S. Feldman v. Superior Products Support, LLC (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Feldman, :
Petitioner :
:
v. :
:
Superior Products Support, LLC :
(Workers’ Compensation Appeal :
Board), : No. 1389 C.D. 2021
Respondent : Submitted: July 29, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 16, 2023
Sean Feldman (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) November 19, 2021 order
affirming the WC Judge’s (WCJ) decision that granted his Claim Petition for WC
benefits (Claim Petition) in part, and denied his Petition for Penalties (Penalty
Petition) against Superior Products Support, LLC (Employer).1 Claimant presents
one issue for this Court’s review: whether the WCJ mischaracterized the nature of
Claimant’s work injuries and rendered findings of fact and conclusions of law
inconsistent with the evidence.2 Upon review, this Court affirms.
1
Employer manufactures and ships vinyl and aluminum powder-coated fencing and railing
products.
2
“Claimant is not appealing the issues related to the denial of the Penalty Petition.”
Claimant Br. at 6 n.1.
Claimant began working for Employer as a box machine operator on
July 15, 2019. On August 19, 2019, while removing scrap plastic and cardboard
from a large 1,200 pound wooden box called a Gaylord, the Gaylord tilted on the
forklift, slid off, and struck Claimant in the right front shoulder region, knocking
him backwards.3 Claimant felt a jolt of pain, burning, and numbness in his right
shoulder. No one witnessed the accident, but Claimant reported the injury to his
supervisor and was transported to WellSpan Medical Center (WellSpan) for
treatment. Although Claimant attempted to return to modified-duty work several
weeks later, he did not feel capable of doing the job and stopped working.
On September 3, 2019, Employer filed a Medical-Only Notice of
Temporary Compensation Payable for a shoulder contusion. On September 5, 2019,
Employer issued an Amended Notice of Compensation Payable that added payment
of temporary total compensation benefits of $524.50, based upon an average weekly
wage of $607.50. On November 5, 2019, Employer issued a Notice Stopping the
Temporary Notice of Compensation Payable and a Notice of WC Denial (NCD)
denying the claim because Claimant did not sustain a work-related injury, and
Claimant failed to attend an independent medical examination (IME) without
adequate explanation.
On December 13, 2019, Claimant filed the Claim Petition seeking total
disability benefits from August 20, 2019, and ongoing, for injuries to his “cervical
spine, including but not limited to sprain/strain and C5-6 disruption/herniation; right
shoulder injury including aggravation of pre[]existing conditions; right brachial
plexus injury, complex regional pain syndrome [(CRPS),] and all other
injuries/diagnosis established by the medical evidence.” Reproduced Record (R.R.)
3
Claimant did not fall to the floor.
2
at 3a. On December 27, 2019, Employer denied Claimant’s Claim Petition
allegations.
The WCJ conducted hearings on January 22, April 15, July 22,
September 2, and October 28, 2020. On March 25, 2021, the WCJ partially granted
the Claim Petition, declaring that Claimant “prov[ed] that he sustained a work-
related injury on August 19, 2019[,] in the form of a right shoulder contusion that
prevented him from working his pre-injury job and light[-]duty work, at times, from
August 19, 2019 through March 2, 2020.” Claimant Br. App. (WCJ Dec.) at 32.
The WCJ denied the Claim Petition to the extent that “Claimant failed to prove that
he sustained any [] condition or injury other than a right shoulder contusion as a
result of the August 19, 2019 work injury.” Id. Claimant appealed to the Board. On
November 19, 2021, the Board affirmed the WCJ’s decision. Claimant appealed to
this Court.4
Claimant argues that the WCJ mischaracterized the nature of
Claimant’s work injuries and rendered findings of fact and conclusions of law
inconsistent with the evidence. In particular, Claimant asserts that the WCJ erred by
considering the 2019 work injury to be an aggravation of a brachial plexus injury
and CRPS that Claimant never previously had, and the WCJ relied on inadmissible
hearsay testimony by Christopher Davis, M.D. (Dr. Davis) that was neither admitted
as evidence nor relied upon by Employer’s medical expert, physical medicine and
rehabilitation specialist Scott Naftulin, D.O. (Dr. Naftulin).5
“In a claim proceeding, the employee bears the burden of establishing
a right to compensation and of proving all necessary elements to support an award.”
“Our review is limited to determining whether the WCJ’s findings of fact were supported
4
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d
1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
5
Dr. Naftulin subspecializes in pain medicine.
3
Henderson v. WP Ventures, Inc. (Workers’ Comp. Appeal Bd.), 269 A.3d 1272, 1275
(Pa. Cmwlth. 2022) (quoting Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy),
634 A.2d 592, 595 (Pa. 1993)). In particular, “the claimant bears the initial burden
of proving that his injury arose in the course of employment and was related thereto.”
Frankiewicz v. Workers’ Comp. Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991,
995 (Pa. Cmwlth. 2017). “Generally, a claimant satisfies h[is] burden by presenting
unequivocal medical evidence that establishes a causal connection between the
alleged injury and the work incident.” Roundtree v. Workers’ Comp. Appeal Bd.
(City of Phila.), 116 A.3d 140, 144 (Pa. Cmwlth. 2015).
At the WCJ hearings, Claimant described that, after his August 19,
2019 work accident, WellSpan x-rayed his shoulder, instructed him to take
Ibuprofen, placed his right arm in a sling, and indicated that he could return to work,
but should not use his right arm. See R.R. at 39a, 499a. Claimant recalled that, the
next day, he experienced shooting pain from his shoulder through his right armpit
and into his elbow. See R.R. at 39a-40a. Claimant stated that tingling pain, burning
sensation, hypersensitivity, and numbness then extended into his right wrist, through
the bottom of his right hand, and into his right first and pinky fingers, so he treated
with Carl Becker, M.D. (Dr. Becker) on August 22, 2019. See R.R. at 40a-41a.
Claimant recollected that Dr. Becker ordered a magnetic resonance imaging (MRI)
of his neck (which he understood revealed a herniated disc), prescribed Celebrex,
and gave him a note to remain off from work. See R.R. at 41a-42a, 49a. An August
23, 2019 MRI reflected some narrowing at Claimant’s C5-6, disc protrusion at that
C5-6 level, and a mild disc bulge with some degeneration at the C3-4 level. See
R.R. at 295a, 303a.
Claimant recalled that he treated with Dr. Becker again on August 28,
2019, at which time his pain had gotten more severe, and his right hand had swollen
and had a purple blemish. See R.R. at 43a-44a. At the January 22, 2020 WCJ
4
hearing, Claimant testified that he was not working, his right hand swelling had
gotten worse over time, he had discomfort if he straightened his fingers, and he
guarded his hand and arm from cold/heat and being bumped because
hypersensitivity made it extremely painful.6 See R.R. at 44a-45a, 48a.
On August 28, 2019, Dr. Becker released Claimant to return to
modified-duty work, without using his right arm. See R.R. at 50a. Although
Employer assigned Claimant to work left-handed at the box machine, and also as a
small parts bagger, Claimant declared those are two-hand jobs7 and pain prevented
him from doing them fully, the noise combined with his pain and inability to
concentrate was too much of a distraction, and he was “bumped into a lot.” R.R. at
240a; see also R.R. at 50a-51a, 78a-81a, 233a-239a, 241a. Thereafter, Dr. Becker
prescribed medications and physical therapy, which Claimant undertook for
approximately four weeks without benefit. See R.R. at 51a, 84a, 303a.
On September 17, 2019, Claimant treated at the emergency room for
extreme pain that prevented him from sleeping. See R.R. at 52a. On September 25,
2019, Dr. Becker gave Claimant a note excusing him from work, and ordered an
MRI and electromyography (EMG) of Claimant’s right shoulder, after which Dr.
Becker considered that Claimant had a brachial plexus injury or reflex sympathetic
dystrophy (RSD), and recommended that he follow up with a pain management
specialist. See R.R. at 52a-54a, 81a. Claimant last treated with Dr. Becker on
October 3, 2019. See R.R. at 82a. On October 4, 2019, because his pain and
hypersensitivity continued to be severe in his right shoulder, arm, and hand (to the
6
Claimant admitted that, although his right hand was on the Gaylord when it struck his
shoulder and chest, the Gaylord did not hit his hand. See R.R. at 78a.
7
Notwithstanding, Claimant’s co-worker, Mr. Lance (whose full name does not appear in
the record), is hemiplegic (i.e., he only has use of one side of his upper body). See R.R. at 509a.
Claimant admitted that Mr. Lance was able to operate the box machine and glue machine, and do
small parts/screw bagging with one arm. See R.R. at 175a-177a, 237a, 254a, 463a-477a.
5
point that he could not drive), Claimant sought a second opinion from Christian Fras,
M.D. (Dr. Fras), who prescribed medication, a heating/cooling pad, and pain
management. See R.R. at 54a-56a, 82a-83a.
On November 14, 2019, Claimant treated with pain management
physician Gerald Dworkin, M.D. (Dr. Dworkin), who prescribed treatment for RSD
and sympathetic nerve blocks,8 plus medications which only “very slightly” took the
edge off his pain. R.R. at 57a; see also R.R. at 56a, 252a-253a. Claimant further
asserted that the nerve block injection did not afford him any relief. See R.R. at 89a.
Because he lost his insurance in the interim, Claimant did not treat again for injuries
related to the August 19, 2019 work accident until he saw board-certified
interventional pain neurologist Todd A. Bromberg, M.D. (Dr. Bromberg) on March
10, 2020. See R.R. at 252a-253a.
At the January 22, 2020 WCJ hearing, Claimant testified that, as of that
time, he “pretty regularly,” R.R. at 59a, experienced “shooting pain, a jolting pain
that runs down through the neck into the chest, shoulder, and then down through the
arm and the elbow and the fingers[,]” R.R. at 58a, and constant hypersensitivity in
his shoulder, arm, and hand.9 See R.R. at 59a. Claimant asserted that he had limited
mobility in his right arm and shoulder regions, and he could not sleep on his right
side. See R.R. at 59a, 62a-63a. Claimant avowed that he never experienced those
types of symptoms in the past. See R.R. at 59a. He stated that Dr. Dworkin did not
release him to return to work, and Claimant felt that he was “absolutely not” able to
return to any type of work. R.R. at 59a. Claimant has not been released to return to
work since September 25, 2019. See R.R. at 81a, 241a-242a. Claimant asserted that
no doctors have recommended that he undergo surgery. See R.R. at 83a.
8
Claimant testified that he only had one Stellate ganglion block injection on November 22,
2019, because he could not afford his insurance co-payment. See R.R. at 57a-58a, 89a.
9
Claimant is right-handed. See R.R. at 35a, 286a, 523a.
6
When Claimant testified at the October 28, 2020 WCJ hearing, he
confirmed that he was experiencing increased, constant, daily shooting, burning, and
stabbing pain (level 9 or 10 on a scale of 0 to 10), plus numbness and tingling in his
right arm, shoulder and hand regions, and shooting pain and burning in his right neck
and chest regions. See R.R. at 215a-216a, 224a. He added that his right hand
swelling and hand, arm, shoulder, and chest sensitivity continued, his reaction to
temperature changes with right hand sweating worsened, and there were times when
his right arm was warmer than his left arm. See R.R. at 216a-217a, 220a. Claimant
declared that he had no ability to use his right arm, which hampers his ability to care
for his children and accomplish his activities of daily living.10 See R.R. at 218a. He
claimed that his right ring and pinky fingers naturally tend to curl due to the injury
and pain. See R.R. at 223a-224a.
Claimant recalled that his counsel referred him to Dr. Bromberg, who
he first visited on March 10, 2020, and with whom Claimant treated on a monthly
basis (by Tele-Med during the COVID-19 pandemic). See R.R. at 227a-228a, 318a,
321a. Claimant stated that Dr. Bromberg prescribed medications and a ketamine
infusion which he underwent on August 25, 2020, that afforded him “a small
decrease in pain” in his shoulder, neck and chest regions. R.R. at 231a; see also
R.R. at 228a-230a. Claimant described that his pain symptoms have also resulted in
memory loss, his inability to concentrate, and extreme anxiety. See R.R. at 232a.
Claimant testified that Dr. Bromberg has not released him to return to work and, at
his last appointment (the day before the hearing), Dr. Bromberg recommended that
Claimant try physical therapy. See R.R. at 241a-242a.
Claimant admitted that he sustained a right shoulder injury during his
prior employment with Schultz Transportation in June 2017, for which he treated
10
Claimant has four children, ages 10 to 15. See R.R. at 18a-19a.
7
with Dr. Becker, and underwent rotator cuff repair, bicep tendon repair, and an ulnar
nerve relocation. See R.R. at 33a, 84a-85a. Claimant declared that, when he began
working for Employer in July 2019, he was no longer under a doctor’s care for those
prior conditions, he did not have any restrictions, and he was pain free and physically
capable of doing the job. See R.R. at 33a-34a, 86a-88a. Claimant expressed that his
current symptoms are “a lot more extreme” than his 2017 symptoms. See R.R. at
224a.
On cross-examination, Claimant recollected being out of work for three
to four months after his 2017 work accident; that his injury involved his right upper
extremity and right shoulder for which he underwent MRIs and EMGs; and that he
treated with Dr. Davis until the WCJ approved a $50,000.00 settlement of that claim
in December 2017. See R.R. at 248a-251a. He admitted that, as of the last
appointment with Dr. Davis in December 2017, Dr. Davis had prescribed pain
medication for the 2017 work injury. See R.R. at 249a-250a.
Claimant further acknowledged:
[Employer’s Counsel] And according to the medical
records we have related to your prior 2017 injury, you
reported numbness and tingling in your right arm, and
specifically in your fourth and fifth fingers. Is that
correct?
[Claimant] Yes.
[Employer’s Counsel] You reported hypersensitivity. Is
that correct?
[Claimant] Yes.
[Employer’s Counsel] You reported swelling in your right
hand. Is that correct?
[Claimant] Yes.
R.R. at 251a-252a.
8
Claimant also presented Dr. Bromberg’s July 7, 2020 deposition
testimony. Dr. Bromberg first treated Claimant on March 10, 2020, at which time
Claimant described his work accident and reported that he “experienced immediate
pain in [his] neck, as well as [his] right shoulder.” R.R. at 281a; see also R.R. at
180a, 227a. Claimant informed Dr. Bromberg of his prior right rotator cuff
reconstructive surgery, and bicep tendon and right ulnar nerve repairs. See R.R. at
281a.
Dr. Bromberg recalled that Claimant complained of constant right-side
neck pain that radiated down to his right fingers, numbness in his right ring and
pinky fingers, and right hand swelling with hypersensitivity to temperature and light
touch, weakness, and abnormal hair growth and nail bed changes. See R.R. at 280a-
281a, 286a. Dr. Bromberg reported that Claimant expressed that his pain caused
him difficulty sleeping, limited his activity level (particularly playing with his
children), and negatively impacted his quality of life. See R.R. at 286a.
Based on his physical examination of Claimant, Dr. Bromberg
observed that Claimant guarded his arm against his body to prevent anything from
touching it, and Claimant was clearly uncomfortable. See R.R. at 289a. Dr.
Bromberg found that Claimant had decreased right arm range of motion, difficulty
lifting his arm above his head, right hand rigidity, right hand redness, and swelling
in his right fingers. See R.R. at 289a, 291a-292a, 294a. Dr. Bromberg noted that
Claimant had a positive Tinel’s test of his right elbow,11 a positive brachial plexus12
tension test, and diminished deep tendon reflexes, and that even gentle movement
11
“The Tinel’s is a test where [physicians] tap a peripheral nerve to see if it elicits pain.”
R.R. at 291a.
12
Dr. Bromberg explained that the brachial plexus is a weblike bundle of nerves that exit
the spine at the front of the neck and shoulder that ultimately extend into the arm, hand, chest, and
head. See R.R. at 289a. He described that every upper extremity function goes through the
brachial plexus. See R.R. at 289a-290a.
9
reproduced and aggravated his ongoing pain. See R.R. at 289a-291a, 293a. Dr.
Bromberg discovered that Claimant’s right arm was weaker than his left arm, and he
experienced positive hypersensitivity to light touch. See R.R. at 293a.
Dr. Bromberg stated that Claimant’s neurological problems were
consistent with the C5-6 disc protrusion evident on his August 23, 2019 MRI, and
with CRPS. See R.R. at 295a-296a. He also testified that Claimant has the type of
CRPS that results from nerve trauma where the nerves are still intact, but they do
not fire correctly. See R.R. at 298a. Dr. Bromberg declared that, although there are
no definitive diagnostic studies for CRPS, based on his knowledge of CRPS’s
clinical signs, his examination of Claimant, and his review of Claimant’s medical
records from WellSpan, Dr. Becker, Dr. Fras, Dr. Dworkin, and diagnostic studies,
Claimant’s condition met all of the CRPS criteria. See R.R. at 299a-302a, 321a-
322a.
Dr. Bromberg concluded, within a reasonable degree of medical
certainty, that Claimant sustained a traumatic brachial plexus injury on August 19,
2019, that caused Claimant’s CRPS, cervical strain, and right upper extremity
spasms. See R.R. at 329a, 331a-332a, 351a. He declared that there was no way
Claimant could have returned to work during the time he treated Claimant. See R.R.
at 333a-335a. He described Claimant’s condition as guarded, particularly since the
COVID-19 pandemic prevented treatment other than by medication. See R.R. at
325a, 327a, 334a, 336a. Dr. Bromberg testified that Claimant’s reported symptoms
have been consistent, and he has not felt, whether the examination was in person or
by Tele-Med, that Claimant was ever untruthful, or magnifying his symptoms. See
R.R. at 365a.
On cross-examination, Dr. Bromberg confirmed that he only reviewed
Claimant’s post-August 2019 injury medical records from WellSpan, Dr. Becker,
Dr. Fras, and Dr. Dworkin, plus the EMG, cervical MRI images and reports, and the
10
right shoulder MRI report. See R.R. at 340a. He admitted that his conclusion that
Claimant had fully recovered from the 2017 work injury was based solely on
Claimant’s representation, and he did not review records that released Claimant to
return to full-duty work after the 2017 injury. See R.R. at 340a-341a. Dr. Bromberg
confirmed that Tele-Med visits are very limited, and do not allow for physical
examination, so he assessed Claimant based on Claimant’s responses to his questions
and directed movements. See R.R. at 343a-345a. Although Dr. Bromberg could not
test Claimant’s temperature change reports, he claimed he visually observed
swelling. See R.R. at 348a.
Dr. Bromberg described that Claimant was reluctant to use his right
hand or arm during physical examinations and, although some patients can develop
atrophy due to lack of use, neither he nor any other doctor documented that Claimant
exhibited atrophy. See R.R. at 348a-349a. He also agreed that Claimant did not
have nail bed changes or abnormal hair growth that are typical CRPS symptoms.
See R.R. at 349a-350a. Dr. Bromberg further conceded that his examinations were
largely based on Claimant’s verbal history and subjective complaints which, if not
accurate or truthful, would impact Dr. Bromberg’s opinions. See R.R. at 347a, 350a.
Employer offered Dr. Naftulin’s September 3, 2020 deposition
testimony. Dr. Naftulin recalled that, at the March 2, 2020 IME, Claimant described
the 2019 work accident13 and his subsequent medical treatment at WellSpan, and by
Dr. Becker and Dr. Dworkin, plus three weeks of physical therapy that Claimant
reported were not particularly beneficial. See R.R. at 490a-492a, 495a-496a. He
also reviewed Claimant’s testimony, medical records, Dr. Bromberg’s testimony,
objective test reports, and the video recordings of the machines on which Claimant
worked for Employer. See R.R. at 497a-500a, 508a. Claimant also summarized his
13
Claimant told Dr. Naftulin that he had worked for Employer for approximately six
months before his August 2019 injury. See R.R. at 424a, 496a.
11
2017 work accident,14 his resulting right shoulder/bicep injury, and his subsequent
medical treatment therefor.
Relative to the 2019 work injury, Dr. Naftulin recalled that Claimant’s
August 19, 2019 WellSpan records reflected Claimant’s complaints of right shoulder
numbness and tearing pain, but a right clavicular/shoulder x-ray revealed no fracture,
dislocation, or acromioclavicular joint separation, and his neurologic evaluation was
unremarkable. See R.R. at 497a, 499a, 539a-540a. Dr. Naftulin also observed that
Claimant had been guarding his shoulder, and visibly flinched when his clavicle area
was touched, but he appeared unphased when his shoulder was palpated, and there
was no swelling, bruising, or rash evident. See R.R. at 540a, 558a-559a.
Dr. Naftulin recalled that Claimant followed up with Dr. Becker on
several occasions, during which Claimant’s neck range of motion was normal, but
he exhibited decreased range of motion, tenderness, and pain in his right shoulder,
so Dr. Becker ordered physical therapy, an EMG, and an MRI. See R.R. at 498a,
543a-544a. Claimant reported to Dr. Becker that physical therapy aggravated his
neck, the EMG was normal, and the MRI - compared to an October 2017 study -
basically demonstrated degenerative changes involving his cervical spine, and Dr.
Dworkin’s single ganglion block did not afford him relief. See R.R. at 89a, 284a,
498a, 544a-546a.
Dr. Naftulin recollected that Claimant’s complaints at the IME included
constant burning and shooting pain that started in the lateral aspect of his neck just
above his right clavicle and radiated across the front of his chest, down his right
shoulder and arm, and into his right hand, particularly his 4th and 5th fingers, that
was aggravated by heat or cold exposure, inclement weather such as rain, and
bumping the area. See R.R. at 493a-494a, 529a-530a. Claimant told Dr. Naftulin
14
Claimant informed Dr. Naftulin that his prior work injury occurred in 2014-2015. See
R.R. at 492a.
12
that his medications do not relieve his constant pain, so he grits his teeth, changes
positions or moves about, and deals with it. See R.R. at 493a-495a, 530a.
During the IME, Dr. Naftulin observed that Claimant was wearing a
short-sleeve t-shirt over a long-sleeve t-shirt and declined to take them off due to
pain, which limited Dr. Naftulin’s ability to observe and make bilateral comparisons
of Claimant’s right arm above his hand. See R.R. at 500a. Although Claimant
allowed Dr. Naftulin to examine his hand and even to extend his fingers, Claimant
refused all of Dr. Naftulin’s right upper extremity testing. See R.R. at 544a, 548a.
Based on the testing Dr. Naftulin could conduct from Claimant’s mid-forearm to his
hand, Claimant complained of tenderness to superficial stroking on his right side,
but not in his upper right extremity, and Dr. Naftulin did not detect any spasm,
twitching, color changes, temperature changes, hair or nail abnormalities, or atrophy,
the latter of which he would expect to see in someone who did not use his right arm.
See R.R. at 501a-502a, 555a-556a. Dr. Naftulin recalled that “[s]trength testing in
[Claimant’s] right upper extremity was limited as he did not participate.” R.R. at
502a.
Dr. Naftulin further found:
[Claimant] had decreased sensation to light touch
throughout the right ring and little fingers and throughout
the medial forearm which exceeded an ulnar nerve
distribution. The Spurling maneuver for cervical
radiculopathy was negative. The Hoffman reflex for upper
motor neuron involvement, meaning spinal cord or brain
was negative. The remainder of the examination was
limited by [Claimant’s] lack of participation.
R.R. at 502a; see also R.R. at 554a (There was “definitely a lack of participation.”).
Accordingly, Dr. Naftulin declared that all of his findings during Claimant’s
physical examination were subjective. See R.R. at 555a.
13
Although he acknowledged that burning pain, swelling, temperature
changes, and excess sweating are symptoms of CRPS, Dr. Naftulin testified that he
did not make any objective findings consistent with Claimant having CRPS. See
R.R. at 507a, 549a-550a. He testified that he did not observe and would not expect
hand swelling from the mechanism of Claimant’s described August 2019 injury. See
R.R. at 519a. Dr. Naftulin did not observe any redness in Claimant’s right hand.
See R.R. at 518a.
Dr. Naftulin explained that, because IMEs have significant subjective
components, he simultaneously conducts illness behavior profiles to determine the
validity of the effort being put forth by the examinee and degree of symptom
exaggeration. See R.R. at 503a. Dr. Naftulin described that Claimant refused to
complete the questionnaire portion of the IME, which is one of the measures Dr.
Naftulin uses to determine symptom exaggeration, and his validity testing was
consistent with Claimant putting forth a submaximal effort which correlated
separately with Dr. Naftulin’s clinical observations.15 See R.R. at 503a, 525a-526a,
528a. Ultimately, based on Claimant’s illness behavior profile, Dr. Naftulin
concluded Claimant was magnifying his symptoms during the IME. See R.R. at
510a-511a.
Dr. Naftulin disagreed with Dr. Bromberg’s brachial plexus injury
diagnosis, which usually appears following severe trauma, such as fracture or
dislocation of the clavicle or shoulder, which did not occur here, and there was no
documentation of even swelling or bruising immediately after the injury. See R.R.
at 506a. He also disagreed with Dr. Bromberg’s CRPS diagnosis because Claimant
did not meet the standard diagnostic criteria for CRPS. See R.R. at 507a. Dr.
15
Claimant asserted that, during his March 2, 2020 IME with Dr. Naftulin, he was unable
to complete the IME intake forms and some of the motions because his pain was too intense. See
R.R. at 233a.
14
Naftulin stated that, although CRPS symptoms may wax and wane, the signs will
not. See R.R. at 560a.
Dr. Naftulin concluded, within a reasonable degree of medical certainty
based on the March 2, 2020 IME, that Claimant sustained a right shoulder contusion
at work on August 19, 2019, from which he had fully recovered, no further treatment
or medications, or activity restrictions were necessary for that injury, and he could
return to his pre-injury job.16 See R.R. at 504a, 508a, 510a. Dr. Naftulin
summarized:
The mechanism of injury described would be a plausible
cause of a right shoulder contusion again assuming
accuracy of history provided. The examination was
incredulous, there was certainly no objective evidence of
ongoing impairment relative to the injury. One would
expect a contusion to spontaneously resolve simply with
the passage of time, soft tissue injury similar to a quote
bruise end quote [sic]. There was no evidence of a more
substantial injury. He presented with numerous
nonphysiologic, nonanatomic findings which I have
summarized in my report and discussed with you today.
His clinical complaints were inconsistent with cervical
radiculopathy. The clinical presentation was inconsistent
with a brachial plexopathy, the mechanism of injury would
not support a brachial plexopathy injury. And documented
symptoms subsequent to the work injury did not support a
brachial plexopathy injury. The medical records did
support he did have some preexisting pain conditions
especially the fact that he had an MRI of the cervical spine
done in 2017, and the EMG or electrodiagnostic test[] was
normal ruling out other more substantial injuries including
brachial plexopathy and cervical radiculopathy. Based
upon all of these factors, I felt that he had fully recovered
from the [August 2019] work injury.
R.R. at 505a-506a.
16
Dr. Naftulin acknowledged that, even if Claimant had CRPS and even on his current
medications, he would be able to perform the modified jobs depicted in the video. See R.R. at
508a-510a.
15
Immediately prior to Dr. Naftulin’s deposition, Employer presented
Claimant’s pre-2019 work injury reports from David Baker, M.D. (Dr. Baker)
(October 1, 2007 IME report related to Claimant’s lower back), Dr. Davis (treatment
records for March 3, April 24, June 5, July 17, July 23, August 21, September 11,
September 29, October 30, November 27, and December 18, 2017), Dr. Doshi17
(April 23, 2017 EMG report), and Raymond Dahl, M.D. (Dr. Dahl) (May 2, 2017
IME report) (collectively, Prior Medical Records) for Dr. Naftulin’s review.18 See
R.R. at 511a-512a, 519a-522a, 524a. However, Dr. Naftulin confirmed that he did
not rely upon the Prior Medical Records to conduct Claimant’s March 2, 2020 IME,
or in preparation of his March 2, 2020 IME report. See R.R. at 519a-520a, 522a,
524a; see also Certified Record Item 38 (Dr. Naftulin’s September 3, 2020 Notes of
Testimony) at Ex. 2 (March 2, 2020 IME report).
The law is well established:
The WCJ is the fact[-]finder, and it is solely for the
WCJ . . . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations. In
addition, it is solely for the WCJ, as the fact[-]finder, to
determine what weight to give to any evidence. . . . As
such, the WCJ may reject the testimony of any witness in
whole or in part, even if that testimony is uncontradicted.
W. Penn Allegheny Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour), 251
A.3d 467, 475 (Pa. Cmwlth. 2021) (quoting Hawbaker v. Workers’ Comp. Appeal
Bd. (Kriner’s Quality Roofing Servs.), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal
citations, quotations, and brackets omitted)). An appellate court may only disturb a
WCJ’s credibility determinations if “their basis is arbitrary and capricious, or so
fundamentally dependent on a misapprehension of materials [sic] facts, or so
17
Dr. Doshi’s full name does not appear in the record before this Court.
18
Dr. Naftulin confirmed that he reviewed the Prior Medical Records just before his
deposition. See R.R. at 520a-522a, 524a.
16
otherwise flawed, as to render the basis irrational.” Hughes v. Wawa, Inc. (Workers’
Comp. Appeal Bd.), 271 A.3d 922, 934 (Pa. Cmwlth. 2021).
Here, the WCJ made the following findings from which Claimant
appeals, see R.R. at 14a-15a:
33. This [WCJ] does not find Claimant’s testimony
regarding his ongoing subjective complaints of pain or
inability to work as they relate to the August 19, 2019
work injury to be credible beyond the March 2, 2020
examination by Dr. Naftulin. This [WCJ] notes that
Claimant denied having similar complaints of right arm
hypersensitivity prior to the August 19, 2019 work injury.
This testimony is not consistent with the history found in
the records of Dr. Davis and Dr. Doshi who both
documented Claimant’s complaints of right arm
hypersensitivity along with right hand swelling. Thus, it
would appear that Claimant’s right arm hypersensitivity
and right hand swelling pre-existed the August 19, 2019
work injury.
34. As the causal connection between Claimant’s alleged
ongoing symptoms and the August 19, 2019 work injury
is not obvious, this issue must be resolved by the credible
opinion of a qualified medical expert. With regard to the
medical doctors who have testified in this matter, the
opinions of Dr. Naftulin are accepted over the opinions of
Dr. Bromberg where there is a difference between the two
for the following reasons:
a. Dr. Naftulin’s opinion that Claimant’s work
injury was limited to a right shoulder contusion
appears to be consistent with the mechanism of
injury. Although Claimant was struck by a heavy
Gaylord, the force of this strike was not strong
enough to knock Claimant to the ground.
Likewise, according to the medical records of
WellSpan from the date of the work injury, which
were reviewed by Dr. Naftulin, there was no
significant bruising, cuts or abrasions noted during
the examination of Claimant at this visit.
b. Dr. Bromberg’s opinion that Claimant sustained
a brachial plexus traumatic injury as a result of the
17
August 19, 2019 work injury is not credible
because he failed to adequately account for
Claimant’s prior diagnosis of brachial
plexopathy from the 2017 work injury.
Claimant had been treating with a Dr. [] Davis
for his 2017 work injury. Dr. Davis had
diagnosed Claimant with having had sustained
a brachial plexus injury. This [WCJ] notes that
Dr. Davis prescribed opioid medications for
treatment of the 2017 work injury just prior to
Claimant’s settlement of this work injury in
December of 2017. Thus, it appears that Claimant
was still in active treatment of the 2017 work
injury when he settled his medical benefits for this
work injury. Dr. Bromberg failed to offer a
credible explanation regarding when
Claimant’s brachial plexus symptoms related
to the 2017 work injury ended, and/or how they
were materially aggravated by the 2019 work
injury.
c. Dr. Bromberg’s testimony that Claimant
sustained CRPS as a result of the August 19, 2019
work injury is not credible. Dr. Bromberg himself
noted that a sympathetic nerve block is in part
diagnostic, meaning if a person has a positive
response from the injection, it is an indicator that
the person has CRPS. Here, Claimant did not have
a positive response from the sympathetic nerve
block, casting doubt on the opinion of Dr.
Bromberg that the sympathetic nerve or process
was injured or affected as a result of the work
injury of August 19, 2019. This [WCJ] also notes
that Claimant had very limited response to the
ketamine infusion that was administered, which
once again calls into question whether Dr.
Bromberg is on the right track with regard to
diagnosing the source of Claimant’s pronounced
and extended symptoms as they relate to the
August 19, 2019 work injury. More importantly,
this [WCJ] notes that Claimant’s subjective
complaints[,] which were relied upon by Dr.
Bromberg to reach his diagnosis of CRPS, were
strikingly similar to Claimant’s past subjective
complaints to Dr. Davis and Dr. Doshi, whom
18
Claimant treated with in 2017, in which it was
documented that Claimant reported having
hypersensitivity throughout his right upper
extremity with pain into the fingertips, to the 4th
and 5th digits, and right hand swelling. Dr.
Bromberg failed to credibly explain how
Claimant’s current subjective complaints and
symptoms are not a mere continuation of his 2017
symptoms.
d. Dr. Bromberg admitted that his opinions are
based upon the truthfulness and veracity of
Claimant’s subjective complaints. As noted early,
the accuracy of Claimant’s prior complaints have
been called into question when he incorrectly
testified that he did not have similar symptoms of
right arm hypersensitivity prior to the 2019 work
injury. In addition, this [WCJ] notes that Claimant
not only displayed symptoms magnification to Dr.
Naftulin, he displayed symptom magnification
to both Dr. Dahl and Dr. Baker during prior
defense medical examinations for different
work injuries. This [WCJ] notes that if Claimant
was truly unable to move his arm and hand as he
testified to and as he demonstrated by failing to
conduct the motions requested by Dr. Naftulin
during his physical examination [of] Claimant,
then one would think there would be signs of
atrophy from disuse. Both Dr. Naftulin and Dr.
Bromberg agreed that one would expect some
signs of atrophy from alleged disuse over a period
of months, but no signs of atrophy of Claimant’s
right arm were ever noted by either doctor. This
[WCJ] also finds i[t] significant that when
Claimant reported level 9 out of 10 level pain to
Dr. Bromberg, Dr. Bromberg recorded that
Claimant’s blood pressure and pulse were normal.
Dr. Bromberg noted that pulse and blood pressure
can increase due to extreme pain. The lack of any
increase in Claimant’s pulse or blood pressure
leads this [WCJ] to believe that Claimant really
was not experiencing level 9 out of 10 level pain
and that he was exaggerating his pain symptoms,
which is consistent with the observations of Dr[.]
Naftulin.
19
....
36. Based on the credible opinions of Dr. Naftulin this
[WCJ] finds as fact that Claimant’s August 19, 2019 work
injury was limited to a right shoulder contusion.
37. Based on the credible opinions, in part, of Dr.
Bromberg[,] this [WCJ] finds as fact that Claimant was
unable to perform the duties of his pre[-]injury job or the
offered light[-]duty work as a result of his August 19, 2019
work injury.
38. Based on the credible opinions of Dr. Naftulin, this
[WCJ] finds as fact that Claimant fully recovered from his
right shoulder contusion injury of August 19, 2019[,] as of
the March 2, 2020 evaluation of Claimant by Dr. Naftulin.
WCJ Dec. at 29-31 (emphasis added).
The WCJ concluded:
2. With regard to the Claim Petition, Claimant met his
burden in part of proving that he sustained a work-related
injury on August 19, 2019[,] in the form of a right shoulder
contusion that prevented him from working his pre-injury
job and light[-]duty work, at times, from August 19, 2019
through March 2, 2020. Claimant failed to prove that he
sustained any other condition or injury other than a right
shoulder contusion as a result of the August 19, 2019 work
injury. Claimant failed to prove that he sustained CRPS
or a brachial plexus injury or a cervical injury as a result
of the August 19, 2019 work injury.
3. Employer proved that Claimant fully recovered from his
right shoulder contusion injury as of the March 2, 2020
[IME] by Dr. Naftulin.
WCJ Dec. at 32. After review, the Board affirmed the WCJ’s decision. However,
the Board did not address Claimant’s contention that the WCJ relied on inadmissible
medical hearsay that was neither admitted as evidence, nor relied upon by
Employer’s medical expert.
Although the WCJ issued a detailed decision summarizing the evidence
presented, he clearly based his decision, at least in part, on Dr. Naftulin’s testimony
20
regarding Claimant’s Prior Medical Records. See WCJ Dec. at 30-31. Employer’s
counsel objected to the Prior Medical Records as being irrelevant and outside the
four corners of Dr. Naftulin’s IME Report because Dr. Naftulin did not issue an IME
report addendum addressing them. See R.R. at 512a-513a, 519a. Claimant’s counsel
also added a hearsay objection regarding Dr. Dahl’s May 2, 2017 IME report.19 See
R.R. at 514a. Employer ultimately did not offer, and the WCJ did not admit,
Claimant’s Prior Medical Records into evidence.
The General Assembly has declared in Section 422(a) of the WC Act20
that “sufficient competent evidence” must support each of the WCJ’s factual
findings. 77 P.S. § 834. This Court has held that “[t]he WCJ’s findings will not be
disturbed if they are supported by substantial, competent evidence.” Stepp v.
Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 (Pa.
Cmwlth. 2014). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Obimak Enter. v. Dep’t of
Health, 200 A.3d 119, 126 (Pa. Cmwlth. 2018) (quoting B.B. Kim’s Mkt., Inc. v.
Dep’t of Health, Div. of Women, Infants & Child. (WIC), 762 A.2d 1134, 1135 (Pa.
Cmwlth. 2000)). Generally, “hearsay medical reports do not constitute substantial
evidence and cannot support an independent finding of a WCJ.” Ciarolla v.
Workers’ Comp. Appeal Bd. (Astrazeneca Pharms. LP), 239 A.3d 204, 208 (Pa.
Cmwlth. 2020). However, Section 131.66 of the Board’s Regulations (“Special
Rules of Administrative Practice Before WCJs”) specifies, in relevant part:
(a) Oral depositions . . . will be admissible at the time of
hearing or by mail if allowed by the [WCJ] in the same
manner as if the deponent appeared before the [WCJ] and
testified.
19
“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.”
Alessandro v. Workers’ Comp. Appeal Bd. (Precision Metal Crafters, LLC), 972 A.2d 1245, 1250
(Pa. Cmwlth. 2009); see also Pennsylvania Rule of Evidence 801(c), Pa.R.E. 801(c).
20
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
21
(b) Objections shall be made and the basis for the
objections stated at the time of the taking of the
depositions. Only objections which are identified in a
separate writing, introduced prior to the close of the
evidentiary record . . . , and stating the specific nature of
the objections and the pages where they appear in the
deposition or the exhibits to which they refer will be
preserved for ruling. Objections not so preserved are
waived.
34 Pa. Code § 131.66. Here, because Claimant did not identify any of his objections
to Employer’s introduction of the Prior Medical Records in a separate writing to the
WCJ, they were waived; the WCJ did not rule on them, and the practical effect was
that no objections were made.21 See WCJ Dec. at 29.
When no objection is made, hearsay medical records “will be given
[their] natural probative effect and [they] may support a finding of the [WCJ], [i]f
[they are] corroborated by any competent evidence in the record . . . .” Walker v.
Unemployment Comp. Bd. of Rev., 367 A.2d 366, 370 (Pa. Cmwlth. 1976); see also
Ciarolla. Here, the WCJ expressly relied upon references to Claimant’s right arm
hypersensitivity and right hand swelling in Dr. Davis’s and Dr. Doshi’s 2017 reports
to find Claimant’s testimony of ongoing subjective pain complaints and inability to
work related to his 2019 work injury not credible. See Findings of Fact (FOF) 33,
34.d, WCJ Dec. at 29-31. The WCJ also found that Dr. Bromberg failed to explain
how Claimant’s current subjective CRPS complaints are not simply a continuation
of his complaints to Dr. Davis and Dr. Doshi in 2017. See FOF 34.c, WCJ Dec. at
31. In addition, the WCJ expressed that Dr. Bromberg’s opinions are based upon
the truthfulness and veracity of Claimant’s subjective complaints and, according to
21
On February 25, 2021, Employer’s counsel submitted a list of Employer’s objections to
Dr. Naftulin’s deposition, see R.R. at 582a-583a, upon which the WCJ ruled. See WCJ Dec. at 29.
If Claimant submitted a list of his objections thereto, it does not appear in the record submitted to
this Court.
22
his Prior Medical Records, Claimant incorrectly testified that he never previously
complained of right arm sensitivity. See FOF 34.d, WCJ Dec. at 31.
Based on the record before this Court, the only time the contents of
Claimant’s Prior Medical Records are referenced in the record was during Dr.
Naftulin’s deposition. However, because Dr. Naftulin reviewed Claimant’s Prior
Medical Records for the first time six months after Claimant’s March 2, 2020 IME,
and he did not rely on them in preparation of his March 2, 2020 IME report, none of
Dr. Naftulin’s testimony regarding the Prior Medical Records was competent to
corroborate their contents in support of the WCJ’s findings of fact.
Turning to Claimant’s testimony, after initially asserting that he never
experienced right arm, shoulder, or hand sensitivity before his 2019 work injury, on
cross-examination, Claimant confirmed that, like his 2019 claim, his 2017 work
injury involved his right upper extremity and shoulder, and he had reported
experiencing numbness in his right arm extending into his 4th and 5th fingers and
right hand swelling and hypersensitivity. Claimant admitted that he treated with Dr.
Davis and underwent MRIs and EMGs until the claim was settled in December 2017.
He acknowledged that, as of his last evaluation in December 2017, Dr. Davis still
prescribed medications for symptoms related to his 2017 work-related injuries.
Accordingly, Claimant’s admissions corroborated those portions of Dr. Davis’s and
Dr. Doshi’s 2017 medical reports upon which the WCJ relied for FOFs 33, 34.c, and
34.d.
In addition, the WCJ relied upon Claimant’s Prior Medical Records to
conclude that Claimant failed to meet his burden of proving that his 2019 work injury
resulted in brachial plexus injury. Specifically, the WCJ found Dr. Bromberg’s
opinions regarding Claimant’s purported brachial plexus injury not credible, in part,
because Dr. Davis’s 2017 reports reflected that Claimant was previously diagnosed
with brachial plexopathy, and Claimant was purportedly still in active treatment
23
when he settled his 2017 work injury claim. See FOF 34.b, WCJ Dec. at 30.
Although Claimant’s testimony corroborates that he was still medicated for
symptoms related to his 2017 work injury when his 2017 WC claim was settled and,
thus, the WCJ could properly find he was still in active treatment at that time,
Claimant’s only testimony regarding prior brachial plexopathy was that at his
September 25, 2019 visit, Dr. Becker “talked about a brachial plexus injury or an
RSD.” R.R. at 53a. Claimant’s recollection does not rise to the level of a diagnosis
that would corroborate Dr. Davis’s reports. No other record evidence corroborated
that Claimant was diagnosed with a brachial plexus injury in 2017. Accordingly,
the portion of the WCJ’s FOF 34.b challenging the credibility of Dr. Bromberg’s
diagnosis based on the contents of Dr. Davis’s 2017 treatment records is based on
uncorroborated hearsay.
Finally, the WCJ expressed that Dr. Bromberg’s opinions were based
upon the truthfulness and veracity of Claimant’s subjective complaints, and
Claimant had a history of symptom magnification as reflected in Dr. Baker’s 2007
and Dr. Dahl’s 2017 IME reports. See FOF 34.d, WCJ Dec. at 31. Claimant recalled
that he underwent an IME by Dr. Dahl in May 2017, but did not testify regarding the
details of the IME or admit to magnifying his symptoms. He had no recollection at
all of undergoing Dr. Baker’s October 2007 IME. Accordingly, Claimant’s
testimony did not corroborate the symptom magnification reflected in Dr. Baker’s
2007 and Dr. Dahl’s 2017 IME reports upon which the WCJ relied. Because the
portion of FOF 34.d challenging the credibility of Dr. Bromberg’s opinions based
on Claimant’s history of symptom magnification noted in Dr. Baker’s 2007 and Dr.
Dahl’s 2017 IME reports is not corroborated by any competent record evidence, it
is based on uncorroborated hearsay. Thus, the WCJ could only rely on Dr. Naftulin’s
conclusion that Claimant could have been magnifying his symptoms to Dr.
Bromberg.
24
Because the aforementioned portions of the WCJ’s FOFs 34.b and 34.d
“w[ere] not supported by competent evidence[, they] could not be used to support
the WCJ’s decision.” Benson v. Workmen’s Comp. Appeal Bd. (Haverford State
Hosp.), 668 A.2d 244, 248 (Pa. Cmwlth. 1995). However, “[i]t is well established
within our jurisprudence that an unsupported [FOF] which is not necessary to the
adjudication merely constitutes harmless error.” Borough of Schuylkill Haven v.
Prevailing Wage Appeals Bd., 6 A.3d 580, 585 (Pa. Cmwlth. 2010); see also
Monaghan v. Bd. of Sch. Dirs. of Reading Sch. Dist., 618 A.2d 1239, 1243 (Pa.
Cmwlth. 1992) (“[A]n unsupported finding of fact which is not necessary to the
adjudication merely constitutes harmless error.”).22
Accordingly, “[this] Court must determine whether, excluding the
inadmissible hearsay, the factual findings to which that evidence related are
nonetheless supported by substantial evidence.” Cruz v. Workers’ Comp. Appeal
Bd. (Phila. Club), 728 A.2d 413, 416 (Pa. Cmwlth. 1999).
“For purposes of appellate review, it is irrelevant whether
there is evidence to support contrary findings; if
substantial evidence supports the [fact-finder]’s necessary
findings, those findings will not be disturbed on appeal.”
Verizon [Pa.] Inc. v. Workers’ Comp[.] Appeal [Bd.]
(Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). When
“performing a substantial evidence analysis, this Court
must view the evidence in a light most favorable to the
party who prevailed before the fact-finder.” WAWA v.
Workers’ Comp[.] Appeal [Bd.] (Seltzer), 951 A.2d 405,
408 (Pa. Cmwlth. 2008). Further, when determining
whether substantial evidence exists to support a finding of
fact, this Court must give to the party in whose favor the
appealed decision was decided “the benefit of all
22
See also Lashlee v. Workers’ Comp. Appeal Bd. (G.M. McCrossin, Inc.) (Pa. Cmwlth.
No. 1725 C.D. 2007, filed Feb. 28, 2008) (applying the Monaghan Court’s harmless error rule to
WC cases). Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a).
25
inferences that can logically and reasonably be drawn
from the evidence.” B.J.K. v. Dep[’t] of Pub[.] Welfare,
773 A.2d 1271, 1276 (Pa. Cmwlth. 2001).
Obimak Enter., 200 A.3d at 126.
Here, excluding the inadmissible hearsay/uncorroborated portions of
FOF 34.b (i.e., that Dr. Bromberg’s opinion was not credible “because he failed to
adequately account for Claimant’s prior diagnosis of brachial plexopathy from the
2017 work injury,” and because he “failed to offer a credible explanation regarding
when Claimant’s brachial plexus symptoms related to the 2017 work injury ended,
and/or how they were materially aggravated by the 2019 work injury”), and FOF
34.d (i.e., “Claimant . . . displayed symptom magnification to both Dr. Dahl and Dr.
Baker during prior defense medical examinations for different work injuries.”), WCJ
Dec. at 30-31, this Court holds that “the [WCJ’s] factual findings . . . are nonetheless
supported by substantial evidence.”23 Cruz, 728 A.2d at 416.
23
Claimant argues that the Board should have remanded the WCJ’s decision because the
WCJ mischaracterized Claimant’s burden of proof. In the Claim Petition, Claimant alleged
compensable work injuries to his “cervical spine, including but not limited to sprain/strain and C5-
6 disruption/herniation; right shoulder injury including aggravation of pre[]existing conditions;
right brachial plexus injury, [CRPS,] and all other injuries/diagnosis established by the medical
evidence.” R.R. at 3a. Claimant separately and distinctly listed right shoulder injury aggravation
and right brachial plexus injury as two separate injuries. See id. Claimant did not list and, thus,
did not have to prove that his 2019 work injury aggravated a prior right brachial plexus injury in
order for the WCJ to grant the Claim Petition.
However, before commencing his findings of fact, the WCJ summarized:
[Claimant] filed a Claim Petition against [Employer] alleging that
he sustained a work injury on August 19, 2019[,] to his cervical
spine, right shoulder and aggravation of right brachial plexopathy
and [CRPS] when a heavy container raised by a forklift fell off the
forks striking Claimant on the right shoulder, neck[,] and chest
region. Employer filed a timely Answer denying the material
allegations of Claimant’s [Claim] Petition.
WCJ Dec. at 4 (emphasis added). The WCJ summarized in FOFs 6.q and 6.r, that Dr. Naftulin
disagreed with Dr. Bromberg’s brachial plexus diagnosis because the mechanism of Claimant’s
2019 work injury and his resultant physical complaints were inconsistent with a brachial plexus
injury. See WCJ Dec. at 13-14. Thereafter, in FOF 34.b, the WCJ declared Dr. Naftulin’s opinion
more credible than Dr. Bromberg’s opinion, in relevant part, because “Dr. Bromberg failed to offer
a credible explanation regarding when Claimant’s brachial plexus symptoms related to the 2017
26
The WCJ considered and compared the expert medical testimony of Dr.
Bromberg and Dr. Naftulin at length and found the testimony of Dr. Naftulin to be
more credible and persuasive than the testimony of Dr. Bromberg. The WCJ further
determined that, to the extent Dr. Bromberg’s testimony conflicted with Dr.
Naftulin’s testimony, Dr. Naftulin’s testimony was accepted and Dr. Bromberg’s
testimony was rejected. The WCJ also accepted Claimant’s testimony to the extent
that he suffered a shoulder contusion injury at work on August 19, 2019, and he was
temporarily unable to work, as it was supported by Dr. Naftulin’s testimony.
Accordingly, notwithstanding the WCJ’s nominal reliance on the Prior Medical
Records, the WCJ did not mischaracterize the nature of Claimant’s work injuries,
and rendered findings of fact and conclusions of law consistent with the evidence.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
work injury ended, and/or how they were materially aggravated by the 2019 work injury.” WCJ
Dec. at 30 (emphasis added).
Clearly, a portion of FOF 34.b was based on the WCJ’s mistaken belief that Claimant pled
and had to prove aggravation of right brachial plexopathy due to his 2019 work accident, when
Claimant’s burden was to prove the existence of a brachial plexus injury. Dr. Bromberg testified
that Claimant sustained right brachial plexopathy in 2019; Dr. Naftulin testified that he did not.
The WCJ found Dr. Naftulin’s opinion more credible on that issue. In light of this Court’s ruling
that the record is devoid of documentation that Claimant was diagnosed with a right brachial plexus
injury in 2017, Dr. Bromberg would have no basis on which to assess aggravation. Under the
circumstances, the WCJ’s mistaken belief that Claimant pled and had to prove aggravation of right
brachial plexopathy was moot.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Feldman, :
Petitioner :
:
v. :
:
Superior Products Support, LLC :
(Workers’ Compensation Appeal :
Board), : No. 1389 C.D. 2021
Respondent :
ORDER
AND NOW, this 16th day of February, 2023, the Workers’
Compensation Appeal Board’s November 19, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge