N. Langley v. WCAB (Giant Food Stores) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nelson Langley, :
Petitioner :
:
v. : No. 719 C.D. 2016
: SUBMITTED: October 7, 2016
Workers’ Compensation Appeal :
Board (Giant Food Stores), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE HEARTHWAY FILED: January 19, 2017
Nelson Langley (Claimant) petitions for review of the April 20, 2016,
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of the workers’ compensation judge (WCJ) to grant Giant Food Stores’
(Employer) petition to terminate Claimant’s workers’ compensation benefits
(termination petition). We affirm.
On September 15, 2007, while working for Employer, Claimant
suffered a left shoulder injury when he stood up and struck his left shoulder on a
shelf. (WCJ’s Findings of Fact, No. 1.) On February 14, 2008, Employer issued a
medical only notice of compensation payable (NCP), accepting liability for a left
shoulder contusion. (Id.)
Subsequently, Claimant filed a claim petition and Employer filed a
termination petition, which were heard together by a WCJ. On December 26,
2008, the WCJ granted Claimant’s claim petition and expanded Claimant’s injury
to include a left shoulder contusion, cervical brachial syndrome, cervical
radiculitis, cervical spine segment dysfunction, cervical spine sprain and strain,
disc herniation with cord flattening at C3-4, accompanying severe spondylitic
foraminal stenosis, disc bulge at C4-5, supraspinatus tendinosis, a tear of the
supraspinatus at its critical junction, and tear of the labrum. The WCJ denied
Employer’s termination petition. (Id., No. 2.)
Subsequently, Employer filed a modification petition based on an
impairment rating evaluation, a modification/suspension petition based on a job
offer, and a petition to review the treatment of Jarrad Teller, D.C. Claimant filed a
petition to review a utilization review determination of Dr. Teller, a petition to
review a utilization review determination of Peggy Rock, D.C., and a penalty
petition for refusal to pay. All petitions were heard by a WCJ, who issued a
decision on March 29, 2013. (Id., No. 4.)
The WCJ determined that Claimant had fully recovered from the left
shoulder contusion, cervical sprain/strain, cervical brachial syndrome and labrum
tear, and changed Claimant’s disability status to temporary partial disability as of
November 22, 2011. The WCJ also determined that Claimant could not perform
2
the offered position. The WCJ found Dr. Teller’s treatment from November 1,
2010 to September 25, 2011, was reasonable and necessary, but that the treatments
from Drs. Teller and Rock from September 26, 2011, and ongoing were not
reasonable and necessary. The WCJ dismissed Claimant’s penalty petition. (Id.,
Nos. 5-6.)
On April 16, 2014, Employer filed a termination petition, asserting
that Claimant had fully recovered from the September 15, 2007 work injury as of
February 12, 2014, when Claimant was examined by Dennis W. Ivill, M.D. Dr.
Ivill, who is board certified in physical medicine and rehabilitation, took a history
from Claimant, reviewed his medical records, and conducted an examination. Dr.
Ivill acknowledged Claimant’s injuries, found that Claimant had a normal
examination, and opined that Claimant was fully recovered from the September 15,
2007 work injury as of the date of his examination. Dr. Ivill further opined that
Claimant’s treatments were no longer reasonable or necessary. Dr. Ivill opined
that Claimant could return to his pre-injury position with Employer full-time and
without restrictions.1 (Id., Nos. 7-14.)
Claimant testified on his own behalf regarding his condition, and his
treatments with various doctors. Claimant stated that he cannot lift five pounds
with his left hand and that his neck and shoulder will always irritate him. Claimant
1
Employer also presented two surveillance digital versatile discs (DVD) in support of its
termination petition. The DVDs show Claimant sitting outside smoking, lightly shoveling snow,
and clearing snow off of his car. Claimant mostly uses his right hand, but also minimally uses
his left arm and hand. The WCJ determined that the DVDs eroded Claimant’s testimony
regarding his pain level and the effects of weather on his condition. (Id., No. 15.)
3
goes to therapy for one hour, three times a week, is able to drive, and runs errands
once a week. Claimant denied helping around the house, cooking, cleaning,
grocery shopping, and using his left hand/arm to remove snow from his property
and car. Claimant receives injections, chiropractic spinal manipulation, physical
therapy, and takes various prescribed medications throughout the day. Claimant
estimated his pain level at a ten. Claimant, after watching the DVDs, continued to
deny using his left hand to remove snow from his car, but did admit using his left
hand to shovel snow. Claimant also acknowledged that the DVDs show him
outside in the cold weather and carrying grocery bags. (Id., Nos. 18-19.)
Claimant presented the deposition testimony of Sofia Lam, M.D.,
board certified in anesthesiology. Dr. Lam began treating Claimant on April 12,
2013. Dr. Lam diagnosed Claimant with cervical sprain and strain, cervical
radiculopathy, cervical foraminal stenosis, and occipital tension headache. Dr.
Lam treated Claimant with injection therapy and a medication regimen. Dr. Lam
opined that Claimant is not fully recovered and is unable to return to his pre-injury
position. Dr. Lam further opined that she does not foresee Claimant returning to
work in any capacity. (Id., Nos. 20-21.)
Claimant also presented the deposition testimony of Brent
Weinerman, D.O., board certified in general practice. Dr. Weinerman began
treating Claimant on August 9, 2012. Dr. Weinerman diagnosed Claimant with
cervicobrachial syndrome, cervical radiculitis, cervical spine segment dysfunction,
cervical spine sprain and strain, cervical disc herniation with cord flattening at C3-
4, accompanying severe spondylitic foraminal stenosis, disc bulge at C4-5, left
4
supraspinatus tendinosis, tear of the supraspinatus tendon and tear of the labrum in
a patient that is status post left shoulder arthroscopic surgery and implant of a
neurostimulator. Dr. Weinerman opined that Claimant could not work in any
capacity.
The WCJ found Dr. Ivill credible and persuasive, and accepted his
testimony as fact. The WCJ rejected the testimony of Claimant, Dr. Lam, and Dr.
Weinerman as not credible. The WCJ determined that Claimant was fully
recovered from his September 15, 2007 work injury as of February 12, 2014, and
granted Employer’s termination petition. Claimant appealed to the Board, which
affirmed. Claimant now petitions this Court for review.2
The employer bears the burden of proof in a termination proceeding.
Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1291 (Pa. 1997).
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.
Id. at 1293.
2
Our review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary factual findings
are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.
5
Claimant argues that the WCJ erred in determining that he was fully
recovered from the work-related injury based upon Dr. Ivill’s medical testimony
because he: (1) did not recognize the accepted work injury of a disc herniation at
C3-4 with spinal cord flattening; and (2) he gave his opinions to a reasonable
degree of medical probability rather than certainty. We disagree.
A medical professional is not required to believe a condition existed;
he or she is merely required to accept as true the adjudicated fact that a condition
existed and opine as to whether the condition continues to exist at the time of the
examination. Folmer v. Workers’ Compensation Appeal Board (Swift
Transportation), 958 A.2d 1137, 1148 (Pa. Cmwlth. 2008).
Here, Dr. Ivill acknowledged all of Claimant’s work injuries,
including the C3-4 disc herniation with flattening of the spinal cord, and opined to
within a reasonable degree of medical certainty that Claimant had completely
recovered from all of his injuries as of the date of his examination. (Dr. Ivill’s
Deposition, 8/26/14, at 21-23, 27, 35-36.3) Dr. Ivill further opined that Claimant
could return to work without restriction. (Id., at 22, 33.) Dr. Ivill was asked
“[h]ave all of your opinions been offered within a reasonable degree of medical
certainty?” (Id. at 39.) To which Dr. Ivill replied, “Yes.” (Id.) Dr. Ivill addressed
and accepted Claimant’s work injuries and cited objective medical evidence to
support his conclusion that Claimant had fully recovered from all of the work
3
Dr. Ivill testified that “the accepted diagnoses included . . . a C3-4 disc herniation with
flattening of the spinal cord . . . . Using those diagnoses, it was my opinion that he could return
to full-time, full-duty work effective . . . 2/12/14, with no restrictions.” (Dr. Ivill’s Deposition,
8/26/14, at 22.)
6
injuries. Our careful review of the record in this case has uncovered no basis to
support Claimant’s argument that Dr. Ivill’s opinion was based on a standard other
than a reasonable degree of medical certainty.
The WCJ is the ultimate fact finder and determines the weight and
credibility of evidence. Lombardo v. Workers’ Compensation Appeal Board
(Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such, the
WCJ is free to accept or reject the testimony of any witness, including medical
witnesses, in whole or in part.” Id. Here, the WCJ specifically found Dr. Ivill’s
medical opinion more credible and persuasive than those of Dr. Lam and Dr.
Weinerman, and stated reasons supporting his decision. (See WCJ’s Findings of
Fact, Nos. 23-25.) The WCJ did not err in determining that Dr. Ivill’s testimony is
legally sufficient to support a determination that Claimant has fully recovered from
his work injuries.
Accordingly, we affirm.
__________________________________
JULIA K. HEARTHWAY, Judge
Judge Cosgrove concurs in the result only.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nelson Langley, :
Petitioner :
:
v. : No. 719 C.D. 2016
:
Workers' Compensation Appeal :
Board (Giant Food Stores), :
Respondent :
ORDER
AND NOW, this 19th day of January, 2017, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge