Consol PA Coal Co./Bailey Mine & East Coast Risk Mgmt., LLC v. WCAB (Williams) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Consol Pennsylvania Coal :
Company/Bailey Mine and East :
Coast Risk Management, LLC, :
Petitioner :
:
v. : No. 230 C.D. 2019
: SUBMITTED: June 7, 2019
Workers' Compensation Appeal :
Board (Williams), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: August 13, 2019
Consol Pennsylvania Coal Company/Bailey Mine and East Coast Risk
Management, LLC (Employer), petitions this Court for review of the February 1,
2019 order of the Workers’ Compensation Appeal Board (Board) affirming the
decision of the Workers’ Compensation Judge (WCJ), which denied Employer’s
petition to terminate the workers’ compensation benefits of Daniel Williams
(Claimant) and amended the Notice of Compensation Payable (NCP) to include
additional injuries. The issues before this Court are whether the WCJ’s findings of
fact are supported by substantial evidence, whether his opinion was reasoned, and
whether the WCJ erred in sua sponte amending the NCP. After careful review, we
affirm.
I. Background
On August 31, 2016, Claimant sustained a work injury to his neck while
unloading a coal mine car. Notes of Testimony (N.T.), 6/9/17, at 15. Employer
accepted the work injury as a strain or tear of multiple upper extremities and issued
an NCP on February 17, 2017. Certified Record (C.R.), Item No. 16.
Employer filed a termination petition on April 26, 2017, alleging that
Claimant had fully recovered from his work injury. C.R., Item No. 2. Employer’s
petition was based on the opinion of Employer’s medical expert, Dr. Brian Ernstoff,
who performed an independent medical exam (IME) of Claimant on April 6, 2017,
and Claimant’s return to work as a coal miner without restrictions or loss of earnings
on April 17, 2017. Id. Claimant filed an answer denying he had fully recovered
from his August 31, 2016 work injury. C.R., Item No. 4.
A hearing on Employer’s termination petition took place on June 9, 2017.
Employer presented the deposition testimony and medical report of Dr. Ernstoff.
Claimant testified on his own behalf and presented the medical report of his treating
physician, Dr. Peter Gerszten.
a. Employer’s Evidence
Dr. Ernstoff examined Claimant on April 6, 2017. N.T., 8/16/17, at 11. In
preparation for the IME, he reviewed Claimant’s medical records, took Claimant’s
medical history, and performed a physical examination. Id. at 11-12. As of the date
of the IME, Claimant treated his symptoms with Percocet, taken four times daily.
Id. at 14. Claimant also received a cervical nerve block the day prior to the IME.
Id. at 16. Upon physical examination, Dr. Ernstoff found Claimant had reduced
range of motion in his cervical spine. Id. at 16. Dr. Ernstoff attributed this to a
preexisting back condition for which Claimant underwent cervical fusion surgery in
2
2014. Id. at 17. He did not believe it was related to the August 31, 2016 work injury.
Id. Although Claimant told Dr. Ernstoff that he continued to experience neck pain,
Claimant did not report having any during the physical examination portion of the
IME. Id. at 17-18. Claimant appeared neurologically intact and the remainder of
the examination produced normal findings. Id. at 16-18.
Dr. Ernstoff also reviewed a December 4, 2016 magnetic resonance imaging
scan (MRI) of Claimant’s cervical spine and identified evidence of the 2014 surgery
at the C6-7 level and some degenerative disc problems. Id. at 19. While he noted
the presence of disc bulges at the C4-5 level of Claimant’s cervical spine, Dr.
Ernstoff found no signs of disc herniations at any level. Id. at 19, 48-49. Dr. Ernstoff
agreed with the radiologist’s report, which indicated a degenerative condition in
Claimant’s cervical spine at the C3-4 and C4-5 levels, but did not indicate the
presence of disc herniations. Id. at 20-21. Based on the results of the IME and his
review of Claimant’s medical records, Dr. Ernstoff opined that Claimant suffered a
cervical strain from the August 31, 2016 work incident and he had fully recovered
from that work injury. Id. at 22.
On cross-examination, Dr. Ernstoff acknowledged that he is not board
certified in either radiology or neurology.1 Id. at 24. He admitted that the injection
Claimant received prior to the IME was likely administered for the purpose of pain
relief. Id. at 29. Such a treatment is not a cure and the pain “generally does come
back.” Id. at 30. Dr. Ernstoff admitted Claimant related that his pain was reduced
by the injection. Id. at 31. He further acknowledged a note from Dr. Gerszten in
Claimant’s medical records which indicated the nerve blocks gave Claimant “great
relief of pain.” Id. at 32. With regard to Claimant’s limited range of motion in his
1
Dr. Ernstoff is board certified in physical medicine and rehabilitation. N.T., 8/16/17, at
9.
3
cervical spine, Dr. Ernstoff agreed he could not differentiate whether it was caused
by the 2014 surgery or the August 31, 2016 work injury. Id. at 44. He did not ask
Claimant how long the limitations with his range of motion had persisted. Id.
Dr. Ernstoff’s written report corroborates that Claimant advised having
received a nerve block the day prior to the IME. N.T., 8/16/17, Ex. A at 2. Dr.
Ernstoff opined that any treatment rendered, including the nerve blocks, were
required solely for Claimant’s chronic pain issues and not the August 31, 2016 work
injury of a cervical strain. Id. at 4-5. Claimant had fully recovered from that injury.
Id. at 5.
b. Claimant’s Evidence
i. Claimant’s Previous Neck Injury
Claimant acknowledged having suffered a prior neck injury at the C6-7 level
of his cervical spine which required surgery in December 2014.2 N.T., 6/9/17, at 10.
Prior to that surgery, which Dr. Gerszten performed, Claimant’s symptoms included
severe neck pain, numbness in both his arms, and a sensation of grinding in his neck,
“like broken glass.” Id. at 10. Following the 2014 surgery, Claimant continued to
experience inflammation in his neck, but the grinding and numbness were gone. Id.
at 11.
Approximately three months after the 2014 surgery, Claimant returned to
work. Id. at 12. Initially, Claimant worked above ground at Employer’s coal mine,
but shortly thereafter, he worked underground as a trackman, a position which
involved heavy lifting and the use of jackhammers. Id. at 12-13.
Claimant discontinued treatment with Dr. Gerszten. Id. at 18. Any residual
neck pain was managed by Dr. Brian Slater, who prescribed five milligrams of
2
The exact circumstances of Claimant’s prior injury are not set forth in the certified record.
4
Oxycodone to be taken twice a day. Id. Claimant generally took half the prescribed
dosage. Id. at 19. Claimant sought the services of a chiropractor every two or three
months for purposes of adjusting his back. Id. Claimant’s chiropractic treatments
were not for the purpose of addressing his neck pain. Id.
ii. Claimant’s Work Injury
At the time of his work injury, Claimant worked as a hoist man, dropping
supply cars into the mine and pulling them out. Id. at 14. Claimant also operated a
frontend loader, which Claimant described as having no suspension and very jarring
to drive. Id. at 14-15.
On August 31, 2016, while unloading a supply car, Claimant heard a pop in
his neck. Id. at 15. At the time, he was tossing a packing pallet that weighed
approximately 30-40 pounds. Id. Claimant had no immediate pain and finished
unloading the supply car. Id. Within an hour or so, however, Claimant experienced
swelling on the right side of his neck such that he could not move it. Id. at 16.
Claimant took two days off from work and sought treatment from his family doctor,
who sent him to the emergency room. Id. at 17. The emergency room ordered a
computerized axial tomography scan (CT scan). Id.
Thereafter, Claimant treated with Dr. Slater, who prescribed Claimant muscle
relaxants, “pain patches,” and doubled his dosage of Oxycodone. Id. at 19-20.
Claimant sought the advice of Dr. Gerszten, who administered nerve blocks in his
neck. Id. at 21. As of the date of his testimony, Claimant had received two such
nerve blocks. Id. at 22. Although Claimant initially returned to work two days after
his work injury, he was taken out of work on February 4, 2017 for approximately
two months after Dr. Gerszten ordered him to undergo physical therapy. Id. at 17,
5
22. Claimant resumed his job as a hoistman without restrictions in April 2017. Id.
at 23.
Claimant testified that the nerve blocks administered by Dr. Gerszten
provided approximately 70 percent relief from his neck pain, however, he suffered
numbness in his arms while sleeping. Id. at 24-25. Claimant did not experience this
numbness prior to his August 31, 2016 work injury. Id. at 26. The nerve blocks
provided sufficient relief such that Claimant’s dosage of Oxycodone was reduced to
the levels prescribed prior to the date of his work injury. Id. at 36. Having received
a nerve block on April 5, 2017, the day prior to the IME, Claimant felt “pretty good”
during the examination. Id. at 24. By June 9, 2017, the date Claimant testified
before the WCJ, the effects of the nerve block had begun to wear off. Id. at 25.
iii. Claimant’s Expert Medical Evidence
Dr. Gerszten, a board-certified neurosurgeon, provided a written report dated
June 5, 2017, detailing his treatment of Claimant. N.T., 6/9/17, Ex. A. Claimant’s
first post-injury evaluation took place on November 4, 2016, approximately two
months after the August 31, 2016 work injury. Id. at 1. Following that appointment,
Dr. Gerszten ordered the December 4, 2016 MRI. Id. Dr. Gerszten opined that the
MRI results indicated disc herniations at the C3-4, C4-5, and C5-6 levels of
Claimant’s cervical spine. Id. Claimant’s symptoms of progressive neck pain and
numbness in his upper extremities were consistent with such a diagnosis. Id. Dr.
Gerszten related the disc herniations to Claimant’s August 31, 2016 work injury. Id.
Non-surgical management in the form of physical therapy and injection therapy was
recommended. Id.
Having read the report of Dr. Ernstoff, Dr. Gerszten disagreed with his
opinion that Claimant had recovered from his work injury. Id. at 2. He noted that
6
Claimant received a nerve block injection at the C4-5 level the day before Dr.
Ernstoff’s IME and achieved significant relief from his pain. Id. As a result,
Claimant was “doing rather well from a pain perspective” on the date of the IME.
Id. Claimant’s pain eventually returned, necessitating a second injection. Id. at 2.
The relief provided confirmed Dr. Gerszten’s opinion that Claimant suffered a disc
herniation at the C4-5 level and that injury caused his pain.
Dr. Gerszten’s prognosis for Claimant was guarded, as he continued to have
pain which required the administration of nerve blocks and oral medication. Id. Dr.
Gerszten suggested Claimant may require additional nerve block injections and
physical therapy, as well as oral pain medication and muscle relaxants for the
foreseeable future. Id.
c. WCJ Decision
The WCJ issued a decision denying Employer’s termination petition. Based
on Claimant’s credible testimony, the WCJ found that, prior to the August 31, 2016
work injury, Claimant performed a physically demanding job, and Claimant’s prior
history of severe neck pain, numbness in his arms, and grinding in his neck were
resolved by the 2014 surgery. Findings of Fact (F.F.) No. 4(c), 4(e).
Having summarized the relevant medical evidence, the WCJ found the
opinion of Dr. Gerszten more credible than that of Dr. Ernstoff. F.F. No. 9. The
WCJ based his credibility determination on Dr. Gerszten’s status as both a board-
certified neurosurgeon and Claimant’s treating physician. Id. The WCJ rejected Dr.
Ernstoff’s opinion to the extent it conflicted with that of Dr. Gerszten. Id. The WCJ
found that Claimant’s pain was masked by the nerve block received the day prior to
the IME, a fact which Dr. Ernstoff acknowledged on cross-examination. Id. While
7
Claimant’s pain was improved the day of the IME, it returned, necessitating
additional nerve block injections. Id.
Based on his analysis of the evidence, the WCJ concluded that Claimant
suffered a work injury to his cervical spine at the C3-4, C4-5, and C5-6 levels on
August 31, 2016, and the C4-5 disc herniation was the cause of Claimant’s
symptoms. WCJ Decision, Conclusion of Law (C.O.L.) No. 2. As a consequence,
the WCJ amended the NCP to include these injuries. Id. Because Employer did not
establish that Claimant had recovered from the injuries to his cervical spine,
Employer did not meet the burden required to terminate Claimant’s benefits. C.O.L.
No. 3. However, Employer did establish that Claimant returned to work on April
17, 2017 with no loss of wages. Id. Therefore, Claimant’s benefits were suspended
as of that date. Id. Employer’s termination petition was dismissed. WCJ Decision
at 12. Employer appealed to the Board, which affirmed.
II. Issues
On appeal,3 Employer argues the findings of the WCJ are not supported by
substantial evidence, his opinion was not reasoned, and the WCJ had no authority to
amend the NCP sua sponte to include additional injuries.
III. Analysis
a. Substantial Evidence
First, we address Employer’s argument that the WCJ’s findings of fact were
not supported by substantial evidence. Employer’s argument is premised in part on
3
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Grimm v. Workers’ Comp. Appeal Bd. (Fed. Express Corp.), 176 A.3d 1045, 1051
n.4 (Pa. Cmwlth.) (en banc), appeal denied, 189 A.3d 385 (Pa. 2018). Substantial evidence is such
evidence that a reasonable mind would deem adequate to support a conclusion. Iacono v. Worker’s
(sic) Comp. Appeal Bd. (Chester Housing Auth.), 624 A.2d 814, 817 (Pa. Cmwlth. 1993).
8
its assertion that Dr. Gerszten’s expert report constituted inadmissible hearsay, as
Dr. Gerszten did not testify and his report was not subject to cross-examination.
With regard to the admission of medical records, Section 422(c) of the
Workers’ Compensation Act (Act)4 provides in relevant part:
[w]here any claim for compensation at issue before a
[WCJ] involves [52] weeks or less of disability, either the
employe or the employer may submit a certificate by any
health care provider as to the history, examination,
treatment, diagnosis, cause of the condition and extent of
disability, if any, and sworn reports by other witnesses
as to any other facts and such statements shall be
admissible as evidence of medical and surgical or other
matters therein stated and findings of fact may be
based upon such certificates or such reports. Where
any claim for compensation at issue before a [WCJ]
exceeds [52] weeks of disability, a medical report shall be
admissible as evidence unless the party that the report is
offered against objects to its admission.
77 P.S. § 835 (emphasis added). In essence, under Section 422(c), where a workers’
compensation claim involves disability of 52 weeks or less, medical reports are
admissible without the need for sworn testimony. Ruth Family Med. Ctr. v.
Workers’ Comp. Appeal Bd. (Steinhouse), 718 A.2d 397, 402 (Pa. Cmwlth. 1998).
For workers’ compensation purposes, “disability” is synonymous with loss of
earning power. Id.
Here, Claimant’s workers’ compensation benefits did not exceed 52 weeks,
as he sustained the work injury on August 31, 2016, and returned to work on April
17, 2017, with no further loss of wages or earning power. Consequently, we
conclude that Dr. Gerszten’s report was admissible under Section 422(c). Whether
4
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 26, 1915, P.L. 642,
77 P.S. § 835.
9
the report addressed the issues at hand and was persuasive are questions relating to
credibility and to weight of the evidence rather than to admissibility. It was wholly
appropriate for the WCJ to make findings of fact based on that report. Employer’s
hearsay argument lacks merit.
Next, we consider whether the WCJ’s findings of fact were otherwise
supported by substantial evidence. The WCJ is the ultimate finder of fact and the
exclusive arbiter of credibility and evidentiary weight. LTV Steel Co., Inc. v.
Workers’ Comp. Appeal Bd. (Mozena), 754 A.2d 666, 676 (Pa. 2000). As the
ultimate factfinder, the WCJ has exclusive authority to resolve conflicts in
testimony. Pa. Tpk. Comm’n v. Workers’ Comp. Appeal Bd. (Collins), 709 A.2d
460, 464 (Pa. Cmwlth. 1998). The WCJ is free to accept or reject, in whole or in
part, the testimony of any witness. O’Donnell v. Workers’ Comp. Appeal Bd.
(United Parcel Serv.), 831 A.2d 784, 789 (Pa. Cmwlth. 2003). So long as the
findings of the WCJ are supported by substantial evidence, they must be accepted as
conclusive on appeal. Id.
To succeed in its termination petition, Employer had the burden of
establishing that Claimant’s work injury had ceased or that any existing injury was
not the result of his work injury. O’Neill v. Workers’ Comp. Appeal Bd. (News Corp.
Ltd.), 29 A.3d 50, 53 (Pa. Cmwlth. 2011). Employer could satisfy that burden by
presenting unequivocal and competent medical evidence that Claimant had fully
recovered from his work injury. Id.
Employer argues that the evidence does not support the WCJ’s finding that
Claimant’s prior neck injury was resolved by the 2014 surgery or that Claimant was
“pain and problem free prior to August 31, 2016.” Employer’s Br. at 10. Employer
10
suggests the evidence establishes that Claimant continued to suffer neck pain and
inflammation and therefore his current condition is related to his prior neck injury.
The essence of Employer’s argument is that the evidence supports a contrary
finding. Employer’s argument misapprehends this Court’s role as an appellate court.
This Court’s purpose is not to substitute findings we could have made had we been
the factfinder. It does not matter that the record supports a contrary finding; the
pertinent inquiry is whether there is substantial evidence which supports the findings
the WCJ actually made. Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods.,
Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). As to that, we cannot agree with
Employer that the WCJ’s findings lack support in the record.
Claimant testified that, despite continued issues with inflammation, the 2014
surgery resolved his severe neck pain, the numbness in his arms, and the grinding in
his neck. Prior to the August 31, 2016 work injury, Claimant performed a very
physical job. While he took medication prescribed for his prior neck injury, he only
took half the recommended dosage. The WCJ deemed this testimony credible. We
will not overturn the WCJ’s credibility determinations on appeal merely because
Employer seeks a different result.5
b. Reasoned Decision
Employer next argues that the WCJ’s decision was not reasoned as required
by Section 422(a) of the Act, which provides in pertinent part:
All parties to an adjudicatory proceeding are entitled to a
reasoned decision containing findings of fact and
conclusions of law based upon the evidence as a whole
5
Curiously, Employer also takes issue with the WCJ’s finding that Claimant underwent a
C6-7 fusion surgery in 2014, as that injury is unrelated to the current injury. Notwithstanding its
relevance to the present matter, WCJ’s finding is clearly supported by Claimant’s testimony, the
report of Dr. Gerszten, and the testimony of Employer’s own medical expert.
11
which clearly and concisely states and explains the
rationale for the decisions so that all can determine why
and how a particular result was reached.
77 P.S. § 834.
Employer contends the WCJ’s decision amounts to a summary of the medical
evidence presented and the WCJ otherwise “failed to articulate objective reasoning
to facilitate appellate review.” Employer’s Br. at 11.
“[A] decision is ‘reasoned’ for purposes of Section 422(a) if it allows for
adequate review by the [Board] without further elucidation and if it allows for
adequate review by the appellate courts under applicable review standards.” Daniels
v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003).
Where the WCJ “has had the advantage of seeing the witnesses testify and assessing
their demeanor, a mere conclusion as to which witness was deemed credible, . . .
could be sufficient to render the decision adequately ‘reasoned.’” Id. at 1053.
Resolution of conflicting medical testimony, however, where the medical experts
have not testified live, cannot be supported by a mere announcement that one expert
was deemed more credible than another. Id. “[S]ome articulation of the actual
objective basis for the credibility determination must be offered for the decision to
be a ‘reasoned’ one which facilitates effective appellate review.” Id.
Here, the WCJ did not merely summarize the medical evidence and assign a
credibility determination to each expert. Rather, the WCJ outlined the evidence
presented by each witness and set forth his reasons for rejecting Dr. Ernstoff’s
opinion to the extent it contradicted that of Dr. Gerszten. In favoring the report of
Dr. Gerszten, the WCJ was persuaded by Dr. Gerszten’s status as a board-certified
neurosurgeon and Claimant’s treating physician. The WCJ specifically rejected the
opinion of Dr. Ernstoff based on an IME, because Claimant’s pain was likely masked
by the nerve block he received the previous day. Dr. Ernstoff admitted as much on
12
cross-examination. Claimant’s pain returned after the IME, and he required a second
nerve block to treat that pain. The WCJ’s explanations of his findings are sufficient
to allow for adequate appellate review and satisfy the reasoned decision requirement
of Section 422(a).
c. Amendment of NCP
Finally, Employer argues the WCJ improperly amended the NCP to include
the additional injuries to Claimant’s cervical spine. Employer acknowledges Section
413(a) of the Act permits the WCJ to correct an NCP. It nevertheless argues the
WCJ did not have the authority to do so sua sponte and it was incumbent upon
Claimant to file a petition for review of his benefits and request an amendment to
the accepted work injury.
Section 413(a) of the Act expressly provides that a WCJ
may, at any time, review and modify or set aside a notice
of compensation payable and an original or supplemental
agreement or upon petition filed by either party with the
department, or in the course of the proceedings under
any petition pending before such [WCJ], if it be proved
that such notice of compensation payable or agreement
was in any material respect incorrect.
77 P.S. § 771 (emphasis added).
Employer’s arguments that a review petition must be filed before the WCJ
may amend an NCP is contrary to the plain language of Section 413(a) and our
Supreme Court’s decision in Cinram Manufacturing, Inc. v. Workers’ Compensation
Appeal Board (Hill), 975 A.2d 577 (Pa. 2009). In Cinram, our Supreme Court
distinguished between the correction of an NCP by adding a diagnosis which is part
of the original injury and the amendment of an NCP to recognize a subsequently-
arising medical issue that is related to the original injury. Id. at 580-81. Although
the latter requires the filing of a review petition, the Court explicitly held that a
13
review petition is not required as support for a mere correction of an NCP. Id. at
583.
Here, the record confirms that the WCJ made merely a corrective amendment.
Dr. Gerszten opined that the C3-4, C4-5, and C5-6 disc herniations revealed in
Claimant’s December 4, 2016 MRI were caused by the August 31, 2016 work
accident. This evidence supports the WCJ’s conclusion that Claimant suffered disc
herniations on August 31, 2016. As such, this condition is part of, rather than a
consequential condition of, the original work injury, and we discern no error in the
WCJ’s amendment to the NCP.
IV. Conclusion
The WCJ’s findings of fact are supported by substantial evidence and his
decision was sufficiently reasoned as required by Section 422(a) of the Act. Section
413(a) of the Act permits the WCJ to amend the NCP and the WCJ did not err in so
doing. Accordingly, we affirm the Board.6
__________________________________
ELLEN CEISLER, Judge
6
Employer’s remaining arguments relate to issues over typos and stylistic errors, which,
at worst, constitute harmless error. As such, we will not address them further.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Consol Pennsylvania Coal :
Company/Bailey Mine and East :
Coast Risk Management, LLC, :
Petitioner :
:
v. : No. 230 C.D. 2019
:
Workers' Compensation Appeal :
Board (Williams), :
Respondent :
ORDER
AND NOW, this 13th day of August, 2019, the February 1, 2019 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge