G. Walker v. WCAB (Drexel University) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gerald Walker, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Drexel University), : No. 904 C.D. 2019
Respondent : Submitted: December 27, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 29, 2020
Gerald Walker (Claimant) petitions for review of the June 20, 2019
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of Workers’ Compensation Judge Andrea McCormick (WCJ) reaffirming
the WCJ’s October 17, 2016 decision that granted Claimant’s Claim Petition for
Compensation Benefits (Claim Petition) filed against Drexel University (Employer)
pursuant to the Workers’ Compensation Act (Act),1 awarding benefits from May 28,
2015 through August 13, 2015, and terminating Claimant’s benefits thereafter. We
affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4 & 2501-2710.
On May 28, 2015, while working as a building maintenance worker for
Employer, Claimant suffered an injury to his back lifting and carrying two five-
gallon paint buckets up steps. WCJ Decision circulated October 17, 2016 (Original
WCJ Decision) at 3, Findings of Fact (F.F.) 1-2. Claimant reported the incident to
his superiors and filled out an incident report. Original WCJ Decision at 4, F.F. 4(c).
Claimant, who had a history of lower back complaints and treatment, sought medical
treatment, including an MRI, and was released to return to work on light duty.
Original WCJ Decision at 4, F.F. 4(d). Ultimately, Claimant’s medical providers
released him to return to full-duty work. Original WCJ Decision at 4, F.F. 4(e).
On June 29, 2015, Claimant filed the Claim Petition claiming partial
disability from May 28, 2015 through June 24, 2015, and continuing full disability
from June 25, 2015 onward. See Claim Petition, Reproduced Record (R.R.) at 5a-
10a; Board Opinion dated June 20, 2017 (Original Board Opinion) at 1. The Claim
Petition alleged that, while carrying the buckets up the steps, Claimant suffered:
annular tears at L3-L4, L4-L5, and L5-S1; aggravation and exacerbation of
degenerative disc disease of the lumbar spine; and lumbar sprain and strain. Original
Board Opinion at 1; Claim Petition, R.R. at 6a. Employer filed a timely Answer to
Claim Petition (Answer) that denied all material allegations of the Claim Petition.
See Original WCJ Decision at 3; Original Board Opinion at 1; Answer, R.R. at 11a-
15a.
Claimant testified before the WCJ at a hearing conducted on July 30,
2015. See Original WCJ Decision at 3-5; see also Original Board Opinion at 2-3;
July 30, 2015 Hearing Transcript, R.R. at 56a-90a. Claimant testified that he has
worked for Employer for 17 years, the last 4 of which he has worked in
2
maintenance.2 See Original WCJ Decision at 3, F.F. 4(a); see also Original Board
Opinion at 2. Claimant explained that, on May 28, 2015, he was carrying two five-
gallon paint buckets, each weighing in excess of 50 pounds, when he felt a pain in
his back and along his right side with shooting pain down into his legs and feet. See
Original WCJ Decision at 4, F.F. 4(c); see also Original Board Opinion at 2.
Claimant explained that he reported the injury to his boss and completed an incident
report. See Original WCJ Decision at 3, F.F. 4(c); see also Original Board Opinion
at 3. Claimant testified that he reported to WorkNet Occupational Medicine
(WorkNet), where he was seen several times and ultimately placed on light work
duty, which he was able to perform. See Original WCJ Decision at 4, F.F. 4(d)-(e);
see also Original Board Opinion at 3. Claimant explained that when WorkNet
released him to full work duty, Employer took away the light-duty work. See
Original WCJ Decision at 4, F.F. 4(e); see also Original Board Opinion at 3.
Claimant testified that he has not returned to work in any capacity since June 25,
2015, although his physician, Jeffrey T. Truitt, M.D., has returned him to work in a
modified capacity. See Original WCJ Decision at 5, F.F. 4(h).
Claimant further testified that, over the past 10 years, he has had a
history of lower back complaints and treatment with multiple medical providers. See
Original WCJ Decision at 4-5, F.F. 4(d) & 4(g); see also Original Board Opinion at
3. Claimant conceded that he treated regularly for back problems in 2014 and 2015,
2
Claimant explained that the job duties of a maintenance worker include a variety of tasks,
including painting, plumbing, electrical work, furniture repair, and the installation of floor tiles
and sheetrock. See Original WCJ Decision at 3, F.F. 4(a); see also Original Board Opinion at 2.
He further explained that the maintenance position required him to lift items up to 40 or 50 pounds,
including toilets, paint buckets, floor tiles, ceiling tiles, and bunk beds and other furniture. See
Original WCJ Decision at 4, F.F. 4(b); see also Original Board Opinion at 2. He would climb
ladders and reach and bend as well. See Original WCJ Decision at 4, F.F. 4(b). Additionally, the
performance of plumbing repairs would require him to squat, crouch, and crawl. Id.
3
which treatment included epidural injections. See Original WCJ Decision at 4-5,
F.F. 4(g); see also Original Board Opinion at 3. Claimant also explained that, for
several weeks prior to May 28, 2015, he treated with Dr. Truitt, who prescribed
medication and administered multiple epidural injections. See Original WCJ
Decision at 4-5, F.F. 4(d) & 4(g); see also Original Board Opinion at 3. Claimant
testified that, under Dr. Truitt’s care, he was able to perform all his work duties. See
Original WCJ Decision at 4, F.F. 4(d).
Claimant also presented Dr. Truitt’s deposition testimony. See Original
WCJ Decision at 5-6, F.F. 5; see also Original Board Opinion at 3-5; Truitt
Deposition Transcript, R.R. at 106a-262a. Dr. Truitt testified that he began treating
Claimant on January 4, 2012, three years prior to the instant work injury, at which
time Dr. Truitt diagnosed Claimant with lumbar degenerative disc disease with
radiculopathy, cervical myofascial pain syndrome and chronic anti-coagulant
treatment. See Original WCJ Decision at 5, F.F. 5(a); see also Original Board
Opinion at 3. Dr. Truitt explained that Claimant’s diagnoses remained unchanged
from 2012 through the first half of 2014. See Original WCJ Decision at 5, F.F. 5(a).
Dr. Truitt explained that in June 2014, Claimant’s diagnosis was lumbar
degenerative disc disease with radiculopathy, bilateral S1 radiculopathy, and
peripheral neuropathy. See Original WCJ Decision at 5, F.F. 5(a); see also Original
Board Opinion at 3.
Dr. Truitt further testified that Claimant presented with complaints of
lower back pain with definite burning pain in the lower extremities. See Original
WCJ Decision at 5, F.F. 5(b); see also Original Board Opinion at 4. Dr. Truitt
explained that Claimant maintained these complaints on May 5, 2015, a few weeks
prior to the work injury. See Original WCJ Decision at 5-6, F.F. 5(b); see also
4
Original Board Opinion at 4. Dr. Truitt testified that he next saw Claimant on June
8, 2015, at which time his diagnoses remained unchanged. See Original WCJ
Decision at 6, F.F. 5(b). Additionally, Dr. Truitt testified that Claimant’s June 2015
lumbar spine MRI showed annular tears at L3-L4, L4-L5, and L5-S1 that had
previously not been present in a January 2014 MRI. See Original Board Opinion at
4.
In opposition to the Claim Petition, Employer presented the testimony
of WorkNet physician Lawrence Axelrod, M.D. See Original WCJ Decision at 7,
F.F. 11; see also Original Board Opinion at 5; Axelrod Deposition Transcript, R.R.
at 263a-319a. Dr. Axelrod testified that Claimant received treatment in his office on
May 28, 2015, and again on June 4, 2015, at which time Dr. Axelrod reviewed
Claimant’s diagnostic testing and conducted a physical examination. See Original
WCJ Decision at 7, F.F. 11(a); see also Original Board Opinion at 5. Dr. Axelrod
testified that Claimant’s May 2015 lumbar spine MRI showed multiple degenerative
disc changes and dehydration with annular tears between L3 and S1. See Original
Board Opinion at 5. Dr. Axelrod testified that he concluded that Claimant had
consistent and chronic complaints of pain for nine years preceding the work injury.
Id. Dr. Axelrod diagnosed Claimant at that time with low back pain with possible
radiculopathy, the existence of which predated the work injury. Id.
Dr. Axelrod further testified that a week later, on June 11, 2015, he
performed an updated physical examination and reviewed an updated MRI of
Claimant’s lumbar spine. See Original WCJ Decision at 7, F.F. 11(b). Dr. Axelrod
testified that the MRI displayed annular tears in the lumbar spine, which Dr. Axelrod
described as degenerative changes. Id. Dr. Axelrod testified that the new MRI
displayed no changes from the one he had previously reviewed. Id. Dr. Axelrod
5
explained that he next treated Claimant on July 1, 2015, and that Claimant had
complained of incontinence. Id. Dr. Axelrod explained that he discharged Claimant
to full work duty on July 1, 2015. Id.
Employer also presented the testimony of Dennis McHugh, D.O. See
Original WCJ Decision at 7-8, F.F. 12; see also Original Board Opinion at 5-7;
McHugh Deposition Transcript, R.R. at 320a-74a. Dr. McHugh, a board-certified
orthopedic surgeon, testified that he conducted a physical examination of Claimant
on August 13, 2015. See Original WCJ Decision at 7, F.F. 12(a); Original Board
Opinion at 5. Dr. McHugh testified that he diagnosed Claimant as having suffered
a lumbar strain on May 28, 2015. See Original WCJ Decision at 7, F.F. 12(a);
Original Board Opinion at 6. However, Dr. McHugh further testified that Claimant
had fully recovered from the work injury, and that any continuing complaints were
the result of Claimant’s preexisting back condition. Id. Dr. McHugh further testified
that he reviewed Claimant’s June 2015 MRI study, in which he noted no annular
tears and instead, at most, minor disc bulges related to Claimant’s preexisting back
issues. See Original WCJ Decision at 8, F.F. 12(a).
The WCJ found the testimony of Employer’s witnesses, Drs. Axelrod
and McHugh, to be credible. See Original WCJ Decision at 8-9, F.F. 16. However,
the WCJ found Claimant only partially credible to the extent Claimant testified that
he suffered an injury to his lumbar spine while performing his work duties on May
28, 2015, but did not find Claimant credible regarding his injury and claimed
disability. See Original WCJ Decision at 8, F.F. 14. Instead, the WCJ determined
that Claimant had a documented, preexisting lower back condition/treatment in the
weeks preceding the alleged work injury and that any ongoing disability after August
13, 2015 was related to Claimant’s preexisting lumbar condition as opposed to the
6
May 28, 2015 work injury. Id. Likewise, the WCJ rejected the testimony of
Claimant’s treating physician, Dr. Truitt. See Original WCJ Decision at 8, F.F. 15.
The WCJ found Dr. Truitt’s testimony to be neither credible nor persuasive in light
of Dr. Truitt’s treatment records that documented Claimant’s preexisting lumbar
injury and treatment. Id.
The WCJ decided the Claim Petition by decision issued on October 17,
2016. See Original WCJ Decision. In the Original WCJ Decision, the WCJ found:
(1) Claimant met his burden of proving that he sustained a lumbar sprain and strain
on May 28, 2015, which did not aggravate any preexisting underlying condition of
his lumbar spine; and (2) Claimant fully recovered from his work injury as of August
13, 2015. See Original WCJ Decision at 9; Original Board Opinion at 1.
Accordingly, the WCJ awarded Claimant temporary total disability benefits for the
period of May 28, 2015 through August 13, 2015, and terminated Claimant’s
benefits thereafter. See Original WCJ Decision at 10; Original Board Opinion at 1.
Claimant appealed. See On-Line Appeal dated November 6, 2016.
The Board reviewed the Original WCJ Decision and determined that,
in rendering her decision, the WCJ may have failed to consider that all three medical
professionals noted that Claimant’s post-injury May 30, 2015 MRI showed evidence
of annular tears whereas the pre-injury, December 2014 MRI did not. See Original
Board Opinion at 8-9. Accordingly, the Board remanded the matter for the WCJ to
“once again consider the testimony of the medical experts regarding their
interpretation of the MRI findings and then issue a determination as to the extent of
Claimant’s work injury and Claimant’s continuing disability.” Original Board
Opinion at 10. The Board affirmed the Original WCJ Decision in all other respects.
Original Board Opinion at 10.
7
Following the Board’s remand, on March 23, 2018, the WCJ issued a
second decision (WCJ Remand Decision), in which the WCJ explained that she had
re-reviewed the testimony of the medical experts. See WCJ Remand Decision at 3,
F.F. 5. The WCJ noted Dr. Truitt’s deposition testimony that the annular tears
visible on Claimant’s May 30, 2015 MRI were work-related and consistent with
traumatic injury. See WCJ Remand Decision at 3, F.F. 7. However, the WCJ noted
that Dr. Truitt had not previously offered such an opinion in any of his multiple prior
reports, which the WCJ explained instead supported Dr. Truitt’s previous primary
diagnosis of degenerative disc disease. Id.
The WCJ also found that both Drs. Axelrod and McHugh testified as to
the differences in Claimant’s MRI studies. See WCJ Remand Decision at 3, F.F. 5.
The WCJ noted that Dr. Axelrod opined that the annular tears visible in the May
2015 MRI were degenerative in nature. Id. Further, the WCJ explained that Dr.
Axelrod had testified credibly that the May 2015 MRI showed multi-level
degenerative disc changes consistent with Claimant’s previous MRI. Id. The WCJ
also explained that her review of Dr. McHugh’s testimony revealed that Dr. McHugh
disagreed with Dr. Truitt’s opinion that Claimant sustained work-related annular
tears. See WCJ Remand Decision at 3, F.F. 6. The WCJ stated that Dr. McHugh
opined that the suspect annular tears were degenerative in nature and not caused by
the work injury. Id. Additionally, the WCJ explained that Dr. McHugh indicated
that Claimant’s spinal stenosis preexisted the work injury and was in existence since
at least 2011. Id. The WCJ explained that Dr. McHugh testified that Claimant did
not suffer any change in his back as a result of the May 28, 2015 work injury. Id.
As in the Original WCJ Decision, the WCJ rejected Dr. Truitt’s
testimony, expressly finding it “neither credible nor convincing.” WCJ Remand
8
Decision at 3, F.F. 7. Alternatively, the WCJ once more found Drs. Axelrod and
McHugh to be more credible than Dr. Truitt. See WCJ Remand Decision at 3-4, F.F.
5-8. Accordingly, the WCJ reaffirmed the Original WCJ Decision. See WCJ
Remand Decision at 3-5, F.F. 8 & Order.
Claimant again appealed, alleging that the WCJ capriciously
disregarded substantial evidence and failed to render a reasoned decision because
the WCJ accepted the opinions of Employer’s medical experts. See On-Line Appeal
dated April 12, 2018. Additionally, on October 12, 2018, Claimant filed a Motion
to Amend Appeal in which Claimant alleged ongoing misconduct and bias on the
part of the WCJ against Claimant and Claimant’s counsel. See Motion to Amend
Appeal. In response, Employer moved to quash Claimant’s Motion to Amend
Appeal as untimely filed. See Motion to Quash.
The Board affirmed the Remand WCJ Decision by opinion dated June
20, 2019 (Board Remand Opinion). See generally Board Remand Opinion. As the
Board explained:
On remand, the WCJ again rejected Dr. Truitt’s opinion as
to the extent of the work injury and disability, again
observing that Dr. Truitt’s diagnoses and Claimant’s
complaints are consistent before and after the work injury,
and that in contrast to his deposition testimony, Dr.
Truitt’s records do not place any significance on the
annular tears. Claimant has the burden of proving an
injury and disability. Because the WCJ rejected Dr.
Truitt’s opinion, Claimant could not meet his burden in
support of a more extensive description of injury or
ongoing disability.
9
Board Remand Opinion at 7. The Board also granted Employer’s Motion to Quash
Claimant’s Motion to Amend Appeal as untimely. See Board Remand Opinion at 3.
Claimant timely petitioned this Court for review.3
Claimant alleges that the Board erred in affirming the WCJ for four
reasons: (1) the WCJ “fabricated” a nonexistent opinion of Dr. Axelrod; (2) the
WCJ based her determination on an MRI report that was contradicted by the experts;
(3) the WCJ did not explain why she accepted Dr. McHugh’s opinion that the lumbar
spine annular tears were not caused by the work injury; and (4) the Board improperly
quashed Claimant’s Motion to Amend Appeal that was filed only 12 days after the
WCJ was removed as a workers’ compensation judge. See Claimant’s Brief at 3.
Initially, we note that “[w]ith respect to a claim petition, the claimant
bears the initial burden of proving that [an] injury arose in the course of employment
and was related thereto.” Frankiewicz v. Workers’ Comp. Appeal Bd. (Kinder
Morgan, Inc.), 177 A.3d 991, 995 (Pa. Cmwlth. 2017). “Moreover, the claimant not
only must prove that she has sustained a compensable injury but also that the injury
continues to cause disability throughout the pendency of the claim petition
3
In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workmen’s Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).
Substantial evidence is such relevant evidence a reasonable person might
find sufficient to support the WCJ’s findings. In determining whether a finding of
fact is supported by substantial evidence, this Court must consider the evidence as
a whole, view the evidence in a light most favorable to the party who prevailed
before the WCJ, and draw all reasonable inferences which are deducible from the
evidence in favor of the prevailing party.
Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).
10
proceeding.” Milner v. Workers’ Comp. Appeal Bd. (Main Line Endoscopy Ctr.),
995 A.2d 492, 496 (Pa. Cmwlth. 2010). “If the WCJ feels that the evidence supports
a finding of disability only for a closed period, she is free to make such a finding.”
Id. “Generally, if there is no obvious relationship between the disability and the
work-related cause, unequivocal medical testimony is required to meet this burden
of proof.” Frankiewicz, 177 A.3d at 995. “Medical evidence is considered
unequivocal if the medical expert, after providing a foundation, testifies that in his
medical opinion, he thinks the facts exist.” Craftsmen v. Workers’ Comp. Appeal
Bd. (Krouchick), 809 A.2d 434, 439 (Pa. Cmwlth. 2002). Further, as this Court has
previously noted:
[t]he WCJ is the fact finder, and it is solely for the WCJ .
. . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations. 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.
Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. &
Uninsured Employer Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth.), appeal denied,
173 A.3d 252 (Pa. 2017) (internal citations, quotations, and brackets omitted).
Claimant’s first claim, that the WCJ “fabricated” Dr. Axelrod’s opinion
that the annular tears evidenced on Claimant’s May 2015 MRI were degenerative in
nature is belied by the record. See Claimant’s Brief at 20-21. In discussing the
updated May 2015 MRI study, Dr. Axelrod testified:
11
[The May 30, 2015 lumbar spine MRI] reported
multiple-level degenerative disc changes with
dehydration.
There were annular tears between L3 and S1. There
were osteophyte complexes at L4-[L]5 and a compressed
fecal sac with moderate facet overgrowth.
These are, you know, again some degenerative
changes with thickening of the ligamentum flavum which
is a ligament that’s on the posterior aspect of the lumbar
spine. And this resulted in minor central canal and
moderate right-sided narrowing.
At L5-S1, there was another disc osteophyte
complex. So [Claimant] had his chronic complaints of
pain with these MRI abnormalities.
[I] reviewed [Claimant’s] previous lumbar spine
MRI reports. And they also documented that these were
not any significant new changes. But rather, these were
changes also evident on his previous MRI from 2011.
Axelrod Deposition Transcript at 17-18. Based on this testimony, the WCJ found
Dr. Axelrod had opined that Claimant’s annular tears were degenerative in nature.
WCJ Remand Decision at 3, F.F. 5. On review, the Board stated:
We do not agree that the WCJ blatantly mischaracterized
Dr. Axelrod’s testimony on direct examination. Dr.
Axelrod stated that there were multiple-level degenerative
disc changes with dehydration, annular tears between L3
and S1, osteophyte complexes at L4-[L]5 and a
compressed thecal [sic] sac with moderate facet
overgrowth, and a disc osteophyte complex at L5-S1. He
did not expressly state “degenerative annular tears”;
nevertheless, his testimony is readily susceptible to that
interpretation.
12
Board Remand Opinion at 7-8. Upon review of the record, we find no error in the
Board’s assessment of the WCJ’s finding of fact.
A review of Dr. Axelrod’s deposition testimony reveals that his
testimony regarding the results of a May 30, 2015 MRI was prefaced by a general
statement that said MRI revealed “multiple-level degenerative disc changes.”
Axelrod Deposition Transcript at 17. Dr. Axelrod then appeared to specify these
changes, which included annular tears between L3 and S1, as well as osteophyte
complexes at L4-L5 and L5-S1 and a compressed fecal sac with moderate facet
overgrowth. Id. at 18. A reasonable interpretation of Dr. Axelrod’s testimony is
that he identified these conditions, including the annular tears, as degenerative disc
changes. Claimant’s argument that the WCJ erred by fabricating Dr. Axelrod’s
testimony regarding the degenerative nature of Claimant’s annular tears lacks merit.
Next, Claimant alleges the WCJ Remand Decision was not “reasoned”
because it was based on the June 26, 2015 MRI report, which Claimant alleges was
contradicted by all the experts’ testimony. See Claimant’s Brief at 21-22. We
disagree.
Regarding reasoned WCJ decisions, Section 422(a) of the Act provides,
in pertinent part:
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
13
for rejecting or discrediting competent evidence. . . . The
adjudication shall provide the basis for meaningful
appellate review.
77 P.S. § 834. As our Supreme Court has explained:
[A] decision is “reasoned” for purposes of Section 422(a)
if it allows for adequate review by the [Board] without
further elucidation and if it allows for adequate review by
the appellate courts under applicable review standards. A
reasoned decision is no more, and no less.
Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa.
2003).
Here, contrary to Claimant’s suggestion, the June 26, 2015 MRI was
not the sole basis for the WCJ’s determination on remand. In fact, on remand the
WCJ found Drs. Axelrod and McHugh more credible than Claimant’s medical expert
for multiple reasons. See WCJ Remand Decision at 3-4, F.F. 5-8. The WCJ noted
that both Dr. Axelrod and Dr. McHugh opined that the annular tears were
degenerative in nature, which contrasted with Dr. Truitt’s opinion that the annular
tears were consistent with traumatic injury. See WCJ Remand Decision at 3, F.F. 5-
7. The WCJ also noted the apparent diagnostic inconsistencies between Dr. Truitt’s
deposition opinion and his multiple medical reports, which provided a primary
diagnosis of degenerative disc disease for Claimant’s lumbar spine issues. See WCJ
Remand Decision at 3, F.F. 7. Ultimately, the WCJ found Employer’s medical
experts to be more convincing than Claimant’s expert. The WCJ explained:
Consistent with my earlier opinion, this Judge finds that
Claimant had a significant back condition that pre-existed
the work injury, and that is supported by the medical
evidence of record. While there is a dispute between
14
medical experts as to whether or not the annular tears are
degenerative in nature or traumatic, this Judge found the
testimony of the defense experts more credible on that
issue where the annular tears were not seen on a
subsequent MRI study performed in June 2015 and where
Dr. Truitt’s reports underscored his opinion that
Claimant’s main diagnosis was degenerative changes
despite his testimony to the contrary for purposes of
litigation.
WCJ Remand Decision at 3-4, F.F. 8. Clearly, the WCJ did not base the WCJ
Remand Decision solely on the June 26, 2015 MRI, and we decline to upset the
WCJ’s evidentiary weight determinations. See Hawbaker. Further, because the
WCJ Remand Decision adequately expresses the reasons for the WCJ’s evidentiary
determinations, we are able to conduct adequate review. Therefore, Claimant’s
claim that the WCJ Remand Decision is not reasoned fails. See Daniels, 828 A.2d
at 1052.
Additionally, the fact that Dr. McHugh reviewed MRI reports and not
the actual MRI images is of no moment. Medical witnesses may express an opinion
based upon records that are of the kind on which the medical professional
customarily relies in the practice of their profession. See Empire Steel Castings, Inc.
v. Workers’ Comp. Appeal Bd. (Cruceta), 749 A.2d 1021, 1026 (Pa. Cmwlth. 2000).
MRI reports represent such records. See, e.g., Smith v. Workers’ Comp. Appeal Bd.
(HealthSouth of Mechanicsburg, Inc.) (Pa. Cmwlth., No. 2710 C.D. 2015, filed Aug.
5, 2016),4 slip op. at 3-7 (discussing a physician’s review of MRI reports as part of
a medical record review for purpose of diagnosis).
4
Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code §
69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be cited
for their persuasive value.
15
Thirdly, Claimant alleges the WCJ erred by failing to explain the
acceptance of Dr. McHugh’s opinion that the annular tears were degenerative in
nature. See Claimant’s Brief at 22-24. This argument lacks merit.
During his deposition testimony, Dr. McHugh provided the following
explanation of Claimant’s annular tears:
Q. Doctor, that fact that we see annular tears in the May
MRI, does that mean those annular tears are work-related,
Doctor?
A. No, it does not.
Q. What do you attribute those annular tears to?
A. I attribute – genetically speaking this gentleman has
[a] predisposition for chronic degenerative findings in his
back. It is due to the chronic degenerative issues.
McHugh Deposition Transcript at 67. The WCJ credited Dr. McHugh’s testimony
over that of Dr. Truitt on the question of whether the annular tears were the result of
trauma or degenerative issues. See WCJ Remand Decision at 3-4, F.F. 8. Claimant’s
disagreement with the conclusions the WCJ reached upon reviewing the evidence
does not render those conclusions unreasoned.
Finally, Claimant alleges the Board erred by quashing his Motion to
Amend Appeal. See Claimant’s Brief at 24-26. We disagree.
Section 423(a) of the Act allows a party to appeal an adverse WCJ
adjudication within 20 days as follows:
Any party in interest may, within twenty days after notice
of a workers’ compensation judge’s adjudication shall
have been served upon him, take an appeal to the board on
the ground: (1) that the adjudication is not in conformity
with the terms of this act, or that the workers’
16
compensation judge committed any other error of law; (2)
that the findings of fact and adjudication was unwarranted
by sufficient, competent evidence or was procured by
fraud, coercion, or other improper conduct of any party in
interest. The board may, upon cause shown, extend the
time provided in this article for taking such appeal or for
the filing of an answer or other pleading.
77 P.S. § 853 (footnote omitted). The 20-day time limitation is jurisdictional in
nature, non-discretionary, and must be strictly enforced. Manolovich v. Workers’
Comp. Appeal Bd. (Kay Jewelers, Inc.), 694 A.2d 405, 409 (Pa. Cmwlth. 1997).
Here, the WCJ issued the WCJ Remand Decision on March 23, 2018.
Thus, Claimant had until April 12, 2018 to timely file an appeal, including
Claimant’s claim that the WCJ Remand Decision resulted from the WCJ’s bias
against Claimant and Claimant’s counsel. Claimant did not file his Motion to
Amend Appeal until October 12, 2018. Based on this timeline, the Board determined
it lacked jurisdiction to consider the arguments contained in the Motion to Amend
Appeal and granted Employer’s Motion to Quash. See Board Remand Opinion at 3.
We agree that the Board lacked jurisdiction to consider Claimant’s
bias/misconduct claim. While the WCJ’s termination did not occur until October 1,
2018, Claimant could have raised a bias claim on appeal regardless of the WCJ’s
employment status. He made no such claim, however, until he filed his Motion to
Amend Appeal on October 12, 2018, half a year after the expiration of the statutory
appeal deadline. Accordingly, the Board lacked jurisdiction to address such a claim
and properly quashed Claimant’s Motion to Amend Appeal.
For the foregoing reasons, the Board’s order is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gerald Walker, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Drexel University), : No. 904 C.D. 2019
Respondent :
ORDER
AND NOW, this 29th day of April, 2020, the June 20, 2019 order of
the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge