M.E. Borrell v. Faith Christian School Assoc. of Monroe County, Inc. & Brotherhood Mutual Ins. Co. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ellen Borrell, :
Petitioner :
: No. 751 C.D. 2021
v. :
: Submitted: October 22, 2021
Faith Christian School Association :
of Monroe County, Inc. and :
Brotherhood Mutual Insurance :
Company (Workers’ Compensation :
Appeal Board), :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: June 24, 2022
Mary Ellen Borrell (Claimant) petitions for review of the June 25, 2021
order of the Workers’ Compensation Appeal Board (Board) that affirmed a Decision
of Workers’ Compensation Judge Eric Pletcher (WCJ or WCJ Pletcher), granting the
Faith Christian School Association of Monroe County, Inc.’s (Employer) petition to
terminate (Termination Petition) Claimant’s workers’ compensation benefits based on
her full recovery from her work-related injury, pursuant to the provisions of the
Workers’ Compensation Act (Act).1 On appeal, Claimant contends that the Board erred
in granting the Termination Petition because there was not substantial competent
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
evidence of record to support the WCJ’s finding that Claimant’s continuing left knee
pain was attributable to preexisting arthritis, rather than her work-related injury, and
because Employer’s medical expert did not address the accepted work injury. For the
reasons that follow, we affirm.
Background
On November 1, 2018, Claimant, a physical education and health teacher,
sustained a work-related injury when she stepped on a ball and twisted her left knee.
Certified Record (C.R.), Item No. 23, at 1. On November 6, 2018, Employer issued a
medical-only notice of temporary compensation payable, accepting Claimant’s injury
as “a left knee strain.” Id. After 90 days, the notice of temporary compensation payable
(NTCP) converted to a notice of compensation payable (NCP) by operation of law.
Section 406.1(d)(6) of the Act,2 77 P.S. §717.1(d)(6).
On September 10, 2019, Employer filed the Termination Petition,
contending that Claimant had fully recovered from her work-related injury as of August
27, 2019. C.R., Item No. 2. In support of the Termination Petition, Employer presented
the August 27, 2019 independent medical examination (IME) report of David L.
Rubenstein, M.D., and an Affidavit of Recovery executed by Dr. Rubenstein. Claimant
relied on her March 11, 2020 testimony before the WCJ and three office notes prepared
by Carl Weiss, M.D.
Claimant testified that, prior to her work-related injury, her “left leg felt
really good[,]” and she had not sought treatment or taken any medication for any injury
related to her left knee, but Claimant had sought treatment for a work-related injury to
her right knee that occurred in 2007. C.R., Item No. 12, WCJ 3/11/2020 Hearing
2
Added by the Act of February 8, 1972, P.L. 25.
2
Transcript (Hr’g Tr.), at 11-13. After Claimant was injured on November 1, 2018, she
sought treatment at Coordinated Health at Employer’s direction. Hr’g Tr. at 10-11.
There, she treated with Dr. Weiss, who performed surgery on her left knee on
November 27, 2018. Hr’g Tr. at 13. Since the surgery, Claimant’s left knee pain has
worsened, and she takes Celebrex as prescribed by Dr. Weiss. Hr’g Tr. at 15-16.
Claimant testified that she had not previously been prescribed Celebrex or any other
medication to treat knee pain, except for the period immediately after her right knee
surgery. Hr’g Tr. at 16-17. Claimant indicated that she adjusted her work activities to
accommodate her right and left knee injuries by, for example, limiting her movements
or utilizing one leg over the other. Hr’g Tr. at 17-18. Claimant takes Celebrex every
day because without it she experiences pain and stiffness and is less active as a physical
education teacher. Hr’g Tr. at 19-20.
On cross-examination, Claimant testified that she had slightly less left
knee pain after the surgery and her knee felt stronger because she no longer feared that
it would lock up. Hr’g Tr. at 21-22. She received physical therapy at Coordinated
Health before and after the surgery, and while she was not certain whether she
continued therapy into 2019, she did not receive physical therapy after her post-surgery
therapy ended. Hr’g Tr. at 22-23. Claimant returned to light-duty work on December
3, 2018, and because she could limit her own activities, Dr. Weiss did not place
restrictions on her work. Hr’g Tr. at 23-24. On March 18, 2019, Dr. Weiss
administered a Gel-One injection to Claimant’s left knee, which did not help her pain,
and, because she had a bad reaction to it, she did not receive further injections. Hr’g
Tr. at 24. Claimant indicated that, before she injured her left knee, she had surgery on
her right knee, which Dr. Weiss occasionally checked. Hr’g Tr. at 28. She had not
taken pain medication for her right knee injury, but did have an injection in the past, to
3
which she reacted poorly. Hr’g Tr. at 28-29. Claimant testified that, prior to her left
knee injury, she did not feel any left knee pain because of her right knee limitations.
Hr’g Tr. at 29. She disagreed with Dr. Weiss’s assessment that her right knee is worse
than her left knee, as she has pain in her left knee but not in her right knee. Hr’g Tr. at
31.
At the March 11, 2020 hearing, the WCJ admitted into evidence three
office notes prepared by Dr. Weiss, dated February 25, 2019, March 18, 2019, and
November 18, 2019. Hr’g Tr. at 8-9. Dr. Weiss reported that Claimant presented at
the February 25, 2019 visit with complaints of swelling in the left knee. C.R., Item No.
14, at 3. Dr. Weiss ordered a Gel-One injection “for arthritic changes which were
exacerbated by the work[-]related injury.” Id. Claimant saw Dr. Weiss again on March
18, 2019, at which time the Gel-One injection was administered. C.R., Item No. 15, at
1-2. Dr. Weiss noted that Claimant is being monitored “for right knee end stage
osteoarthritis and moderate osteoarthritis of the left knee[,]” and she will need
continued treatment. Id. at 2. At the November 18, 2019 visit, Claimant complained
of left knee pain. C.R., Item No. 18, at 1. Dr. Weiss reviewed with Claimant x-rays
taken of her knees, noting that there were osteoarthritic changes present in both knees
and narrowed medial joint space in the left knee. Id. at 3. Dr. Weiss reported that he
informed Claimant that her knee injuries caused arthritis, the right knee is worse than
the left, “and the increased left knee pain is likely because of the limitation of the right
knee; [Claimant] is shifting her weight to the left.” Id. Dr. Weiss recommended a right
knee replacement, which he believed would reduce Claimant’s left knee pain. Id. He
further opined that “[t]he left knee may ultimately need to be replaced but fixing the
right knee may put off the replacement surgery for a longer period of time.” Id.
4
Employer presented the IME report of Dr. Rubenstein, who is board
certified in orthopedic surgery. C.R., Item No. 21. Dr. Rubenstein began his report by
explaining that he reviewed Claimant’s medical records and treatment with Dr. Weiss.
Those records indicated that Claimant injured her left knee at work in September of
2018 and then again in November of 2018. Id. at 2. Dr. Weiss further documented
that Claimant was experiencing pain, that her left knee was swollen and tender, and
that “[s]he had a positive medial McMurray’s test.” Id. On the recommendation of Dr.
Weiss, Claimant underwent a magnetic resonance imaging (MRI) on November 15,
2018. Id. The MRI revealed subluxation of the meniscus, minimal patellofemoral
arthritic change, joint space narrowing in the medial compartment, and minimal lateral
patellar tilt. Id. Moreover, there was small-to-moderate effusion, a “Baker cyst,” and
degenerative change in the lateral compartment in the popliteal area, some thickening
of the iliotibial band, and a remote sprain of the medial collateral ligament (MCL). Id.
Dr. Weiss diagnosed Claimant with an acute medial meniscal tear of the left knee and
scheduled Claimant for arthroscopic surgery. Id.
On November 27, 2018, Dr. Weiss performed a partial medial
meniscectomy, a chondroplasty of the medial femoral condyle, and a chondroplasty of
the femoral trochlea, and he also injected Claimant’s knee with a steroid. C.R., Item
No. 21, at 2. According to Dr. Rubenstein, the specifics of the operative report noted
normal underside of the patella, the trochlea had grade III change with
unstable flaps, chondroplasty performed there, cruciate ligaments intact,
medial meniscal tear, and some mild grade III change in the femoral
condyle where a chondroplasty was performed. The intercondylar notch
had normal [anterior cruciate ligament (]ACL[)] and [posterior cruciate
ligament (]PCL[)]. Lateral compartment had normal articular cartilage
and a normal lateral meniscus.
5
Id. Claimant thereafter began physical therapy, and, when she was reevaluated by Dr.
Weiss on December 3, 2018, he did not identify any complications from the surgery
and recommended continued physical therapy, which Claimant continued through
January of 2019. Id. At Claimant’s postoperative visit on January 7, 2019, Dr. Weiss
noted that Claimant was doing well and improving, attending therapy, and performing
home exercises. Id. at 3. She was instructed to continue with conservative care and
take medication. Id. On February 25, 2019, Claimant was reevaluated by Dr. Weiss,
who noted continued improvement but persistent swelling in the knee, for which he
recommended a Gel-One injection “for arthritic changes which [Dr. Weiss] indicated
were exacerbated by the work injury.” Id. On March 18, 2019, Claimant received the
Gel-One injection, and Dr. Weiss indicated that Claimant was being managed
conservatively for right knee end-stage osteoarthritis and moderate osteoarthritis of the
left knee for which she needed continued treatment. Id.
Dr. Rubenstein took a history from Claimant, and she indicated that she
had not seen Dr. Weiss since he administered the Gel-One injection five months earlier.
C.R., Item No. 21, at 3. Claimant advised Dr. Rubenstein that she had returned to work
and was self-limiting her activities based on her injury. Id. Dr. Rubenstein documented
that Claimant recounted having left ankle surgery and also surgery to her right knee in
2006. Id. at 4. She complained of left knee discomfort, some stiffness, lack of
flexibility, and pain, which she treats with Celebrex. Id.
After examining Claimant, Dr. Rubenstein concluded that her work-
related injury caused a left-knee medial meniscal tear, and thus, the arthroscopic
surgery was a work-related surgery. C.R., Item No. 21, at 4. He pointed out that, at
the time of her surgery, Claimant had fairly substantial arthritic change in the knee. Id.
Dr. Rubenstein opined that Claimant’s medical records do not reveal “any exacerbation
6
of arthritis [of] a material nature.” Id. He believed that Claimant’s “meniscal tear was
adequately treated with the surgery and the postoperative rehabilitation” and that “her
current treatment reflects underlying arthritis without any indication of material
exacerbation.” Id. at 4-5. Dr. Rubenstein expressed his opinion, within a reasonable
degree of medical certainty, that Claimant was “fully recovered [from the medial
meniscal tear,] having had no complications from surgery.” Id. at 5. According to Dr.
Rubenstein, any future treatments that Claimant receives to her left knee would not be
attributable to her work-related injury. Id. Dr. Rubenstein executed an Affidavit of
Recovery certifying that Claimant was fully recovered from the work-related medial
meniscal tear. C.R., Item No. 21, at 6.
In his Decision issued on August 25, 2020, WCJ Pletcher determined that
Employer sustained its burden of proving that Claimant had fully recovered from her
work injury as of August 27, 2019. In doing so, the WCJ found credible Claimant’s
testimony that she experiences left knee pain. WCJ Decision, Findings of Fact (F.F.)
No. 16. However, the WCJ placed more weight on the medical evidence, and found
Dr. Rubenstein’s opinion that Claimant had fully recovered from her work injury to be
more credible than Dr. Weiss’s opinion. F.F. No. 17. The WCJ noted that, while Dr.
Weiss opined that Claimant’s work-related injury caused her arthritis, Dr. Rubenstein
testified that the November 2018 operative report documented substantial arthritic
change in Claimant’s left knee. Id. Because the operative report was prepared only 26
days following Claimant’s work injury, the WCJ rejected Dr. Weiss’s opinion that
Claimant’s work injury caused her arthritic changes. Id. The WCJ also found it
significant that Dr. Weiss opined that Claimant’s right knee injury is worse than her
left knee injury, and that the right knee problem is causing Claimant to shift her weight
to the left, worsening her left knee pain. Id. This opinion, the WCJ reasoned, supports
7
Dr. Rubenstein’s conclusion that Claimant had recovered from her work-related left
knee injury. Id. Accordingly, the WCJ granted Employer’s Termination Petition, and
Claimant appealed to the Board.
Before the Board, Claimant argued that the WCJ erred because he found
that Claimant continues to have left knee pain, yet there is no record evidence that
Claimant’s pain arose prior to her work injury or was caused by an event that occurred
after the work injury. The Board reviewed the record and concluded that the WCJ’s
Decision was based on substantial competent evidence. In so concluding, the Board
observed that Employer was able to meet its burden because the WCJ accepted its
expert’s opinion that Claimant had fully recovered from her work-related injury. The
Board reasoned that simply because Claimant continued to have symptoms does not
prevent a finding of full recovery, as the issue was whether Claimant’s pain was
attributable to the work injury. The Board explained that the WCJ accepted Employer’s
expert’s opinions that Claimant’s pain was due to underlying arthritis, and this arthritis
was not caused or exacerbated by her work injury. Accordingly, the Board concluded
that Claimant failed to show that the WCJ erred and, thus, affirmed the WCJ’s
Decision.
Discussion
Claimant now petitions this Court for review of the Board’s Order,3
raising two issues in the Statement of Questions Presented section of her brief: (1)
whether the Board erred in concluding that substantial competent evidence supported
3
On review, we determine whether constitutional rights were violated, whether errors of law
were committed, or whether necessary findings of fact were supported by substantial competent
evidence. Stepp v. Workers’ Compensation Appeal Board (FairPoint Commc’ns, Inc.), 99 A.3d 598,
601 n.6 (Pa. Cmwlth. 2014).
8
the WCJ’s finding that Claimant’s continuing symptoms are attributable to arthritis that
existed prior to Claimant’s work injury, where the credited testimony established that
Claimant’s arthritis was asymptomatic until the work injury occurred, and (2) whether
the Board erred in affirming the WCJ’s Decision to grant the Termination Petition
where Dr. Rubenstein failed to address the accepted injury.4
Substantial Competent Evidence
Claimant argues that the record lacks substantial competent evidence to
support the WCJ’s finding that Claimant’s continuing left knee pain is attributable to
arthritis that existed prior to Claimant’s work injury. Claimant contends that, while the
Termination Petition “was based upon an assertion that Claimant’s current condition is
due to a condition that existed before the work-related injury[,]” “[t]here is no evidence
of record to support a conclusion that Claimant had left knee symptoms before” her
work injury. Claimant’s Brief (Br.) at 9. Moreover, Claimant submits that Employer
failed to prove, as it was required to do based on our Supreme Court’s decision in
Gumro, “that Claimant’s current condition is the result of an independent cause that
4
In her Petition for Review, Claimant raises three distinct issues for our review: (1) whether
the Board erred in granting the Termination Petition based on Dr. Rubenstein’s opinion that
Claimant’s continuing left knee complaints are attributable to preexisting arthritis that was
asymptomatic until the work injury; (2) whether the Board erred in granting the Termination Petition
where Claimant had continuing left knee pain that she treated with Celebrex and where the WCJ
found credible Claimant’s testimony that her pain began at the time of the work injury; and (3)
whether the Board erred in determining that it could not overturn the WCJ’s credibility determination
as to Dr. Rubenstein’s opinion about the cause of Claimant’s continuing left knee pain, where that
opinion was equivocal and did not meet the standard for the termination of benefits where a claimant
remains symptomatic, as expressed in Gumro v. Workmen’s Compensation Appeal Board (Emerald
Mines Corp.), 626 A.2d 94 (Pa. 1993). Because the three issues presented in her Petition for Review
are subsumed within the two questions presented in Claimant’s Statement of Questions Presented, we
will conduct our analysis according to the two questions presented in Claimant’s Statement of
Questions Presented.
9
happened after [Employer] filed the NCP.” Claimant’s Br. at 9. According to
Claimant, there is no competent evidence of record to support Dr. Rubenstein’s
opinion, which the WCJ credited, that Claimant’s pain is no longer related to the work
injury but is instead attributable to preexisting arthritis. Id. at 9-10.
In addition, Claimant argues that, because Dr. Rubenstein’s IME report
did not address the accepted work injury—a left knee strain, according to the NCP—
his opinion that Claimant fully recovered from her work injury is legally incompetent
to support the Termination Petition. Claimant’s Br. at 11. Claimant relies on GA &
FC Wagman, Inc. v. Workers’ Compensation Appeal Board (Aucker), 785 A.2d 1087(Pa. Cmwlth. 2001), and Elberson v. Workers’ Compensation Appeal Board (Elwyn,
Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007), contending that these cases stand for the
proposition that a physician’s testimony that a claimant had full recovered is
insufficient to support a termination of benefits where the testimony does not mention
or acknowledge the accepted work injury. Id.Employer responds that WCJ Pletcher’s Decision was based on
substantial competent evidence. Employer argues that, while the WCJ credited
Claimant’s testimony that she had left knee pain, he relied on the medical evidence to
determine whether that pain was causally related to Claimant’s work-related injury.
Employer’s Br. at 14. In doing so, the WCJ credited Dr. Rubenstein’s opinion that
Claimant had fully recovered from her work-related meniscal tear and that any further
treatment would be unrelated to the work injury. Id. Employer points out that WCJ
Pletcher rejected Dr. Weiss’s opinion that the arthritic changes he observed during
surgery were caused by the work-related injury because “he did not believe that such
extensive changes would be seen 26 days after an injury if the injury was the cause.”
Id. at 14-15.
10
Moreover, Employer contends that Claimant’s primary argument—that
there was insufficient evidence for the WCJ to conclude that Claimant’s left knee pain
was attributable to preexisting arthritis rather than her work-related injury—is flawed
for four reasons. First, Dr. Rubenstein did not opine that Claimant’s left knee pain was
related to her preexisting arthritis, but rather reported that Claimant had arthritis that
was unaffected by the work injury and that any future treatment would not be related
to the work injury. Employer’s Br. at 15. Moreover, according to Employer, Dr. Weiss
also did not relate Claimant’s left knee pain to arthritis, but instead opined that her right
knee issues were altering her gait and causing her left knee complaints. Id. at 15-16.
Second, Employer argues that Dr. Weiss and Dr. Rubenstein both attributed Claimant’s
left knee pain immediately after her work-related injury to a medial meniscal tear that
was resolved by the arthroscopic surgery. Id. at 16. Third, Employer submits that,
simply because Claimant did not report having left knee pain prior to her work injury
does not render Dr. Rubenstein’s opinion of full recovery equivocal, as Claimant’s lack
of preexisting symptoms was merely “a factor to be weighed by the [WCJ] in assessing
the credibility of the medical witnesses.” Id. Fourth, Employer argues that, contrary
to Claimant’s representation of the record, Dr. Weiss did in fact note that Claimant had
reported left knee complaints prior to the work-related injury, i.e., from the September
2018 left knee injury. Id.
Employer argues that Claimant’s reliance on Gumro is misplaced because,
there, this Court held that the employer failed to show that the claimant’s resulting
disability in the form of left leg deep venous thrombosis was not related to the accepted
work-related injury to his left knee. Here, by contrast, no resulting disability was
present, and the issue therefore “was whether [Claimant’s] non-disabling left knee pain
was related to her work injury.” Employer’s Br. at 18. Because the WCJ found that
11
Claimant’s left knee pain was not related to her work injury based on the credited
medical evidence, Employer maintains that termination of benefits was proper.
Employer also points out that its Termination Petition was not premised
on the claim that Claimant’s ongoing pain was due to a preexisting condition, but was
instead based on a change in Claimant’s disability status, i.e., she had fully recovered.
Employer’s Br. at 19. Further, its burden did not include establishing the cause of
Claimant’s continuing left knee pain. Id. Nonetheless, even if Claimant’s pain was
related to preexisting arthritis, the WCJ found that such arthritis was not caused or
aggravated by the work injury based on the credited medical evidence. According to
Employer, this critical fact distinguishes the present case from Gumro, where the
doctor “could not comment on the relationship between the [claimant’s] work-related
knee injury and the subsequent [condition] that was causing the disability.” Id.
Last, Claimant’s argument that Dr. Rubenstein’s opinion cannot support
the Termination Petition, because he did not address her left knee strain, is meritless.
For support, Employer relies on Mino v. Workers’ Compensation Appeal Board (Crime
Prevention Association), 990 A.2d 832 (Pa. Cmwlth. 2010), wherein this Court held
that a WCJ “did not exceed her authority in amending the description of injury
contained in the [NCP] in the context of” a petition to terminate benefits. Employer’s
Br. at 20. Employer argues that, here, where “both medical experts agreed that the
work injury caused a left knee meniscal tear that required surgery, as opposed to a left
knee [strain,]” the WCJ “did not err in granting the termination of benefits related to
that amended injury.” Employer’s Br. at 20.
We begin with a review of the law in termination proceedings. An
employer seeking to terminate benefits bears the burden of proving either that the
claimant’s disability has ceased or that any current disability arises from a cause
12
unrelated to the claimant’s work injury. Campbell v. Workers’ Compensation Appeal
Board (Antietam Valley Animal Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998).
Where a claimant complains of continued pain, an employer meets its burden when its
“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 v. Workmen’s
Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997) (footnote
omitted). “If the WCJ credits this testimony, the termination of benefits is proper.” Id.Under the standard set forth by our Supreme Court in Udvari, Employer
satisfied its burden of proof by establishing that Claimant’s work injury ceased. While
the WCJ found Claimant’s testimony that she continued to suffer from left knee pain
credible, the WCJ also credited the opinion of Dr. Rubenstein that, within a reasonable
degree of medical certainty, Claimant had fully recovered from her work-related injury,
and that her claims of continued pain were not connected to that injury. Specifically,
Dr. Rubenstein reported that, at the time of Claimant’s surgery, Dr. Weiss noted that
Claimant had “fairly substantial arthritic change in the knee[.]” C.R., Item No. 21, at
4. Dr. Rubenstein opined that Claimant’s medical records do not reveal “any
exacerbation of arthritis [of] a material nature.” Id. He believed that Claimant’s
“meniscal tear was adequately treated with the surgery and the postoperative
rehabilitation” and that “her current treatment reflects underlying arthritis without
any indication of material exacerbation.” Id. at 4-5 (emphasis added). By stating
that Claimant’s “current treatment reflects underlying arthritis without any indication
of material exacerbation[,]” Dr. Rubenstein was, in essence, opining that Claimant’s
left knee pain was attributable to arthritis that was unrelated to the meniscal tear.
13
Because the WCJ credited Dr. Rubenstein’s testimony in this regard, the termination
of benefits was proper. Udvari, 705 A.2d at 1293.5
Moreover, we are unpersuaded by Claimant’s reliance on our Supreme
Court’s decision in Gumro. Claimant argues that, under Gumro, Employer was
required to prove “that Claimant’s current condition is the result of an independent
cause that happened after [Employer] filed the NCP.” Claimant’s Br. at 9. However,
in a termination case, the employer must “show either that the disability has ceased or
that the continued disability is the result of an independent cause.” McGee v. L. F.
Grammes & Sons, Inc., 383 A.2d 864, 865 (Pa. 1978) (emphasis added). Furthermore,
“[an employer] has the burden of proving that an independent cause of an employe[e]’s
5
In her Petition for Review, Claimant raises the issue of whether the Board erred in
determining that it could not overturn the WCJ’s credibility determination as to Dr. Rubenstein’s
opinion about the cause of Claimant’s continuing left knee pain, where that opinion was equivocal.
However, Claimant does not address the issue of equivocation in her brief. Accordingly, that issue is
waived pursuant to Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
2119(a) (requiring the argument section of a party’s brief “be divided into as many parts as there are
questions to be argued” and include “such discussion and citation of authorities as are deemed
pertinent”). See City of Philadelphia v. Berman, 863 A.2d 156, 161 n.11 (Pa. Cmwlth. 2004) (holding
that a party’s failure to develop an issue in the argument section of his or her brief constitutes waiver
of the issue).
Even if Claimant did not waive the issue of equivocation, we would find that it lacks merit.
When unequivocal medical evidence is necessary, “the medical witness must testify, not that the
injury or condition might have or possibly came from the assigned cause, but that in [the witness’s]
professional opinion[,] the result in question did come from the assigned cause.” Berks County
Intermediate Unit v. Workmen’s Compensation Appeal Board (Rucker), 631 A.2d 801, 804 (Pa.
Cmwlth. 1993). Contrary to Claimant’s assertion, under Udvari, Employer was not required to
identify the cause of Claimant’s continuing complaints of pain, let alone offer an unequivocal opinion
in that regard. Instead, an employer meets its burden when its medical expert unequivocally opines
that the claimant fully recovered, the claimant can return to work without restrictions, and there are
no objective findings to “either substantiate the claims of pain or connect them to the work injury.”
Id. at 1293. Here, Employer satisfied its burden of proof by presenting Dr. Rubenstein’s opinion that
Claimant had fully recovered from the meniscal tear and that her continuing pain was unrelated to
that work injury. Nevertheless, to the extent that Dr. Rubenstein attributed Claimant’s ongoing pain
to preexisting arthritis, we find that his opinion is unequivocal, as he opined that “[i]t is clear at the
present time that [Claimant] does have underlying arthritis and her current treatment [for pain] reflects
underlying arthritis without any indication of material exacerbation.” C.R., Item No. 21, at 5. We
find that this statement does not reflect any equivocation.
14
disability arose after the filing of [an NCP] if the [employer] is seeking to justify the
termination of benefits on the grounds that the employe[e]’s disability is no longer
work[ ]related.” Beissel v. Workmen’s Compensation Appeal Board (John
Wanamaker, Inc.), 465 A.2d 969, 972 (Pa. 1983) (second emphasis added). Here,
Employer filed its Termination Petition based on Dr. Rubenstein’s opinion that
Claimant had fully recovered from a left knee medial meniscal tear. While Claimant
attempts to bring this case within Gumro’s holding by blurring the line between a
continuing disability and continuing pain, we find Gumro inapplicable, as Employer
sought to justify the termination of Claimant’s benefits, not on the grounds that
Claimant had a continuing disability that was no longer work related, but on the basis
that Claimant’s work-related injury had ceased and, therefore, that she was no longer
disabled for purposes of the Act.
Acceptance of the Work-Related Injury
Claimant’s second allegation of error is that, because Dr. Rubenstein’s
IME report did not address the accepted work injury—a left knee strain, according to
the NCP—his opinion that Claimant fully recovered from her work injury is
insufficient to support the Termination Petition. We note that Claimant did not raise
this allegation of error before the Board and is raising it for the first time on appeal to
this Court. C.R., Item No. 6 (Claimant’s Appeal to the Board). “The law is well settled
that issues not raised before the Board are waived and cannot be raised for the first time
before this Court.” Myers v. Workers’ Compensation Appeal Board (Family Heritage
Restaurant), 728 A.2d 1021, 1023 (Pa. Cmwlth.). Thus, the issue is waived.
Moreover, even if not waived, Claimant’s assertion of error is meritless.
Section 407 of the Act provides that “[a]ll [NCPs] . . . shall be valid and binding
15
unless modified or set aside as hereinafter provided.” 77 P.S. § 731 (emphasis added).
In addition, Section 413(a) of the Act provides that:
A [WCJ] may, at any time, review and modify or set aside a[n NCP] . . .
in the course of the proceedings under any petition pending before such
[WCJ], if it be proved that such [NCP] . . . was in any material respect
incorrect.
77 P.S. § 771 (emphasis added). On November 6, 2018, Employer issued a medical-
only NTCP, which subsequently converted to an NCP, accepting that Claimant strained
her left knee. C.R., Item No. 23. According to Dr. Rubenstein’s review of Dr. Weiss’s
records, on November 19, 2018, after reviewing Claimant’s MRI results, Dr. Weiss
diagnosed Claimant with an acute medial meniscal tear of her left knee and left knee
pain. C.R., Item No. 21, at 2. In his IME Report, Dr. Rubenstein agreed with Dr. Weiss
that Claimant “sustained a work-related injury to her left knee . . . which resulted in a
medial meniscal tear . . . .” Id. at 4. The WCJ found Dr. Rubenstein’s opinion more
credible than Dr. Weiss’s and noted that Dr. Rubenstein opined that Claimant’s work
injury was “more than a left knee strain, rather in the nature of a medial meniscal tear
that led to arthroscopic surgery.” F.F. No. 17. While Employer relies on our decision
in Mino to claim that it was not improper for the WCJ to amend the description of
Claimant’s injury contained in the NCP during the termination proceeding, it does not
appear to this Court that the WCJ amended the description of injury from left knee
strain to medial meniscal tear. Therefore, the question is whether Dr. Rubenstein’s
opinion that Claimant fully recovered from a medial meniscal tear was sufficient to
support a termination of benefits where he did not acknowledge that Claimant sustained
a left knee strain specifically accepted by Employer in the NCP.
16
Claimant argues that Dr. Rubenstein’s opinion of recovery was legally
insufficient according to our decisions in Wagman and Elberson. However, the
testimony of the employers’ medical experts in these cases was held insufficient to
support a termination of benefits because the testimony was incapable of encompassing
the claimants’ accepted work-related injuries. That is not true here. In Wagman, we
held that the employer’s expert’s testimony was not sufficient to support a termination
of benefits where the doctor testified that the claimant had sustained and fully
recovered from an injury that was inconsistent with that set forth in the NCP, but the
expert never determined whether the claimant had recovered fully from the injury as
recognized in the NCP. 785 A.2d at 1092. In Elberson, we held that the employer’s
expert’s testimony was not sufficient to support a termination of benefits where the
doctor testified generally that the claimant had recovered from her work injury, but he
failed to specifically opine that she had recovered from a herniated disk, the injury
specified in the NCP, because he thought the original work injury was less severe—
i.e., a sprain or strain in the claimant’s back. 936 A.2d at 1199-1200. In the context,
this court held that the expert failed to identify or acknowledged the claimant’s actual
work injury, and, instead, effectively rendered an opinion as to what the original work
injury should have been.
In this case, however, Dr. Rubenstein’s opinion that Claimant had fully
recovered from a left knee medial meniscal tear sufficiently encompassed the accepted
injury—i.e., a “left knee strain”—because it is much more severe, medically speaking,
than the accepted injury. Unlike in Wagman, Dr. Rubenstein’s opinion was not
inconsistent with the injury described in the NCP. Moreover, in Elberson, the nature
of the accepted injury was specific, a herniated nucleus pulposus at L4-5, while the
employer’s testimony was too vague to include that specific injury. Here, in contrast,
17
the nature of the injury described in the NCP was general – a left knee strain – and Dr.
Rubenstein’s testimony that Claimant had fully recovered from a left knee medial
meniscal tear sufficiently subsumed that injury, particularly where it is clear that
Employer first accepted in the NCP that Claimant had a left knee strain and, later, upon
further diagnostic testing, understood and accepted that Claimant suffered a more
serious injury, a medial meniscal tear, with both Dr. Weiss and Dr. Rubenstein agreeing
that this condition constituted Claimant’s work-related injury.
Conclusion
In sum, Claimant has failed to establish that Dr. Rubenstein’s testimony
was insufficient to support a termination of benefits. Accordingly, we affirm the
Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Ellen Borrell, :
Petitioner :
: No. 751 C.D. 2021
v. :
:
Faith Christian School Association :
of Monroe County, Inc. and :
Brotherhood Mutual Insurance :
Company (Workers’ Compensation :
Appeal Board), :
Respondents :
ORDER
AND NOW, this 24th day of June, 2022, the order of the Workers’
Compensation Appeal Board, dated June 25, 2021, is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge