S. Schock v. WCAB (Brown's Super Stores t/a Shop-Rite) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sarah Schock, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Brown’s Super Stores t/a :
Shop-Rite), : No. 478 C.D. 2019
Respondent : Submitted: September 13, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 12, 2019
Sarah Schock (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) March 26, 2019 order affirming the
Workers’ Compensation Judge’s (WCJ) decision after remand granting Brown’s
Super Stores t/a Shop-Rite’s (Employer) Petition to Terminate Compensation
Benefits (Termination Petition), and denying Claimant litigation costs. Claimant
presents three issues for this Court’s review: (1) whether Claimant was entitled to
wage loss benefits pending remand; (2) whether the Board erred by affirming the
WCJ’s decision granting Employer’s Termination Petition; and (3) whether the Board
erred by affirming the WCJ’s decision denying Claimant reimbursement for Donald
McCarren, M.D.’s (Dr. McCarren), and Neil Kahanovitz, M.D.’s (Dr. Kahanovitz)
depositions.1 After review, we affirm.
Claimant includes an additional issue in her “Statement of Issues Presented”: whether the
1
WCJ issued a reasoned decision. See Claimant Br. at 2. Because the reasoned decision issue is
Background2
Claimant worked for Employer as a deli clerk. On April 30, 2012,
Claimant slipped and fell at Employer’s premises and injured her lower back. On
August 7, 2012, Employer issued a medical-only Notice of Compensation Payable
(NCP) describing the injury as a lumbar strain. See Reproduced Record (R.R.) at 1.
Claimant filed a claim petition seeking partial disability benefits from April 30, 2012
to July 16, 2012, and total disability benefits thereafter. She also filed a penalty
petition alleging that Employer failed to recognize compensable injuries in its NCP
and failed to pay compensation when due. Employer denied Claimant’s allegations.
On June 12, 2013, Employer filed the Termination Petition to end Claimant’s WC
benefits effective June 6, 2013, the date on which an independent medical
examination (IME) determined Claimant had fully recovered from her work-related
lumbar strain. Claimant denied Employer’s claims.
A WCJ conducted hearings on December 10, 2012, April 24, April 25,
July 31, October 30, and December 18, 2013, and March 17, 2014, at which Claimant
testified and presented the deposition testimony of, inter alia, Kenneth Izzo, M.D.
(Dr. Izzo) and Andrew Freese, M.D. (Dr. Freese). Employer presented deposition
testimony from, inter alia, Evan Kovalsky, M.D. (Dr. Kovalsky), Dr. McCarren and
Dr. Kahanovitz. On June 26, 2014, the WCJ granted Claimant’s claim petition
insofar as she was disabled due to her work injury for four periods of time between
April 30, 2012 until June 6, 2013.3 The WCJ found that Claimant’s disability ceased
subsumed in the issue of whether the Termination Petition was properly granted, those issues will
be addressed together herein.
2
Some facts have been adopted from Schock v. Workers’ Compensation Appeal Board
(Brown’s Super Stores) (Pa. Cmwlth. Nos. 1352, 1366 C.D. 2016, filed August 21, 2017) (Schock
I).
3
Specifically, the WCJ awarded Claimant temporary total disability benefits for the
following periods during which she was unable to work: July 16-August 19, 2012, August 28-
October 9, 2012, October 19-November 26, 2012, and December 4, 2012-June 6, 2013. The WCJ
also granted her partial disability benefits for the following times during which she was able to
2
as of June 6, 2013. Accordingly, the WCJ granted Employer’s Termination Petition
effective June 6, 2013. Both parties appealed to the Board.4
On June 16, 2015, the Board affirmed the WCJ’s decision to the extent it
partially granted Claimant’s claim petition and denied her penalty petition, but
vacated the WCJ’s decision in part and remanded for the WCJ to make an award for
reimbursement of those litigation costs that Claimant incurred relative to the issues on
which she prevailed.
On December 21, 2015, after remand, the WCJ awarded Claimant
litigation costs attributable to the deposition testimonies of Dr. Freese, Dr. McCarren,
Dr. Kahanovitz and a lay witness because they related to the successful parts of
Claimant’s claim petition. Both parties appealed to the Board. On July 28, 2016, the
Board reversed the WCJ’s litigation cost award related to Dr. McCarren’s and Dr.
Kahanovitz’s deposition testimony, and affirmed the WCJ’s decision in all other
respects. Claimant appealed from the Board’s June 16, 2015 and July 28, 2016
orders to this Court.5
On August 21, 2017, this Court: vacated the Board’s June 16, 2015 order
granting the Termination Petition and remanded for the WCJ to issue a reasoned
decision more adequately explaining her credibility determinations; and affirmed the
July 28, 2016 order affirming the cost award for the Dr. Freese and lay witness
depositions, but vacated the July 28, 2016 order insofar as it reversed the cost award
for the Dr. McCarren and Dr. Kahanovitz depositions, which were to be reconsidered
based upon a reasoned decision on the Termination Petition. See Schock v. Workers’
work light-duty for less than her pre-injury wages: April 30-July 16, 2012, August 20-August 27,
2012, October 10-October 18, 2012, and November 27-December 3, 2012.
4
On August 8, 2014, the Board granted supersedeas as to costs incurred for the depositions
of Dr. Freese, Dr. McCarren, Dr. Kahanovitz and a lay witness, but denied supersedeas in all other
respects. See R.R. at 18-20.
5
See Schock I, wherein the appeals were consolidated for this Court’s review.
3
Comp. Appeal Bd. (Brown’s Super Stores) (Pa. Cmwlth. Nos. 1352, 1366 C.D. 2016,
filed August 21, 2017) (Schock I).
On February 23, 2018, the WCJ issued her remand decision (Remand
Decision), therein incorporating her June 26, 2014 findings of fact and making
additional findings as to the credibility of testimony by Dr. Izzo, Dr. Freese, Dr.
Kovalsky, Dr. McCarren and Dr. Kahanovitz. The WCJ again granted the
Termination Petition because Employer met its burden of proving that Claimant was
fully recovered from her work injury as of June 6, 2013, and denied Claimant
litigation costs incurred for Dr. McCarren’s and Dr. Kahanovitz’s depositions.
Claimant appealed to the Board which, on March 26, 2019, affirmed the WCJ’s
decision. Claimant appealed to this Court.6
Discussion
Initially,
[i]n a claim petition, the claimant has the burden of proving
all elements necessary to support an award, including the
6
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
‘In performing a substantial evidence analysis, this [C]ourt must view
the evidence in a light most favorable to the party who prevailed
before the factfinder.’ ‘Moreover, we are to draw all reasonable
inferences which are deducible from the evidence in support of the
factfinder’s decision in favor of that prevailing party.’ It does not
matter if there is evidence in the record supporting findings contrary
to those made by the WCJ; the pertinent inquiry is whether the
evidence supports the WCJ’s findings.
3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings Int’l), 921 A.2d
1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting Waldameer Park, Inc. v. Workers’
Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003)).
4
burden to establish the duration of disability.[7] A claimant
establishes ongoing disability by the presentation of
unequivocal medical evidence. When a claimant fails to
present unequivocal testimony establishing ongoing
disability after a certain date, benefits are properly
terminated as of that date.
Wagner v. Workers’ Comp. Appeal Bd. (O’Malley Wood Prods., Inc.), 805 A.2d 683,
684-85 (Pa. Cmwlth. 2002) (citations omitted).
1. Benefits Pending Remand
Claimant contends that this Court’s August 21, 2017 decision vacating
the Board’s decision upholding the WCJ’s grant of Employer’s Termination Petition
entitled her to reinstated wage loss benefits from June 6, 2013 (Termination Petition
effective date) to February 23, 2018 (Remand Decision date). See Claimant Br. at 2,
17-18. Employer responds that this claim is groundless because this Court’s August
21, 2017 order does not expressly award Claimant WC benefits in conjunction
therewith, and Claimant waived the issue by failing to raise it in response to the
WCJ’s February 23, 2018 Remand Decision. See Employer Br. at 55 n.10.
Subject to exceptions not applicable here, Pennsylvania Rule of
Appellate Procedure (Rule) 1551(a) specifies that “[n]o question shall be heard or
considered by the court which was not raised before the government unit[.]”
Pa.R.A.P. 1551(a). Moreover, the waiver doctrine, which applies in WC
proceedings, requires parties to raise issues at the earliest possible opportunity. See
Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906 (Pa. 2002).
7
“Under [the WC Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-
1041.4, 2501-2710], the term ‘disability’ is synonymous with loss of earning power.” Donahay v.
Workers’ Comp. Appeal Bd. (Skills of Cent. PA, Inc.), 109 A.3d 787, 792 (Pa. Cmwlth. 2015).
Therefore, “[i]f the reduction in earnings is not tied to a loss of earning power attributable to the
work injury, no disability benefits are due.” Id. at 793.
5
Here, Claimant did not raise the reinstated wage issue to the WCJ during
remand, nor in her March 7, 2018 appeal from the WCJ’s remand decision to the
Board. Rather, she raised it for the first time in her April 23, 2019 appeal to this
Court from the Board’s decision after remand, as follows:
The [Board] failed to comprehend that the portion of the
original [d]ecision GRANTING the claim petition was
NOT [v]acated, so the award of benefits was ongoing as of
the date the [t]ermination was [v]acated, and benefits
should have been paid retroactive to the date [Employer]
was (erroneously) awarded a termination of those benefits.
Petiton for Review at 3.
The law is well settled that “[r]emand orders are interlocutory and not
appealable except by permission in accordance with [Section 702(b) of the Judicial
Code,] 42 Pa.C.S. § 702(b) and [Rule] 1311 [(relating to interlocutory appeals by
permission)].” Macaluso v. Workmen’s Comp. Appeal Bd. (Phila. Coll. of
Osteopathic Med.), 597 A.2d 730, 731 (Pa. Cmwlth. 1991). Because the Schock I
opinion was interlocutory, the first opportunity for Claimant to raise the reinstatement
issue was in response to the WCJ’s February 23, 2018 Remand Decision, but she did
not. Since Claimant failed to first raise the reinstatement issue below, it is waived.
Claimant’s attempt in her petition for review to bootstrap the issue as a Board error
(i.e., “The [Board] failed to comprehend”) does not salvage the waiver. Petition for
Review at 3.
Notwithstanding, Claimant’s argument that this Court’s August 21, 2017
remand order entitled her to reinstated benefits lacks merit. We acknowledge this
Court’s rulings that “[a]n order of the Board vacating a [WCJ’s] order and remanding
the case for further findings of fact has the effect of reinstating [an NCP] issued
before the [WCJ’s] decision . . . .” Mason v. Workmen’s Comp. Appeal Bd. (Hilti
Fastening Sys. Corp.), 657 A.2d 1020, 1024 (Pa. Cmwlth. 1995); see also Kurtz v.
6
Allied Corp., 561 A.2d 1294, 1298 (Pa. Cmwlth. 1989) (“[T]he effect of an order of
the Board vacating the [WCJ’s] decision and remanding the case to the [WCJ] for
further findings is to reinstate the [NCP] prior to the [WCJ’s] decision.”).
In the instant matter, however, the Schock I order specifically vacated
the Board’s order and instructed the Board to return the matter to the WCJ to explain
the objective bases for her credibility determinations underlying her termination
decision. See Schock I, slip op. at 20-22, 25, Order. The Schock I Court did not
vacate the WCJ’s order granting Employer’s Termination Petition. Because the
WCJ’s June 26, 2014 order denying wage loss benefits after June 6, 2013 remained in
effect, Claimant would not have been entitled to wage loss benefits pending remand.
2. Termination Petition
Claimant argues that the WCJ’s substantial evidence analysis on remand
failed to address several of her claims. Claimant specifically asserts that the
Termination Petition should have been denied based upon her credible testimony of
ongoing, worsening pain; and, since the WCJ’s February 23, 2018 credibility
determinations were logically inconsistent with Claimant’s credible testimony, the
WCJ did not issue a reasoned decision. Employer asserts that Claimant’s argument is
nothing more than “a camouflaged expression of dissatisfaction with the credibility
assessments made by the ultimate factfinder.” Employer Br. at 19.
Preliminarily, the law is well established that “[t]he WCJ is the ultimate
factfinder and has exclusive province over questions of credibility and evidentiary
weight.” Univ. of Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8
(Pa. Cmwlth. 2011). Moreover, “[t]o succeed in a termination petition, an employer
bears the burden of proving by substantial evidence that a claimant’s disability
ceased, or any remaining conditions are unrelated to the work injury.” Westmoreland
Cty. v. Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008).
7
The burden is substantial since disability is presumed to continue unless and until
proven otherwise. Giant Eagle, Inc. v. Workmen’s Comp. Appeal Bd. (Chambers),
635 A.2d 1123 (Pa. Cmwlth. 1993).
In a case where the claimant complains of continued pain,
this burden is met when an 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. If the WCJ credits this testimony, the termination of
benefits is proper.
Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa.
1997) (footnote omitted); see also Elberson v. Workers’ Comp. Appeal Bd. (Elwyn,
Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007).
“The determination of whether a claimant’s subjective complaints of
pain are accepted is a question of fact for the WCJ.” Udvari, 705 A.2d at 1293. The
Schock I Court summarized:
Claimant testified in person and by deposition. Claimant
stated that she started working for Employer in August
2011 and had no problems with her back before that
date.[FN2] Her job duties as a deli clerk included slicing deli
meat and cheeses and preparing deli products. She lifted up
to 50 pounds and stood six to eight hours a day. She earned
$8.00 per hour, or $300[.00] per week before taxes.
Claimant testified that the April 30, 2012, work incident
caused pain in her lower back that ‘[s]hoots down into [her]
left leg, into [her] left foot and then [she] also ha[s] pain
down the right, in the back until about [her] ankle.’
Claimant did light-duty work for Employer from April 30,
2012, until July 16, 2012. Thereafter, she worked as a
greeter for four hours a day, from August 20, 2012, through
August 27, 2012; from October 10, 2012, until October 18,
2012; and from November 27, 2012, until December 3,
2012. As a greeter, Claimant sat at the front door and
handed out circulars. Claimant has not returned to work
8
since December 3, 2012, because the pain in her back and
leg ‘became unbearable.’
Claimant testified that she was first treated at [Concentra
Occupational Medicine (]Concentra[)] and then transferred
to Rothman Institute, which administered an epidural
injection that only worsened her pain. [The] Rothman
Institute referred Claimant to Dr. [] Izzo, who did a
functional capacity evaluation, followed by an
electromyogram (EMG) on November 26, 2012. In the
meantime, on November 16, 2012, Employer issued a
Notice of Ability to Return to Work to Claimant, based on
an IME done by Dr. [] Kovalsky. On June 11, 2013,
Claimant underwent a back surgery performed by Dr. []
Freese; until then, she testified, her pain has ‘progressively
gotten worse.’
[FN2]
Claimant acknowledged sustaining a back
injury in 1999, from which she fully recovered.
Schock I, slip op. at 2-3 (internal record citations omitted).
In the June 26, 2014 decision, the WCJ made the following finding of
fact (FOF) regarding Claimant’s testimony:
This [WCJ] had the opportunity to observe Claimant during
her testimony and finds her credible based on her demeanor.
Her testimony is credible that on April 30, 2012 she slipped
and fell and injured her lower back. Her testimony is
credible that she attempted to return to light-duty work on
four occasions and last worked on December 3, 2012, at
which point she did not continue to work because of her
symptoms. Her testimony is credible that she had a prior
back injury for which she received treatment, but she was
not treating for back pain at the time of her work injury.
WCJ 6/26/14 Dec. at 9 (FOF 15). Contrary to Claimant’s argument on appeal, the
WCJ did not find that all of Claimant’s ongoing pain complaints are attributable to
her work injury.
According to the record, Claimant’s medical witness, physiatrist Dr.
Izzo, first saw Claimant on October 16, 2012 for purposes of conducting a Functional
9
Capacity Evaluation (FCE). He reviewed her records and found Claimant’s May 30
and August 6, 2012 MRI studies showed desiccation, bulging and circumferential
annular tearing at L4-5 and L5-S1. On November 26, 2012, Dr. Izzo conducted an
EMG/Nerve Conduction Study that revealed Claimant also had bilateral lumbar
radiculopathy. Dr. Izzo attributed all of Claimant’s conditions to her April 30, 2012
work injury. Although Dr. Izzo originally opined that Claimant could work in a
sedentary capacity, after Claimant complained of increasing neck and back pain
resulting from her sedentary job, he placed Claimant on disability effective December
3, 2012.
Claimant also presented the testimony of neurosurgeon Dr. Freese, who
examined Claimant in April 2013. Dr. Freese reviewed Claimant’s April 4, 2013
MRI that reflected Claimant’s annular tear and protrusion and desiccation at L4-5.
Dr. Freese recalled that a May 14, 2013 discogram revealed pain at L3-4 and L5-S1.
On June 11, 2013, Dr. Freese performed lumbar laminectomies, facetectomies,
discectomies and a fusion at L4-5 and L5-S1. He opined that Claimant’s complaints
and surgery were directly related to her April 30, 2012 work injury. Dr. Freese
declared that Claimant was incapable of returning to work as of April 5, 2013 due to
discogenic pain combined with radiculopathy.
Employer’s medical witness, orthopedic surgeon Dr. Kovalsky,
conducted an IME of Claimant on October 12, 2012. He testified that Dr. Izzo’s FCE
was not a true FCE because it lacked consistency and validity testing. Dr. Kovalsky
also stated that the EMG data was insufficient to support a lumbar radiculopathy
diagnosis. He noted that Claimant’s May and August 2012 MRIs revealed no disc
herniation. He observed that Claimant’s May 2, 2012 examination at Concentra by
Eric Solomon, M.D. (Dr. Solomon) showed no evidence of objective abnormalities
other than thigh and lumbar contusions, and that her August 13, 2012 examination
and testing by Jeremy I. Simon, M.D. (Dr. Simon) at the Rothman Institute revealed
10
no abnormalities or radiculopathy. Dr. Kovalsky declared that Claimant presented no
clinical evidence of neurologic deficit or radiculopathy during his October 12, 2012
examination. He recounted that Claimant attempted to magnify her symptoms. Dr.
Kovalsky opined that Claimant had not fully recovered from her work injury as of
that date, but felt she was capable of performing light-duty work.
Employer’s medical witness, orthopedic surgeon Dr. Kahanovitz,
examined Claimant on June 6, 2013. Dr. Kahanovitz observed that Claimant’s May
and August 2012 MRIs revealed degenerative changes at L4-5 and L5-S1 without
evidence of any nerve root or neurologic compression, and declared that the disc
herniations in the April 2013 MRI did not evolve from the earlier MRIs. He testified
that Claimant demonstrated no evidence of neurologic deficit or lumbar radiculopathy
during his examination, but she did magnify her symptoms. Dr. Kahanovitz declared
that Dr. Freese’s surgery was not related to her work injury. Dr. Kahanovitz
concluded that Claimant sustained a lumbar strain as a result of her April 30, 2012
work injury, but that she fully recovered therefrom as of the date of his examination.
Employer’s medical witness, neurologist Dr. McCarren, who is certified
in performing and interpreting EMG and nerve conduction studies, explained how
they should be performed. He reviewed Claimant’s November 26, 2012 EMG/Nerve
Conduction Study and declared it incomplete because it did not demonstrate the
normal activities used when conducting such a test and it resulted in erroneous
conclusions. He also stated that it was unreliable because there was insufficient data
to warrant a lumbar radiculopathy diagnosis and attendant surgery.
“The WCJ . . . is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Accordingly,
11
“Section 422(a) [of the WC Act (Act), 77 P.S. § 834,8] does not permit a party to
challenge or second-guess the WCJ’s reasons for credibility determinations. [Thus,
u]nless made arbitrarily or capriciously, a WCJ’s credibility determinations will be
upheld on appeal.”9 Pa. Uninsured Emp’rs Guar. Fund v. Workers’ Comp. Appeal
Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp.
Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006)). This
Court has explained:
To constitute a reasoned decision within the
meaning of Section 422(a) [of the Act], a WCJ’s
decision must permit adequate appellate review.
Where medical experts testify by deposition, a
WCJ’s resolution of conflicting evidence must be
supported by more than a statement that one expert
is deemed more credible than another. Some
articulation of the actual objective basis for the
8
Section 422(a) of the Act specifies:
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
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. The [WCJ] shall specify the
evidence upon which the [WCJ] relies and state the reasons
for accepting it in conformity with this section. When faced
with conflicting evidence, the [WCJ] must adequately
explain the reasons for rejecting or discrediting competent
evidence. Uncontroverted evidence may not be rejected for
no reason or for an irrational reason; the [WCJ] must identify
that evidence and explain adequately the reasons for its
rejection. The adjudication shall provide the basis for
meaningful appellate review.
77 P.S. § 834.
9
Capricious disregard “occurs only when the fact-finder deliberately ignores relevant,
competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862
A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as
here, the WCJ expressly considered and rejected the evidence. Williams.
12
credibility determination must be offered for the
decision to be a ‘reasoned’ one which facilitates
effective appellate review.
There are countless objective factors which may
support a WCJ’s credibility determinations. These
factors must be identified and articulated.
Verizon Pa. Inc. v. Workers’ Comp. Appeal Bd. (Mills), 116 A.3d 1157, 1162 n.3 (Pa.
Cmwlth. 2015) (quoting Dorsey, 893 A.2d at 194-95 (citations, internal quotations,
and brackets omitted)).
Here, on remand, the WCJ found Dr. Izzo’s testimony regarding
Claimant’s examination dates and Claimant’s FCE credible. See WCJ Remand Dec.
at 4 (FOF 8). The WCJ did not deem credible Dr. Izzo’s various diagnoses or his
opinion that Claimant’s ongoing complaints of lumbar radiculopathy are the direct
result of her April 30, 2012 work injury because
Claimant told Dr. Izzo she had recovered from [a] back
injury she sustained in 2000; Dr. Izzo reviewed no records
referable to the 2000 low back injury; Dr. Izzo reviewed no
records from Concentra; Dr. Izzo agreed the May and
August 2012 MRI studies did not reveal evidence of disc
herniation; and upon physical examination, Dr. Izzo found
no evidence of abnormal sensation in the lower extremities,
no evidence of abnormal reflexes in the lower extremities,
no evidence of an antalgic gait, and no evidence of atrophy
in the lower extremities.
WCJ Remand Dec. at 4 (FOF 8).
The WCJ found credible Dr. Freese’s testimony that he evaluated
Claimant on April 5, 2013, reviewed her April 4, 2013 MRI and performed
Claimant’s June 11, 2013 surgery. The WCJ concluded that Dr. Freese’s testimony
was otherwise not credible. Specifically,
[h]is testimony is not credible that his diagnosis of
significant disc injuries to L4-5 and L5-S1 with annular
tears and progressive disc protrusions causing a
combination of discogenic pain as well as radiculopathy and
13
the surgery he performed are related to the work injury. In
so finding, this [WCJ] finds it significant that Dr. Freese
only reviewed the April 4, 2013 MRI prior to the surgery
and did not review additional medical records until he
prepared for his deposition; he reviewed no records relative
to Claimant’s 2000 back injury; Claimant has a history of
smoking and he agreed smoking is associated with disc
desiccation; he agreed the 2012 MRIs showed no evidence
of disc herniations; he did not identify any abnormal
reflexes or evidence of atrophy in the lower extremities
upon his physical examination; and he testified that the
comprehensive review of the medical records are consistent
with the findings he made, but when asked about medical
records that documented findings that were inconsistent
with his examination, he testified that records documenting
inconsistencies would not be relevant.
WCJ Remand Dec. at 4-5 (FOF 9).
The WCJ found all of Dr. Kovalsky’s testimony credible, explaining:
His testimony is credible that he did not find evidence of
any residual lumbosacral sprain and strain or contusion, and
Claimant was capable of performing a light[-]duty position
as of the date of his examination. His testimony is credible
that Claimant had not fully recovered from the April 30,
2012 work injury as of the time of his examination. In
finding the testimony of Dr. Kovalsky credible, this [WCJ]
finds it significant that . . . his examination was essentially
benign and did not reveal any clinical evidence of
neurologic deficit or lumbar radiculopathy; . . . his clinical
findings were consistent with the findings of Dr. Solomon
at Concentra and Dr. Simon, both of whom found no
evidence of neurologic deficit or lumbar radiculopathy; his
clinical findings were consistent with the results of the May
and August 2012 lumbar MRI studies which revealed no
evidence of disc herniation; and his diagnosis was
supported by the testimony of Dr. McCarren who opined
the EMG data is insufficient to support a diagnosis of
lumbar radiculopathy.
WCJ Remand Dec. at 5 (FOF 10).
The WCJ also found all of Dr. Kahanovitz’s testimony credible, stating:
14
In finding his testimony credible, this [WCJ] notes that Dr.
Kahanovitz . . . has performed procedures similar to the one
that Dr. Freese performed on Claimant; his clinical findings
revealed no evidence of neurologic deficit or lumbar
radiculopathy; his inability to detect clinical evidence of
neurologic deficit and lumbar radiculopathy is consistent
with and corroborated by the examination findings reported
months earlier by Dr. Kovalsky; his physical examination
findings were consistent with the clinical findings reported
by Dr. Solomon and Dr. Simon, both of whom examined
Claimant soon after her work injury; the May and August
2012 lumbar MRIs revealed no evidence of lumbar disc
herniation; he found evidence of symptom magnification
consistent with that identified by Dr. Kovalsky during his
October 12, 2012 examination; he credibly explained that
Claimant’s 2012 MRI findings are consistent with
degenerative changes and do not reveal evidence of nerve
root involvement; and he credibly explained why the
findings on the April 2013 MRI study would not be related
to the work injury.
WCJ Remand Dec. at 5-6 (FOF 11).
In addition, the WCJ found all of Dr. McCarren’s testimony credible,
adding:
In finding the opinion of Dr. McCarren credible, this [WCJ]
notes . . . he offered a thorough explanation of how and why
the [November 26, 2012] EMG study was incomplete and
did not support a diagnosis of lumbar radiculopathy; and his
conclusion that the study did not support a diagnosis of
radiculopathy is consistent with the clinical examinations of
Dr. Kovalsky and Dr. Kahanovitz, both of whom found no
evidence of lumbar radiculopathy.
WCJ Remand Dec. at 6 (FOF 12).
The WCJ further found:
13. The testimony of Dr. Kahanovitz is accepted over the
contrary testimony of Dr. Freese for several reasons.
Claimant told Dr. Freese she was pain free prior to the work
injury, whereas Dr. Kahanovitz noted that the July 24, 2012
report of [another physician] specified that Claimant had a
15
history of chronic low back pain. Dr. Freese testified that
Claimant’s clinical examinations had been consistent since
the injury and were consistent with his examination, yet
when confronted with evidence to the contrary he testified
that such inconsistencies were irrelevant. The testimony of
Dr. Freese that the condition of Claimant’s lumbar spine
progressed over time is contradicted by the fact that the
August 6, 2012 MRI findings were similar to the May 2012
study. Dr. Freese only reviewed the April 2013 MRI at the
time of his initial examination of Claimant, and did not
review additional medical records until he was preparing for
his deposition. The testimony of Dr. Kahanovitz is
consistent with the credible testimony of Dr. McCarren that
the EMG study includes insufficient data to support a
lumbar radiculopathy.
14. The testimony of Dr. Kovalsky and the testimony of Dr.
McCarren is accepted over the testimony of Dr. Izzo
regarding the nature of Claimant’s injury. Dr. Kovalsky is a
board certified orthopedic surgeon whereas Dr. Izzo is a
physiatrist. Dr. Izzo agreed the May and August 2012 MRI
studies did not reveal evidence of a disc herniation. Dr.
Izzo agreed that the examinations performed by [Claimant’s
doctors after the work accident] found no evidence of nerve
root involvement or lumbar radiculopathy. Dr. Izzo agreed
he found no evidence of abnormal sensation, no evidence of
abnormal reflexes, no evidence of an antalgic gait, and no
atrophy on physical examination. Dr. McCarren’s analysis
and conclusions relative to the EMG study are consistent
with Dr. Kovalsky’s physical examination findings and
conclusions.
WCJ Remand Dec. at 6-7 (FOFs 13-14).
Neither the Board nor this Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
A.2d 1246 (Pa. 2001). On remand, the WCJ summarized all of the medical testimony
and adequately explained her credibility determinations. Based upon its review of the
record evidence and, with the WCJ’s role as factfinder in mind, the Board upheld the
WCJ’s findings.
16
Because this Court may not reweigh the evidence or the WCJ’s
credibility determinations, and must view the evidence in a light most favorable to
Employer, after a thorough review of the record, we hold that the Board properly
concluded that the WCJ issued a reasoned decision, upheld the WCJ’s credibility
determinations on remand, and affirmed the WCJ’s grant of Employer’s Termination
Petition.
3. Litigation Costs
Claimant also argues that the Board erred by affirming the WCJ’s
decision denying Claimant reimbursement for Dr. McCarren’s and Dr. Kahanovitz’s
depositions. She specifically asserts that the issue of litigation cost reimbursement
should be determined based upon all evidence used relative to the issue on which she
prevailed, and not just the evidence found credible in relation to that issue.
Section 440(a) of the Act10 provides, in relevant part:
In any contested case where the insurer has contested
liability in whole or in part, including contested cases
involving petitions to terminate, . . . the employe . . . in
whose favor the matter at issue has been finally determined
in whole or in part shall be awarded, in addition to the
award for compensation, a reasonable sum for costs
incurred for attorney’s fee, witnesses, necessary medical
examination, and the value of unreimbursed lost time to
attend the proceedings[.]
77 P.S. § 996(a). Moreover, Section 422(a) of the Act requires that “all findings of
fact shall be based upon sufficient competent evidence to justify same.” 77 P.S. §
834. The WCJ cannot disregard competent evidence without a reasonable
explanation or without specifically discrediting it.
10
Added by Section 3 of the Act of February 8, 1972, P.L. 25.
17
Here, Employer accepted that Claimant sustained a work-related lumbar
strain on April 30, 2012. In her claim petition, Claimant sought partial disability
benefits from April 30, 2012 to July 16, 2012, and total disability benefits thereafter.
Claimant prevailed on her claim petition for periods that she was disabled due to her
work injury between April 30, 2012 and June 6, 2013. Claimant did not succeed in
proving that the neurological deficit or bilateral lumbar radiculopathy her doctors
claimed prevented her from working after June 6, 2013 were related to her April 30,
2012 work injury. Accordingly, the WCJ denied that Claimant’s work-related
disability continued after June 6, 2013.
The Schock I Court summarized:
As to Dr. McCarren’s deposition, the WCJ found it ‘did not
negate the fact that [Claimant] injured her low back on
April 30, 2012[,] nor did it negate the fact that she was
entitled to [WC] benefits for various periods of time in 2012
and 2013.’ WCJ Decision, 10/21/2015, at 4; [FOF] 8. The
WCJ further found ‘[Dr. Kahanovitz’s] testimony
confirmed that Claimant sustained a work-related injury in
April of 2012 in the nature of a lumbar strain, thereby
supporting Claimant’s [c]laim [p]etition in part.’ WCJ
Decision, 10/21/2015, at 5; [FOF] 9.
Schock I, slip op. at 14. The Schock I Court agreed with the Board that Claimant was
not entitled to reimbursement for Dr. McCarren’s deposition costs because that
deposition was not related to the parts of the claim petition upon which Claimant
prevailed. See Schock I. This Court further concurred that Claimant was not entitled
to be reimbursed for Dr. Kahanovitz’s deposition costs because his testimony
confirmed Claimant’s accepted work injury, which was not contested. See id.
Notably, the Schock I Court only vacated the Board’s decision reversing the WCJ’s
reimbursement cost award for those depositions because, if the WCJ was to change
18
her decision and deny the Termination Petition on remand,11 Claimant could be
entitled to such costs.
On remand, the WCJ again granted the Termination Petition but, this
time, declined to award Claimant costs related to Dr. McCarren’s and Dr.
Kahanovitz’s depositions, “[d]ue to the granting of the Termination Petition[.]” WCJ
Remand Dec. at 7. The WCJ deemed credible Dr. McCarren’s and Dr. Kahanovitz’s
testimony that Claimant did not suffer from lumbar radiculopathy related to her work
injury that resulted in her disability after June 6, 2013. Neither Dr. McCarren nor Dr.
Kahanovitz refuted the claims on which Claimant prevailed – that Claimant suffered
a work-related lumbar strain on April 30, 2012 that led to various periods of disability
through June 6, 2013. Accordingly, this Court adopts the Schock I Court’s reasoning
and likewise concludes that the Board properly upheld the WCJ’s conclusion that
Claimant is not entitled to costs related to Dr. McCarren’s and Dr. Kahanovitz’s
depositions.
Based upon the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
11
The Schock I Court was cognizant that, on remand to explain the rationale for her
credibility determinations, the WCJ was not precluded from reversing her original decision. See
Reinert v. Workers’ Comp. Appeal Bd. (Stroh Cos.), 816 A.2d 403 (Pa. Cmwlth. 2003).
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sarah Schock, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Brown’s Super Stores t/a :
Shop-Rite), : No. 478 C.D. 2019
Respondent :
ORDER
AND NOW, this 12th day of December, 2019, the Workers’
Compensation Appeal Board’s March 26, 2019 order is affirmed.
___________________________
ANNE E. COVEY, Judge