J.B. Doerfler v. WCAB (Winegardner & Hammons, Inc.) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph B. Doerfler, :
Petitioner :
:
v. : No. 1550 C.D. 2016
: SUBMITTED: February 3, 2017
Workers' Compensation Appeal :
Board (Winegardner & :
Hammons, Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 31, 2017
Joseph B. Doerfler (Claimant), acting pro se, petitions for review of
an order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of the Workers’ Compensation Judge (WCJ) (1) denying his petitions to
review compensation benefits and review medical treatment and/or billing; and (2)
granting two petitions to terminate compensation benefits filed by Winegardner &
Hammons, Inc. (Employer) pertaining to his accepted lumbar spine sprain/strain
and any alleged concussion or head injury. In affirming, the Board clarified that
the WCJ did not grant a termination of medical benefits for Claimant’s accepted
right shoulder injury and that, accordingly, Employer continued to be responsible
for the payment of medical bills incident to that injury. The sole issue on appeal is
whether the Board properly affirmed the WCJ’s denial of Claimant’s petition to
add an alleged left shoulder injury to the description of his work-related injury.
We affirm.
In pertinent part, the facts as found by the WCJ are as follows. A
maintenance worker, Claimant suffered a work injury in February 2013 when he
was shoveling snow and ice at the Cranberry Marriott Hotel and fell backwards.
Pursuant to a March 2013 notice of compensation payable (NCP), Employer
initially acknowledged a right shoulder injury and a lumbar spine sprain/strain. In
July 2013, Claimant filed petitions to review compensation benefits and review
medical treatment and/or billing alleging an incorrect injury description and
seeking to expand the description to include a possible concussion with post-
concussive syndrome as well as injures to his left shoulder and cervical spine. In
October 2014, Employer filed: (1) a termination petition alleging full recovery
from an accepted lumbar spine sprain/strain as of November 22, 2013; and (2) a
second termination petition alleging full recovery from any alleged head injury or
concussion that Claimant may have suffered as of June 30, 2014. Claimant filed
answers denying the material allegations in both termination petitions. In June
2015, a compromise and release agreement was approved but it left open a
decision on the parties’ petitions concerning medical benefits.
Subsequently, the WCJ determined that Claimant’s medical evidence
did not support an expansion of the injury description to include a concussion or
head injury, that his medical expert did not offer any evidence relative to his
cervical complaints, and that he had fully recovered from his lumbar spine
sprain/strain. Further, although the WCJ did not render a specific fact-finding or
conclusion of law regarding the alleged left shoulder injury, she accepted as
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credible the testimony of a medical witness who personally examined both of
Claimant’s shoulders and opined that his injury included only the right shoulder.
The WCJ, therefore, denied Claimant’s petitions and granted Employer’s
termination petitions. The Board affirmed, clarifying that there was no evidence
supporting a full recovery from Claimant’s accepted right shoulder injury and that
the WCJ did not grant a termination of medical benefits for that injury.1
Accordingly, in its affirmance, the Board emphasized that Employer was required
to continue payment of medical bills incident to the right shoulder injury.
Claimant’s pro se petition for review to this Court followed.
As the party seeking to amend the injury description, Claimant was
required to demonstrate that the injury accepted by Employer in the NCP does not
reflect all of the work injuries sustained. Jeanes Hosp. v. Workers’ Comp. Appeal
Bd. (Hass), 872 A.2d 159, 166-67 (Pa. 2005). “As in a claim petition, the claimant
has the burden of proving all elements to support the claim for benefits.” Id. at
169. In a claim petition proceeding, the claimant bears the burden of establishing
his or her right to compensation and all of the elements necessary to support an
award of benefits, including a causal relationship between a work-related incident
and the alleged disability and the duration and extent of the disability alleged. Rife
v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750, 754-55 (Pa.
1
In its decision, the Board ponders how a so-called “partial termination” should be
characterized and whether it is permitted. Board’s August 2, 2016, Decision at 8-9 n.4. Here,
the NCP acknowledging a right shoulder injury and a lumbar spine sprain/strain was reduced to a
right shoulder injury. We conclude that the reduction is tantamount to a modification of the
NCP. See Section 413 of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as
amended, 77 P.S. § 772 (providing that, a WCJ “may, at any time, modify, reinstate, suspend, or
terminate a [NCP] . . . upon petition filed by either party with the department, upon proof that the
disability of an injured employe has increased, decreased, recurred, or has temporarily or finally
ceased.”)
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Cmwlth. 2002). Where medical testimony is required relating to causation, it must
be unequivocal to support an award. Haney v. Workmen’s Comp. Appeal Bd.
(Patterson-Kelley Co.), 442 A.2d 1223, 1225 (Pa. Cmwlth. 1982).
Moreover, it is well established that questions of credibility and
evidentiary weight are within the exclusive purview of the WCJ. Clear Channel
Broad. v. Workers’ Comp. Appeal Bd. (Perry), 938 A.2d 1150, 1156 (Pa. Cmwlth.
2007). “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). Neither
the Board nor the Court may review the evidence or reweigh the WCJ’s credibility
determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246
(Pa. 2001). Unless a WCJ arbitrarily or capriciously makes credibility
determinations, they will be upheld on appeal. Dorsey v. Workers’ Comp. Appeal
Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). Finally, a
WCJ is not required to address all of the evidence. He or she is required only to
articulate reasons for making a finding and to make only those findings necessary
to resolve the issues raised by the evidence and relevant to the decision. Jackson v.
Workers’ Comp. Appeal Bd. (Res. for Human Dev.), 877 A.2d 498, 504 (Pa.
Cmwlth. 2005).
In support of his position that the WCJ erred in failing to add a left
shoulder injury, Claimant maintains that she somehow overlooked and/or
disregarded relevant medical evidence. The rationale for his position can be
gleaned from his brief, where he notes that the manager on duty at the time of his
accident wrote a report stating the fact that his fall onto his back resulted in him
hitting his arms, back and head. Having pursued the usual course of going to the
4
hospital and receiving a battery of tests, he is perplexed as to why his left shoulder
injury should not be included considering all of the evidence in support of its
inclusion. Claimant’s Brief at 5. As his statement of the issue on appeal provides:
Why is the left shoulder not on the original claim from
Liberty Mutual back on February 2013? [Claimant] had
approval to go get an MRI done right before he had
surgery on the first shoulder, why was that approved?
[Claimant] spoke to a Shawn Mcdonald who was the
original case manager which he said he would include
that in the claim. Lou Ann Courie a nurse that worked
for Liberty Mutual on this case actually came to the
doctor’s appointment before the surgery and asked Dr.
Altmann if he could do both arms at the same time. So if
it wasn’t going to be covered why would she ask that?
Id. at 4. We reject Claimant’s position.
In rendering her decision, the WCJ accepted, inter alia, the opinion of
independent medical examiner Dean Sotereanos, M.D., who evaluated Claimant
for complaints concerning right and left shoulder pain and cervical spine
discomfort. In conducting his examination, the doctor reviewed Claimant’s
history, available medical records, and conducted his own examination of both
shoulders. Concluding that Claimant’s left shoulder complaints were not causally
related to the work injury, the doctor stated: “There was no distinct functional
disability noted on examination today and it is clearly noted that he had significant
breakaway weakness and exhibited malingering behavior throughout the
examination in regards to the left shoulder. Should the patient require a left
shoulder surgery, I do not believe it is related to the above-named work accident.”
November 4, 2014, Hearing, Defendant’s Exhibit C, March 19, 2014, Report of Dr.
Sotereanos at 5-6. Accordingly, Dr. Sotereanos opined that the only injury that
Claimant sustained related to the work injury was the right shoulder rotator cuff
tear, concluding that he sustained no work-related cervical spine or left shoulder
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injuries and had recovered from any lumbar injury. Id. at 6. The WCJ accepted
the doctor’s testimony as credible and that determination may not be disturbed on
appeal. Lehigh County Vo-Tech Sch. v. Workmen’s Comp. Appeal Bd. (Wolfe),
652 A.2d 797, 800 (Pa. 1995).
In addition, although the WCJ rendered a fact-finding concerning the
testimony of Claimant’s medical witness who treated him for complaints regarding
both shoulders, Mark W. Rodosky, M.D., she did not accept his opinion regarding
an alleged left shoulder injury. Accordingly, consistent with the Board’s ruling,
we conclude that the WCJ considered the possibility of a left shoulder injury but
then rejected it based on the evidence to which she chose to attribute weight and
assign credibility. See Acme Mkts., Inc. v. Workers’ Comp. Appeal Bd. (Brown),
890 A.2d 21, 26 (Pa. Cmwlth. 2006) (holding that, “[a] reasoned decision does not
require the WCJ to give a line-by-line analysis of each statement by each witness,
explaining how a particular statement affected the ultimate decision.”)
Accordingly, we affirm subject to the Board’s clarification regarding
Claimant’s accepted right shoulder injury.2
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
2
As gleaned from the Board’s opinion, Claimant had a double row rotator cuff repair
surgery in March 2013 but continued to have pain. Board’s August 2, 2016, Opinion at 4. In
addition, Dr. Sotereanos noted that a November 2013 MRI indicated a recurrent massive tear of
Claimant’s right rotator cuff. Id. at 7.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph B. Doerfler, :
Petitioner :
:
v. : No. 1550 C.D. 2016
:
Workers' Compensation Appeal :
Board (Winegardner & :
Hammons, Inc.), :
Respondent :
ORDER
AND NOW, this 31st day of May, 2017, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge