M. Palmer v. WCAB (Tasty Baking Company) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marc Palmer, :
Petitioner :
:
v. : No. 79 C.D. 2015
: SUBMITTED: July 31, 2015
Workers’ Compensation Appeal :
Board (Tasty Baking Company), :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE LEADBETTER FILED: September 10, 2015
Claimant, Marc Palmer, petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that, in relevant part, affirmed the
decision of Workers’ Compensation Judge (WCJ) Pamela A. Santoro granting the
termination petition of Employer Tasty Baking Company and denying his penalty
petition. We affirm.
Claimant worked for Employer as a machine operator of a cake-
wrapping machine. His duties included loading the machine, putting supplies on
the machine, straightening out cakes, lifting product and adjusting the machine.
WCJ Santoro’s August 9, 2013 Decision, Finding of Fact (F.F.) No. 12(a). He
stopped working in June 2011, maintaining that his hands hurt. In response,
Employer issued a temporary notice of temporary compensation payable, which
subsequently converted to a notice of compensation payable (NCP), accepting
Claimant’s injury as a wrist strain. In July 2011, Claimant filed a claim petition
alleging that he sustained a work-related injury in April 2011 in the form of
bilateral carpal-tunnel syndrome and bilateral tendonitis. In its answer, Employer
denied all material allegations. In August 2011, Eon K. Shin, M.D., performed
carpal-tunnel release surgery on Claimant’s right hand. In an October 2011
decision by WCJ Stephen Harlen, the NCP was expanded to include bilateral
carpel-tunnel injuries, status post carpel-tunnel surgeries, and the claim petition
was withdrawn.
In December 2011, Employer filed a termination petition alleging that
Claimant had fully recovered from his work injuries as of November 9, 2011, or in
the alternative, that he had failed to respond in good faith to a specific job offer.1
In February 2012, Claimant filed a penalty petition alleging that Employer had
failed to pay for treatment rendered by Richard Kaplan, M.D., board-certified in
physical medicine and rehabilitation and who first saw Claimant in July 2011. Id.,
No. 13(b). In May 2012, Claimant filed a petition for review of the utilization
review determination that the treatment that Dr. Kaplan rendered from January
2012 and ongoing was neither reasonable nor necessary. The petitions were
consolidated for decision.
1
WCJ Santoro accepted the testimony of Christine Johnson, Employer’s director of human
resources, who indicated that Employer offered Claimant his pre-injury job based on the report
of Employer’s independent medical examiner. It is undisputed that Claimant received the three
letters that she sent offering him his pre-injury job and that he called and refused the offer. WCJ
Santoro’s August 9, 2013 Decision, Finding of Fact (F.F.) No. 15.
2
WCJ Santoro granted Employer’s termination petition, accepting the
opinion of Andrew B. Sattel, M.D., the board-certified orthopedic surgeon who
conducted a November 2011 independent medical examination (IME) of Claimant
and opined that he was fully recovered and able to work without restrictions. The
WCJ found: “Dr. Sattel’s opinions are supported by his careful examination,
objective tests, and Claimant’s medical history. . . . [A]s a Board certified
orthopedic surgeon with extensive experience in treatment of the upper extremities
and hands, Dr. Sattel is more credible than Dr. Kaplan, who does not perform
surgery.” Id., No. 20. As for Dr. Kaplan, the WCJ found his testimony to be less
credible and persuasive than that of Dr. Sattel as to Claimant’s injury, its cause and
his continuing disability. The WCJ, therefore, rejected Dr. Kaplan’s testimony to
the extent that it was contradicted by that of Dr. Sattel and Michael D. Wolk, M.D.,
the latter of whom reviewed Dr. Kaplan’s treatment. Id., No. 21. In addition, the
WCJ rejected the testimony of Claimant as to his injury, his disability and
continued medical treatment. Id., No. 19.
The WCJ denied Claimant’s penalty petition, determining that
Employer proved that the treatment rendered by Dr. Kaplan from January 2012 and
ongoing was neither reasonable nor necessary and that, therefore, Claimant failed
to prove that Employer violated the Workers’ Compensation Act (Act).2 In
support, the WCJ relied on Dr. Wolk’s report rendered in the review of Dr.
Kaplan’s treatment. The Board affirmed and Claimant’s petition for review
followed. We turn first to the termination petition.
An employer seeking to terminate workers’ compensation benefits
bears the burden of proving either that the employee’s disability has ceased or that
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.
3
any current disability arises from a cause unrelated to his or her work injury.
Campbell v. Workers’ Comp. Appeal Bd. (Antietam Valley Animal Hosp.), 705
A.2d 503, 506-07 (Pa. Cmwlth. 1998). In this regard, an employer must prove by
substantial medical evidence that all disability has ceased. O’Neill v. Workers’
Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 53 (Pa. Cmwlth. 2011). An
employer’s burden is considerable in that disability is presumed to continue until
demonstrated otherwise. Giant Eagle, Inc. v. Workmen’s Comp. Appeal Bd.
(Chambers), 635 A.2d 1123, 1127 (Pa. Cmwlth. 1993).
Claimant argues that the WCJ erred in granting Employer’s
termination petition, alleging that Dr. Sattel failed to testify that Claimant was fully
recovered from all of the accepted work injuries detailed in WCJ Harlen’s October
2011 decision. Mindful that those injuries include bilateral carpal-tunnel
syndrome, status post carpel-tunnel surgeries, Claimant maintains that Dr. Sattel
opined that they were limited to right carpal-tunnel syndrome. See GA & FC
Wagman, Inc. v. Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087, 1092 (Pa.
Cmwlth. 2001) (physician’s testimony insufficient to support termination where he
testified that employee was fully recovered from work injury but did not
acknowledge the injury listed in the NCP as the injury from which employee
recovered). In addition, Claimant contends that Dr. Sattel’s opinion that Claimant
could return to work, without more, is insufficient to support a termination of
benefits. Graham Architectural Prod. Corp. v. Workers’ Comp. Appeal Bd.
(Rothrock), 619 A.2d 404, 406 (Pa. Cmwlth. 1993). Claimant’s position is without
merit.
Dr. Sattel did not dispute the injury description of bilateral carpel-
tunnel syndrome, status post carpel-tunnel surgery. In response to the question of
4
whether he formed a medical impression to a reasonable degree of medical
certainty as to Claimant’s status, Dr. Sattel responded:
A. His clinical diagnosis was bilateral carpal tunnel. He
had completed a right carpal tunnel release, which would
be an appropriate course of treatment, on 8/24, and his
evaluation in regards to median neuropathy for the right
hand was unremarkable. I indicated that the left carpal
tunnel evaluation was also really not significantly
positive.
April 11, 2012 Deposition of Dr. Sattel, Notes of Testimony (N.T.) at 16-17. In
addition, in response to the question of whether he disputed Claimant’s diagnosis
of bilateral carpal tunnel, Dr. Sattel responded as follows:
A. Not whatsoever.
Q. It’s your understanding that his condition or
symptoms were greater on the right, correct?
A. Yes.
Id. at 28.
The point of confusion may arise from the fact that Claimant did not
undergo carpal-tunnel release surgery on his left hand,3 that the records that Dr.
Sattel reviewed consistently indicated that any problem with the right hand was
greater than with the left and that Dr. Sattel’s independent clinical evaluation of
both hands did not indicate significant problems with the left hand. Regarding the
report of Dr. Shin, the surgeon who performed the right carpel-tunnel release, Dr.
Sattel observed that Dr. Shin noted that the electromyography (EMG) for the right
median nerve measured 4.9 and that the left measured 3.7, the latter of which some
3
Although the WCJ did not accept Claimant’s testimony as to his injury, disability and
continued medical treatment, the fact-finding summarizing his testimony indicates that “[h]e has
not had, and did not want to have surgery on his left hand.” F.F. No. 12(b).
5
EMG studies would put within normal limits.4 Id. at 30. In that regard, Dr. Sattel
observed that Dr. Shin characterized the right measurement as moderate and the
left as mild. In addition, Dr. Sattel observed that Dr. Kaplan noted in his report
that 1) Tinel’s sign was barely positive on the right and negative on the left; and 2)
Phalen’s test was negative bilaterally.5 Id. at 32-33.
In addition, Dr. Sattel’s independent clinical tests supported his
conclusion that Claimant was fully recovered from any bilateral work injuries. In
that regard, Dr. Sattel testified as follows:
Three different maneuvers for carpal tunnel – the
Tinel’s, carpal tunnel compression, and Phalen’s
maneuver were negative on the right. On the left, with
Tinel’s testing he described some tingling. When I asked
him where he was getting the tingling, meaning what
distribution, his response was, “Where you’re hitting,”
but [the tingling] did not project into the fingers. His
carpal tunnel compression, where I applied sustained
direct pressure over the media [sic] nerve, and the
Phalen’s test, where we had the wrist flex for a period of
time, therefore loading or applying pressure to the carpal
tunnel, did not reproduce symptoms of tingling. The
evaluation for the left hand and wrist otherwise was
unremarkable.
Sensory examination for the median and ulnar
distribution bilaterally was intact.
Finally, I performed a series of grip measurements
with a device known as the Jamar dynamometer. For the
right hand, the first second and fourth settings measured
20, 30, and 30 pounds respectively. On the left 40, 50,
and 60 pounds respectively.
Id. at 15-16.
4
An EMG is a diagnostic procedure to assess the health of muscles and nerve cells.
5
Two diagnostic tests for physical signs of carpal tunnel include Tinel’s sign and Phalen’s
maneuver. The individual conducting these tests is ascertaining whether there is a sensation of
tingling in the distribution of the median nerve over the hand.
6
Moreover, we reject Claimant’s implication that Dr. Sattel opined that
the accepted injury was limited to right carpal-tunnel syndrome, presumably based
on Finding of Fact No. 15(d), which provides:
d. Based on his review of all available medical
records, Claimant’s medical history, and his examination,
Dr. Sattel agreed that Claimant suffered from right carpal
tunnel syndrome. He further opined that as of his
examination, Claimant had fully recovered and was able
to return to work with no restrictions.
Notwithstanding the WCJ’s juxtaposition of Dr. Sattel’s opinion regarding the fact
that Claimant suffered from right carpal-tunnel syndrome with his opinion
regarding full recovery, what is clear from Dr. Sattel’s deposition is that he
acknowledged the accepted bilateral diagnosis multiple times. His independent
evaluation of Claimant and review of the records, however, simply did not indicate
any significant past or current issues with the left hand. Accordingly, Dr. Sattel’s
testimony supports the WCJ’s ultimate conclusion that Employer proved “by
unequivocal medical and fact evidence that as of November 30, 2011, Claimant
was fully recovered from any work injury, and able to return to work with no
restrictions.” Conclusion of Law No. 2.
Moreover, we reject Claimant’s allegation that Dr. Sattel merely
opined that Claimant could return to work, without more. To the contrary, as the
WCJ found, Dr. Sattel considered Claimant’s description of his job duties and
opined that there was no risk of reinjury if Claimant returned to his pre-injury
work. F.F. No. 20(f). Indeed, Dr. Sattel testified that, in rendering his opinion, he
considered an ergonomic assessment of the position at issue and Claimant’s
detailed description of his work responsibilities. April 11, 2012 Deposition of Dr.
Sattel, N.T. at 38-39.
7
The WCJ is the ultimate finder of fact in compensation cases and has
exclusive authority over questions of credibility and evidentiary weight. Davis v.
Workers’ Comp. Appeal Bd. (City of Phila.), 753 A.2d 905, 909 (Pa. Cmwlth.
2000). The WCJ is free to accept or reject the testimony of any witness, including
a medical witness, in whole or in part. Michel v. Workers’ Comp. Appeal Bd. (U.S.
Steel Corp.), 966 A.2d 643, 652-53 (Pa. Cmwlth. 2009). Where, as here, the
WCJ’s findings are supported by substantial evidence, we will not disturb those
findings. Nevin Trucking v. Workmen’s Comp. Appeal Bd. (Murdock), 667 A.2d
262, 267 (Pa. Cmwlth. 1995). Accordingly, we conclude that Dr. Sattel’s
testimony was legally sufficient to support the termination petition. We turn now
to Claimant’s penalty petition.
Section 435 of the Act,6 77 P.S. § 991, provides for the imposition of
penalties for violations of the Act. The decision to impose penalties is
discretionary. Muir v. Workers’ Comp. Appeal Bd. (Visteon Sys. LLC), 5 A.3d
847, 853 (Pa. Cmwlth. 2010). Absent an abuse of discretion, a penalty
determination will not be overturned on appeal. Crucible, Inc. v. Workers’ Comp.
Appeal Bd. (Vinovich), 713 A.2d 749, 753 (Pa. Cmwlth. 1998). Further, it is the
employee’s burden to produce sufficient evidence of a violation. Sanders v.
Workers’ Comp. Appeal Bd. (Marriott Corp.), 756 A.2d 129, 132-33 (Pa. Cmwlth.
2000).
In the present case, having determined that treatment by Dr. Kaplan
from January 17, 2012 and into the future was neither reasonable nor necessary,
the WCJ rejected Claimant’s argument that Employer violated the Act by failing to
pay for that treatment. In support, the WCJ referenced “the foregoing evidence of
6
Added by Section 3 of the Act of February 8, 1972, P.L. 25.
8
record.” F.F. No. 28. Although the WCJ neglected to include a detailed
explanation in that fact-finding, the basis for her denial of Claimant’s penalty
petition is evident from the remainder of her decision, i.e. the fact-findings
detailing Dr. Wolk’s review of Dr. Kaplan’s treatment. Dr. Wolk, whose
testimony the WCJ accepted as credible and persuasive, based his conclusion that
Dr. Kaplan’s treatment from January 17, 2012 and ongoing was not reasonable or
necessary on all of Claimant’s available records and medical history and
established treatment protocols. Id., Nos. 16 and 23. Given the fact that the source
of the “foregoing evidence of record” is evident from the WCJ’s decision, we
conclude that the WCJ did not abuse her discretion in denying Claimant’s penalty
petition.
Moreover, regarding Claimant’s allegations that there are unpaid bills
pre-dating the filing of the utilization review determinations and which are
payable, we reiterate that it was his burden to produce sufficient evidence of a
violation of the Act. Sanders. Here, that would include, at a minimum, citation to
relevant evidence of record supporting those allegations.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marc Palmer, :
Petitioner :
:
v. : No. 79 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Tasty Baking Company), :
Respondent :
ORDER
AND NOW, this 10th day of September, 2015, the order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge