T. Kazyak v. WCAB (Pepsi Bottling Group (Sedgwick CMS)) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terance Kazyak, :
: No. 905 C.D. 2015
Petitioner : Submitted: December 18, 2015
:
v. :
:
Workers’ Compensation Appeal :
Board (Pepsi Bottling Group :
(Sedgwick CMS)), :
:
Respondents :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: February 11, 2016
Terance Kazyak (Claimant) petitions for review of the April 30, 2015,
order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision
of a workers’ compensation judge (WCJ) to grant Pepsi Bottling Group and
Sedgwick CMS’s (Employer) termination petition, dismiss Employer’s suspension
petition, grant in part Claimant’s review petition, deny and dismiss Claimant’s
penalty petition, and award Claimant litigation costs. We affirm.
1
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
Claimant worked for Employer as a delivery driver and sales
representative. (WCJ’s Findings of Fact, No. 1a.) On June 3, 2010, Claimant was
picking up an empty pallet to put back on the truck and felt a shocking sensation in
his head, arms, and legs, resulting in lower back pain. (Id., No. 1b.) Claimant drove
himself to a Pittsburgh hospital, where he collapsed in the emergency room. (Id.)
The hospital discharged Claimant five or six hours later, when a co-worker picked
him up. (Id.) When Claimant got back to Employer’s plant, he collapsed in the
nurse’s office and was taken to another Pittsburgh hospital. (Id.) The hospital
discharged Claimant after a few hours. (Id.) Claimant has not returned to work for
Employer since his June 3, 2010, work injury. (Id.)
Employer issued a notice of compensation payable, stipulating that
Claimant’s work injury consisted of a lumbar strain and an L4-5 disc herniation.
(WCJ’s Decision at 1.) On July 30, 2012, Employer issued Claimant a notice of
ability to return to work and, on August 2, 2012, a letter requesting that Claimant
return to work. (WCJ’s Findings of Fact, No. 1e.) Claimant instructed his counsel to
inform Employer that he was not returning to work. (Id.)
On August 7, 2012, Employer filed a petition to terminate or suspend
Claimant’s benefits, alleging that Claimant was fully recovered from his work injury
as of May 7, 2012, and capable of returning to work without restrictions. (WCJ’s
Decision at 1.) Thereafter, Claimant filed a review petition, arguing that his work
injury “should be described as a lumbar strain and [sprain], including
microdiscectomy surgery at L4-5 done on 2/23/11.” (Review Pet. at 2.) Claimant
2
also argued that his surgery resulted in lumbar radiculopathy and post-laminectomy
syndrome. (Id.) Thereafter, Claimant filed a penalty petition.
The WCJ held three hearings. Claimant testified that he is not able to
return to work for Employer because the work would be too difficult. (WCJ’s
Findings of Fact, No. 1d.) Claimant testified that he had surgery in February 2011 for
his back. (Id., No. 1c.) Claimant testified that he experiences occasional numbness
and weakness in his leg and pain in his buttocks. (Id.) Claimant testified that he is
able to get dressed, go shopping, and help with household chores but is not able to
assist with yard work. (Id., No. 1h.)
Employer presented the deposition testimony of Thomas D. Kramer,
M.D., who is board-certified in orthopedic surgery. (Id., No. 2.) On May 7, 2012,
Dr. Kramer performed an independent medical examination (IME) of Claimant. (Id.,
No. 2b.) Prior to the IME, Dr. Kramer received a history of the work injury from
Claimant and reviewed Claimant’s medical records and diagnostic studies. (Id.) Dr.
Kramer testified that during the IME, Claimant complained of lower back pain that
lessened with medication and difficulty lifting his left leg. (Id., No. 2d.) Claimant
had no complaints of pain or weakness in his lower extremities. (Id.) Dr. Kramer
performed a neurological examination, which returned normal results. (Id., No. 2e.)
Dr. Kramer reviewed Claimant’s May 2011 postoperative magnetic resonance
imaging (MRI) and concluded that it showed no evidence of recurrent disc herniation,
arachnoiditis, or any ongoing compression of the nerve roots. (Id., No. 2f.)
3
Based on his IME and review of Claimant’s medical records, Dr. Kramer
concluded that Claimant’s June 3, 2010, work injury resulted in a lumbar strain and a
disc herniation with left lower extremity radiculopathy. (Id., No. 2g.) Dr. Kramer
testified that Claimant’s treatment was medically reasonable given Claimant’s
ongoing complaints, but that the surgery was successful because it eliminated
Claimant’s lower left leg pain. (Id.) This opinion was based on Dr. Kramer’s IME,
which showed no evidence of objective abnormalities. (Id.)
Dr. Kramer also testified that he found nothing during the IME that
would warrant further treatment, including injections. (Id., No. 2i.) Dr. Kramer
stated that the pain medications Claimant is currently taking would not prevent
Claimant from performing his pre-injury position. (Id., No. 2m.) Dr. Kramer also
stated that he is unsure why Claimant is being prescribed Neurontin, as there is
nothing to indicate the type of nerve pain that would require it. (Id., No. 2o.) Dr.
Kramer testified that Claimant had fully recovered from his June 3, 2010, work
injury, and that there are no findings indicating that Claimant would be precluded
from returning to work without restrictions. (Id., No. 2g.)
Claimant presented the deposition testimony of J. William Bookwalter,
III, M.D., who is board-certified in neurosurgery. (Id., No. 4.) Dr. Bookwalter
testified that he first treated Claimant on October 25, 2010. (Id., No. 4a.) Dr.
Bookwalter’s physical examination of Claimant revealed spasms and a reduced range
of motion in Claimant’s back, a positive straight-leg-raising test, and weakness on his
left side. (Id., No. 4b.) On February 23, 2011, Dr. Bookwalter performed a lumbar
microdiscectomy on Claimant. (Id., No. 4c.) Dr. Bookwalter testified that this
4
procedure is minimally invasive. (Id., No. 4j.) At a March 2011 appointment,
Claimant exhibited improvement in his episodic left leg pain, and Dr. Bookwalter
recommended that Claimant engage in a supervised physical rehabilitation program
with Dr. Frank Artuso. (Id., No. 4c.) Dr. Bookwalter reviewed the results of a May
19, 2011, MRI ordered by Dr. Artuso, which showed that Claimant’s herniation was
gone with no new findings. (Id., No. 4d.)
Dr. Bookwalter testified that he next treated Claimant on August 28,
2012, at which time Claimant reported relief from his radiculopathy symptoms but
continued lower back pain. (Id., No. 4e.) Dr. Bookwalter believed that it was
unlikely that Claimant would ever return to his pre-injury position as a truck driver.
(Id.) Dr. Bookwalter ordered a second MRI in September 2012, which showed
significant degenerative change but no evidence of a new herniation. (Id., No. 4f.) In
September 2012, Dr. Bookwalter believed that Claimant had post-laminectomy
syndrome, which means he has persistent symptoms despite a technically adequate
procedure to correct those symptoms. (Id., No. 4g.) At that time, Dr. Bookwalter
believed that Claimant was able to perform sedentary, light-duty work and did not
require another surgery at the L4-5 levels. (Id.)
On cross-examination, Dr. Bookwalter testified that he had not reviewed
Claimant’s or Dr. Kramer’s testimonies or Dr. Kramer’s narrative report prior to his
deposition. (Id., No. 4h.) Dr. Bookwalter also testified that Claimant had a
preexisting degenerative back condition. (Id., No. 4i.) Dr. Bookwalter agreed that as
of September 2012, Claimant had no true weakness in his left leg and that Claimant’s
generalized weakness would not be consistent with specific nerve compression. (Id.,
5
No. 4k.) Dr. Bookwalter opined that Claimant’s generalized weakness was instead
caused by his preexisting degenerative condition and spasms. (Id.) Dr. Bookwalter
agreed that as of September 2012, Claimant had a subjective, generalized weakness in
his lower extremity rather than a focal weakness. (Id., No. 4m.)
Claimant also presented the deposition testimony of Paul S. Lieber,
M.D., who is board-certified in pain medicine, rehabilitation, and electrodiagnostic
studies. (Id., No. 3.) Dr. Lieber testified that he first physically examined Claimant
on December 19, 2011. (Id., No. 3b.) Dr. Lieber admitted that the examination did
not reveal any objective neurological findings. (Id., No. 3h.) On March 8, 2012, Dr.
Lieber suggested injections into facet joints at L4-5 and rhizotomies on the left L3,
L4, and L5 discs. (Id., No. 3b.) On March 19, 2012, Dr. Lieber performed the same
procedure on the right L3, L4, and L5 discs. (Id.) The procedure improved
Claimant’s back pain significantly, but his pain in the posterior aspect of his left leg
continued. (Id.)
On February 8, 2013, Dr. Lieber conducted another physical
examination of Claimant. (Id., No. 3d.) Based on his examination, Dr. Lieber
concluded that Claimant had sustained a lumbar strain and sprain and that he had
post-laminectomy syndrome secondary to the surgery or subjective symptoms. (Id.,
No. 3e.) Dr. Lieber testified that Claimant still had subjective pain in his L5
distribution and down the left leg, for which Claimant required medication. (Id.) Dr.
Lieber opined that Claimant is not capable of performing his former position but is
capable of light-duty work. (Id., No. 3f.) Dr. Lieber testified that during a March 1,
2013, appointment, Claimant complained of the same subjective lower back pain he
6
had before the surgery. (Id., No. 3g.) Dr. Lieber acknowledged that there were some
signs of symptom magnification but testified that they were not glaring. (Id.) Dr.
Lieber testified that at that time, Claimant was not fully recovered from his work
injury. (Id.)
On cross-examination, Dr. Lieber acknowledged that his initial physical
examination of Claimant on December 19, 2011, revealed no objective neurological
findings. (Id., No. 3h.) Dr. Lieber also agreed that Dr. Bookwalter never diagnosed
Claimant with a facet joint injury. (Id.) Dr. Lieber acknowledged that his diagnosis
of post-laminectomy syndrome was based solely on Claimant’s subjective complaints
of pain. (Id.)
Employer presented an additional deposition of Dr. Kramer. Before his
second deposition, Dr. Kramer reviewed the testimonies of Dr. Bookwalter and Dr.
Lieber. (Id., No. 5a.) Based on this review, Dr. Kramer concluded that there were no
objective findings indicating that Claimant’s condition had changed since Dr.
Kramer’s last exam. (Id.) Dr. Kramer testified that there was no objective evidence
to support Dr. Lieber’s diagnoses. (Id., Nos. 5b-c, 5e, 5f-g.) Dr. Kramer testified that
post-laminectomy syndrome is just a way of stating that there is subjective pain
following surgery at the disc level. (Id., No. 5d.) Dr. Kramer was unable to find an
objective cause of Claimant’s alleged pain because Claimant had a negative straight
leg raise, there was no evidence of a neurological deficit, and Claimant’s September
2012 MRI did not indicate a recurrent disc herniation. (Id.) Dr. Kramer reiterated his
opinion that Claimant had fully recovered from his L4-5 disc herniation and that there
was no evidence of ongoing lumbar strain. (Id., No. 5i.)
7
The WCJ credited Dr. Kramer’s testimony that Claimant has fully
recovered from his work injury, consisting of a lumbar sprain and an L4-5 disc
herniation, and is able to return to his pre-injury position. (Id., No. 6.) The WCJ also
credited Dr. Kramer’s testimony that there was no evidence indicating a recurrent
disc herniation, post-operative radiculopathy, or left leg pain, noting that Dr.
Bookwalter agreed with that assessment. (Id.) The WCJ discredited Dr.
Bookwalter’s and Dr. Lieber’s testimony and conclusions to the extent that they
conflicted with Dr. Kramer’s. (Id.) The WCJ discredited Dr. Lieber’s diagnosis of a
facet injury, noting that Dr. Bookwalter was the one who performed surgery on
Claimant and did not find a facet injury. (Id.) The WCJ also noted that Dr.
Bookwalter never opined that Claimant has exacerbated any preexisting degenerative
condition in his back since the surgery. (Id.) The WCJ found that based on his
observations of Claimant, Claimant was exaggerating his disability in order to avoid
returning to his pre-injury position. (Id.)
The WCJ granted Employer’s termination petition, concluding that
Employer met its burden of proving that Claimant had recovered from his work
injury and that his disability had ceased effective May 7, 2012. (WCJ’s Conclusions
of Law, No. 2.) The WCJ dismissed Employer’s suspension petition as moot.
(WCJ’s Order, 10/29/13, at 1.) The WCJ granted in part Claimant’s review petition
because the WCJ found that Claimant’s February 23, 2011, surgery was causally
related to his work injury and awarded Claimant $10,045.33 in litigation costs.
(WCJ’s Findings of Fact, Nos. 6, 7.) The WCJ denied that part of Claimant’s review
petition that asserted that Claimant’s surgery resulted in lumbar radiculopathy and
post-laminectomy syndrome. (Id.) The WCJ also dismissed Claimant’s penalty
8
petition. (Id., No. 6.) Claimant appealed to the WCAB, which affirmed. Claimant
now petitions this court for review.2
First, Claimant argues that Findings of Fact Numbers 2g-h, 3h, 4n, 5a,
and 5e, which summarize the testimonies of Dr. Bookwalter, Dr. Lieber, and Dr.
Kramer, and Finding of Fact Number 6, wherein the WCJ weighs the evidence of
record, are not supported by substantial evidence. Claimant essentially argues that
the WCJ erred in giving more weight to Dr. Kramer’s testimony than that of
Claimant, Dr. Bookwalter, and Dr. Lieber.3 However, Claimant’s argument amounts
to a request to reweigh the evidence, which this court may not do. See Williams v.
Workers’ Compensation Appeal Board (USX Corporation-Fairless Works), 862 A.2d
137, 145 (Pa. Cmwlth. 2004) (“Determinations as to evidentiary weight are not
subject to appellate review.”).
Claimant also argues that the WCJ capriciously disregarded Dr.
Bookwalter’s and Dr. Lieber’s testimony that Claimant has not fully recovered from
2
Our review is limited to determining whether constitutional rights were violated, an error
of law was committed, or the necessary findings of fact are supported by substantial evidence.
Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. Substantial evidence is relevant
evidence that “a reasonable mind might accept as adequate to support a conclusion.” Williams v.
Workers’ Compensation Appeal Board (USX Corporation–Fairless Works), 862 A.2d 137, 143 n.6
(Pa. Cmwlth. 2004).
3
Claimant also argues that the WCJ was biased against him because the WCJ found, based
on his in-person observations of Claimant, that Claimant was exaggerating his disability. However,
a WCJ may credit or discredit a witness’s testimony based on the witness’s demeanor. Daniels v.
Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052-53 (Pa. 2003).
Therefore, Claimant’s argument is without merit.
9
his work injury. However, Claimant waived this argument because he did not raise it
in his appeal to the WCAB, as required by 34 Pa. Code §111.11(a)(2).4 See Simmons
v. Workers’ Compensation Appeal Board (Powertrack International), 96 A.3d 1143,
1144 n.1 (Pa. Cmwlth. 2014) (holding that the claimant waived arguments by failing
to raise them in his appeal to the WCAB), appeal denied, 110 A.3d 999 (Pa. 2015).
Even if Claimant had not waived this issue, the WCJ did not capriciously disregard
this evidence because the WCJ expressly addressed and rejected it. See Williams,
862 A.2d at 145 (stating that the WCJ’s express consideration and rejection of
testimony is, by definition, not a capricious disregard thereof).
Next, Claimant argues that the WCJ erred in concluding that Employer
met its burden of establishing that Claimant has fully recovered from his work injury.
We disagree.
An employer petitioning for termination of a claimant’s benefits “bears
the burden of proving, through substantial, competent[,] credible medical testimony,
that a claimant’s disability has ceased or that any remaining disability is no longer
related to the work injury.” Moore v. Workers’ Compensation Appeal Board
(American Sintered Technologies, Inc.), 759 A.2d 945, 949 (Pa. Cmwlth. 2000). The
Pennsylvania Supreme Court has held:
4
The regulation at 34 Pa. Code §111.11(a)(2) provides that an appeal to the WCAB must
include:
[a] statement of the particular grounds upon which the appeal is based,
including reference to the specific findings of fact which are challenged and the
errors of the law which are alleged. General allegations which do not specifically
bring to the attention of the [WCAB] the issues decided are insufficient.
10
In a case where the claimant complains of continued pain,
[the employer’s] burden is met when [the] 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 findings
which either 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) (emphasis added).
Here, the WCJ credited Dr. Kramer’s testimony that Claimant has fully
recovered from his June 3, 2010, work injury, consisting of a lumbar sprain and an
L4-5 disc herniation, and is able to return to his pre-injury position. The WCJ noted
that Dr. Kramer examined Claimant, testified in great detail before and after his IME
of Claimant, and reviewed Claimant’s medical history and the testimonies of
Claimant, Dr. Bookwalter, and Dr. Lieber. The WCJ also determined that Claimant’s
claims of continued pain as a result of his work injury were not supported by any
objective medical evidence. Therefore, based on the credible evidence of record, the
WCJ properly concluded that Employer satisfied its burden of proving that Claimant
had fully recovered from his work injury as of May 7, 2012.
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terance Kazyak, :
: No. 905 C.D. 2015
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Pepsi Bottling Group :
(Sedgwick CMS)), :
:
Respondents :
ORDER
AND NOW, this 11th day of February, 2016, we hereby affirm the April
30, 2015, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge