C. Olivares Hernandez v. WCAB (F&P Holding Co.) ( 2018 )


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  •               IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Carmelo Olivares Hernandez,              :
    Petitioner        :
    :
    v.                    :
    :
    Workers’ Compensation Appeal             :
    Board (F&P Holding Co.),                 :   No. 1820 C.D. 2017
    Respondent        :   Submitted: April 20, 2018
    BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION BY
    JUDGE COVEY                                  FILED: July 19, 2018
    Carmelo Olivares Hernandez (Claimant) petitions this Court for review
    of the Workers’ Compensation (WC) Appeal Board’s (Board) November 28, 2017
    order which affirmed the Workers’ Compensation Judge’s (WCJ) decision granting
    F&P Holding Company’s (Employer) Petition to Terminate Compensation Benefits
    (Termination Petition), and reversed the WCJ’s decision granting Claimant’s Petition
    to Reinstate Benefits (Reinstatement Petition), and awarding Claimant litigation
    costs. The sole issue before this Court is whether the Board erred by affirming the
    WCJ’s decision granting the Termination Petition. After review, we affirm.
    On August 12, 2011, while working for Employer as a maintenance
    worker, Claimant sustained an upper back injury. On July 31, 2012, Employer issued
    a medical-only Notice of Compensation Payable (NCP) acknowledging the injury as
    a thoracic sprain. At the time of the injury, Claimant was performing modified duty
    resulting from an earlier 2006 work-related lumbar spine injury.
    In September 2013, Claimant presented Employer with work restrictions
    pursuant to a Functional Capacity Evaluation (FCE). Thereafter, Employer laid off
    Claimant. On October 1, 2013, Claimant filed the Reinstatement Petition alleging a
    decrease in earning power following the 2011 injury.           On October 23, 2013,
    Employer filed an answer thereto, admitting that Claimant was laid off because
    Employer could not accommodate his work restrictions, but denying that the
    restrictions were related to the work injury. On March 14, 2014, Employer sent
    Claimant to Christian Fras, M.D. (Dr. Fras) for an Independent Medical Examination
    (IME).   On April 29, 2014, Employer filed its Termination Petition seeking to
    terminate WC benefits effective March 14, 2014 based on Claimant’s alleged full
    recovery from the thoracic sprain and his ability to return to unrestricted work.
    On February 6, 2015, the WCJ granted both the Reinstatement Petition
    and the Termination Petition finding that Claimant was totally disabled from
    September 30, 2013 through March 14, 2014 resulting from the work injury, but was
    fully recovered thereafter. Both parties appealed from that decision. On April 25,
    2016, the Board issued an order reversing the WCJ’s decision granting reinstatement,
    and finding that there was insufficient record evidence to support the WCJ’s
    conclusion that Claimant’s August 12, 2011 work injury affected his earning power.
    The Board ruled that Claimant’s inability to work as of September 30, 2013, was at
    least in part, due to a lumbar spine condition unrelated to the work injury.        In
    addition, the Board vacated the grant of the Termination Petition and remanded the
    matter to allow the WCJ to reopen the record and consider the deposition testimony
    of Claimant’s chiropractor and medical expert, Donna Kulp, D.C. (Dr. Kulp).
    On remand, the WCJ found Claimant’s live testimony credible and Dr.
    Fras’ deposition testimony more credible than Dr. Kulp’s deposition testimony. The
    WCJ again granted both petitions, awarded Claimant indemnity benefits from
    September 30, 2013 through March 14, 2014, and terminated benefits effective
    March 14, 2014. The WCJ also awarded litigation costs to Claimant. Both parties
    appealed to the Board. On November 28, 2017, the Board affirmed the WCJ’s
    2
    decision granting the Termination Petition, but reversed the WCJ’s decision granting
    the Reinstatement Petition and reversed the litigation cost award.1 Claimant appealed
    to this Court.2
    Initially,
    [i]t is solely for the WCJ, as the factfinder, to assess
    credibility and to resolve conflicts in the evidence. In
    addition, it is solely for the WCJ, as the factfinder, to
    determine what weight to give to any evidence. As such,
    the WCJ may reject the testimony of any witness in whole
    or in part, even if that testimony is uncontradicted.
    Empire Steel Castings v. Workers’ Comp. Appeal Bd. (Cruceta), 
    749 A.2d 1021
    ,
    1024 (Pa. Cmwlth. 2000) (citations omitted).
    Claimant contends that the Board erred by affirming the WCJ’s decision
    granting the Termination Petition. The crux of Claimant’s argument is that because
    the WCJ found Claimant’s testimony credible, both the WCJ and the Board erred
    when they approved the Termination Petition. Claimant asserts that his testimony
    that he was not fully recovered from the work injury, needed work restrictions and
    additional treatment, and still experienced pain, was sufficient to deny the
    Termination Petition.
    Relying on Udvari v. Workmen’s Compensation Appeal Board (U.S. Air,
    Inc.), 
    705 A.2d 1290
    (Pa. 1997), the Board properly explained that an employer’s
    burden in a termination petition
    1
    The Board reversed the WCJ’s decision granting the Reinstatement Petition and awarding
    litigation costs because the Board’s April 25, 2016 order vacated only the WCJ’s granting of the
    Termination Petition and remanded to allow the WCJ to consider Dr. Kulp’s deposition testimony,
    and to make new findings of fact and conclusions of law relating to the Termination Petition. Thus,
    the Reinstatement Petition and litigation costs were not properly before the WCJ on remand.
    2
    “On review[,] this Court must determine whether constitutional rights were violated, errors
    of law were committed, or necessary findings of fact were supported by substantial competent
    evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 
    99 A.3d 598
    , 601 n.6
    (Pa. Cmwlth. 2014). Claimant appeals only from the grant of the Termination Petition.
    3
    is met when an employer’s medical expert unequivocally
    testifies that it is his or her 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 that either
    substantiate any ongoing complaints of pain or connect
    them to the work injury.
    Board Op. at 4. In Udvari, the Pennsylvania Supreme Court explained:
    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
    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.
    . . . . In a case where the claimant complains of continued
    pain, this 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. If the WCJ credits this
    testimony, the termination of benefits is proper.
    
    Udvari, 705 A.2d at 1293
    (bold emphasis added; footnotes omitted).
    In the instant matter, Employer’s expert, Dr. Fras, testified:
    [Claimant’s] physical examination was entirely objectively
    normal. There was nothing objective that would demand
    any restriction of activity. Certainly the radiographic
    findings on [Claimant’s] imaging study are quite modest in
    nature and certainly not ones that would preclude his
    working and not ones that would demand a restriction of
    activity.
    4
    ....
    The findings on the MRI are not ones that are indicative
    of an ongoing thoracic sprain. They are modest and
    degenerative in nature and are unrelated to a thoracic
    sprain.
    The subjective complaints offered by Dr. Kulp in her
    description of [Claimant’s] condition are not ones that are
    supported by objective findings either on evaluation or on
    radiographic assessment.       They are not subjective
    complaints that would preclude an individual from working
    and are not ones that demand by their nature restriction of
    activity.
    Reproduced Record (R.R.) at 109a-110a (emphasis added).                        In fact, Claimant
    acknowledges, in his brief to this Court, Dr. Fras’ testimony that Claimant’s March
    14, 2014 examination “was objectively normal with full stride, normal sensation,
    intact reflexes and no muscle spasm[.]” Claimant Br. at 9. Claimant also concedes
    that “Dr. Fras testified that he saw no residuals of a thoracic sprain or strain and the
    MRI of the thoracic spine from [October 5, 2011] showed only degenerative changes
    and trivial disc bulges[.]” 
    Id. Finally, Claimant
    recognizes that the WCJ found Dr.
    Fras credible.
    However, Claimant asserts that five months after Dr. Fras’ examination,
    Claimant testified that he continues to have pain in his upper back and that his
    treatment with Dr. Kulp is beneficial. At that time, he also testified that he has not
    fully recovered from the injury and had no new injuries. He emphasizes that Udvari
    is distinguishable because in the instant matter, the WCJ specifically found his post-
    IME testimony credible, while in Udvari, there were no such findings.3 Claimant
    3
    Although Claimant testified that he still experienced pain and Dr. Fras did not expressly
    discount that claim, this Court has recognized that “the mere reluctance of a physician to discount a
    claimant’s unconfirmed subjective complaints is not tantamount to an implicit admission that the
    claimant is not fully recovered from a work-related disability.” Laird v. Workmen’s Comp. Appeal
    Bd. (Michael Curran & Assocs.), 
    585 A.2d 602
    , 604 n.3 (Pa. Cmwlth. 1991). With respect to back
    5
    contends that the WCJ’s crediting of Dr. Fras’ testimony and granting termination of
    Claimant’s benefits is inconsistent with the WCJ’s finding that Claimant’s testimony
    of ongoing pain and lack of full recovery was credible.
    This Court addressed similar circumstances in Pella Corp. v. Workers’
    Compensation Appeal Board (Wertz) (Pa. Cmwlth. No. 2144 C.D. 2008, filed July 1,
    2009).4 In Pella, the WCJ granted the employer’s termination petition, and the Board
    reversed. On review, this Court considered whether there was substantial record
    evidence to support the WCJ’s finding that the claimant had fully recovered from a
    work-related low back strain. According to the claimant, in 2005, while pulling carts
    of glass, she experienced pain in her lower back and in her right leg. The employer
    recognized the injury as a “strain, unrelated to prior surgery.” 
    Id., slip op.
    at 2. The
    claimant testified that she underwent back surgery in 2006, and, following the
    surgery, she continued to experience back pain and occasional pain down her leg.
    She admitted she also underwent surgery in 2003 for a non-work-related back
    problem and continued to experience back pain up until the 2005 work injury.
    Further, she presented her treating physician’s deposition testimony, wherein, the
    physician explained that he performed surgery in April 2006 for a work-related injury
    and that the claimant was not fully recovered from the work injury because she still
    had restrictions related to the surgery. On cross-examination, her physician admitted
    that the claimant had experienced chronic back pain since 1994 and previously had
    degenerative disc disease. Her physician also testified that the surgery he performed
    for her work-related injury was successful, but he would expect her to have pain due
    pain that Claimant was allegedly experiencing, Dr. Fras did explicitly testify that imaging findings
    were degenerative in nature, and unrelated to Claimant’s work injury. See R.R. at 109a.
    4
    This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
    but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
    Procedures, 210 Pa. Code § 69.414(a). Given the factual similarities to the instant matter, we find
    Pella persuasive.
    6
    to an earlier injury. The employer’s physician explained that the claimant’s ongoing
    pain complaints resulted from degenerative conditions, and that the claimant’s
    surgery was to address conditions that existed prior to the work injury and was thus,
    unrelated thereto.
    The WCJ accepted the claimant’s testimony as credible. The WCJ also
    credited the claimant’s physician’s testimony that the claimant’s injury was work-
    related, but discredited his testimony that the claimant had not recovered because the
    physician had testified that the surgery he performed was successful. Finally, the
    WCJ accepted the employer’s expert’s testimony to the extent it concurred with the
    claimant’s physician’s testimony. Based thereon, the WCJ granted the termination
    petition. The claimant appealed to the Board.
    On review, the Board reversed, concluding there was no substantial
    record evidence supporting the finding that the claimant was fully recovered. The
    Board noted that the WCJ accepted the employer’s expert’s testimony only to the
    extent it was consistent with the claimant’s physician’s testimony and that the two
    physicians disagreed with respect to her recovery status. The Board further based its
    decision to reverse on the fact that the WCJ had accepted the claimant’s testimony
    that she continued to experience pain. The employer then petitioned this Court for
    review.
    This Court reversed the Board, concluding that substantial evidence
    supported the WCJ’s decision granting the termination petition. The Court addressed
    the fact that the WCJ found the claimant credible, stating:
    That the WCJ credited [the c]laimant’s testimony as to
    ongoing pain in her back does not alter this conclusion. It is
    evident from the WCJ’s determination that, based on the
    credited testimony of [the claimant’s physician] and [the
    employer’s expert], she found [the c]laimant's ongoing
    complaints of back pain to be attributable to her preexisting
    degenerative conditions. As factfinder, the WCJ had the
    7
    sole authority to weigh the conflicting evidence, and this
    Court may not reassess that determination on appeal. See
    Empire 
    Steel, 749 A.2d at 1024
    (‘[I]t is solely for the WCJ,
    as the factfinder, to determine what weight to give to any
    evidence.’).
    Pella, slip op. at 11 n.8.
    Similarly, in the instant matter, although Claimant credibly testified that
    he continued to experience pain resulting from the work-related injury, the WCJ also
    found Dr. Fras’ testimony credible that Claimant had fully recovered from the work-
    related injury. Dr. Fras’ testimony evidenced that Claimant’s physical examination
    was objectively normal, and any pain Claimant was experiencing resulted from
    degenerative changes unrelated to the work injury. The WCJ, as factfinder, had the
    sole authority to weigh the evidence and reach this conclusion. See Empire Steel.
    Because Employer met its burden under Udvari, the Board properly affirmed the
    WCJ’s granting of Employer’s Termination Petition.
    For all of the above reasons, the Board’s order is affirmed.
    __________________________
    ANNE E. COVEY, Judge
    8
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Carmelo Olivares Hernandez,           :
    Petitioner     :
    :
    v.                  :
    :
    Workers’ Compensation Appeal          :
    Board (F&P Holding Co.),              :   No. 1820 C.D. 2017
    Respondent     :
    ORDER
    AND NOW, this 19th day of July, 2018, the Workers’ Compensation
    Appeal Board’s November 28, 2017 order is affirmed.
    __________________________
    ANNE E. COVEY, Judge
    

Document Info

Docket Number: 1820 C.D. 2017

Judges: Jubelirer, Covey, Leadbetter

Filed Date: 7/19/2018

Precedential Status: Precedential

Modified Date: 10/19/2024