V. Cantera v. WCAB (Worley and Obetz) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent J. Cantera, :
: No. 2388 C.D. 2015
Petitioner : Submitted: June 17, 2016
:
v. :
:
Workers' Compensation Appeal :
Board (Worley and Obetz), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 9, 2016
Vincent J. Cantera (Claimant) petitions pro se for review of the
November 17, 2015 order of the Workers’ Compensation Appeal Board (Board)
affirming the decision of a workers’ compensation judge (WCJ) that granted the
termination petition of benefits filed by Worley & Obetz (Employer) under the
Pennsylvania Workers’ Compensation Act (Act).1 Because Employer presented
unequivocal and competent medical evidence that Claimant fully recovered from
his work-related injuries, we affirm.
On April 25, 2013, Claimant injured himself in the course and scope
of his employment as a fleet-fueling truck driver when he fell while fueling a
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
tractor-trailer. Pursuant to a notice of temporary compensation payable (NTCP)
describing the work-injuries as left-elbow and left-hip contusion, Claimant
received $552.33 in weekly compensation benefits based on an average, pre-injury
weekly wage of $828.49. Reproduced Record (R.R.) at 241a. Claimant’s review
petition expanding the work-injuries to include a low-back injury was granted. Id.
at 234a.
Employer filed a termination petition2 averring that Claimant had fully
recovered from his work-injuries as of August 8, 2013. R.R. at 241a. Claimant
and Employer’s vice-president of human resources (Vice-President) testified at the
WCJ’s hearings. Id. at 66a-149a, 210a-232a. Employer also submitted a Notice of
Ability to Return to Work, diagnostic studies, and the deposition testimony and
reports of John Perry, M.D., a board-certified orthopedic surgeon, who performed
an independent medical examination (IME). Id. at 1a-65a. In opposition,
Claimant submitted the deposition testimony of his treating physician, Paul
Avadanian, D.O., who is board-certified in family medicine. Id. at 150a-209a.
Claimant testified that his foot got caught on a rock while he was
fueling a tractor-trailer causing him to fall and injure his hip. R.R. at 96a. He
stated that he immediately experienced pain from his left-arm through his elbow
and from his left-hip through his thigh. Id. at 97a. He sought medical treatment
within a few days. Id. at 97a, 107a. Later, he returned to work and attempted to
perform a modified-duty job at Employer’s convenience store, but he could not sit
on the Employer-provided wooden stool. Id. at 98a-99a.
2
Employer also filed suspension and modification petitions, but these petitions were
dismissed as moot because the termination petition was granted. R.R. at 234a.
2
Claimant treats with Dr. Avadanian once a month for his work-injury.
He received an injection in his left-hip in the summer of 2013 and was prescribed
three or four medications, all of which failed to alleviate his pain. Currently,
Claimant does not take any medications for his work-related injury nor attend
physical therapy. R.R. at 100a-101a, 111a. Although Claimant receives treatment
for his work-injury and continues to have a dull ache in his left-hip and low-back,
he no longer receives treatment for his left-elbow. Id. at 100a-101a, 108a.
Claimant does not believe he is fully recovered from his work-injury
and does not think that he can perform his pre-injury job because Dr. Avadanian
has restricted him from truck driving and from lifting more than five pounds. R.R.
at 102a-104a. Likewise, he does not think he can perform the modified-duty
position at the convenience store because he cannot sit on the stool which is made
of wood and does not have back support. Id. at 105a.
Vice-President testified that Claimant sustained a work-injury in April
2013 while working as a fleet-fueling truck driver. R.R. at 245a. She stated that
Claimant thereafter returned to light-duty work in the office and in the
maintenance department for brief periods until he went off work completely. Id. at
246a. She testified that in October 2013, Employer offered Claimant the less
physically demanding full-time transport-driver position following an IME, but
that Claimant did not accept this position, and that it remains open and available to
him. Id. at 245a.
Vice-President stated that after the full-duty job offer, Dr. Avadanian
restricted Claimant to sedentary-duty and no-lifting over five pounds. R.R. at
245a. She testified that based on these restrictions, Employer offered Claimant a
sales-associate position at its convenience store working the cash register and
3
provided a stool for Claimant’s use. Id. She stated that Employer bought a
cushioned chair with back support following Claimant’s complaints regarding the
wooden stool. Id. at 228-29a. Vice-President testified that this light-duty position
remains open and available for Claimant. Id. at 230a.
Dr. Perry testified that he obtained a history from Claimant
concerning his work-injury and performed a physical examination. R.R. at 11-12a.
Pertaining to Claimant’s left-elbow contusion, Dr. Perry found no objective
evidence of impairment. Id. at 17a. He reviewed two sets of x-rays and reports
from two separate dates that showed nothing abnormal and he reviewed chart notes
showing that the left-elbow symptoms had subsided as of May 3, 2013. Id. at 15a,
17a. Dr. Perry opined that Claimant fully recovered from the left-elbow contusion
based on his review of the chart, the negative objective studies, and because
Claimant did not have any subjective complaints. Id. at 18a.
Regarding the left-hip contusion, Dr. Perry stated that he palpated
Claimant’s back and legs and conducted numerous tests, but he did not find
anything that objectively correlated to Claimant’s subjective complaints. R.R. at
12a-13a, 16a. Dr. Perry stated that because of Claimant’s subjective complaints,
he recommended a bone-scan which came back negative. Id. at 243a. Following a
review of the negative bone-scan, Dr. Perry testified that he issued an addendum
report opining that Claimant had fully recovered from his left-hip contusion
because there was no objective validation of an ongoing left-hip injury. Id.
Dr. Perry explained that Claimant had a “rocking gait,” but that it was
not a “Trendelburg gait” which “is due to weakness in the hip muscles and pain in
the hip joint.” R.R. at 12a-13a. He stated that he could not characterize
Claimant’s rocking gait; he could not find an objective basis for Claimant’s
4
subjectively altered gait; and, there was nothing in his examination of Claimant’s
hip to relate the examination to the gait. Id. at 13a-14a.
As to the low-back injury, Dr. Perry stated that he found no objective
evidence that Claimant suffered a back injury as part of his work-related injury.
R.R. at 18a. Although Claimant complained of some tenderness, Dr. Perry
testified that he performed a straight-leg raise test which did not produce back
pain. Id. He also reviewed an x-ray and report of Claimant’s low-back showing a
mild curvature due to Claimant’s positioning and mild degenerative changes in the
form of spurring or osteophytes, but no fractures or changes caused by trauma
were apparent. Id. at 19a. Dr. Perry opined that there was no evidence that
Claimant suffered a low-back injury and, if Claimant had, then he was fully
recovered from that injury. Id.
Dr. Avadanian testified that he first treated Claimant in October 2013
where Claimant presented with low-back and left-hip pain. R.R. at 158a-59a. He
stated that he performed a physical examination, noting that Claimant had a
decreased range of motion and experienced tenderness in his low-back and left-hip.
Id. He testified that Claimant walked with an antalgic gait and could barely sit or
stand for long periods. Id. at 159a. He stated that he diagnosed Claimant as
having low-back and left-hip pain, and placed him on sedentary-duty and five-
pound lifting restrictions. Id. at 160a.
Dr. Avadanian reviewed the MRI results, noting the study showed
moderate disc degeneration, with a mild to moderate disc protrusion resulting in
left-greater-than-right foraminal narrowing at L3-4; L4 and L5; a broad disc
protrusion at L2-3; and pinched nerves on the left side. R.R. at 163a-64a. He
5
opined that these findings are causally related to Claimant’s work-injury because
they are not related to arthritis. Id. at 164a.
Dr. Avadanian opined that Claimant has not fully recovered from his
work-injury and although Claimant has been stable since October 2013, he has not
released Claimant to return to full-duty work because Claimant can barely walk,
sit, or stand, and is in daily pain. R.R. at 165a. Dr. Avadanian concluded that
Claimant cannot work in any capacity, believing he needs epidural injections and
possible low-back and left-hip surgery. Id. at 166a.
On cross-examination, Dr. Avadanian testified that the MRI shows
age-related disc abnormalities and no traumatic findings. R.R. at 173a-74a. He
stated that he treated Claimant for a low-back spasm prior to the work-injury in
October 2012. Id. at 175a. He testified that Claimant passed a department of
transportation (DOT) physical exam in his office four months after the work-
injury, which noted a normal neurological exam and the lumbar spine and lower
extremities to be normal. Id. at 178a-79a. Moreover, he stated that the negative
bone-scan rules out any traumatic bone injury to the hip; there is no objective
evidence to substantiate an ongoing back and hip injury; and the only evidence is
Claimant’s subjective complaints. Id. at 182a-85a.
Based on personal observation of their demeanor and comportment at
the hearings, the WCJ found Vice President’s testimony credible; Claimant’s
subjective complaints not credible; and Claimant’s testimony inconsistent. WCJ
12/5/14 Decision, Findings of Fact (F.F.) Nos. 23, 24.3 The WCJ noted that
3
The WCJ has complete authority over questions of credibility, conflicting medical
evidence, and evidentiary weight. Sherrod v Workmen’s Compensation Appeal Board
(Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to accept or
reject, in whole or in part, the testimony of any witness. Lombardo v. Workers’ Compensation
(Footnote continued on next page…)
6
Claimant denied having back problems before his work-injury; yet, Dr.
Avadanian’s records indicated Claimant treated six-months prior for back pain.
F.F. No. 23. Likewise, the WCJ noted that Claimant testified that he could not sit
or stand for longer than fifteen minutes in order to perform the cashier position,
and inconsistently testified that he could drive his pick-up truck for one to two
hours. Id.
The WCJ found Dr. Perry, a board certified orthopedic surgeon, more
qualified than Dr. Avadanian to determine the nature and extent of Claimant’s
work-injury. F.F. Nos. 20, 21, 22. Because of this, the WCJ found Dr. Perry’s
testimony more credible than Dr. Avadanian’s testimony, where there were
differences between their testimony. Id. Based on a thorough physical
examination, review of the medical records, review of the diagnostic studies, and
testing for a neurologic component for the low-back pain, the WCJ found Dr. Perry
credibly opined that Claimant had fully recovered from his work-injury. Id.
The WCJ found it significant that Dr. Perry “held off” on giving an
opinion until after the bone-scan came back negative, indicating that he was not
providing a “rubber-stamp” of full recovery. F.F. No. 21. The WCJ found Dr.
Avadanian’s conclusion that Claimant could only return to sedentary-duty work
inconsistent with Claimant’s passing of the DOT exam performed by his office,
(continued…)
Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997), appeal denied,
718 A.2d 787 (Pa. 1998). As the ultimate fact-finder, the WCJ’s findings are binding on appeal
if supported by substantial evidence. Agresta v. Workers’ Compensation Appeal Board
(Borough of Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). “Substantial evidence is
such evidence that a reasonable mind might accept as adequate to support a conclusion.” Mrs.
Smith’s Frozen Foods Co. v. Workmen’s Compensation Appeal Board (Clouser), 539 A.2d 11,
14 (Pa. Cmwlth. 1988).
7
and found Dr. Perry’s opinion of full recovery to be consistent with and supported
by Claimant’s passing of the DOT exam. Id. The WCJ concluded that Claimant
sustained a low-back injury as part of his work-injury, and that Employer
demonstrated Claimant fully recovered from his left-elbow contusion, left-hip
contusion, and low-back injury. F.F. Nos. 25, 26. The Board affirmed on appeal,
finding that Employer established through Dr. Perry’s testimony that Claimant had
fully recovered from his work-related injury. Board 11/17/15 Opinion at 5.
In this appeal,4 Claimant argues that the WCJ erred in granting a
termination of benefits because he presented competent and corroborated evidence
that he has not fully recovered from his work-injuries; Dr. Perry’s testimony is not
competent evidence of full recovery because he was not Claimant’s treating
physician, he could not characterize Claimant’s gait, and he did not acknowledge
Claimant’s recognized back injury; and Employer failed to offer Claimant
available work within his disabilities.
In a termination proceeding, the employer bears the burden of proving
a claimant’s disability has ceased or that any remaining disability is not the result
of the work-injuries. O’Neill v. Workers’ Compensation Appeal Board (News
Corp. Ltd.), 29 A.3d 50, 53 (Pa. Cmwlth. 2011). The employer can meet this
burden by presenting unequivocal and competent medical evidence of a claimant’s
full recovery from the work-injuries.5 Koszowski v. Workmen’s Compensation
4
Our scope of review is limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether Board procedures were violated, and whether
constitutional rights were violated or an error of law was committed. Chesik v. Workers’
Compensation Appeal Board (Department of Military and Veterans’ Affairs), 126 A.3d 1069,
1074 (Pa. Cmwlth. 2015).
5
The issue of whether medical evidence is unequivocal and competent is a matter of law
subject to plenary, de novo review, and is not a question of fact or credibility. Terek v.
(Footnote continued on next page…)
8
Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697, 699 (Pa. Cmwlth. 1991).
When a claimant continues to complain of pain, the employer must demonstrate
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).
Here, the work-injury consisted of a left-elbow contusion, a left-hip
contusion, a low-back injury, and Claimant’s continued subjective complaints of
pain. However, Dr. Perry credibly testified, without equivocation, that Claimant
had fully recovered from his left-elbow contusion based on the lack of any
objective evidence showing impairment and the absence of any subjective
complaints of pain by Claimant. R.R. at 18a. Likewise, Dr. Perry did not find any
objective evidence that correlated to Claimant’s subjective complaints of pain in
his left-hip or low-back, and credibly testified, without equivocation, that Claimant
fully recovered from those injuries. Id. at 12a-13a, 16a-19a, 28a. Dr. Perry also
could not find an objective basis for Claimant’s subjectively altered gait and found
nothing in his examination of Claimant’s hip to relate it to the altered gait. Id. at
13a-14a. Nevertheless, before concluding that Claimant had fully recovered from
his work-injuries and could return to work without restrictions, Dr. Perry
(continued…)
Workmen’s Compensation Appeal Board (Somerset Welding & Steel, Inc.), 668 A.2d 131, 132
(Pa. 1995).
9
recommended an additional bone-scan, which was negative. R.R. at 18a-24a.6
Based on the foregoing, the WCJ’s decision granting the termination petition was
supported by substantial evidence and we cannot accede to Claimant’s request to
reconsider or reweigh the credited evidence.
Additionally, Dr. Perry’s testimony was competent to support the
termination of benefits even though he was not Claimant’s treating physician and
merely performed an IME. See Williams v. Workmen’s Compensation Appeal
Board (Montgomery Ward), 562 A.2d 437, 441 n.6 (Pa. Cmwlth. 1988)
(“[A]lthough treating physicians may be preferred as witnesses in workmen’s
compensation cases, the fact that a medical witness was not the claimant’s treating
physician relates only to the weight, and not to the competency, of his or her
testimony, which is, again, a determination for the [WCJ].”).
Moreover, Dr. Perry’s testimony was competent to terminate benefits
even though he could find no objective evidence that Claimant had suffered a back
injury as part of his work-related injuries because he also testified that if Claimant
had suffered such a work-injury, then Claimant was fully recovered from that
injury. See, e.g., Jackson v. Workers’ Compensation Appeal Board (Resources for
Human Development), 877 A.2d 498, 502-03 (Pa. Cmwlth. 2005) (holding that
medical expert’s testimony supported finding of full recovery from a bruised knee
where he did not state that the claimant had suffered a disabling knee injury but
opined that, based on the assumption that the claimant had suffered a knee injury,
it had resolved). “A medical professional is not required to believe a condition
6
Dr. Avadanian also testified Claimant experienced a left-hip and low-back injury, and
that there was only subjective evidence of Claimant’s ongoing pain in these areas. R.R. at 161a,
167a, 188a.
10
existed; he is merely required to accept as true the adjudicated fact that a condition
existed and opine as to whether the condition continues to exist at the time of the
examination.” Folmer v. Workers’ Compensation Appeal Board (Swift
Transportation), 958 A.2d 1137, 1147 (Pa. Cmwlth. 2008), appeal denied, 971
A.2d 493 (Pa. 2009).
Finally, contrary to Claimant’s assertion, because the termination
petition was granted and the other petitions were dismissed as moot, Employer was
not required to establish work availability. See, e.g., Laird v. Workmen’s
Compensation Appeal Board (Michael Curran & Associates), 585 A.2d 602, 603
(Pa. Cmwlth. 1991) (holding that an employer is not required to establish work
availability once it is established that all of a claimant’s disability related to the
work-injury has ceased).
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent J. Cantera, :
: No. 2388 C.D. 2015
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Worley and Obetz), :
:
Respondent :
ORDER
AND NOW, this 9th day of September, 2016, the order of the
Workers’ Compensation Appeal Board dated November 17, 2015, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge