L. L. Lewis v. WCAB (County of Butler and Inservco Ins. Svs.) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lenora L. Lewis, :
Petitioner :
: No. 546 C.D. 2015
v. :
: Submitted: September 11, 2015
Workers’ Compensation Appeal :
Board (County of Butler and :
Inservco Insurance Services), :
Respondents :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: October 23, 2015
Lenora L. Lewis (Claimant) petitions for review of the March 11, 2015
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a workers’ compensation judge (WCJ) granting Claimant’s claim petition
for the closed period of time from June 19, 2011, to July 18, 2012. We affirm.
Claimant began work for the County of Butler (Employer) as a certified
nursing assistant at Employer’s Sunnyview Home in August of 2003. On October 5,
2011, Claimant filed a claim petition alleging that she suffered a work injury on June
6, 2011, resulting in disability from June 19, 2011. (Reproduced Record (R.R.) at
6a.) Employer filed an answer denying those allegations and the case was assigned to
a WCJ, who held multiple hearings.
In support of her claim petition, Claimant testified that while she was
working for Employer on June 6, 2011, she assisted two coworkers in helping a large
patient who had fallen return to his wheelchair. Claimant said that she experienced
some soreness when she lifted the patient but completed her shift. Claimant called
off work the next day, but she reported to work for her shift on June 8, 2011, and
advised Employer about her injury. (Notes of Testimony (N.T.), 11/10/2011 at 10-
12).
Claimant testified that she returned for her next shift on June 11, 2011,
and complained to her supervisor of shooting pain in her back. Claimant stated that
her supervisor advised her to seek treatment at Butler Memorial Hospital. Claimant
testified that she was x-rayed at the hospital, received conservative treatment, and
was directed to meet with Swamikkan Nallathambi, M.D., Employer’s panel
physician. Id. at 13-14.
Claimant also offered the deposition testimony of Ashraf Razzak, M.D.,
who practices in pain management, to support her claim petition. Dr. Razzak testified
that when he first saw Claimant on October 6, 2011, she complained of pain in her
neck and back. Dr. Razzak stated that his examination of Claimant revealed that
certain muscles in her neck and back were tender to the touch. At that time, Dr.
Razzak treated Claimant with an epidural injection to relieve her pain. Dr. Razzak
subsequently met with Claimant on a biweekly basis to complete the series of
epidural injections, and he continued to treat her on a monthly basis thereafter. (R.R.
at 143a-46a.)
Dr. Razzak also testified that he performed nerve conduction studies
which showed delayed conduction in Claimant’s right upper extremity, and he
referred her to a neurosurgeon to determine whether surgery was necessary.
2
According to Dr. Razzak, the nerve conduction studies constituted objective medical
findings and substantiated Claimant’s complaints of pain. Id. at 149a-50a.
Dr. Razzak testified that, based on Claimant’s history, his examination
and treatment of Claimant, and the results of the nerve conduction studies, he
believed that Claimant suffered a work-related injury on June 6, 2011, and that the
work injury was the direct cause of her neck pain. Dr. Razzak further testified that
Claimant likely had a pre-existing degenerative condition in her back and that the
work injury may have aggravated her pre-existing condition. Dr. Razzak concluded
that Claimant was unable to perform her duties as a nursing assistant as a result of her
injury. Id. at 144a-55a.
In opposition to the claim petition, Employer offered the deposition
testimony of Dr. Nallathambi, a physician board certified in internal medicine. Dr.
Nallathambi testified that he treated Claimant for the first time on June 13, 2011, for
complaints of lower back pain. Dr. Nallathambi described Claimant as exhibiting
severe symptom magnification, explaining that she displayed symptoms that were
inconsistent with a physiological injury, and he suggested there was a psychological
overlay to her condition. Dr. Nallathambi further testified that any injury Claimant
allegedly suffered was minimal because there was no direct trauma to any part of her
body. Dr. Nallathambi completed a work release form which stated that Claimant
may have a dorsal sprain or a cervical sprain and restricted Claimant from lifting
more than ten pounds. He ordered additional x-rays for Claimant and asked her to
return in one week. Id. at 46a-53a.
Dr. Nallathambi testified that Claimant returned to him on June 16,
2011, with complaints of back pain. Dr. Nallathambi stated that x-rays performed at
the hospital on June 11, 2011, showed degenerative joint disease, primarily an
3
arthritic condition. Dr. Nallathambi again believed that Claimant demonstrated
symptom magnification, noting that the symptoms she articulated, such as shortness
of breath and inability to sleep at night, did not correlate to the injury she alleged. Dr.
Nallathambi stated that Claimant had diffused degenerative joint disease and multiple
spurs at the dorsal spine, and he advised her to pursue treatment of the degenerative
joint disease with her primary care physician. Dr. Nallathambi restricted Claimant
from lifting more than twenty pounds and scheduled another appointment for June
30, 2011. Id. at 53a-57a.
Dr. Nallathambi testified that when he saw Claimant on June 30, 2011,
she had the same complaints of back and neck pain. Dr. Nallathambi stated that he
continued Claimant’s twenty-pound lifting restriction but said he believed that most
of Claimant’s continuing complaints were due to her severe arthritis and were
unrelated to the work injury. However, Dr. Nallathambi acknowledged that
Claimant’s work may have aggravated her pre-existing condition. Id. at 57a-59a.
Dr. Nallathambi concluded that Claimant had moderate to severe
osteoarthritis, with spur formation, throughout her back. He stated that Claimant
likely experienced pain as a result of lifting the patient at work, but noted that any
pain from the injury should have disappeared in a few days. Dr. Nallathambi testified
that Claimant’s continuing pain was the result of her degenerative joint disease and
not the work injury. Id. at 59a-62a.
Employer also offered testimony from Jon A. Levy, M.D., a board
certified orthopedic surgeon who performed an independent medical examination of
Claimant on July 18, 2012. Dr. Levy stated that Claimant complained of shooting
pain in her back and lower extremities, as well as spasms in her shoulders and neck.
Dr. Levy performed several tests on Claimant and concluded that she was magnifying
4
her symptoms because she exhibited findings that were inconsistent with her alleged
condition. Dr. Levy testified that he performed a thorough examination of Claimant,
reviewed her medical records extensively, and concluded that she suffered from
cervical degenerative disc disease and lumbar degenerative disc disease and had
sustained a lumbar strain as a result of the work injury. Id. at 92a-111a.
Dr. Levy further testified that Claimant had fully recovered from any
work injury she sustained. Dr. Levy opined that Claimant’s ongoing symptoms were
the result of her pre-existing degenerative condition, and he stated that no objective
evidence existed to support her complaints other than radiographic abnormalities
showing degenerative disease. Moreover, Dr. Levy reported that Claimant was
capable of full-time, gainful employment without restriction. Id. at 103a-30a.
Employer also presented evidence that Claimant was discharged for
cause on July 8, 2011, when she received a positive drug screen in violation of
Employer’s policy. Employer argued that it was entitled to a termination of benefits
as of Claimant’s discharge date because Claimant’s loss of earning power was related
to her misconduct and not to her work-related injury.
In his February 25, 2013 decision, the WCJ accepted Claimant’s
testimony as credible to establish that she sustained a work injury resulting in total
disability effective June 19, 2011. The WCJ rejected Employer’s evidence regarding
its drug use policy and the circumstances surrounding Claimant’s discharge.
However, the WCJ credited Dr. Levy’s testimony and found that Claimant’s
disability ceased on July 18, 2012, the date Dr. Levy determined Claimant had fully
recovered from her work injury. Thus, the WCJ concluded that Claimant had met her
burden of proving that she sustained a work-related injury which rendered her
disabled for the closed period from June 19, 2011, to July 18, 2012, stating that “[a]ll
5
of the testimony and evidence of record supportive of this determination is accepted,
and any testimony or evidence of record adverse thereto is deemed less credible and
persuasive, and dismissed as such.” (WCJ’s Finding of Fact No. 1.)
Claimant and Employer appealed the WCJ’s decision to the Board,
which affirmed the WCJ’s decision. In relevant part, the Board concluded that Dr.
Levy’s testimony, which the WCJ accepted as credible, constituted substantial and
competent evidence sufficient to support the WCJ’s finding that Claimant’s disability
ceased on July 18, 2012. Claimant petitions for review.
On appeal to this Court,1 Claimant argues that the WCJ improperly
terminated her benefits because objective medical evidence exists which substantiates
her complaints of pain caused by her work injury. We disagree.
Initially, we note that in a claim petition proceeding, the burden is on the
claimant to prove all of the elements necessary to support an award of benefits. Inglis
House v. Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa.
1993). A claimant must show that she sustained an injury during the course of her
employment and that she is disabled as a consequence of that injury. Bonegre v.
Workers’ Compensation Appeal Board (Bertolini’s), 863 A.2d 68, 72 (Pa. Cmwlth.
2004). For purposes of workers’ compensation, the term disability is equivalent to a
loss of earning power. Coyne v. Workers’ Compensation Appeal Board (Villanova
University), 942 A.2d 939, 945 n.7 (Pa. Cmwlth. 2008). A claimant also bears the
burden to establish the duration and extent of the alleged disability. Pennsylvania
Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board
1
This Court’s review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether findings of fact were supported by substantial
evidence. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894
A.2d 214, 216 n.3 (Pa. Cmwlth. 2006).
6
(Bonner), 85 A.3d 1109, 1115 (Pa. Cmwlth. 2014). The burden remains on the
claimant to show that the work-related injury causes disability throughout the
pendency of the claim petition. Innovative Spaces v. Workmen’s Compensation
Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994). The burden does
not shift to the employer. Zuchelli v. Workers’ Compensation Appeal Board (Indiana
University of Pennsylvania), 35 A.3d 801, 804 (Pa. Cmwlth. 2011).
If a claimant fails to offer unequivocal testimony establishing ongoing
disability after a certain date, termination of benefits as of that date is proper.
Wagner v. Workers’ Compensation Appeal Board (O’Malley Wood Products, Inc.),
805 A.2d 683, 684 (Pa. Cmwlth. 2002). Therefore, even if an employer never files a
termination petition, a WCJ may terminate benefits if he determines that the claimant
has not met her burden to demonstrate a right to continuing compensation. Coyne,
942 A.2d at 952.2 A WCJ is authorized to find disability and award compensation
only for a closed period of time if the evidence supports such a finding. Potere v.
Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d 684, 690 (Pa. Cmwlth.
2011).
Claimant relies on Udvari v. Workmen’s Compensation Appeal Board
(USAir, Inc.), 705 A.2d 1290 (Pa. 1997), and argues that an employer bears the
burden of proof to establish that a claimant’s work-related injury has ceased. In
2
In Coyne, the claimant filed a claim petition seeking workers’ compensation benefits for a
work-related injury she suffered. The WCJ granted the petition and awarded benefits for a closed
period because the WCJ credited the employer’s medical expert’s testimony that the claimant was
fully recovered from her work injury over the claimant’s medical expert’s testimony that the work
injury prevented claimant from returning to her pre-injury job. On appeal, this Court noted that a
claimant bears the burden to establish continuing disability throughout the pendency of the claim
petition. Id. at 954. We explained that, because the WCJ credited the testimony of the employer’s
expert medical witness that the claimant had fully recovered from her work injury, the claimant was
unable to meet her burden of proof.
7
Udvari, the employer filed a termination petition and, to support its petition,
submitted a physician’s testimony that the claimant had fully recovered from her
work injury. The WCJ granted a termination and the Board affirmed. The
Commonwealth Court reversed the Board’s decision and held that because the
employer’s expert testified regarding the claimant’s continued complaints of
subjective pain, a suspension of benefits, rather than a termination, was proper. The
employer appealed and argued that there was substantial evidence to support
termination. Our Supreme Court agreed and held that:
In a case where the claimant complains of continued pain,
[the employer’s] 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.
Udvari, 705 A.2d at 1293.
Claimant argues that Employer did not meet its burden of proof under
Udvari because the nerve conduction studies constitute objective medical evidence
that substantiate her assertions of continuing pain. However, in making this
argument, Claimant disregards a critical portion of the Supreme Court’s analysis in
Udvari:
The determination of whether a claimant’s subjective
complaints of pain are accepted is a question of fact for the
WCJ. In the absence of objective medical testimony, the
WCJ is neither required to accept the claimant’s assertions,
nor prohibited from doing so. Testimony by the employer’s
medical expert as to the existence of the claimant’s
complaints of pain does not require the WCJ to find for the
8
claimant. A contrary conclusion would lead to the absurd
result that a claimant could forever preclude the termination
of benefits by merely complaining of continuing pain. What
is relevant in deciding whether the termination of benefits is
warranted is whether the claimant suffers from pain as a
result of the work-related injury.
Udvari, 705 A.2d at 1293 (emphasis added).
Here, the parties presented conflicting evidence concerning the extent
and duration of Claimant’s disability. As in every workers’ compensation case,
resolution of those conflicts and the weight to be accorded evidence was solely within
the province of the WCJ. Williams v. Workers’ Compensation Appeal Board (USX
Corporation-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004). The WCJ
credited Dr. Levy’s testimony that Claimant was fully recovered from the work-
related lumbar strain and that her ongoing symptoms were related solely to her pre-
existing degenerative condition. Dr. Levy’s testimony constitutes substantial
evidence to support the WCJ’s findings.3 “The appellate role in [workers’]
compensation cases is not to reweigh the evidence or review the credibility of
witnesses; rather, the Board or the court must simply determine whether, upon
consideration of the evidence as a whole, the WCJ’s findings have the requisite
measure of support in the record.” Sell v. Workers’ Compensation Appeal Board
(LNP Engineering), 771 A.2d 1246, 1251 (Pa. 2001). If substantial evidence
supports the WCJ’s findings, it is irrelevant whether evidence exists which supports a
3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal
Board (Skirpan), 612 A.2d 434, 436 (Pa. 1992). It is well settled that the WCJ is the final arbiter of
witness credibility and evidentiary weight and may accept or reject, in whole or in part, the
testimony of any witness. Pennsylvania Uninsured Employers Guaranty Fund, 85 A.3d at 1115.
The WCJ’s findings will be overturned only if they are arbitrary and capricious. Sell v. Workers’
Compensation Appeal Board (LNP Engineering), 771 A.2d 1246, 1250 (Pa. 2001).
9
contrary finding. Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal
Board (Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015).
Accordingly, having concluded that the WCJ properly applied the law
and that the WCJ’s decision is supported by substantial evidence, we affirm the
Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lenora L. Lewis, :
Petitioner :
: No. 546 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (County of Butler and :
Inservco Insurance Services), :
Respondents :
ORDER
AND NOW, this 23rd day of October, 2015, the order of the Workers’
Compensation Appeal Board, dated March 11, 2015, is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge