O. Burgos v. WCAB (Burnham, LLC) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Orlando Burgos, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Burnham, LLC), : No. 852 C.D. 2018
Respondent : Submitted: November 9, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 8, 2019
Orlando Burgos (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) May 22, 2018 order
affirming the Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s
Claim Petition and Motion to Reopen the Record (Motion). Claimant essentially
presents two issues for this Court’s review: (1) whether the Board erred by affirming
the WCJ’s conclusion that Claimant did not sustain a work-related, repetitive trauma
injury and (2) whether the Board erred by affirming the WCJ’s decision denying the
Motion.1 Upon review, we affirm.
1
Claimant presented four issues in his Statement of Questions Involved: (1) whether the
Board erred by affirming the WCJ’s conclusion that Claimant did not sustain a work-related
repetitive trauma injury; (2) whether the Board erred by affirming the WCJ’s conclusion that
arthritis caused Claimant’s hand and wrist condition; (3) whether the Board erred by affirming the
WCJ’s rejection of Carl E. Becker, II, M.D.’s medical opinion; and (4) whether the Board erred by
affirming the WCJ’s decision denying the Motion. See Claimant Br. at 5-6. Because Claimant’s
first three issues are subsumed in this Court’s analysis of the first, they have been combined herein.
Claimant had been employed by commercial-sized industrial boiler
manufacturer Burnham, LLC (Employer) since June 26, 2006. His duties required
him to use his hands for metal fabrication and boiler assembly. On January 13, 2016,
Claimant completed an Employee Injury/Illness Report Form notifying Employer of
bilateral wrist and elbow injuries caused by “working constantly,” and specifying
January 12, 2016 as the injury date.2 See Certified Record (C.R.) Item 15 (Claimant
Ex. C-1). On January 29, 2016, Employer issued a Medical-Only Notice of
Temporary Compensation Payable. See Reproduced Record (R.R.) at 56a-57a.
On February 24, 2016, Employer issued a Notice Stopping Temporary
Compensation and a Notice of WC Denial. See R.R. at 58a-60a. On March 28, 2016,
Claimant filed the Claim Petition seeking total disability benefits from March 8, 2016
because repetitive use of his left and right upper extremities purportedly rendered him
unable to perform his job duties. See R.R. at 1a-6a. Employer denied Claimant’s
allegations. See R.R. at 7a-9a. WCJ hearings were held on April 29, June 9 and
September 15, 2016. In January 2017,3 Claimant’s counsel filed the Motion with the
WCJ. On February 2, 2017, the WCJ denied the Claim Petition and the Motion.
Claimant appealed to the Board. On May 22, 2018, the Board affirmed the WCJ’s
decision. Claimant appealed to this Court.4
2
Claimant reported on the Employee Injury/Illness Report Form under “prior work-related
injuries” that he “[h]ad surgery on both wrist[s] 2014.” Certified Record (C.R.) Item 15. Claimant
also responded under “[h]ave you previously had a similar injury?” that he “[h]ad surgery on both
wrist[s] 2014.” C.R. Item 15.
3
It is not clear from the Motion or the docket when the Motion was filed. However, there is
a reference therein to Claimant’s counsel being made aware of the need to reopen the record after
Employer’s counsel filed a reply brief on or about January 12, 2017. See R.R. at 192a.
Accordingly, the Motion was filed some time between January 12 and February 2, 2017 when the
WCJ issued his decision.
4
“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).
2
Claimant argues that the Board erred by affirming the WCJ’s conclusion
that Claimant did not sustain a work-related, repetitive trauma injury. Specifically,
Claimant contends that the WCJ accepted William Kirkpatrick, M.D.’s (Dr.
Kirkpatrick) and Claimant’s supervisor, operations manager Doug Cross’ (Cross),
testimony over Claimant’s and Carl E. Becker, II, M.D.’s (Dr. Becker) testimony and,
thus, the WCJ’s “ultimate conclusion[ wa]s wholly contradictory to the [record]
evidence.” Claimant Br. at 12.
Initially,
[a]n injured employee seeking to obtain [WC] benefits for a
work-related injury bears the burden of proving all elements
necessary to support an award. Pursuant to Section
301(c)(1) of the [WC] Act [(Act)5], 77 P.S. § 411(1), an
employee’s injuries are compensable if they (1) arise in
the course of employment and (2) are causally related
thereto. Further, an employee must demonstrate that he is
disabled as a consequence of the work-related injury. The
term ‘disability’ is synonymous with an employee’s loss of
earning power.
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 75 n.4 (Pa.
Cmwlth. 2012) (emphasis added; citations omitted). “[I]n cases where the injury is
not attributable to a specific incident and the causal relationship between the injury
and the employment is not obvious, unequivocal medical testimony is required to
establish this causal relationship.”6 Rockwell Int’l v. Workers’ Comp. Appeal Bd.
(Sutton), 736 A.2d 742, 744 (Pa. Cmwlth. 1999).
Here, Claimant testified at the June 9, 2016 WCJ hearing that he worked
for Employer eight to ten hours a day, five days a week for ten years. See R.R. at
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
6
“[M]edical testimony is unequivocal if a medical expert testifies, after providing
foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists.”
Amandeo, 37 A.3d at 80 (quoting O’Neill v. Workers’ Comp. Appeal Bd. (News Corp., Ltd.), 29
A.3d 50, 58 (Pa. Cmwlth. 2011)).
3
16a-17a. He explained that, for the six or seven months before he stopped working,
he was a final pipe and wire assembler, installing burners, plates, auto feed waters,
gas trains, relief valves, conduit and vent pipes and running wiring by hand. See R.R.
at 16a-17a. Claimant described that, during the preceding eight years, he worked for
Employer in tubing, which was more physical, requiring him to install tubes, gauge,
clamp and beat them, and cut and beat them again. See R.R. at 17a-18a. Claimant
reported that the job required him to use air tools, including a 10 to 15-pound cutter
and a 13 to 18-pound vibrating air ratchet to install approximately 200 tubes inside
the larger boilers. See R.R. at 18a-19a.
Claimant recalled that, in 2014, while performing his tubing job, he
began experiencing numbness, tingling and weakness in his wrists that worsened over
time and caused him to lose sleep at night. See R.R. at 19a-20a. He was off work for
five or six months, and he underwent left wrist carpal tunnel surgery on May 15,
2014 and right wrist carpal tunnel surgery on June 16, 2014, performed by Raymond
Peart, M.D. (Dr. Peart). See R.R. at 20a-21a, 36a, 39a, 93a. Claimant articulated that
although the surgeries alleviated the numbness and tingling, he still experienced
weakness in both wrists. See R.R. at 21a-23a. He nevertheless returned to work
beginning in August 2014, engaging in his full tubing duties, and he remained in that
position for approximately one year. See R.R. at 21a-22a, 32a, 36a-38a. Claimant
recounted that Employer’s WC covered him for those injuries. See R.R. at 21a.
Claimant testified that, despite working his full-duty job, his wrists never
fully strengthened, and he “transferred to pipe and wire, thinking it [would] be a little
bit easier on [his] hands.” R.R. at 23a; see also R.R. at 38a, 42a. However, he
continued to have wrist weakness, numbness and tingling and, on January 12, 2016,
he experienced tightening and severe pain in both wrists and elbows that caused him
to drop brackets and wrenches. See R.R. at 24a-26a. Claimant notified Cross, who
instructed Claimant to submit the Employee Injury/Illness Report Form and contact
4
human resources. See R.R. at 26a-29a. Thereafter, Claimant treated with Dr. Peart
on January 20 and February 17, 2016 (who sent him for an EMG), he saw Dr. Becker
on March 2, 2016, and then sought a second opinion from Sydney Jacoby, M.D. (Dr.
Jacoby) on March 10, 2016, but thereafter treated solely with Dr. Becker.7 See R.R.
at 28a-29a, 37a-40a.
Claimant explained that his wrist and elbow pain became so severe (left
worse than right), that “[he] couldn’t take it [any]more,” and stopped working on
March 8, 2016. R.R. at 23a. He described that Dr. Becker performed surgery on his
left elbow on March 11, 2016 and his left wrist on May 6, 2016. See R.R. at 29a-31a.
Claimant asserted that his left elbow surgery afforded him a lot of relief,8 but his left
wrist surgery did not. See R.R. at 30a-31a. At the hearing, Claimant reported that he
was still dealing with pain and soreness in his right elbow and numbness, tingling and
weakness in both wrists that caused him to drop things, for which he continued to
treat with Dr. Becker. See R.R. at 30a-32a.
Claimant stated that he did not do anything outside of work that caused
him to constantly use his hands, wrists or arms. See R.R. at 34a-35a, 46a. He also
disclosed that Dr. Becker prescribed Hydrocodone, Tramadol and Lorazepam,
scheduled wrist and arm therapy beginning June 10, 2016 and discussed potential
right elbow surgery. See R.R. at 31a-32a, 45a-46a. Claimant expressed that he is not
capable of returning to his job because it is tough, physical work and he cannot hold
anything heavy. See R.R. at 32a-33a.
Claimant also presented Dr. Becker’s deposition testimony, wherein Dr.
Becker testified that his practice involves general orthopedic surgery and sports
medicine, without specialization for any particular body part. See R.R. at 71a. Dr.
7
Dr. Becker had treated Claimant in 2011 or 2012 for rotator cuff injuries sustained in a car
accident. See R.R. at 29a, 43a-44a, 71a. Claimant visited Dr. Jacoby once.
8
Claimant clarified that his left elbow is “still a little sore, but [he] could live with that.”
R.R. at 30a.
5
Becker obtained Claimant’s history regarding his bilateral carpal tunnel syndrome,
Dr. Peart’s treatments, and Claimant’s April 18, 2014 and February 5, 2016 EMG
results showing “improvement in [Claimant’s] bilateral medial nerve function” after
Dr. Peart’s carpal tunnel releases. R.R. at 72a. Although Dr. Becker never discussed
Claimant’s work duties with Claimant, he read Claimant’s testimony on the subject.
See R.R. at 72a, 76a.
Dr. Becker’s examination revealed that Claimant had bilateral
subluxating ulnar nerves in his elbows, meaning they were not staying in their normal
positions but were riding over the bones and causing irritation (left worse than right).
See R.R. at 72a. Dr. Becker recommended and, on March 11, 2016, he performed
ulnar nerve transposition to decrease Claimant’s nerve movement and irritation “and
hopefully decrease a lot of his symptoms . . . [from] what [Dr. Peart] called [scaphoid
trapezial trapezoidal (STT) joint] arthritis, right above that area is where the whole
nerve comes into the hand.”9 R.R. at 72a. Dr. Becker described that Claimant’s left
elbow symptoms improved after the March 11, 2016 surgery to the point that it is
almost gone, but his left wrist symptoms did not improve.10 See R.R. at 73a, 75a. On
May 6, 2016, Dr. Becker performed another carpal tunnel release on Claimant’s left
wrist, and Claimant underwent physical therapy, but he still complained of heaviness,
weakness and tingling in his left wrist. See R.R. at 73a, 77a. In order to determine
other causes, Dr. Becker ordered a wrist MRI that showed only “a little bit of
degenerative change[,]” including degeneration of Claimant’s wrist cartilage. R.R. at
73a; see also R.R. at 77a. Dr. Becker opined that, since Claimant’s wrists had not
9
Dr. Becker recalled that, on March 10, 2016, Dr. Jacoby concurred with Dr. Becker’s
findings and recommendation regarding Claimant’s elbow. See R.R. at 72a, 77a.
10
In July 2016, Dr. Becker performed ulnar nerve transposition on Claimant’s right elbow,
the results of which were too soon to tell at the time of Dr. Becker’s deposition. See R.R. at 74a-
75a.
6
improved, Claimant had residual nerve damage from his carpal tunnel syndrome. See
R.R. at 74a.
When Dr. Becker was asked whether Claimant’s work duties caused
Claimant’s injuries, he responded that since it was an accepted work injury before
Claimant treated with him, “[he was] not going to go back on” what was already
established. R.R. at 74a. Dr. Becker also admitted that he was not aware that Dr.
Peart released Claimant to full-duty work in September 2015 after the 2014 carpal
tunnel surgeries, that Claimant did not treat for his hands again until January 2016
and, even then, Dr. Peart told Claimant he could continue his full-duty work. See
R.R. at 76a. Dr. Becker acknowledged that Dr. Peart found Claimant demonstrated
STT degeneration and “thought it might have been arthritis that was bothering
[Claimant],” R.R. at 76a; see also R.R. at 77a. Dr. Becker further agreed that Dr.
Jacoby suggested that Claimant likely had arthritis in his wrists. See R.R. at 77a. Dr.
Becker testified that he assisted Claimant in obtaining short-term disability insurance,
and Dr. Becker’s bills have been paid by non-occupational health insurance. See
R.R. at 76a-77a.
Cross testified for Employer that he has been Claimant’s supervisor
since 2014. He described that Claimant’s tubing job involved Claimant working in
two or three-man teams installing anywhere from 60 to 350 tubes in each boiler.11
See R.R. at 111a. Cross stated that the job required the use of various hand tools for
forming and sealing tubes inside the boiler (i.e., a right angle gun) and a machine that
accomplished the same task on the outside. See R.R. at 112a-113a. He recalled that
since the interior boiler work was more challenging, the time the worker spent inside
the boiler was limited to approximately two and one-half hours between breaks. See
R.R. at 111a-113a. Cross calculated that the right angle gun, including its
11
Cross explained that the tubes are made of carbon steel, could range from 2 inches to 22
feet in size, and may weigh from 8 to 30 pounds. See R.R. at 112a.
7
attachments, weighed approximately 20 pounds. See R.R. at 113a. He described that
the right angle gun oscillated rather than vibrated, and the air hammer used for hand
bolts had a more significant vibration, but the air hammer was used infrequently (i.e.,
not on a daily basis and even then only for a couple of hours and only on boilers that
required it). See R.R. at 113a-114a.
Cross agreed that the tubing job was physically demanding and
repetitive: “[I]t’s the same task that’s just performed over and over. There’s not a
break . . . other than the different aspects of the tubing of the boiler, so what you’re
doing to one tube you do to the next tube and the next tube and the next tube.” R.R.
at 115a; see also R.R. at 114a. Cross recounted that Claimant progressively returned
to his tubing job in August 2014, beginning with two hours per day and, over time,
built up to full-time hours. See R.R. at 110a, 131a-132a. He recalled Claimant
complaining of wrist soreness and Claimant communicating that his condition was
not getting better. See R.R. at 117a.
Cross discussed with Claimant, and in July 2015 Claimant accepted, a
pipe and wire position that was less demanding and was more physically diverse from
hour-to-hour and day-to-day. See R.R. at 115a-118a. Cross explained that the pipe
and wire job consisted of one or two-man teams creating a sub-assembly of piping
that workers install on the boilers with electrical conduit and a panel (for those boilers
that have them) and running the wiring to its location. See R.R. at 120a-122a. He
testified that pipe and wire on a simple boiler could take one man one day or one and
one-half days to complete, while a more complex boiler would require a two-man
team four to five days to finish. See R.R. at 122a-123a. Of the numerous tools Cross
listed that Claimant used to perform the pipe and wire job, only the metal grinder
vibrated, and Cross estimated that Claimant would have used it less than 5% of the
time. See R.R. at 123a-124a.
8
Cross agreed that both tubing and pipe and wire jobs require Claimant to
use his hands throughout the shift for turning, twisting, gripping and pinching, and to
use power tools. See R.R. at 130a, 138a. He estimated that tubing requires tools for
80% of the work, while pipe and wire only requires tools for 20% of the job. See
R.R. at 131a. Cross clarified that the crimper used in the pipe and wire job requires
only minimal grip because the wire is thin-gauged and, even when there’s thicker
wire involved, “it should be like . . . a hand shake.” R.R. at 139a. Cross articulated
that he never observed Claimant drop tools, nor was he ever told by Claimant or his
co-workers that it occurred. See R.R. at 125a. Rather, when he observed Claimant
working, Claimant “could do the work and he turned out good work.” R.R. at 125a.
Cross confirmed that, “[i]n January [] 2016, [Claimant] approached
[him] and said that he couldn’t take it anymore and that he needed to have [his wrists
and elbows] looked at” because “he had reached a point where it was unbearable to
him anymore.” R.R. at 125a; see also R.R. at 132a. Cross completed the Employee
Injury/Illness Report Form. See R.R. at 132a-133a. Cross testified that even after
Claimant sought medical treatment in January 2016, he continued to do his full-duty
work without restrictions and did not appear to have any problems, and Cross did not
observe or hear that Claimant was dropping tools. See R.R. at 126a. Cross declared
that Claimant did not ask for time off due to his wrists and elbows between August
2014 and January 2016, and he only missed typical time from work for vacation or
call-in days. See R.R. at 133a, 140a-141a.
Cross stated that he reviewed the work-risk analysis prepared in
connection with Claimant’s medical treatment and concluded that it focused on
Claimant’s ability to control his body and hand positions and did not suggest any
across-the-board process or procedure changes to Claimant’s job. See R.R. at 126a-
127a. Cross explained that Claimant has been out of work on medical leave since
9
March 2016, and that Claimant’s job was to be held open until March 2018. See R.R.
at 127a-128a.
Employer also presented the deposition testimony of Dr. Kirkpatrick, an
orthopedic surgeon who specializes in hands and upper extremities and who
conducted an independent medical evaluation (IME) of Claimant on July 18, 2016 at
Employer’s request. Dr. Kirkpatrick testified that he reviewed Claimant’s medical
history, including his medical records and 2014 and 2016 EMG tests, considered
Claimant’s job history and duties, and also examined Claimant. See R.R. at 92a-93a.
Dr. Kirkpatrick recollected that Claimant’s 2014 EMG indicated the presence of
severe bilateral carpal tunnel syndrome that was alleviated by Dr. Peart’s 2014
surgeries and Claimant returned to his tubing work without restriction. See R.R. at
93a. He further recalled Dr. Becker’s surgical intervention and that the studies Dr.
Peart performed in early 2016 “demonstrated the presence of arthritis in the wrist” for
which Claimant was given a steroid injection “that did not really help.” See R.R. at
93a.
During the IME, Claimant told Dr. Kirkpatrick that he had right elbow
pain, continued to have wrist pain and numbness - on the left more than the right -
and experienced hand weakness that caused him to drop things. See R.R. at 93a. On
examination, Dr. Kirkpatrick observed that Claimant had full range of motion in his
elbows, wrists and fingers, and did not have finger numbness or tingling. See R.R. at
94a. Dr. Kirkpatrick reported Claimant’s tenderness on palpation of both medial
elbows, and pain and discomfort in his volar wrists and tenderness primarily over his
STT joints of both wrists. See R.R. at 93a. Dr. Kirkpatrick explained that “[t]he STT
joints of the wrists are a very common site for osteoarthritis. And the significance is
that this is indicating the presence of likely an osteoarthritis in the wrist joints.” R.R.
at 93a. Otherwise, Dr. Kirkpatrick noted that Claimant’s grip strength was
“essentially equal in both hands.” R.R. at 94a.
10
Dr. Kirkpatrick diagnosed that Claimant had bilateral volar wrist pain
with probable osteoarthritis and right medial elbow pain complaints. See R.R. at 94a.
Dr. Kirkpatrick concluded:
I did not identify any specific work injury that this patient
may have sustained to either hand or upper extremity. I
noted that for one thing, he had been out of work for over
four months and yet he said he had no change in his
symptomatology. I did note that he continued to have
complaints over both volar wrists. He had an appropriate
surgery for his carpal tunnel release on both sides. He did
not, at the time that I saw him, have any evidence of any
ongoing [carpal tunnel syndrome] on either side.
....
He, in fact, clearly said that he didn’t have any numbness or
tingling in any of the fingers, which, therefore, indicates the
absence of any ongoing carpal tunnel syndrome. So,
therefore, I didn’t see the need for any further surgery for
the median nerves. I also was aware that Dr. Peart . . .
identified osteoarthritis in the left wrist. He had been
symptomatic over the area of the STT joint region with Dr.
Peart, as he was for me.
I felt that a good deal of his symptomatology was related to
this underlying osteoarthritis. The likelihood is that he had
the same findings in the right wrist. I did not feel that his
osteoarthritis, however, was in any way related to a work
injury or a work concern.
R.R. at 94a.
Specifically regarding Claimant’s job duties, Dr. Kirkpatrick stated
when evaluating whether work tasks are implicated in a patient’s medical complaints,
he looks at activity variety, repetition, force, vibration and extremity posturing. Dr.
Kirkpatrick evaluated the purported repetition Claimant’s job involved, and explained
that “repetitiveness has to be pathologic in order to lead to any work-related
conditions. Meaning that somebody using repetitive, forceful grasping, such as with
a meat cutter, cutting half frozen carcasses eight hours a day may develop pathologic
11
conditions doing that particular activity.” R.R. at 97a. He recalled: “I believe that
[Claimant] was only using a grinder for a very short period of time during his work
time.” R.R. at 97a. He ultimately opined:
Q. So putting all of this together with the job description
and what [Claimant] told you about his position, do you feel
that his work activities contributed in any material or
significant way to the complaints and problems that he’s
having?
A. No, I do not.
Q. Does the fact that his complaints and problems persisted
despite an absence from work for a period of months, does
that affect your opinion in any way?
A. Yes. That would be another factor that would be
considered, the continuation of symptoms after stopping
work activities. One would reasonably expect that if the
work activities were materially contributing to the
symptomatology, that by stopping, one should see, at least,
an abatement . . . or resolution of the symptoms, and that
did not occur here.
Q. Is that by history that he told you his symptoms had
gotten no better?
A. Yes.
R.R. at 97a. Dr. Kirkpatrick stated that, based upon his objective findings and in the
absence of a work injury, he would not place any restrictions on Claimant’s ability to
work. See R.R. at 94a.
This Court must determine whether the WCJ’s factual findings are
supported by substantial evidence. Stepp v. Workers’ Comp. Appeal Bd. (FairPoint
Commc’ns, Inc.), 99 A.3d 598 (Pa. Cmwlth. 2014). “Substantial evidence is such
relevant evidence as a reasonable person might accept as adequate to support a
conclusion.” Washington v. Workers’ Comp. Appeal Bd. (State Police), 11 A.3d 48,
54 n.4 (Pa. Cmwlth. 2011) (quotation marks omitted). Further, the law is well-
12
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). “The WCJ,
therefore, 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).
Based upon the evidence presented in the instant case, the WCJ denied
the Claim Petition because “Claimant has not met his burden of proving that he
sustained work-related bilateral wrist injuries as of March 8, 2016, and accordingly is
entitled to neither wage loss nor medical benefits for such injuries.” WCJ Dec. at 9;
R.R. at 206a. In reaching his decision, the WCJ made the following credibility
determinations:
32. The opinions of Dr. Becker are not credible, as he was
fundamentally unaware of Claimant’s history, relied on
misinformation, and performed no diagnostic studies.
33. This [WCJ] finds as fact, based on the competent and
credible evidence of record, that Claimant is not entitled to
[WC] benefits for bilateral wrist complaints from March
2016 and ongoing, as such complaints are not related to any
work injury.
34. The credible testimony presented in this case supports a
finding that Claimant suffers from non-work related
degenerative joint disease of the wrists. Treatment
provided to Claimant has properly proceeded through non-
occupational channels and he has been compensated for
time away from work through short[-]term disability.
35. Further, this [WCJ] finds as fact that there is no
evidence that Claimant suffers from residual symptomology
related to his 2014 carpal tunnel injuries, as Claimant
returned to work full[-]duty and was released from care in
September 2015, four months before his arthritic pain
surfaced. In so ruling, this [WCJ] notes that Claimant
acknowledged that the numbness and tingling in his hands
13
abated after his 2014 surgeries and that in January 2016,
severe pain ‘came out of nowhere.’
36. In ruling as indicated above, this [WCJ] finds the
testimony of Dr. Kirkpatrick and [Cross] to be credible and
persuasive and consistent with the background medical
evidence. Although Claimant is generally credible, where
his testimony conflicts with the opinions of Dr. Kirkpatrick
or the lay testimony of [Cross], it is found to be neither
credible nor persuasive as it is not supported by the
background medical evidence.
WCJ Dec. at 9; R.R. at 206a. On appeal, the Board agreed, concluding that “the
credible testimony of [Cross] and particularly Dr. Kirkpatrick is substantial,
competent evidence which supports the WCJ’s findings that Claimant’s symptoms in
2016 were attributable to non-work-related degenerative joint disease of the wrists
and not his 2014 carpal tunnel injuries.” Board Dec. at 11; R.R. at 224a.
Neither the Board nor the 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). Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] 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.”12 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)). Finally, this Court has held:
‘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
12
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.
14
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) (quoting Waldameer Park, Inc. v.
Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003))
(citations omitted).
Here, the WCJ summarized all of the testimony and adequately
explained his credibility determinations. 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 agree that
Claimant failed to prove the elements necessary to support his Claim Petition. Thus,
the WCJ properly granted the Claim Petition. Accordingly, the Board did not err by
affirming the WCJ’s decision denying Claimant’s Claim Petition.
Claimant also asserts that the Board erred by affirming the WCJ’s
decision denying the Motion. “It is well settled that the admission of evidence is
within the sound discretion of the WCJ.” Washington, 11 A.3d at 59. “[A] WCJ’s
determination regarding the admission of evidence will not be overturned without a
showing of an abuse of that discretion.” Id. Specifically, a WCJ’s refusal to reopen
the record will not be reversed absent an abuse of discretion. See Hammerle v.
Workmen’s Comp. Appeal Bd. (Dep’t of Agric.), 490 A.2d 494 (Pa. Cmwlth. 1985).
“An abuse of discretion occurs where the WCJ’s judgment is manifestly
unreasonable, where the law is not applied or where the record shows that the action
is a result of partiality, prejudice, bias or ill will.” Allegis Grp. & Broadspire v.
Workers’ Comp. Appeal Bd. (Coughenaur), 7 A.3d 325, 327 n.3 (Pa. Cmwlth. 2010).
15
Here, on or about December 31, 2016, long after the record was closed
(on or about October 29, 2016) and several weeks after the parties’ briefs were filed,
Claimant’s counsel filed the Motion seeking to have the record reopened for Claimant
to submit documentation of his 2014 bilateral wrist injury claim, to further cross-
examine Dr. Kirkpatrick and to re-depose Dr. Becker. See R.R. at 143a-144a, 192a-
197a; see also WCJ Dec. at 3 (R.R. at 200a); Supplemental Reproduced Record
(S.R.R.) at 35b-36b.
In rejecting Claimant’s Motion, the WCJ stated:
The basis for the Motion was the assertion of Claimant’s
counsel that he was unaware [Employer] had issued a
Notice of Compensation Payable recognizing Claimant’s
work-related bilateral carpal tunnel surgeries in 2014 until
after the record closed.
At a hearing on June 9, 2016, [Claimant] testified as follows
on direct examination:
Q. You treated with Dr. Peart; is that correct?
A. Yes.
Q. And looking at the medical records, he did surgery to
both your right and left wrists; is that correct?
A. Yes.
Q. Left wrist was May 15, 2014; does that sound right?
A. Yes.
Q. Right wrist was June 16, 2014; does that sound right?
A. Yes.
Q. Well, let me ask you this, was this paid for by [WC]?
A. Yes.
It is evident from this testimony that Claimant’s counsel
could easily have ascertained, long before the close of the
record, either from his client, or from a properly[-]drafted
16
subpoena to the Bureau of [WC] that [Employer] had
recognized the 2014 carpal tunnel surgeries as work-related.
The [Motion] is therefore denied.
WCJ Dec. at 3 (R.R. at 200a).
Discerning no error in the WCJ’s reasoning, this Court holds that the
WCJ did not abuse his discretion by declining to reopen the record. Because the
WCJ did not abuse his discretion, the Board properly affirmed the WCJ’s decision
denying Claimant’s Motion.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Orlando Burgos, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Burnham, LLC), : No. 852 C.D. 2018
Respondent :
ORDER
AND NOW, this 8th day of February, 2019, the Workers’ Compensation
Appeal Board’s May 22, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge