S.M. Garcia-Guerrero v. WCAB (Southeast Personnel Leasing) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sixto Manuel Garcia-Guerrero, :
Petitioner :
:
v. : No. 1394 C.D. 2019
: SUBMITTED: June 19, 2020
Workers’ Compensation Appeal :
Board (Southeast Personnel :
Leasing), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 23, 2020
Sixto Manuel Garcia-Guerrero (Claimant), pro se, petitions this Court for
review of the August 20, 2019 Order of the Workers’ Compensation Appeal Board
(Board), which affirmed the decision of a workers’ compensation judge (WCJ). The
WCJ terminated Claimant’s benefits under the Workers’ Compensation Act (Act)1
because he determined that Claimant had fully recovered from his work injury, and
denied Claimant’s petition seeking to amend the description of his work injury.
After review, we affirm.
I. Procedural and Factual Background
Claimant injured his lower back on April 6, 2016, while lifting boxes in a
warehouse during the course of his employment with Southeast Personnel Leasing
(Employer). Notes of Testimony (N.T.), 11/2/17, at 7-8. Employer accepted
liability for the work injury, described as a lower back sprain, through issuance of a
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
Notice of Temporary Compensation Payable (NTCP), which converted to a Notice
of Compensation Payable (NCP) by operation of law.2 Certified Record (C.R.), Item
Nos. 26-27. Following an independent medical examination (IME) performed on
May 17, 2017, the results of which concluded Claimant had fully recovered from his
April 6, 2016 work injury, Employer filed a petition seeking termination of
Claimant’s benefits. C.R., Item No. 2.
Claimant denied having fully recovered from his work injury and filed a
petition alleging the accepted work injury was incorrect, as it failed to acknowledge
that Claimant suffered a herniation at the L5-S1 level of his spine. C.R., Item Nos.
4-5. Employer denied the allegation. Id., Item No. 7.
In support of its termination petition, Employer presented the deposition
testimony of Dr. Amir H. Fayyazi, an orthopedic surgeon who performed the May
17, 2017 IME. Claimant testified live before the WCJ and presented the deposition
testimony of his treating physician, Dr. Robert W. Mauthe.
A. Employer’s Evidence
As part of the May 17, 2017 IME, Dr. Fayyazi obtained Claimant’s medical
history, including the circumstances of the work injury and the treatments received,
and performed a physical examination. C.R., Item No. 21, Fayyazi Dep., 11/1/17,
at 15-17. Dr. Fayyazi testified that he prefers to review a claimant’s medical records
after the completion of the IME to prevent any possible bias to his clinical
impressions. Id. at 17. Claimant was unable to provide a concise medical history,
however, and Dr. Fayyazi referred to Claimant’s medical records throughout the
2
Section 406.1(a) of the Act, added by the Act of February 8, 1972, P.L. 25, 77 P.S. §
717.1(a), permits an employer to initiate workers’ compensation payments by means of an NTCP
without admitting liability for the alleged work injury. If the employer fails to file a notice denying
liability for the work injury within the 90-day period during which temporary compensation is
payable, the employer is deemed to have admitted liability and the NTCP converts into an NCP.
2
examination. Id. at 20. Claimant advised that the chiropractic treatment he received
did not help with his pain, which he described as an 8 out of 10 and treated with
naproxen and Tylenol. Id. at 21, 23. Claimant asserted that he received an injection
in his back a few days prior to the IME. Id. at 21-22. Dr. Fayyazi noted that this
information conflicted with Claimant’s medical records, which documented that the
injection was administered approximately six weeks earlier. Id. at 22.
Claimant’s pain was localized to his lower back and left leg, and he
complained of difficulty with both standing and sitting. Id. at 19, 22. While
Claimant indicated he was unable to walk more than a block, Dr. Fayyazi observed
that Claimant had no issue walking from the parking lot located more than a block
away. Id. at 22. Dr. Fayyazi further noted that Claimant exhibited no difficulty with
walking or standing and he stood for approximately 20 minutes during the IME. Id.
at 23-24, 26. Moreover, Claimant’s balance and gait were normal. Id. at 26.
Claimant refused to “go up” on his heels while standing but had no issues walking
on his heels. Id. Dr. Fayyazi interpreted Claimant’s actions and statements during
the IME as an attempt to manipulate the results, given that Claimant refused to
perform maneuvers he was then able to perform. Id. at 26-27.
Dr. Fayyazi testified that Claimant’s thoracic and cervical spine were normal
upon physical examination and Claimant demonstrated a full range of motion. Id.
at 27-28. Claimant expressed pain during the physical examination of his lumbar
spine; however, Claimant bent forward and backward in a manner Dr. Fayyazi
deemed inconsistent with someone experiencing a high level of pain in that region.
Id. at 28-30. Dr. Fayyazi described Claimant’s gait when leaving the exam room as
a reverse antalgic gait of the type one exhibits when manufacturing a limp. Id. at
3
34. Overall, Dr. Fayyazi found no objective evidence of the pain symptoms
Claimant described. Id. at 31.
The results of June 8, 2016 and October 12, 2016 magnetic resonance imaging
(MRI) studies of Claimant’s spine indicated mild degenerative changes and a
borderline disc protrusion at the L5-S1 level but contained no other significant
findings. Id. at 35-36, 44. A December 14, 2016 electromyography (EMG) study
performed by Dr. Mauthe was unremarkable and Dr. Fayyazi detected no sign of
radiculopathy. Id. at 36. None of Claimant’s medical records indicated Claimant
suffered from a disc herniation. Id. at 49. Dr. Fayyazi diagnosed Claimant’s work
injury as a lumbar sprain from which Claimant had fully recovered and opined that
Claimant could return to full-duty work without restriction. Id. at 40-41.
B. Claimant’s Evidence
At the hearing before the WCJ, Claimant testified that he continued to suffer
from all his original symptoms, including pain in his lower back and legs and
weakness in his legs, particularly on the left side. N.T., 11/2/17, at 8. Claimant’s
pain prevented him from sleeping at night. Id. Previously, Claimant treated his
symptoms with injections, medication, physical therapy, acupuncture, and
chiropractic treatments. Id. at 9. Claimant no longer attended physical therapy or
treated with a chiropractor and he did not take any prescription or over-the-counter
medication to treat his symptoms. Id. at 9, 17-18. His last epidural injection was
approximately six months before the WCJ’s hearing. Id. at 9. Claimant received no
treatment for his symptoms because nothing worked and his pain, which he
described as a 7 out of 10, had worsened over time. Id. at 18-20.
Claimant did not believe he had fully recovered from his work injury and he
was not able to return to his pre-injury job, as it required him to lift boxes, bend over,
4
and jump on and off a pallet jack. Id. at 11-12. He testified that he could not sit for
long periods of time and could only stand for 20 to 30 minutes before experiencing
pain and weakness in his legs. Id. at 12, 20. Claimant stated he would return to a
position with Employer provided he could move freely and “have [his] medication.”
Id. at 12. Claimant testified that he was unable to stand on his toes during the May
17, 2017 IME due to weakness in his legs. Id. at 11. Claimant’s daily activities at
home were limited to moving from the bed to the bathroom and moving slowly
around the house. Id. at 23.
Dr. Mauthe testified that he first examined Claimant on September 27, 2016,
approximately six months after Claimant sustained the April 6, 2016 work injury.
C.R., Item No. 18, Mauthe Dep., 2/20/18, at 10. Dr. Mauthe’s practice primarily
consists of treating individuals for “workers[’] comp[ensation]” claims and
“determin[ing] who can work and who can’t.” Id. at 7. Claimant was referred to
Dr. Mauthe because conservative care had “failed.” Id. at 12. Dr. Mauthe stated
that, at the time of his initial examination, he did not know the exact mechanism of
Claimant’s injury; however, he was able to “figure out” that Claimant pulled a heavy
box and experienced pain in his back. Id. at 11.
Dr. Mauthe did not believe that Claimant magnified his symptoms during the
exam. Id. at 12-13. Claimant had reduced forward flexion and extension, but Dr.
Mauthe detected no weakness during the straight leg test and Claimant’s reflexes
were good. Id. at 13. Claimant was “primarily just tender” at the L5-S1 level of his
spine. Id. This finding was supported by Claimant’s June 8, 2016 MRI, which
indicated a protrusion at the L5-S1 level of his spine. Id. Dr. Mauthe did not detect
any “obvious nerve root compression.” Id. Dr. Mauthe diagnosed Claimant with
5
an L5-S1 disc protrusion, which he attributed to the April 6, 2016 work injury, and
prescribed topical anti-inflammatories. Id. at 14.
After Claimant failed to respond to conservative care, Dr. Mauthe performed
an EMG on December 14, 2016. Id. at 16. The results of the EMG were negative;
however, a computerized tomography (CT) discogram dated October 27, 2017,
confirmed Claimant’s subjective complaints and Dr. Mauthe’s initial diagnosis of a
“substantial abnormality at L5-S1.” Id. at 16, 19.
Dr. Mauthe opined that Claimant’s treatment, including a December 22, 2017
surgical decompression of Claimant’s L5-S1 disc, was reasonable and necessitated
by the April 6, 2016 work injury. Id. at 19-20. This opinion was based in part on
Dr. Mauthe’s understanding that Claimant had no preexisting lower back condition,
although he acknowledged there were no diagnostic studies of Claimant’s spine that
predated the April 6, 2016 work injury. Id. at 27. Dr. Mauthe noted that his
diagnosis and clinical impressions were corroborated by the medical reports
generated by Claimant’s other treating physicians. Id. at 22. Dr. Mauthe further
opined that Claimant was temporarily totally disabled and not capable of working in
an unrestricted capacity without posing a risk to himself and Employer. Id. at 24.
Dr. Mauthe disagreed with Dr. Fayyazi that Claimant had recovered from his work
injury. Id. at 25.
Dr. Mauthe agreed on cross-examination that Claimant’s disc protrusion was
not a herniation and, prior to Claimant’s decompression surgery, Dr. Mauthe’s
clinical notes indicated Claimant could return to work in a light-duty capacity. Id.
at 44, 48. As to Claimant’s purported symptom exaggeration during the IME, Dr.
Mauthe suggested that many claimants will embellish at an IME because the process
is adversarial and claimants “feel like they have to prove themselves.” Id. at 26. Dr.
6
Mauthe stated that it “wouldn’t surprise” him if Claimant magnified his symptoms
during the IME with Dr. Fayyazi. Id. at 49.
C. WCJ’s Decision
During the deposition of Dr. Mauthe, Employer lodged a hearsay objection to
the introduction of medical reports generated by Claimant’s treatment providers who
did not testify. Mauthe Dep. at 22. The WCJ sustained the objection in his April
11, 2017 decision and excluded those medical reports. C.R., Item No. 10, WCJ
Decision at 4.
After summarizing the relevant testimony, the WCJ made credibility
determinations. The WCJ discredited Claimant’s testimony because his subjective
complaints of pain were not supported by Dr. Fayyazi’s objective findings. Id. at 5.
Dr. Fayyazi’s testimony was deemed more credible than Dr. Mauthe’s. Id. The
WCJ credited Dr. Fayyazi’s opinion that Claimant had fully recovered from his April
6, 2016 work injury as it was “based on a thorough examination and discussion of
the findings of that examination.” Id. Dr. Fayyazi pointed out the lack of objective
findings to support Claimant’s complaints of severe pain with no relief despite
treating with multiple providers. Id. Dr. Fayyazi further noted that Claimant refused
to stand on his toes during the IME due to alleged weakness in his legs but was
otherwise able to stand without difficulty throughout the examination. Id.
The WCJ found that Claimant failed to establish he sustained any injury
beyond a lower back sprain on April 6, 2016. WCJ Finding of Fact (F.F.) No. 3.
Consequently, the WCJ denied Claimant’s petition seeking an amendment to the
description of his work injury. WCJ Decision at 8. The WCJ further found that
Employer established, through the credible medical testimony of Dr. Fayyazi, that
Claimant had fully recovered from his April 6, 2016 work injury. WCJ F.F. No. 4.
7
Employer’s termination petition was granted, effective May 17, 2017. WCJ
Decision at 8. Claimant appealed to the Board, which affirmed. This appeal
followed.3
II. Issues
On appeal, Claimant raises the following issues: (1) the WCJ’s decision was
not reasoned within the meaning of Section 422(a) of the Act;4 (2) the evidence did
not support a finding that Claimant has fully recovered from his work injury; and (3)
the WCJ erred in excluding as hearsay the medical reports of Claimant’s non-
testifying treatment providers.
III. Analysis
A. Reasoned Decision under Section 422(a)
First, Claimant argues that the WCJ failed to issue a reasoned decision as
required by Section 422(a) of the Act. Claimant argues that the WCJ merely
dismissed Claimant’s testimony as not credible, without further explanation, and the
WCJ did not clarify why he discredited the testimony of Claimant’s expert.
Section 422(a) provides, in pertinent part, that “[a]ll 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.” 77 P.S. § 834. Further, when faced with
3
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Phoenixville Hosp.
v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830, 838 (Pa. 2013). Substantial evidence is such
relevant evidence as a reasonable person might accept as adequate to support a conclusion.
McCabe v. Workers’ Comp. Appeal Bd. (Dep’t of Revenue), 806 A.2d 512 (Pa. Cmwlth. 2002).
4
77 P.S. § 834.
8
conflicting evidence, the WCJ must adequately explain his reasons for rejecting or
discrediting competent evidence. Id.
“[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.” Daniels
v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003).
In a case where the WCJ “has had the advantage of seeing the witnesses testify and
assessing their demeanor, a mere conclusion as to which witness was deemed
credible . . . could be sufficient to render the decision adequately ‘reasoned.’” Id. at
1053.
However, where the medical experts testified solely by deposition, resolution
of conflicting medical testimony cannot be supported by a mere statement that one
expert was deemed more credible than another. Id. While the WCJ is the sole arbiter
of credibility and evidentiary weight, he must provide an adequate basis for rejecting
a witness’s testimony when he does not testify live before the WCJ. Id. at 1052-53.
“[S]ome articulation of the actual objective basis for the credibility determination
must be offered for the decision to be a ‘reasoned’ one which facilitates effective
appellate review.” Id. at 1053.
Claimant testified live before the WCJ, who assessed Claimant’s demeanor
and concluded that “Claimant’s live testimony [wa]s not credible.” WCJ Decision
at 5. Under Daniels, the WCJ’s conclusion that Claimant lacked credibility is
sufficient and, therefore, the reasoned decision requirement under Section 422(a) has
been satisfied.
The WCJ’s resolution of the competing medical testimony, however, requires
further analysis. In that regard, the WCJ summarized the medical testimony and
9
concluded that “[t]he deposition testimony of [Dr. Fayyazi] is more credible than
Dr. Mauthe’s deposition testimony.” WCJ Decision at 5. Significant to the WCJ’s
conclusion was the fact that Dr. Fayyazi’s opinion was based on a thorough physical
examination and a discussion of his findings. Id. The WCJ also considered Dr.
Fayyazi’s testimony regarding the absence of objective findings that would support
Claimant’s complaints of severe pain. Id. Moreover, Claimant stood during the
majority of the IME without difficulty, a fact which contradicted Claimant’s refusal
to stand on his toes, claiming he lacked strength in his legs. Id.
Contrary to Claimant’s assertions, the WCJ articulated several objective bases
for his credibility determinations with regard to the medical testimony. These
explanations more than satisfy the reasoned decision requirement of Section 422(a)
of the Act. We will not disturb this decision on appeal.
B. Employer’s Termination Petition
Next, Claimant argues that Employer failed to establish that he had fully
recovered from his April 6, 2016 work injury.5
To succeed in a termination petition, an employer bears the burden of proving
by substantial evidence that a claimant’s disability ceased, or any remaining
conditions are unrelated to the work injury. Westmoreland Cty. v. Workers’ Comp.
Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). An employer meets
this burden by presenting competent medical evidence of the claimant’s full
recovery from the work injury established in the NCP. Harrison v. Workers’ Comp.
Appeal Bd. (Auto Truck Transp. Corp.), 78 A.3d 699, 703 (Pa. Cmwlth. 2013). It is
5
In furtherance of Claimant’s argument that substantial evidence supports a finding that
he has not fully recovered from the April 6, 2016 work injury, Claimant cites medical records that
are not part of the certified record. However, this Court may only consider those facts that are
duly certified in the record on appeal. B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa.
Cmwlth. 2012).
10
irrelevant whether the record contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is substantial evidence to
support the findings actually made. Hoffmaster v. Workers’ Comp. Appeal Bd.
(Senco Prods., Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). The WCJ has
complete authority over questions of credibility, conflicting medical evidence, and
evidentiary weight. Sherrod v. Workmen’s Comp. Appeal Bd. (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to accept or reject, in whole
or in part, the testimony of any witness. Lombardo v. Workers’ Comp. Appeal Bd.
(Topps Co., Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997).
Presently, the WCJ’s finding that Claimant had fully recovered from his work
injury was based on the credible opinions of Dr. Fayyazi, who testified that Claimant
had no difficulty walking or standing for an extended period during the IME and that
Claimant’s balance and gait were normal. Reproduced Record (R.R.) at 23, 26. Dr.
Fayyazi noted that Claimant refused to attempt certain maneuvers that he was later
able to perform. Id. at 26. Claimant refused to “go up” on his heels while standing,
for example, but had no trouble walking on his heels. Id.
Claimant’s thoracic and cervical spine were normal upon physical
examination and he demonstrated a full range of motion. Id. at 27-28. While
Claimant expressed pain during the physical examination of his lumbar spine, he
bent forward and backward in a manner Dr. Fayyazi deemed inconsistent with
someone experiencing a high level of pain in that region. Id. at 28-30. Overall, Dr.
Fayyazi found no objective evidence of the pain symptoms Claimant described. Id.
at 31.
Dr. Fayyazi further testified that Claimant’s MRIs revealed mild degenerative
changes and a borderline disc protrusion at the L5-S1 level but contained no other
11
significant findings. Id. at 35-36, 44. The EMG study performed by Dr. Mauthe
was unremarkable and Dr. Fayyazi found no sign of radiculopathy. Id. at 36. Dr.
Fayyazi therefore opined that Claimant had fully recovered from the April 6, 2016
work injury. Id. at 40.
The testimonies of Dr. Mauthe and Claimant that disfavored a finding of full
recovery were rejected by the WCJ, and this Court will not revisit those credibility
determinations. Having examined the credited testimony of Dr. Fayyazi, we
conclude that the WCJ’s finding of full recovery is supported by substantial
evidence.
C. Hearsay Exclusion of Medical Reports
Finally, Claimant argues that the WCJ should have accepted into evidence the
notes and reports of his non-testifying physicians because Dr. Mauthe relied on these
records in forming his opinion that Claimant continued to be disabled by the April
6, 2016 work injury.
Section 422 of the Act6 provides that medical reports are admissible where the
claim for workers’ compensation involves disability of 52 weeks or less. Medical
reports are also admissible where a workers’ compensation claim involves disability
exceeding 52 weeks, unless the party against whom the reports are offered objects
to their introduction.
A medical witness may express an opinion based upon the medical records of
others, even if those records were not introduced into evidence, so long as they are
the kind of records upon which the witness customarily relies in the practice of his
or her profession. Empire Steel Castings, Inc. v. Workers’ Comp. Appeal Bd.
(Cruceta), 749 A.2d 1021, 1026 (Pa. Cmwlth. 2000). The reports themselves,
6
Added by the Act of June 26, 1919, P.L. 642, 77 P.S. § 835.
12
however, are hearsay. Cordero v. Workmen’s Comp. Appeal Bd. (H.M. Stauffer &
Sons, Inc.), 664 A.2d 1106, 1109 (Pa. Cmwlth. 1995).
Here, Claimant sustained his work injury on April 6, 2016. Employer filed its
termination petition more than 52 weeks later, on July 18, 2017. Employer objected
to introduction of the medical reports as hearsay. See Mauthe Dep. at 22. We
conclude that the reports were properly deemed inadmissible under Section 422 of
the Act.
Employer did not object to Dr. Mauthe expressing an opinion based, in part,
on his review of the disputed reports. The objection lodged by Employer focused
solely on introduction of the reports themselves. Because the treatment providers
who authored those reports did not testify, the reports constitute hearsay. Cordero,
664 A.2d at 1109. We discern no error in the WCJ’s decision to exclude the reports
on hearsay grounds.
IV. Conclusion
The WCJ’s decision was sufficiently reasoned to satisfy the requirements of
Section 422(a) of the Act and his finding that Claimant had fully recovered from his
April 6, 2016 work injury is supported by substantial evidence. Furthermore, the
WCJ properly excluded as hearsay the medical reports authored by Claimant’s non-
testifying treatment providers. Accordingly, we affirm the order of the Board.
__________________________________
ELLEN CEISLER, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sixto Manuel Garcia-Guerrero, :
Petitioner :
:
v. : No. 1394 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Southeast Personnel :
Leasing), :
Respondent :
ORDER
AND NOW, this 23rd day of October, 2020, the August 20, 2019 Order of the
Workers’ Compensation Appeal Board is hereby affirmed.
__________________________________
ELLEN CEISLER, Judge