B. Sephes v. Nationwide Housing Mgmt. & UEGF (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce Sephes, :
Petitioner :
:
v. : No. 430 C.D. 2021
: SUBMITTED: December 17, 2021
Nationwide Housing Management :
and Uninsured Employers Guaranty :
Fund (Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: June 1, 2022
Bruce Sephes petitions for review of an order of the Workers’
Compensation Appeal Board (Board), which affirmed the decision of the Workers’
Compensation Judge (WCJ) granting his claim petitions against Nationwide
Housing Management (Employer) and the Uninsured Employers Guaranty Fund
(UEGF) for a closed period, and thereafter terminating benefits.2 On appeal,
Claimant argues that the WCJ erred in terminating his benefits when his medical
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
2
The Board also affirmed the WCJ’s decision to grant Claimant’s penalty petition against
Employer. The penalty petition is not at issue on appeal.
evidence established that his work-related L4 radiculopathy had not fully resolved.
Following review, we affirm the Board.
On May 17, 2019, Claimant filed a claim petition stating that he
sustained a “gunshot wound [to his] chest area, multiple left sided fractured ribs,
internal injuries, [and] status post stomach surgery” on April 10, 2019, while
working for Employer as a maintenance technician. (Reproduced Record “R.R.” at
1a-3a.) Claimant also filed a penalty petition claiming that Employer was notified
of his injuries and failed to accept or deny his claim within 21 days in accordance
with the Workers’ Compensation Act (Act).3 (R.R. at 8a.) On June 11, 2019,
following receipt of documentation that Employer did not have workers’
compensation coverage, Claimant filed a notice of claim against the UEGF raising
the identical allegations made against Employer in the claim petition. (R.R. at 10a-
14a.)
On August 15, 2019, Claimant testified by deposition that he worked
full time for Employer performing repairs and maintenance work in its apartments.
(WCJ Decision, 6/25/2020, Finding of Fact “F.F.” No. 4(a).) On April 10, 2019, he
was repairing an appliance in one of the apartments, when he heard “a big
commotion outside[.]” (F.F. No. 4(c).) Employer’s garage, located about a half
block away, was unlocked, so Claimant suspended his repair work to go lock it.
(F.F. No. 4(c), (d).) While walking back to the apartment after locking the garage,
Claimant heard gunshots, felt a sharp pain in his chest, and could not breathe. (Id.)
Claimant heard more shots, began to run, and fell as he ran away. (Id.) A tenant
drove him to the hospital, where he underwent abdominal surgery. (F.F. No. 4(d),
(e).)
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
Claimant testified that he cannot return to work because his job requires
a lot of walking, lifting, twisting, and turning. (WCJ Decision, 6/25/2020, F.F. No.
4(m).) He continues to have back and stomach pain. (F.F. No. 4(l), (m).)
Additionally, he has problems with shortness of breath and difficulty climbing steps.
(F.F. No. 4(q).)4
Claimant presented additional testimony before the WCJ on February
5, 2020. (WCJ Decision, 6/25/2020, F.F. No. 5(a).) He continues to undergo
medical treatment for his stomach and back, and an x-ray revealed a bullet fragment
in the area. (F.F. No. 5(b).) For his back, he has a brace and uses an electrical
stimulator, and he receives injections. (Id.) For both his back and chest, he receives
physical therapy and is prescribed Tramadol, Meloxicam, and a muscle relaxer.
(F.F. No. 5(b), (f).) Claimant received a job offer from Employer on October 31,
2019, to return to his preinjury job without restrictions. (F.F. No. 5(c).) Claimant
stated, however, that he cannot return to work because he has ongoing back, chest,
and stomach issues, along with pain. (F.F. No. 5(c), (d).)
Claimant presented the deposition testimony of Dr. William Pavlou in
support of his claim. Dr. Pavlou is board certified in family medicine and began
treating Claimant on May 15, 2019. (WCJ Decision, 6/25/2020, F.F. No. 6(a).)
Claimant’s medical records established that Claimant sustained a gunshot wound to
his left upper abdomen and lower thoracic area. (Id.) Claimant had two fractured
ribs, “and the bullet went up towards the fractured ribs and came down to the
stomach, punctur[ed] the stomach[,] and stayed in his intestines.” (Id.)
Dr. Pavlou diagnosed Claimant with a “gunshot wound to the left upper
abdomen, status post laparotomy[,] and repair of intestinal injuries. He also
4
Claimant testified that he previously suffered a gunshot wound to his groin in 1997. (WCJ
Decision, 6/25/2020, F.F. No. 4(p).)
3
diagnosed post-[]traumatic musculoligamentous strain and sprain of the lumbosacral
spine.” (WCJ Decision, 6/25/2020, F.F. No. 6(c).) Dr. Pavlou testified that
Claimant was disabled from his preinjury job as a maintenance technician, as of
April 10, 2019, due to his injuries, and continued to treat Claimant with physical
therapy to strengthen his abdominal wall muscles and low back, along with pain
management. (F.F. No. 6(c), (d), (e).) Dr. Pavlou opined, however, that Claimant
could return to some kind of light-duty work in the future. (F.F. No. 6(f).)
Additionally, a January 6, 2020 statement from Dr. Pavlou was
admitted into evidence. (WCJ Decision, 6/25/2020, F.F. No. 7; R.R. at 297a-98a.)
Therein, Dr. Pavlou advised that due to the gunshot wound, Claimant has “persistent
abdominal cramps and gastrointestinal issues.” (R.R. at 297a.) Furthermore, when
he fell to the ground, Claimant “sustained [a] lumbosacral spine,
musculoligamentous injury and radiculopathy.” (Id.) Dr. Pavlou stated that
Claimant had an electromyography (EMG) done in October 2019, which showed an
L4 radiculopathy.5 (Id.) Claimant received an epidural to his lumbar spine, which
provided some temporary relief. (Id.) Dr. Pavlou reiterated his belief that Claimant
had not fully recovered from his injuries, but that, with continued treatments,
recovery could be expected in the near future. (R.R. at 298a.)
In opposition to Claimant’s claim petition, Employer and the UEGF
presented the deposition testimony of Dr. Barry Snyder, who is board certified in
orthopedic surgery. (WCJ Decision, 6/25/2020, F.F. No. 9.) Dr. Snyder performed
an independent medical examination (IME) of Claimant on September 19, 2019,
which was limited to Claimant’s low back and lower extremities. (F.F. No. 9(a),
(b).) Dr. Snyder diagnosed Claimant with two rib fractures, from which Dr. Snyder
5
The EMG is not in evidence.
4
opined Claimant had fully recovered. (F.F. No. 9(c).) Dr. Snyder further diagnosed
Claimant with preexisting lumbar disc degeneration at L5/S1, with preexisting
radicular symptoms, which could have been transiently aggravated. (Id.) However,
he saw no indication of ongoing radiculopathy relating to the work injury. (F.F. No.
9(d).) Also, if Claimant did suffer a lumbar sprain and strain when he fell, Dr.
Snyder opined that Claimant had recovered from it. (F.F. No. 9(c).) As such, Dr.
Snyder believed that Claimant was fully recovered from his work injuries and could
return to work without restrictions. (F.F. No. 9(c), (d).)
Employer and the UEGF also presented the deposition testimony of
Francis Rosato, M.D., who is board certified in general surgery. (WCJ Decision,
6/25/2020, F.F. No. 10.) Dr. Rosato conducted a physical examination of Claimant
on September 9, 2019. (F.F. No. 10(a).) Dr. Rosato stated that Claimant sustained
a gunshot wound to his abdomen, underwent an appropriate surgical repair, and was
fully healed from that surgery. (F.F. No. 10(c).) Dr. Rosato found no objective
findings that would support Claimant’s subjective complaints of pain. (Id.) Dr.
Rosato agreed that Claimant had a bullet fragment in his right hemiabdomen, but
“opined that it was not uncommon to leave bullets in patients’ abdomens and it
should not cause any pain.” (F.F. No. 10(d).) Further, he explained, the normal
healing period for the surgery performed on Claimant was four to six weeks. (Id.)
Dr. Rosato opined that Claimant had fully recovered from his work injury as of
September 9, 2019, and could return to work without restrictions. (F.F. No. 10(c).)
On June 25, 2020, the WCJ circulated her decision and order. The WCJ
found Claimant’s testimony credible that he suffered a disabling work injury on
April 10, 2019, while working for his Employer; however, the WCJ found
Claimant’s live testimony not credible with regard to his complaints of continuing
5
pain and ongoing disability. (WCJ Decision, 6/25/2020, F.F. Nos. 11-13.) The WCJ
rejected Dr. Pavlou’s testimony as not credible in its entirety, as the WCJ found that
he was not qualified to render opinions on Claimant’s injuries due to his not being a
specialist in the areas affected by Claimant’s injuries and because his opinions were
based on Claimant’s incredible complaints of ongoing symptoms. (F.F. No. 14.)
The WCJ further found the testimony and opinions of Dr. Rosato and Dr. Snyder
more credible and persuasive than Dr. Pavlou’s, as they were specialists on surgical
matters and in the areas related to Claimant’s orthopedic injuries and also testified
that Claimant’s subjective complaints of pain were not substantiated by their
objective findings. (F.F. Nos. 14-15.)
Based on the above facts, the WCJ concluded that Claimant met his
burden of proving that he sustained a totally disabling work injury on April 10, 2019,
while working for Employer, which consisted of
a gunshot wound to his chest area/left abdominal quadrant post
laparotomy; stomach laceration; fractures of the sixth and
seventh ribs on his left side; internal injuries status post stomach
surgery; a post-traumatic lumbosacral spine sprain/strain with
symptoms into his lower extremities; and an aggravation of
pre[]existing lumbar disc degeneration at L5/S1, with
radiculopathy at L4[,]
and that Claimant had fully recovered from all of his injuries as of September 19,
2019. (WCJ Decision, 6/25/2020, F.F. Nos. 12, 16; Conclusions of Law (C.L.) No.
3.)6 The WCJ further determined that Employer was primarily liable to Claimant
for payment of lost wages, penalties, interest, medical benefits, and litigation costs,
and that based on Employer’s uninsured status, the UEGF was secondarily liable to
6
As to Claimant’s penalty petition, which is not at issue on appeal, the WCJ awarded Claimant
a 50% penalty against Employer based on its failure to timely accept or deny his claim, as required
by the Act. (WCJ Decision, 6/25/2020, F.F. No. 18 & C.L. No. 4.)
6
Claimant for the above payments should Employer default on its obligations. (C.L.
Nos. 6-8.)7 The WCJ also terminated Claimant’s benefits effective September 19,
2019. (WCJ’s Decision, 6/25/2020, C.L. No. 9.)
Claimant appealed to the Board, arguing that the WCJ’s Findings of
Fact Nos. 1 through 20 were not supported by substantial evidence or contained other
errors, and Conclusions of Law Nos. 1 through 9 were in error, for the following
reasons:
The WCJ erred in terminating [] Claimant’s workers’
compensation benefits as of September 19, 2019. In Finding of
Fact [No.] 12, the WCJ found that [] Claimant suffered a totally
disabling work injury on April 10, 2019, while working for
[E]mployer. The WCJ further found that [] Claimant’s injuries
were gunshot wound to his chest area/left abdominal quadrant
post laparotomy; stomach laceration; fractures of the sixth and
seventh ribs on his left side; internal injuries status post stomach
surgery; a post-traumatic lumbosacral spine sprain/strain with
symptoms into his lower extremities; and an aggravation of
pre[]existing lumbar disc degeneration at L5/S1, with
radiculopathy at L4. The testimony of [E]mployer’s medical
experts, Dr. Rosato and Dr. Snyder, do not support a finding or
conclusion that [] Claimant fully recovered from his stomach
laceration, internal injuries status post stomach surgery, a post[-
]traumatic lumbosacral spine sprain/strain with symptoms into
his lower extremities and an aggravation of pre[]existing lumbar
disc degeneration at L5-S1 with radiculopathy at L4. The
[WCJ’s] Decision terminating [] Claimant’s benefits must be
reversed. [] Claimant should also be awarded ongoing total
disability benefits since [E]mployer’s medical evidence does not
support a full recovery. The WCJ’s Decision to deny [] Claimant
ongoing wage loss and medical benefits despite his severe
injuries is not supported by substantial competent evidence and
should be reversed on appeal.
7
The WCJ circulated an amended decision on June 30, 2020, in which she amended
Conclusion of Law No. 8 (of her June 25, 2020 decision) by deleting the payment of interest as
the UEGF’s responsibility should Employer default on its payment obligations. (R.R. at 427a-
30a.) She otherwise affirmed her June 25, 2020 decision.
7
(Certified Record “C.R.” Item No. 13, at 2-3.) The Board evaluated Claimant’s
appeal as a claim that the WCJ’s finding of full recovery was not based on substantial
competent evidence. (Board Op., 4/1/2021, at 2.) The Board held that the record
evidence supported the WCJ’s findings that Claimant sustained a disabling work
injury for a closed period of time. Because the Claimant did not meet his burden of
proving an ongoing disability after September 19, 2019, the Board concluded that
the WCJ properly terminated Claimant’s benefits as of that date, and affirmed the
WCJ’s decision.
Claimant now petitions this Court for review of the Board’s order.
Claimant contends that the WCJ’s decision to terminate his benefits is not supported
by substantial and competent evidence of record because the evidence shows that
Claimant’s work-related L4 radiculopathy was not fully resolved as of September
19, 2019. Claimant further argues that the WCJ’s decision is not reasoned because
she failed to consider crucial medical evidence, i.e., an EMG showing an L4
radiculopathy.
In a claim petition proceeding, the claimant bears the burden of
establishing all of the elements necessary to support an award of workers’
compensation benefits, including the existence of an injury and disability, and a
causal relationship between the injury and the claimant’s work. Giant Eagle, Inc. v.
Workers’ Comp. Appeal Bd. (Thomas), 725 A.2d 873, 876 (Pa. Cmwlth. 1999). The
burden remains on the claimant to show that his work-related injury continues to
cause disability throughout the pendency of the claim proceeding. Somerset Welding
& Steel v. Workmen’s Comp. Appeal Bd. (Lee), 650 A.2d 114, 119 (Pa. Cmwlth.
1994). The “WCJ is authorized, when considering a claim petition, to award
compensation for a work-related injury, and, in addition, to terminate benefits as of
8
the date the disability ceased . . . if the claimant has not carried [his or her] burden
of proof to establish a continuing disability.” Ohm v. Workmen’s Comp. Appeal Bd.
(Caloric Corp.), 663 A.2d 883, 886 (Pa. Cmwlth. 1995).
In his brief, Claimant acknowledges that the WCJ accepted that he
sustained a work injury in the nature of an L4 radiculopathy. He claims, however,
that the WCJ incorrectly determined that the L4 radiculopathy resolved as of
September 19, 2019, because an EMG study done in October 2019 showed an L4
radiculopathy. Further, Claimant asserts that the WCJ’s decision is not well-
reasoned because she failed to address the October 19, 2019 EMG results.
The UEGF responds8 that Dr. Pavlou’s January 6, 2020 narrative report
was admitted into evidence at the final hearing before the WCJ. The report does not
contain an EMG study; rather, it merely contains a notation by Dr. Pavlou that an
EMG study was done in October 2019, showing an L4 radiculopathy. The WCJ
acknowledged the report and EMG study in Finding of Fact No. 7. However, the
WCJ ultimately rejected the testimony of Dr. Pavlou and credited the testimony of
Dr. Snyder that Claimant’s preexisting radiculopathy had been aggravated by the
work injury, but there was no longer any indication of an ongoing radiculopathy
relating to the work injury. Additionally, the WCJ specifically noted Dr. Pavlou’s
report stating that an EMG study demonstrated an L4 radiculopathy. Thus,
according to the UEGF, it was considered by the WCJ, and the decision was well-
reasoned.
We begin by addressing sua sponte whether Claimant’s first issue to
this Court was properly raised before the Board. Pursuant to the Pennsylvania Rules
8
On May 7, 2021, the UEGF filed a notice of intervention with the Court. Employer was
precluded from filing a brief in this matter based on its failure to comply with this Court’s October
5, 2021 order directing it to do so within 14 days.
9
of Appellate Procedure, this Court may review only those “questions raised before
the government unit . . . .” Pa.R.A.P. 1551(a) (absent certain exceptions not
applicable to this case). In order to preserve an issue for the Board’s review, a
claimant must provide, inter alia:
A statement of the particular grounds upon which the appeal is
based, including reference to the specific findings of fact which
are challenged and the errors of the law which are alleged.
General allegations which do not specifically bring to the
attention of the Board the issues decided are insufficient.
34 Pa. Code § 111.11(a)(2). “In interpreting and applying this section, we have
found that when a party fails to abide by the requirements of 34 Pa.[ ]Code §
111.11(a)(2) by raising an issue with the requisite specificity in the appeal
documents before the Board, that party fails to preserve the issue under 34 Pa.[ ]Code
§ 111.11(a)(2).” McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903
A.2d 94, 101 (Pa. Cmwlth. 2006) (emphasis in original).9
Here, Claimant asserted in boilerplate language that Findings of Fact
Nos. 1-20, i.e., all of the WCJ’s findings of fact, were not supported by substantial
evidence or contained other errors, and that Conclusions of Law Nos. 1-9, i.e., all of
the WCJ’s conclusions of law, were in error. (C.R. Item No. 13, at 2-3.) Claimant
then alleged that the testimony of Employer’s medical experts did “not support a
finding or conclusion that [] Claimant fully recovered from his stomach laceration,
internal injuries status post stomach surgery, a post[-]traumatic lumbosacral spine
sprain/strain with symptoms into his lower extremities and an aggravation of
9
In McGaffin, this Court, sua sponte, raised the issue of whether the claimant preserved the
issue before the Court in her appeal to the Board.
10
pre[]existing lumbar disc degeneration at L5-S1 with radiculopathy at L4[,]” i.e.,
almost all of his work-related injuries. (Id.)
In short, Claimant’s appeal to the Board stated that all of the WCJ’s
findings of fact and conclusions of law were in error, and that Employer’s and the
UEGF’s medical testimony failed to establish that Claimant fully recovered from
most of his work-related injuries. As such, Claimant failed to specifically plead
before the Board the specific issue raised first before this Court: whether the WCJ
wrongly determined that the L4 radiculopathy resolved as of September 19, 2019,
when Dr. Pavlou reported that an EMG taken in October 2019 showed an L4
radiculopathy. Because the issue was not specifically raised before the Board, it was
not preserved for review by this Court. See Pa.R.A.P. 1551(a).10
While Claimant did not raise a specific challenge to the Board regarding
his L4 radiculopathy and the EMG in his appeal, he did raise a general challenge to
the WCJ’s finding of full recovery as to all of his injuries. As such, the Board did
address whether the WCJ’s finding of full recovery was based on substantial and
10
Even if we considered Claimant’s issue to have been preserved by his general allegations,
he would not prevail. Dr. Pavlou reported that Claimant had an L4 radiculopathy as of October
2019. (R.R. at 297a.) However, the WCJ accepted the medical testimony of Dr. Snyder, not Dr.
Pavlou. (F.F. Nos. 14 & 15.) Dr. Snyder opined that Claimant had preexisting lumbar disc
degeneration at the L5-S1 interspace, with preexisting radiculopathy symptoms. (Dr. Snyder Dep.
at 38; R.R. at 248a.) Dr. Snyder believed Claimant could have sustained a work-related sprain and
strain of the lumbar spine upon falling to the ground after being shot, and this could have
aggravated Claimant’s preexisting lumbar issues. (Id. at 39-40; R.R. at 249a-50a.) Dr. Snyder
advised that a sprain and strain would normally resolve within six weeks, but with Claimant’s
preexisting lumbar issues, it might take three months. (Id.) Dr. Snyder examined Claimant five
months after the fall and testified that if there ever was a sprain or strain, it had resolved. (Id.) Dr.
Snyder specifically expressed there was no showing of an ongoing radiculopathy relating to the
work incident. (Id. at 41; R.R. at 251a.) Thus, it is irrelevant whether Claimant had radiculopathy
symptoms in October of 2019; his radiculopathy symptoms were preexisting and would be
expected to continue.
11
competent evidence of record. The Board explained that Claimant had the burden
of proving a work-related disability and its duration. Because the WCJ found that
the disabling injuries had resolved, it was proper to award benefits for a closed period
and thereafter order termination. Specifically, the WCJ based her decision on the
credible testimony of Dr. Snyder and Dr. Rosato, both of whom opined that objective
medical evidence did not support Claimant’s complaints, and rejected Dr. Pavlou’s
opinion11 primarily because it was based on Claimant’s discredited complaints.
Finding that the WCJ’s decision was based on substantial and competent evidence
of record, the Board denied Claimant’s appeal.
We agree with the Board. It is well settled that the WCJ, as the ultimate
factfinder, is free to accept or reject the testimony of any witness, including a
medical witness, in whole or in part. Milner v. Workers’ Comp. Appeal Bd. (Main
Line Endoscopy Ctr.), 995 A.2d 492, 496 (Pa. Cmwlth. 2010). Further,
determinations of credibility and evidentiary weight are within the WCJ’s exclusive
province. Ward v. Workers’ Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159,
1164 (Pa. Cmwlth. 2009). Viewing the evidence in the light most favorable to
Employer as the party that prevailed before the WCJ,12 particularly the testimony of
Dr. Snyder, we conclude that the WCJ’s decision was based on substantial and
competent evidence of record.
Second, Claimant argues that the WCJ’s decision is not reasoned
because she failed to consider the EMG showing L4 radiculopathy.13 Before the
11
Dr. Pavlou also treated Claimant for gastrointestinal issues. However, the WCJ did not find
these issues to be related to his work.
Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa.
12
Cmwlth. 2003).
13
Section 422(a) of the Act provides:
(Footnote continued on next page…)
12
Board, Claimant did not assert that the WCJ’s decision was not well-reasoned or that
the WCJ failed to consider the EMG showing the L4 radiculopathy. (C.R. Item No.
13, at 2-3.) Thus, Claimant’s second issue was not preserved for review by this
Court. See Pa.R.A.P. 1551(a). Even if considered, this argument lacks merit. The
WCJ, as described above, fully explained her reasons for accepting the testimony of
Dr. Snyder over that of Dr. Pavlou and, as noted in footnote 10, Dr. Snyder explained
that Claimant’s radiculopathy symptoms were no longer work related by the time of
the EMG.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
All parties to an adjudicatory proceeding are entitled to a reasoned decision
containing findings of fact and conclusions of law based upon the evidence as a
whole which clearly and concisely states and explains the rationale for the decisions
so that all can determine why and how a particular result was reached. The workers’
compensation judge shall specify the evidence upon which the workers’
compensation judge relies and state the reasons for accepting it in conformity with
this section. When faced with conflicting evidence, the workers’ compensation
judge must adequately explain the reasons for rejecting or discrediting competent
evidence. Uncontroverted evidence may not be rejected for no reason or for an
irrational reason; the workers’ compensation judge must identify that evidence and
explain adequately the reasons for its rejection. The adjudication shall provide the
basis for meaningful appellate review.
77 P.S. § 834.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce Sephes, :
Petitioner :
:
v. : No. 430 C.D. 2021
:
Nationwide Housing Management :
and Uninsured Employers Guaranty :
Fund (Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 1st day of June, 2022, the Workers’ Compensation
Appeal Board’s April 1, 2021 order is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita