Lackawanna County v. WCAB (Rosky) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lackawanna County, :
Petitioner :
:
v. : No. 1084 C.D. 2018
: Submitted: November 21, 2018
Workers’ Compensation :
Appeal Board (Rosky), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: June 4, 2019
Lackawanna County (Employer) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), dated July 13, 2018. The Board
affirmed the decision of Workers’ Compensation Judge Joseph Grady (WCJ Grady),
granting the reinstatement petition filed by William R. Rosky (Claimant).1 For the
reasons set forth below, we affirm the Board’s order.
Claimant worked for Employer as a Deputy Sheriff. On
January 31, 2013, Claimant sustained a work-related injury to his left shoulder, neck,
and upper back. By decision and order dated May 26, 2016, Workers’ Compensation
1
WCJ Grady also denied Employer’s termination petition. Employer’s termination
petition is not relevant to this appeal, and, therefore, we do not address it in this opinion.
Judge Howard Spizer (WCJ Spizer) amended Claimant’s injury description to
include cervical radiculopathy2 and terminated Claimant’s workers’ compensation
benefits with respect to the injury to Claimant’s left shoulder and upper back as of
October 24, 2014. Thereafter, on September 8, 2016, Claimant filed a reinstatement
petition, alleging that the work-related injury to his left shoulder had recurred as of
June 6, 2016.
Before WCJ Grady, Claimant testified that, on January 31, 2013, he
was transporting a highly intoxicated female prisoner from Employer’s processing
center to an ambulance, when the female prisoner started to fall forward.
(R.R. at 87a-88a.) Claimant explained that he was concerned that the female
prisoner would fall onto her face because her hands were handcuffed to a court belt
located around her waist, so he “yanked” the court belt back with his left hand,
causing him to experience a sharp, shock-like pain up his left arm and into his
shoulder and neck. (Id. at 87a-89a.) Immediately following the work-related
incident, Claimant experienced “excruciating” pain in his left shoulder joint and
“running down [his] arm,” as well as tingling and numbness in his hand and fingers.
(Id. at 93a-94a, 97a-98a.) Claimant has not returned to his regular duties as a Deputy
Sheriff since January 31, 2013, but he did work light duty for one month in the
summer of 2013. (Id. at 89a.)
2
There appears to be some discrepancy regarding the nature of Claimant’s amended injury
description. In his May 26, 2016 decision, WCJ Spizer amended Claimant’s injury description to
include cervical radiculopathy. (See Reproduced Record (R.R.) at 301a; WCJ Spizer’s Decision
at 8, Conclusion of Law No. 4.) In WCJ Grady’s August 14, 2017 decision and Claimant’s brief,
however, WCJ Grady and Claimant indicate that WCJ Spizer amended Claimant’s injury
description to include a disc herniation at C5-6. (See WCJ Grady’s Decision at 3, Finding of Fact
No. 3; Claimant’s Br. at 6.) While we have noted this discrepancy for the record, we will not
address it in any further detail as Claimant’s neck/cervical injury is not the subject of this appeal.
2
Claimant testified further that he has treated with various doctors for
the work-related injury to his left shoulder, including Hans Olsen, M.D., who
performed surgery in February 2014. (Id. at 90a-91a, 100a.) Following the surgery,
Claimant continued to experience pain in his left shoulder that radiated down his
arm into his bicep and elbow. (Id. at 94a.) Claimant explained, however, that the
radiating pain had decreased and his range of motion had improved.
(Id. at 94a-95a, 104a.) He continued to treat with Dr. Olsen for his left shoulder
until 2015. (Id. at 100a.) Michael Haak, M.D., the surgeon who performed surgery
on Claimant’s neck, referred Claimant back to Dr. Olsen in 2016 based on
Claimant’s complaints of continued left shoulder pain. (Id. at 115a.) Claimant
indicated that he treated with Dr. Olsen on two separate occasions in 2016 and that,
on those occasions, Dr. Olsen examined Claimant’s left shoulder, ordered an MRI,
reviewed the results of the MRI with Claimant, and referred Claimant to Joseph J.
Chun, D.O., for pain management. (Id. at 101a-03a, 116a.)
Claimant testified that he began treating with Dr. Chun in spring/early
summer 2016, and Dr. Chun referred him to John D. Kelly, M.D., who scheduled a
full rotator cuff tear surgery on his left shoulder. (Id. at 92a-93a.) Claimant testified
further that he continues to experience a stabbing pain in the front and towards the
top of his left shoulder joint. (Id. at 97a.) While he has good days, his left shoulder
joint has never been pain free since the January 31, 2013 work-related injury.
(Id. at 104a-05a.) He did not believe that he was capable of returning to work as a
Deputy Sheriff due to the weakness and pain in his left shoulder. (Id. at 98a.)
Claimant further indicated that he has not sustained any additional injuries to his left
shoulder since the January 31, 2013 work-related incident. (Id. at 113a.)
3
Claimant also presented the deposition testimony of Dr. Chun, who is
board certified in pain medicine and physical medicine and rehabilitation.
(Id. at 166a.) Dr. Chun first treated Claimant on June 6, 2016, for complaints of pain
in his left shoulder and neck. (Id. at 167a-68a.) At that time, Claimant reported
persistent pain in the anterolateral area of his left shoulder and the left upper
trapezius/upper shoulder region since the January 31, 2013 work-related injury.
(Id. at 168a-69a.) Claimant also reported that his left shoulder pain was constant,
achy and stabbing in nature, and aggravated by activity. (Id. at 169a-70a.)
Dr. Chun’s physical examination of Claimant’s left shoulder revealed painful and
restricted range of motion above 90 degrees, positive impingement signs, a positive
biceps tendon provocative maneuver, and a positive labrum maneuver.
(Id. at 171a-72a.) Following his examination of Claimant, Dr. Chun’s initial
impression was that Claimant’s January 31, 2013 work-related injury caused him to
suffer persistent left shoulder pain. (Id. at 172a-73a.) Dr. Chun diagnosed Claimant
with a “left shoulder injury requiring shoulder arthroscopic labral tear repair and
decompression and . . . cervical fusion at the C5-6 level[,] . . . persistent rotator cuff
tendonitis, bursitis and possible bicipital tendonitis and probably persistent pain
related to the superior labral tear.” (Id. at 173a.) Based on his diagnosis, Dr. Chun
recommended a diagnostic ultrasound of Claimant’s left shoulder, a steroid injection
into Claimant’s left glenohumeral joint, and the use of a topical compound pain
cream. (Id. at 173a-74a.)
Dr. Chun testified that Claimant returned to him on July 11, 2016.
(Id. at 174a.) Despite the steroid injection into Claimant’s left glenohumeral joint,
Claimant’s condition remained the same. (Id. at 174a-75a.) As a result, Dr. Chun
recommended that Claimant undergo a platelet-rich plasma injection in his left
4
glenohumeral joint. (Id. at 176a.) Dr. Chun also continued Claimant’s work
restrictions of sedentary duty with no activities involving the left shoulder. (Id.)
Thereafter, on July 25, 2016, Claimant underwent a diagnostic ultrasound of his left
shoulder, which revealed moderate subacromial subdeltoid bursal thickening,
supraspinatus tendinopathy, possible subtle interstitial tearing of the tendon, and a
small partial-thickness tear of the infraspinatus tendon. (Id. at 177a-78a, 221a-22a.)
Dr. Chun indicated that these results were consistent with both his physical
examinations of Claimant and the May 2016 MRI of Claimant’s left shoulder.
(Id. at 178a.) Claimant again returned to Dr. Chun on September 28, 2016.
(Id. at 180a.) At that time, Claimant reported only slight improvement with his pain
following the platelet-rich plasma injection into his left shoulder and his overall
condition remained unchanged. (Id. at 180a-81a.) Dr. Chun explained that
platelet-rich plasma injections can take several weeks to a couple months to deliver
results, and, therefore, he recommended that Claimant wait some additional time to
see if he received any improvement with his symptoms. (Id. at 181a.)
Dr. Chun testified that he next treated Claimant on November 28, 2016.
(Id. at 182a.) At that time, Claimant reported minimal improvement in his pain and
that his pain continued to be aggravated with activity; Claimant’s condition
otherwise remained the same. (Id. at 182a-83a.) Because Claimant continued to
experience significant pain and functional limitations despite injections,
medications, physical therapy, and home exercises, Dr. Chun referred Claimant to
Dr. Kelly for an orthopedic surgery consultation. (Id. at 183a-84a.) Claimant
returned to Dr. Chun on January 30, 2017, and March 13, 2017. (Id. at 184a, 187a.)
On those dates, Claimant’s pain complaints and Dr. Chun’s physical examination of
Claimant remained unchanged. (Id. at 184a-87a.) Dr. Chun explained, however,
5
that, based on Dr. Kelly’s consultation of Claimant, his impression had changed to
include a high-grade partial rotator cuff tear in Claimant’s left shoulder.
(Id. at 187a-89a.) Dr. Chun also explained that Claimant’s work restrictions
remained the same as they had throughout his treatment—i.e., sedentary duty with
no activities involving the left shoulder. (Id. at 181a, 183a, 186a, 189a-90a.)
Dr. Chun further testified that the May 2016 MRI of Claimant’s left
shoulder, when compared with a March 2013 MRI, evidenced a worsening of
Claimant’s condition with respect to the supraspinatus tendon. (Id. at 192a-94a.)
Overall, Dr. Chun opined that Claimant continues to suffer from his
January 31, 2013 work-related injury, which he diagnosed as a high-grade partial
rotator cuff tear, rotator cuff tendonitis, bursitis, possible bicipital tendinitis, and
persistent pain relative to the superior labral tear. (Id. at 196a-97a.) Dr. Chun further
opined that he would continue to restrict Claimant to sedentary duty with no
activities involving the left shoulder and that Claimant was not capable of returning
to work as a Deputy Sheriff. (Id. at 198a, 202a.) Dr. Chun also opined that the
disability related to Claimant’s work-related left shoulder injury: (1) recurred at
least as of his initial examination of Claimant on June 6, 2016; and (2) worsened
since October 24, 2014, the date of WCJ Spizer’s decision terminating Claimant’s
benefits relative to the left shoulder injury. (Id. at 199a-200a.) With respect to the
worsening of Claimant’s left shoulder injury, Dr. Chun explained that the symptoms
relative to Claimant’s left shoulder progressed throughout his treatment of Claimant
and that such progression was the natural progression of the work-related injury to
Claimant’s left shoulder. (Id. at 200a.)
On cross-examination, Dr. Chun admitted that, in the course of his
treatment of Claimant, he only reviewed Dr. Olsen’s medical records for Claimant
6
from May 2016, and he did not review Dr. Olsen’s operative report or Claimant’s
medical records from Michael Tracy, M.D., Christian Fras, M.D., or Dr. Haak.
(Id. at 204a-05a, 210a-11a.) Dr. Chun also admitted that Claimant had reported to
him that his left shoulder pain had been persistent since the time of his
January 31, 2013 work-related injury and that the problem with his left shoulder was
chronic. (Id. at 205a, 227a-28a.) Dr. Chun also indicated that, since June 2016,
Claimant’s left shoulder condition had not improved and was sometimes worse.3
(Id. at 228a.)
On August 14, 2017, WCJ Grady issued a decision and order, granting
Claimant’s reinstatement petition. In so doing, WCJ Grady made the following
relevant findings of fact and credibility determinations:
18. After having made a careful review of the evidence
of record[,] the testimony of [Claimant] and the
findings and opinions of Dr. Chun have been
accepted as most credible and convincing and to this
end it is found that [Claimant’s] original work
injury to his left shoulder has recurred . . . and
therefore [C]laimant’s [r]einstatement [p]etition
shall be granted . . . .
19. In reaching the above finding this Judge is mindful
of [Claimant’s] medical history since his work
injury of January 31, 2013. And this Judge is also
mindful of [WCJ] Spizer’s previous decision from
May 2016 wherein he found [C]laimant fully
recovered from his left shoulder injury and
terminated [Employer’s] responsibility with respect
to the same effective October 24, 2014.
3
Employer presented the deposition testimony of Neil Kahanovitz, M.D., who is board
certified in orthopedic surgery and restricts his practice to disorders of the spine.
(R.R. at 309a-10a.) Dr. Kahanovitz performed an independent medical examination of Claimant
on August 12, 2016. (Id. at 312a.) Dr. Kahanovitz restricted his independent medical examination,
however, to Claimant’s cervical issues; he did not address Claimant’s left shoulder complaints or
subsequent treatment thereof. (Id. at 313a-14a.)
7
Against that backdrop[,] the testimony of
[Claimant] and Dr. Chun having been reviewed
most carefully and having accepted both as credible
particularly [C]laimant’s complaints through 2014,
and following his surgery in February 2014 on his
left shoulder, which complaints continued
through 2014, into 2015 and 2016 and necessitated
surgery with Dr. Kelly in February 2017, the same
has caused this Judge to grant [C]laimant’s
[r]einstatement [p]etition.
Claimant credibly explained and described shoulder
pain particularly in his shoulder joint in the front
and towards the top of his shoulder area noting that
it felt like a screwdriver in his shoulder with a sharp
stabbing pain. Claimant described this pain existed
even after the February 2014 surgery with the pain
at times radiating down his left arm and into his
bicep and elbow.
While Dr. Kahanovitz who testified on behalf of
[Employer] herein performed an evaluation on
[Claimant] on August 12, 2016, it is noteworthy that
Dr. Kahanovitz quite clearly identified that [neither]
[C]laimant’s shoulder complaints nor subsequent
treatment of his shoulder was addressed at the time
of his independent medical evaluation. Dr.
Kahanovitz’s evaluation was almost exclusively
done with respect to [Claimant’s] neck. The terms
almost exclusively have been used inasmuch as
admittedly [C]laimant explained to Dr. Kahanovitz
his work injury did involve a left shoulder injury
and identified to Dr. Kahanovitz that he was
continuing treatment and pain management for his
left shoulder. Dr. Kahanovitz offered nothing more.
(WCJ Grady’s Decision at 8-9 (emphasis added).) Based on these findings of fact
and credibility determinations, WCJ Grady concluded that Claimant met his burden
of proof under his reinstatement petition and established that he suffered a recurrence
of his January 31, 2013 work-related left shoulder injury and that he is disabled as a
direct result thereof. Employer appealed WCJ Grady’s decision to the Board, which
8
affirmed WCJ Grady’s decision. In so doing, the Board—applying the burden of
proof applicable to a reinstatement of benefits following a suspension—concluded
that Dr. Chun’s credible testimony constituted the substantial evidence necessary for
Claimant to meet his burden of proof under his reinstatement petition. Employer
then petitioned this Court for review.
On appeal,4 Employer argues: (1) the Board committed an error of law
by affirming WCJ Grady’s decision because the Board and/or WCJ Grady applied
the incorrect burden of proof to Claimant’s reinstatement petition; (2) there is not
substantial evidence of record to support WCJ Grady’s finding that Claimant’s left
shoulder injury had recurred as of June 6, 2016; and (3) the substantial evidence of
record establishes that Claimant did not sustain a recurrence of his January 31, 2013
work-related left shoulder injury because the current condition of Claimant’s left
shoulder is unrelated to Claimant’s original work-related injury and/or Claimant’s
employment with Employer.
First, we address Employer’s argument that the Board committed an
error of law by affirming WCJ Grady’s decision because the Board and/or WCJ
Grady applied the incorrect burden of proof to Claimant’s reinstatement petition.
More specifically, Employer argues that WCJ Spizer previously determined that
Claimant had fully recovered from his work-related left shoulder and upper back
injuries and terminated Claimant’s workers’ compensation benefits in connection
with such injuries effective October 24, 2014. Employer further argues that, rather
than applying the burden of proof applicable to a reinstatement of benefits following
4
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence, and whether constitutional rights
were violated. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.),
954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).
9
a termination of benefits, the Board and/or WCJ Grady incorrectly applied the
burden of proof applicable to a reinstatement following a suspension of benefits. In
response, Claimant argues that, while the Board incorrectly cited the burden of proof
applicable to reinstatement following a suspension of benefits in its decision, WCJ
Grady correctly applied the burden of proof applicable to reinstatement following a
termination of benefits, and, therefore, the Board’s citation to the incorrect burden
of proof constitutes harmless error.
When a claimant seeks a reinstatement of benefits, his burden of proof
is dependent on whether his benefits had been previously suspended or terminated.
Pieper v. Ametek-Thermox Instruments Div., 584 A.2d 301, 304-05 (Pa. 1990). “A
claimant seeking reinstatement following a suspension of benefits must prove that:
(1) through no fault of his . . . own, the claimant’s disability, i.e., earning power, is
again adversely affected by the work-related injury, and (2) the disability which gave
rise to the original claims continues.” Sweeny v. Workmen’s Comp. Appeal Bd.
(Whitman’s Chocolates), 695 A.2d 877, 880 (Pa. Cmwlth. 1997). “A claimant
seeking [a] reinstatement of benefits following a termination[, however,] carries a
heavy burden because the claimant has been adjudicated to be fully recovered.”
Nat’l Fiberstock Corp. (Greater New York Mut. Ins. Co.) v. Workers’ Comp. Appeal
Bd. (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008). “In order to prevail on a
reinstatement petition after workers’ compensation benefits have been terminated, a
claimant must establish that his disability ‘has increased or recurred since the prior
decision and that h[is] physical condition has changed in some manner.’”
Namani v. Workers’ Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850, 854
(Pa. Cmwlth. 2011) (alteration in original) (quoting Taylor v. Workers’ Comp.
Appeal Bd. (Servistar Corp.), 883 A.2d 710, 713 (Pa. Cmwlth. 2005)), appeal
10
denied, 47 A.3d 849 (Pa. 2012). A claimant must prove the change in his physical
condition “by precise and credible evidence of a more definite and specific nature
than that upon which initial compensation was based.” Nat’l Fiberstock Corp.,
955 A.2d at 1062 (quoting Simeone v. Workmen’s Comp. Appeal Bd. (United Parcel
Serv.), 580 A.2d 926, 928 n.5 (Pa. Cmwlth. 1990), appeal denied, 593 A.2d 428
(Pa. 1991)).
Here, the parties do not dispute that WCJ Spizer terminated Claimant’s
benefits with respect to his left shoulder injury as of October 24, 2014, or that
Claimant is seeking a reinstatement of his benefits following termination. While we
agree with Employer that the Board applied the incorrect burden of proof to
Claimant’s reinstatement petition—i.e., the Board applied the burden of proof
following a suspension of benefits rather than the burden of proof following a
termination of benefits—this Court is satisfied that WCJ Grady applied the burden
of proof applicable to a reinstatement following a termination of benefits. In his
decision, WCJ Grady specifically indicated that the injury to Claimant’s left
shoulder had “recurred.” (WCJ Grady’s Decision at 8, Finding of Fact No. 18.)
WCJ Grady explained that Claimant’s left shoulder complaints continued
into 2015 and 2016 and necessitated surgery with Dr. Kelly in 2017—i.e., WCJ
Grady discussed how Claimant’s disability increased and his physical condition had
changed since October 24, 2014, the date on which WCJ Spizer terminated
Claimant’s benefits related to his left shoulder injury. (WCJ Grady’s Decision at 8,
Finding of Fact No. 19.) WCJ Grady further explained that he was “mindful of
[WCJ] Spizer’s previous decision from May 2016 wherein he found [C]laimant fully
recovered from his left shoulder injury and terminated [E]mployer’s responsibility
with respect to the same effective October 24, 2014.” (WCJ Grady’s Decision at 8,
11
Finding of Fact No. 19.) Given this analysis, it is clear that WCJ Grady properly
applied the burden of proof applicable to a reinstatement of benefits following
termination as set forth in Namani. The Board’s error in applying the incorrect
burden of proof is harmless.5
Next, we address Employer’s argument that there is not substantial
evidence of record to support WCJ Grady’s finding that Claimant’s left shoulder
injury had recurred as of June 6, 2016. More specifically, Employer argues that
Claimant failed to establish through his or Dr. Chun’s testimony that his left shoulder
condition had recurred or worsened; in fact, “Dr. Chun agreed that the alleged issues
with [Claimant’s] left shoulder were not acute conditions that recurred or worsened
in June 2016, but rather are chronic and longstanding.” (Employer’s Br. at 17.) In
response, Claimant argues that WCJ Grady’s finding that Claimant’s left shoulder
injury had recurred and worsened after Claimant’s workers’ compensation benefits
had been terminated is supported by the credible testimony of Dr. Chun. More
5
In Furnari v. Workers’ Compensation Appeal Board (Temple Inland), 90 A.3d 53 (Pa.
Cmwlth. 2014), the claimant sought to reinstate his temporary total disability benefits following
his separation from employment by filing a reinstatement petition and/or a claim petition. Furnari,
90 A.3d at 58. The workers’ compensation judge (WCJ) denied the claimant’s reinstatement
petition, concluding that the medical-only notice of compensation payable (NCP) coupled with the
employer’s payment of the claimant’s salary constituted a de facto NCP and the claimant failed to
meet his burden of proving that his condition had worsened such that he could not perform the
modified-duty position with the employer. Id. On appeal to the Board, the Board disagreed with
both the WCJ’s finding of a de facto NCP and the WCJ’s application of the burden of proof
applicable to reinstatement petitions but affirmed the WCJ’s decision on the basis that the claimant
failed to meet his burden of proof that he suffered a worsening of his condition. Id. On appeal to
this Court, we held that the Board erred in applying the burden of proof applicable to claim
petitions but that such error was harmless, because the WCJ properly applied the burden of proof
applicable to reinstatement petitions and both the Board and the WCJ concluded that the claimant
failed to meet his burden of proving that his earning power was adversely affected by his
work-related injury. Id. at 62. Ultimately, this Court reversed the Board’s order to the extent that
the Board applied the burden of proof applicable to claim petitions but affirmed the Board’s order
in all other respects. Id. at 74.
12
specifically, Claimant argues that Dr. Chun credibly testified that Claimant’s left
shoulder condition worsened since October 24, 2014 (the date that WCJ Spizer
terminated Claimant’s benefits with respect to the left shoulder injury), that the
symptoms in Claimant’s left shoulder have progressed, and that such progression is
the natural progression of Claimant’s January 31, 2013 work-related injury.
In workers’ compensation proceedings, the WCJ is the ultimate finder
of fact. Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works),
862 A.2d 137, 143 (Pa. Cmwlth. 2004). As fact-finder, matters of credibility,
conflicting medical evidence, and evidentiary weight are within the WCJ’s exclusive
province. Id. If the WCJ’s findings are supported by substantial evidence, they are
binding on appeal. Agresta v. Workers’ Comp. Appeal Bd. (Borough of
Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). Substantial evidence is
relevant evidence that a reasonable mind might accept as adequate to support a
finding. Mrs. Smith’s Frozen Foods Co. v. Workmen’s Comp. Appeal Bd. (Clouser),
539 A.2d 11, 14 (Pa. Cmwlth. 1988). “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.” Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco
Prods., Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). “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.” Id.
Here, WCJ Grady’s finding that Claimant’s left shoulder injury had
recurred as of June 6, 2016, is supported by substantial evidence. Dr. Chun credibly
testified that Claimant continues to suffer from his January 31, 2013 work-related
left shoulder injury and that the disability relative to such injury recurred at least as
of his initial examination of Claimant on June 6, 2016, and worsened since
13
October 24, 2014, the date on which WCJ Spizer terminated Claimant’s benefits
with respect to the injury to Claimant’s left shoulder. Dr. Chun explained that the
symptoms relative to Claimant’s left shoulder progressed throughout his treatment
of Claimant and that such progression was the natural progression of the
January 31, 2013 work-related injury to Claimant’s left shoulder. While it is true
that Claimant testified that his left shoulder joint has never been pain free since the
January 31, 2013 work-related injury and that Claimant did not specifically report
to Dr. Chun that his left shoulder condition had recurred or worsened since
October 24, 2014, these facts are not dispositive. Dr. Chun, as the medical
professional, considered Claimant’s complaints, the results of Claimant’s diagnostic
testing, and his physical examination of Claimant to determine whether Claimant’s
left shoulder condition had recurred or worsened. Even though Claimant described
his pain as persistent since the January 31, 2013 work-related injury, Dr. Chun
concluded based on his review of Claimant’s condition, including diagnostic testing
and his physical examination, that Claimant’s left shoulder condition had recurred
or worsened.
In addition, contrary to Employer’s contentions, Dr. Chun did not agree
that Claimant’s left shoulder issues were chronic and longstanding rather than acute
conditions that had recurred or worsened in June 2016. The testimony cited by
Employer in support of this proposition is simply Dr. Chun’s admission that
Claimant had reported to him that his left shoulder pain had been persistent since
the time of his January 31, 2013 work-related injury and that the problem with his
left shoulder was chronic. (R.R. at 205a, 227a-28a.) Employer has not directed us
to anywhere in the record where Dr. Chun specifically opined that Claimant’s left
shoulder injury had not recurred or worsened in June 2016. For these reasons, we
14
conclude that substantial evidence of record exists to support WCJ Grady’s finding
that Claimant’s left shoulder injury had recurred as of June 6, 2016.
Lastly, Employer argues that the current condition of Claimant’s left
shoulder is not related to Claimant’s original work-related injury and/or Claimant’s
employment with Employer because, “[a]s of June 6, 2016, [Claimant] had not
worked for . . . Employer for almost [three] years [and] the left shoulder abnormality
noted by Dr. Kelly was classified by him as a non-traumatic degenerative tear.”
(Employer’s Br. at 19.) In response, Claimant argues that Employer’s attempt to
establish that the current condition of his left shoulder is not a recurrence of his
January 31, 2013 work-related injury but rather “is due to some unnamed non-work
related cause . . . [is] utter speculation with no basis in the record.” (Claimant’s Br.
at 12.) More specifically, Claimant argues that the only evidence of record to
support the worsening of Claimant’s work-related left shoulder injury is the
testimony of Dr. Chun, which establishes that “the worsening of [Claimant’s] left
shoulder injury following the termination of benefits was the natural progression of
the original work injury.” (Claimant’s Br. at 13.)
Here, Employer has framed its issue in terms of whether there is
substantial evidence to support a finding that was not made by WCJ Grady—i.e.,
whether there is substantial evidence of record to establish that Claimant did not
sustain a recurrence of his January 31, 2013 work-related left shoulder injury. The
real issue before this Court, however, is whether there is substantial evidence of
record to support WCJ Grady’s necessary findings, in this instance, that Claimant
suffered a recurrence of his January 31, 2013 work-related left shoulder injury. This
argument is essentially the same argument made by Employer above, and, as
explained more fully above, WCJ Grady’s finding that Claimant suffered a
15
recurrence of his January 31, 2013 work-related left shoulder injury is supported by
substantial evidence. Dr. Chun credibly testified that Claimant continues to suffer
from his January 31, 2013 work-related left shoulder injury and that the disability
relative to such injury recurred at least as of his initial examination of Claimant on
June 6, 2016, and worsened since October 24, 2014.
Employer seems to suggest that, just because Claimant had not worked
for Employer for almost three years prior to June 6, 2016, and Dr. Kelly, in his
April 10, 2017 operative report, classified Claimant’s left shoulder abnormality as a
non-traumatic tear, Claimant could not possibly have suffered a recurrence of his
January 31, 2013 work-related injury. We stress, however, that it does not matter if
there is evidence in the record that could support a finding contrary to that made by
WCJ Grady; the only inquiry is whether there is substantial evidence of record to
support WCJ Grady’s findings. Hoffmaster, 721 A.2d at 1155. In addition,
Employer has failed to cite any place in the record where the current condition of
Claimant’s left shoulder is linked to anything other than the January 31, 2013
work-related injury. Furthermore, while Dr. Kelly’s operative report may indicate
that Claimant sustained “labral fraying incomplete non-traumatic tear and bursitis”
in his left shoulder, such an indication is not conclusive evidence that the
non-traumatic tear was not related to Claimant’s January 31, 2013 work-related
injury, as no medical provider provided any testimony regarding the significance or
insignificance of Dr. Kelly’s finding. For these reasons, we reiterate our conclusion
that there is substantial evidence of record to support WCJ Grady’s finding that
Claimant suffered a recurrence of his January 31, 2013 work-related left shoulder
injury.
16
Accordingly, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lackawanna County, :
Petitioner :
:
v. : No. 1084 C.D. 2018
:
Workers’ Compensation :
Appeal Board (Rosky), :
Respondent :
ORDER
AND NOW, this 4th day of June, 2019, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge