n.19.
Here, Dr. Grossinger reviewed Caldero’s medical records, including those
from St. Luke’s imposing work restrictions on Caldero through October 24, 2017.
Dr. Grossinger also reviewed the records indicating Caldero received treatment for
upper back pain caused by the work-related injuries between his discharge from St.
Luke’s and beginning treatment with him. While no work restrictions appear in the
medical records between October 24, 2017 and October 7, 2019, those records
nonetheless indicate Caldero continued to experience chronic pain from his injuries.
Caldero testified he experienced pain in his upper back throughout this period for
which he sought treatment beginning in January 2018, see WCJ Dec. at 4-5, 10, not
the 14-month gap in treatment Employer alleges occurred. Further, Dr. Grossinger’s
opinion of when Caldero became disabled by the work injuries was based not only
on his review of Caldero’s medical records but also on his understanding of
traumatic back injuries typically being worse at the beginning and improving over
time. Dr. Grossinger deduced if Caldero was unable to perform his preinjury
position on October 7, 2019, Caldero was unable to perform those duties before then
as well. Accordingly, pursuant to Ingrassia, if the WCJ found it credible, the
testimony of Dr. Grossinger “coupled with [Caldero’s] credible testimony, could
support an award for some period of disability.” 126 A.3d at 405 & n.19. Further,
under Ricks, it was within the authority of the WCJ to determine the length of
Caldero’s disability based on the evidence of Caldero and his medical witness.
Contrary to Employer’s assertion, Stanford does not support Employer’s
broad argument Caldero’s evidence was insufficient to support the WCJ’s findings.
In Stanford, the claimant attempted to establish a period of disability from the date
11
of injury until beginning medical treatment solely on the claimant’s own testimony.
While the claimant had several treating physicians, the claimant did not offer any
expert opinion or medical records from them, and the sole testifying expert did not
indicate he had reviewed or relied upon any records in reaching his opinion. Id. at
483 & n.4. Thus, the WCJ concluded the claimant met her burden of proving
disability started on the date her testifying expert provided, not the date she provided.
This Court agreed, rejecting the claimant’s broad reading of Ricks which would
allow lay testimony by itself to establish disability in a non-obvious work injury.
The Court explained the claimant could not “fill the evidentiary voids . . . created by
the absence of requisite expert medical testimony with inferences drawn from her
presented evidence.” Stanford, 955 A.2d at 482-83. Unlike in Stanford, Dr.
Grossinger testified he reviewed Caldero’s medical records and opined Caldero had
been and remained incapable of performing his preinjury work since the time of the
incident or shortly thereafter. This expert testimony based on a review of the
relevant medical records was absent in Stanford. Indeed, the Court in Ingrassia
distinguished Stanford on this basis, noting unlike the expert in Ingrassia, the
testifying medical expert in Stanford did not review the claimant’s medical records
or offer an opinion as to an earlier period of disability. Ingrassia, 126 A.3d at 405
n.17. Therefore, Stanford does not require the WCJ or the Board reject Dr.
Grossinger’s testimony nor that we reverse the Board’s Order.
Similarly, Gateway Coal and Jones & Laughlin Steel do not require this Court
to reverse the Board’s Order. Employer relies on these cases to argue Dr.
Grossinger’s testimony was speculative and, therefore, not reliable. However,
neither Gateway Coal nor Jones & Laughlin Steel held “speculative” evidence could
not be relied upon, but rather, considered whether the evidence was of such apparent
12
trustworthiness that the referee4 was required, as a matter of law, to give it more
weight than any other evidence presented. In these cases, the issue was whether, in
a weight of the evidence analysis, the referee capriciously disregarded evidence. We
are not conducting a capricious disregard analysis in this matter, and, therefore,
Gateway Coal and Jones & Laughlin Steel do not require this Court to reverse the
Board’s Order.
III. Conclusion
For the foregoing reasons, we conclude the WCJ relied upon substantial
evidence and the Board properly affirmed the WCJ’s order. Accordingly, we affirm
the Board’s Order.
______________________________
STACY WALLACE, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
4
In 1993, our legislature amended Section 401 of the Workers’ Compensation Act, Act of June
2, 1915, P.L. 736, as amended, 77 P.S. § 701, changing referee to WCJ. See Act of July 2, 1993,
P.L. 190.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Express Employment Professionals/ :
Express Services, Inc. DBA, :
Petitioner :
:
v. : No. 880 C.D. 2021
:
Isaiah Caldero (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 20th day of January 2023, the July 23, 2021 order of
the Workers’ Compensation Appeal Board is AFFIRMED
______________________________
STACY WALLACE, Judge