A. Heard v. WCAB (Philadelphia Parking Authority) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdullah Heard, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Philadelphia Parking Authority), : No. 767 C.D. 2020
Respondent : Submitted: October 30, 2020
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: February 17, 2021
Abdullah Heard (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) dated July 14, 2020, affirming the
decision and order of a Workers’ Compensation Judge (WCJ) granting Claimant’s
Claim Petition in part and concluding the Philadelphia Parking Authority’s
(Employer’s) contest was reasonable. Upon review, we affirm.
I. Factual Background and Medical Evidence
Claimant worked for Employer as a parking enforcement officer
walking an assigned route and issuing parking tickets. WCJ Opinion, 6/12/19 (WCJ
Op.), at 4. On January 9, 2018, while walking his route, Claimant slipped and fell
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
on ice on a sidewalk. Id. He had several past injuries to his left shoulder, arm, leg,
and hip, as well as to his back, but he was not under treatment or in pain regarding
his past injuries when he fell on January 9, 2018. Id. He promptly reported the slip
and fall to Employer but did not immediately seek medical treatment. Id. A few
weeks later, on January 24, 2018, he saw a panel physician, who released him to
work with restrictions, but Claimant ultimately did not return to work after January
24, 2018.2 Id. at 5.
On January 31, 2018, Employer issued a Notice of Compensation
Denial disputing that any work-related injury occurred. Reproduced Record (R.R.)
at 2a-3a. Claimant filed a Claim Petition on March 28, 2018, seeking partial
disability benefits from the date of injury through January 24, 2018, and total
disability benefits from January 24, 2018 forward. Id. at 7a-9a. As of November 5,
2018, when he testified before the WCJ, Claimant stated that he did not feel fully
recovered or able to resume his work duties. WCJ Op. at 4.
A. Claimant’s Medical Evidence
Claimant’s treating provider, Nirav Patel, D.C., a chiropractor
(Claimant’s Medical Expert), testified by deposition on July 24, 2018. At
Claimant’s first visit on February 2, 2018, Claimant’s Medical Expert diagnosed
Claimant with sprain and strain injuries to the left shoulder and hip and cervical and
lumbar spine areas due to the January 2018 fall. R.R. at 100a. After magnetic
resonance images (MRIs) were taken, Claimant’s Medical Expert revised his
diagnoses to cervical sprain and strain and disc bulge, lumbar sprain and strain and
2
Employer subsequently terminated Claimant’s employment in April 2018 based on an
unrelated incident that occurred on January 2, 2018, a week prior to his fall, when after a verbal
encounter with a vehicle owner, Claimant rescinded a ticket in violation of Employer’s policies.
WCJ Opinion, 6/12/19 (WCJ Op.), at 4.
2
herniation, left shoulder sprain and strain and rotator cuff tendonitis, and left hip
sprain and strain and femoral acetabular impingement with chondromalacia. Id. at
109a. Claimant’s Medical Expert did not feel that Claimant’s prior injuries were
relevant to his condition at the time of diagnosis, because Claimant reported that he
was not in pain at the time he fell in January 2018. Id. at 95a-96a, 109a & 161a. A
lumbar discogram was planned to assess whether surgical intervention would be
needed. Id. at 110a & 144a.
B. Employer’s Medical Evidence
Employer presented medical evidence from Jeffrey Malumed, M.D., an
orthopedic surgeon (Employer’s Medical Expert), who testified by deposition on
November 19, 2018. R.R. at 257a. Employer’s Medical Expert saw Claimant on
September 10, 2018, for an independent medical evaluation (IME). Id. at 267a.
When he saw Claimant for the IME, Employer’s Medical Expert had only the reports
of Claimant’s various diagnostic imaging tests, but not the actual films and images.
Id. at 280a. He indicated he prefers to see actual films and images, but often relies
on reports alone when films are not provided or not available when he conducts an
IME. Id. at 327a & 332a-33a. He did not recall whether he spoke with Employer’s
counsel about getting the MRI films, but stated that if he was given the opportunity
to see the films, he would have accepted. Id. at 333a.
Relevant to our review, Employer’s Medical Expert noted that in the
reports from lumbar MRIs taken after Claimant’s fall, in March and June of 2018, a
radiologist interpreted a disc herniation at L4-5 impinging on the thecal sac and a
disc bulge at L5-6. R.R. at 282a. Neither of the 2018 MRI reports indicated the
3
radiologist had compared the results with earlier lumbar MRIs from 2013 and 2014.
Id. at 299a-300a.
Employer’s Medical Expert noted Claimant’s history of back injuries
and issues going back to 2007. R.R. at 283a. Claimant had undergone a lumbar
MRI for a work-related injury in 2013 that showed a disc protrusion at L4-5 and a
disc bulge at L5-S1. Id. at 284a & 298a. In 2014, Claimant underwent another
lumbar MRI at a lower intensity strength than the 2013 MRI; the 2014 MRI was
reported as relatively normal “with just some mild scoliosis.” Id. at 284a-85a &
298a. Employer’s Medical Expert’s examination of Claimant revealed objective
abnormalities of the lumbar spine, including ongoing limited range of motion, a
“mildly positive sitting root sign, left side,” and a “questionably positive straight leg
raising sign on the left side.”3 Id. at 290a & 292a.
Based on the records available at the time of the IME, Claimant’s report
of his history, and the physical examination, Employer’s Medical Expert initially
attributed to the January 2018 fall a hip contusion, cervical sprain and strain, and left
shoulder contusion or sprain (all of which had resolved prior to the IME) and lumbar
findings described in the 2018 MRI report that constituted changes from the previous
MRI in 2014 and were ongoing. R.R. at 292a-97a. At the time of the IME,
Employer’s Medical Expert opined that the lumbar issues required additional
treatment and restriction to sedentary work. Id. at 297a.
After the September 2018 IME and the preparation of his initial report,
however, Employer’s Medical Expert received the actual film images of the four
lumbar MRIs from 2013, 2014, and March and June of 2018. R.R. at 302a. On
November 15, 2018, shortly before his deposition, Employer’s Medical Expert
3
The sitting root and straight leg raise tests are used to detect sciatic or radicular symptoms.
See City of Phila. v. Workers’ Comp. Appeal Bd. (Smith), 946 A.2d 130, 132 (Pa. Cmwlth. 2008).
4
completed an addendum report. Id. at 301a. That report indicated that after
reviewing the images themselves, Employer’s Medical Expert disagreed with the
radiologist’s report that the 2014 lumbar MRI was normal compared to the 2013
report, which had shown a disc protrusion at L4-5 and a disc bulge at L5-S1. Id. at
304a. Based on his personal review of the MRIs, Employer’s Medical Expert opined
that the images from 2014 and 2018 showed similar abnormalities to those in the
2013 images. Id. He, therefore, concluded that no positive, acute, or significant
changes occurred as a result of the January 2018 incident. Id. Thus, in the opinion
of Employer’s Medical Expert, the 2018 incident did not cause any structural
damage such as an aggravation or exacerbation of Claimant’s preexisting lumbar
conditions. Id. at 304a-06a. Moreover, the 2018 images did not show a herniation
at L4-5, but rather, only the same protrusion that had been present at L4-5 since at
least the time of the 2013 MRI. Id. at 311a.4
Employer’s Medical Expert concluded from his review of the actual
MRI films that Claimant sustained only a sprain or strain injury from the January
2018 incident, which had resolved before the September 2018 IME. R.R. at 306a.
Employer’s Medical Expert opined that the ongoing back conditions he detected in
his IME were the result of Claimant’s preexisting and longstanding back issues and
not the January 2018 incident. Id. Because Claimant had been working full duty
with his preexisting back conditions before the January 2018 fall, Employer’s
Medical Expert opined that, as of the September 2018 IME, Claimant could resume
full-duty work, as the sprain or strain injury had resolved by then. Id. at 307a, 334a.
4
Employer’s Medical Expert distinguished between a herniation, where the disc material
herniates through the posterior longitudinal ligament, and a protrusion, where the material pushes
the posterior longitudinal ligament outwards. Reproduced Record (R.R.) at 341a.
5
Employer’s Medical Expert explained that he changed his initial opinion solely
because after the IME, during which he had only the MRI reports of the interpreting
radiologists, he was able to view personally the actual lumbar MRI films, and his
interpretations of the films differed from those of the radiologists. R.R. at 335a-37a.
His understanding was that he was the only doctor who had been able to view all
four MRI films. Id. at 336a. Employer’s Medical Expert disagreed with the
diagnoses of Claimant’s Medical Expert to the extent that those diagnoses relied on
the previously available MRI reports. Id. at 312a-13a.
II. Procedural History
At the initial hearing on May 4, 2018, the WCJ directed that Claimant’s
deposition and the deposition of Claimant’s Medical Expert were to be completed
by the next hearing in 90 days. R.R. at 19a-20a. The WCJ also instructed
Employer’s counsel not to “sit on” the IME report from Employer’s Medical Expert
once it became available, and to provide the report to Claimant in a timely manner.
Id. The WCJ stated another hearing would be held in 90 days to check on the status
of the matter. Id. at 20a-21a.
At the second hearing on August 15, 2018, the WCJ noted that the
Claimant’s deposition and Claimant’s Medical Expert’s deposition had been
completed and instructed that Employer had 90 days to depose Employer’s Medical
Expert before a final hearing. Certified Record Item #13 (Hearing Transcript,
8/15/18). Claimant’s counsel did not raise any issues or challenges to the timeliness
with which Employer was proceeding on its evidentiary case, including the fact that
Employer had not yet obtained an IME of Claimant. See id. at 3.
6
 On September 17, 2018, a week after Employer’s Medical Expert’s
IME, Claimant’s counsel wrote a letter to Employer’s counsel refusing, in advance,
to accede to any delays or continuances in completing the evidentiary record. R.R.
at 178a. In the letter, Claimant’s counsel asserted that the IME was conducted late,
because it occurred after Claimant’s Medical Expert testified, so Claimant’s Medical
Expert did not have the IME report available to refute during his deposition; counsel
contended that this hampered Claimant’s ability to present rebuttal evidence of
disability beyond the IME date. Id. Claimant’s counsel protested that Employer’s
Medical Expert’s deposition had not yet been scheduled and that the delay was
causing Claimant personal distress as he continued to be injured without either
income or benefits. Id.
On October 18, 2018, Employer’s counsel provided the initial IME
report of Employer’s Medical Expert. R.R. at 180a. On October 22, 2018, Employer
sought a continuance of the final hearing scheduled on November 5, 2018, so that it
could obtain multiple additional records from past providers, specifically including
the 2013 and 2014 MRI films, for Employer’s Medical Expert to review before his
deposition; Employer stated that it had not previously been able to obtain these
records because Claimant had not previously identified the providers at issue in order
that Employer could prepare subpoenas for them. Id. at 191a. Claimant’s counsel
objected, accusing Employer – without evidentiary support – of requesting the
continuance in bad faith as a “stall tactic” in order to “conduct surveillance, in the
hope of finding a ‘smoking gun’ sufficient to cause [Employer’s Medical Expert] to
change his opinion.” Id. at 181a-90a.
The next hearing, originally scheduled as the last hearing, was held on
the originally scheduled date, November 5, 2018. R.R. at 199a. After noting that
7
Employer had not secured its IME in a timely manner in accordance with the WCJ’s
original schedule, the WCJ gave Employer 30 additional days to conduct the
deposition of Employer’s Medical Expert. Id. at 204a. Claimant did not object to
that extension. See id. Nonetheless, on January 8, 2019, one day before the final
hearing, Claimant’s counsel filed a request to preclude the testimony of Employer’s
Medical Expert,5 on the basis that Employer had not complied with the WCJ’s
original schedule for presenting its evidence. Id. at 482a-84a. Claimant’s counsel
asserted that Employer’s delay was in bad faith because Employer’s Medical Expert
did not recall specifically asking for additional time to review the MRI films and
images; therefore, according to Claimant’s counsel, the reason Employer’s counsel
gave the WCJ for seeking a continuance after the September 2018 IME, i.e., a
“request” from Employer’s Medical Expert, was “a complete fabrication by
counsel [for Employer].” Id. at 483a-84a (emphasis in original).
Notwithstanding this accusation by Claimant’s counsel, extended
discussions, both during the deposition of Employer’s Medical Expert and before
the WCJ, confirmed that Employer’s Medical Expert preferred reviewing the MRI
films rather than reports, and while the volume of his practice prevented him from
recalling a specific discussion with Employer’s counsel requesting the actual films,
he did not dispute that such a discussion occurred. For example, the following
colloquy took place during redirect examination by Employer’s counsel during the
deposition of Employer’s Medical Expert:
Q. Doctor, do you recall a conversation that we
may have had following the issuance of your report?
5
Claimant’s counsel also sought to preclude certain fact testimony, not at issue here,
concerning Employer’s termination of Claimant’s employment.
8
A. Honestly, I don’t. But I would not remember
a conversation like that. I, unfortunately, not only do I see
110 patients in the average week, I talk to numerous
people on the phone all the time.
So I don’t remember a conversation and I
don’t mark down conversations that I have on the
telephone. I mean, we certainly could have had a
conversation, I just don’t remember.
Q. Okay, so you don’t remember if you told me
you didn’t see the films and would like to look at the films?
A. What I would normally state to you, if I had
a conversation with you, yes, I would love to look at the
films.
So, if we did have that conversation, which I
have no reason to believe we didn’t have that
conversation, but if you would ask me, would you rather
look at the films and would that help you with your ability
to diagnose what’s going on and what’s preexisting,
what’s not? I would always say yes, I would like to look
at those films if they are available for me to review. . . .
R.R. at 332a-33a.
As summarized in Section I.B above, Employer’s Medical Expert
testified in a November 19, 2018, deposition in which he explained that he initially
found Claimant sustained an ongoing structural lumbar injury as a result of the
January 2018 incident, but upon viewing and comparing the 2013 and 2014 lumbar
MRI films with those taken after the incident in January 2018, Employer’s Medical
Expert altered his original conclusion and opined that Claimant sustained only a
lumbar sprain and strain in January 2018, from which he had recovered by the
September 2018 IME. R.R. at 296a, 302a-06a, 317a-18a & 335a-36a.
On June 19, 2019, the WCJ issued a decision and order granting the
Claim Petition in part. The WCJ determined Claimant sustained a work-related
9
injury in the January 2018 fall and was totally disabled until September 10, 2018, at
which point Claimant was fully recovered from his January 2018 injuries and his
entitlement to WC benefits terminated. WCJ Op. at 10 & 13. The WCJ also
concluded Employer’s contest of the Claim Petition was reasonable. Id. at 10-11 &
13. Relevant here, the WCJ found Employer’s Medical Expert more credible than
Claimant and Claimant’s Medical Expert where there were conflicts in the
testimony. Id. at 9. The WCJ expressly credited the testimony of Employer’s
Medical Expert that his reason for changing his opinion concerning the cause of
Claimant’s back condition was his review of the MRI films after he issued his initial
written report. Id. at 8-10. Specifically, the WCJ found:
[Employer’s Medical Expert’s] opinions regarding [the]
relationship between Claimant’s injuries, and their extent
and duration, to the work injury were cogent, clear, and
convincing. [Employer’s Medical Expert’s] opinions and
diagnoses are well-founded in his physical examination
findings and diagnostic studies, which he credibly
explained. While this [WCJ] understands that
[Employer’s Medical Expert] seemingly altered his
opinion regarding causation and extent of Claimant’s low
back injury, such position change is understandable and
credible given Claimant’s extensive prior history of
injuries.
Id. at 9-10.
Claimant appealed the WCJ’s decision to the Board. On July 14, 2020,
the Board issued an opinion and order. In its opinion, the Board thoroughly reviewed
the evidence as set forth in the WCJ’s decision. See Board Opinion, 7/14/20 (Bd.
Op.), at 3-8. The Board rejected Claimant’s argument that the WCJ failed to explain
his credibility determination concerning the reason Employer’s Medical Expert
altered his medical opinion regarding causation, observing that Employer’s Medical
10
Expert submitted his addendum report explaining his change of opinion “after
receiving additional information concerning Claimant’s lower back condition prior
to the work injury. . . .” Id. at 10. The Board concluded the opinion of Employer’s
Medical Expert, as accepted by the WCJ, “therefore constitute[d] substantial
evidence sufficient to support the WCJ’s finding that Claimant fully recovered from
his January 9, 2018 work injury by the day he was examined by [Employer’s Medical
Expert] on September 10, 2018.” Id.
The Board likewise rejected Claimant’s argument that the WCJ erred
in granting Employer’s request for an extension of time to depose Employer’s
Medical Expert. Observing that waiver of rules and admission of evidence are
matters within the sound discretion of the WCJ, the Board opined:
Determining whether a claimant would be prejudiced by
an extension of time for the employer to submit evidence
involves asking whether the objecting party has been
rendered incapable of responding to such evidence, such
as the case where a witness has died or evidence has been
lost. . . . The fact that a claimant’s ability to win its case
is hurt by admission of the evidence is not what is meant
by prejudice in this context.
Bd. Op. at 10-11 (citing Atkins v. Workers’ Comp. Appeal Bd. (Stapley in
Germantown), 735 A.2d 196 (Pa. Cmwlth. 1999)) (internal citations omitted). The
Board found the WCJ did not abuse his discretion in admitting the deposition
testimony of Employer’s Medical Expert, stating that “[o]ther than arguing that such
evidence hurt its case, Claimant offers no explanation as to how that evidence could
not have been rebutted.” Id. at 11. Accordingly, the Board affirmed the WCJ’s
decision. Id. at 13.
11
 Claimant then petitioned for review in this Court.6
III. Issues
On appeal, Claimant claims error in the WCJ’s management of the
schedule for the underlying litigation, the WCJ’s admission of the testimony of
Employer’s Medical Expert and related credibility determinations, and the WCJ’s
finding that Employer’s contest of the Claim Petition was reasonable.7 Specifically,
Claimant argues the WCJ abused his discretion and prejudiced Claimant by failing
to enforce applicable rules and the WCJ’s original schedule8 regarding the deposition
of Employer’s Medical Expert. Further, according to Claimant, the opinion of
Employer’s Medical Expert was not competent or unequivocal because he altered
his original opinion, and the WCJ should not have credited his testimony. Claimant
also insists the WCJ’s decision disregarded overwhelming evidence in Claimant’s
favor, without providing an explanation in the decision. Claimant requests a remand
to allow him to respond to the evidence of Employer’s Medical Expert that Claimant
contends was submitted late, and to allow Claimant to offer evidence concerning
surgery Claimant underwent after the record was closed. Finally, Claimant posits
6
Our review of the Board’s decision is limited to determining whether relevant findings of
fact are supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights of a party were violated. See White v. Workers’ Comp. Appeal Bd. (City of
Phila.), 237 A.3d 1225, 1227 n.7 (Pa. Cmwlth. 2020). Substantial evidence is such relevant
evidence as a reasonable person might accept as adequate to support a determination. Pocono
Mountain Sch. Dist. v. Workers’ Comp. Appeal Bd. (Easterling), 113 A.3d 909, 918 (Pa. Cmwlth.
2015). In reviewing a WCJ’s opinion, this Court views all evidence in the light most favorable to
the prevailing party and draws all reasonable inferences in that party’s favor. Id.
7
Claimant also asserted arguments relating to a cross-petition for review by Employer.
However, although Claimant evidently received service of a cross-petition, Employer never filed
it, so the issues raised therein are not before this Court.
8
Although Claimant asserts various rule violations, ultimately only the WCJ’s extension
of the deadline for the deposition of Employer’s Medical Expert is material here.
12
that once corrected as he requests, the record will demonstrate that Employer
engaged in an unreasonable contest of the claim.
We address Claimant’s various arguments in turn.
IV. Discussion
A. Extensions of Time and Resulting Prejudice
Claimant first argues that the WCJ abused his discretion and prejudiced
Claimant by granting Employer’s request for an extension of time, and that the Board
failed to detect that abuse and resulting prejudice because it did not review the
complete record. We discern no merit in this argument.
Claimant essentially argues that in scheduling the deposition of
Claimant’s Medical Expert, Claimant relied on the WCJ’s scheduling directive at
the initial hearing. Claimant asserts he further relied on the WCJ’s indications at the
final hearing that in future evidentiary rulings, he would preclude evidence not
submitted in compliance with his orders. Br. of Pet’r at 18 (citing R.R. at 584a-85a).
Claimant reasons that if the WCJ had not granted Employer an extension so that
Employer’s Medical Expert could be deposed after reviewing the actual MRI films
and his deposition could be admitted in evidence after the original final hearing date,
Employer’s Medical Expert would not have been able to alter his original medical
opinion. According to Claimant, he was prejudiced by conducting his own expert’s
deposition before Employer’s Medical Expert changed his opinion.
Claimant apparently acknowledges that he could have requested an
extension of time to rebut the altered opinion of Employer’s Medical Expert;
however, he made no such request.9 See R.R. at 624a; Br. of Pet’r at 22, 24, 31 &
At the conclusion of the final hearing, the WCJ specifically asked, “Can I close the record
9
now?” R.R. at 624a. Counsel for both parties said, “Yes.” Id.
13
40. Now, Claimant contends (without record evidence) that obtaining rebuttal
evidence would have taken five months and cost over $4,000. Br. of Pet’r at 31.
Claimant thus implies that he decided not to seek an extension for rebuttal evidence
because of the time and money it would have required. However, Claimant’s own
decision to forgo seeking an extension does not constitute prejudice as the result of
any error by the WCJ.
The record also does not offer any support for Claimant’s averment that
he relied on the WCJ’s scheduling instruction and intimations concerning future
evidentiary rulings. Moreover, any such reliance was not reasonable. First,
Employer timely conducted and submitted the deposition of Employer’s Medical
Expert within the 30-day extension period granted by the WCJ; therefore, the WCJ’s
comment that he would preclude noncompliant evidence was inapplicable and could
not reasonably support an assumption by Claimant that the WCJ would subsequently
preclude the deposition.
Additionally, Claimant expressly and repeatedly states that he
anticipated Employer would request extensions of time, and he was prepared for
such requests. See Br. of Pet’r at 7 (“09/17/18 Letter to [Employer] – No
Continuances. Issue expected.”), 8 (“10/18/18 Claimant prepares Objection to
EXPECTED continuance request.”), 13 (“Claimant expressly advised [Employer]
he expected them [sic] to delay litigation while trying to get a new opinion – and
began preparing an objection even before a continuance was requested.”) (emphases
in original).
Further, Claimant acknowledges the WCJ had discretion to grant
extensions. Claimant contends that any extension required good cause; however,
without knowing in advance what grounds Employer might have for potential
14
extension requests, Claimant could not reasonably rely on his assumption that the
WCJ would deny any extension request. Thus, Claimant could not reasonably have
relied on an assumption that the WCJ’s original scheduling order would not change.
Claimant repeatedly avers that in compliance with the original
scheduling order, he completed preparation of his own case, including the deposition
of Claimant’s Medical Expert, even before Employer scheduled an IME of Claimant
by Employer’s Medical Expert. See, e.g., Br. of Pet’r at 28. If Claimant believed
he was entitled to more information concerning Employer’s case before deposing
Claimant’s Medical Expert, in order to rebut Employer’s medical evidence, then
Claimant could have requested an extension of time to complete the presentation of
his own medical evidence. However, Claimant did not object to completing
preparation and submission of his medical evidence before the IME took place. He
will not now be heard to complain of prejudice arising from a change in the opinion
of Employer’s Medical Expert, when the entirety of Claimant’s medical evidence
was submitted even before the IME was conducted and before any opinion of
Employer’s Medical Expert was known to Claimant.
We also reject Claimant’s implicit assertion that Employer’s request for
an extension of time for Employer’s Medical Expert to consider additional medical
evidence was improper. Claimant stresses a perceived discrepancy in the record.
Employer asserted it was seeking an extension because Employer’s Medical Expert
wanted to review the MRI films; somewhat in contrast, Employer’s Medical Expert
testified that he did not recall making that request, although he would have answered
in the affirmative if asked whether he wanted to review the films. See R.R. at 191a
& 332a-33a. However, as discussed above, any inconsistency is minor. Moreover,
whether the request for the MRI films was initiated by Employer or Employer’s
15
Medical Expert is immaterial to the question of whether the WCJ acted properly in
granting Employer an extension to allow review of those films. If Employer
believed additional evidence in the form of actual MRI films could be obtained
which, if reviewed by Employer’s Medical Expert, might result in a more fully-
informed expert opinion, Employer was within its rights to request an extension of
time for the expert’s review of the MRI films. Accord Sharkey v. Workers’ Comp.
Appeal Bd. (Tempo, Inc.), 739 A.2d 641, 644 (Pa. Cmwlth. 1999) (WCJ properly
held record open upon employer’s request to submit additional evidence). Claimant
cites no authority to the contrary.
Further, the WCJ possessed discretion in controlling his own docket.
34 Pa. Code § 131.12(a); U.S. Airways & Reliance Nat’l v. Workers’ Comp. Appeal
Bd. (McConnell), 870 A.2d 418, 423 & n.7 (Pa. Cmwlth. 2005) (citing Sharkey, 739
A.2d at 644 & n.4). If the WCJ had concluded Employer’s extension request was
motivated by an improper delay strategy, he had discretion to deny it. See U.S.
Airways, 870 A.2d at 423 (WCJ properly dismissed petition due to ongoing delays
caused by claimant’s repeated failure to appear at hearings). Here, notwithstanding
Claimant’s complaints of a pattern of delays by Employer, the WCJ granted
Employer an extension of only 30 days for the deposition of Employer’s Medical
Expert, and the record ultimately remained open for only a single additional hearing
held about 60 days beyond the originally scheduled final hearing date. Claimant’s
suggestion of a delay strategy by Employer is unsupported by the record, and in any
event is immaterial in light of the minor delay that actually resulted. The WCJ did
not abuse his discretion in permitting such a delay by granting Employer a modest
extension of time to submit its medical evidence. Claimant was not prejudiced by
16
that minor delay, for each of the reasons discussed above. The Board correctly
affirmed the WCJ’s decision on that issue.
B. Credibility of Employer’s Medical Expert
Next, Claimant argues that the WCJ erroneously failed to provide a
rational basis for crediting the revised opinion of Employer’s Medical Expert. We
reject this argument. A WCJ’s decision is adequately reasoned if it allows for
appellate review without further elucidation. Daniels v. Workers’ Comp. Appeal Bd.
(Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). We conclude the WCJ’s
decision here is adequate for review.
The record reveals that Employer’s Medical Expert based his original
opinion of the cause of Claimant’s medical condition in large part on reports of
previous MRI films dating back to 2013, in that he did not have the actual MRI films
to review. R.R. at 280a & 292a-97a. When Employer’s Medical Expert later had
the opportunity to review the MRI films themselves, his reading and interpretation
of them differed from the reports. Id. at 306a.
“The WCJ is the ultimate fact[]finder and has complete authority for
making all credibility determinations.” Rife v. Workers’ Comp. Appeal Bd.
(Whitetail Ski Co.), 812 A.2d 750, 755 (Pa. Cmwlth. 2002). The WCJ was entitled
to credit the interpretation and opinion of Employer’s Medical Expert, a board
certified orthopedic surgeon, over the opinion of Claimant’s Medical Expert, a
chiropractor, and the written reports of MRI radiologists who were not deposed or
otherwise presented before the WCJ for credibility determinations. See, e.g.,
Robertshaw Controls Co. v. Workers’ Comp. Appeal Bd. (Raffensperger), 710 A.2d
1232, 1234 (Pa. Cmwlth. 1998) (the WCJ determines credibility and may accept or
17
reject any testimony including that of an expert medical witness; moreover,
testimony of a single medical witness is a reasonable basis for the WCJ’s credibility
determination, despite conflicting evidence).
Notably, Employer’s Medical Expert revised his opinion on the cause
of Claimant’s condition because his review of the MRI films revealed that the
conditions in Claimant’s lower back were present at least as far back as 2013, were
unchanged in the subsequent MRI films, and therefore could not have resulted from
the January 2018 fall. R.R. at 306a. The MRI films and Employer’s Medical
Expert’s interpretations of them constituted substantial evidence in support of his
revised opinion. Thus, there was substantial evidence to support the WCJ’s
credibility finding regarding the revised opinion of Employer’s Medical Expert. The
Board correctly affirmed the WCJ’s finding.
C. Weight of the Evidence
Claimant next asserts that the WCJ’s decision was contrary to the
overwhelming weight of the evidence and that the WCJ failed to provide an adequate
explanation of his credibility determinations. Claimant points to the WCJ’s
statement that the revision of the medical opinion of Employer’s Medical Expert was
“understandable and credible given Claimant’s extensive prior history of injuries.”
WCJ Op. at 9-10. Claimant contends this explanation by the WCJ was not rational
because Employer’s Medical Expert already had Claimant’s entire medical history
when forming his original opinion, and because “many of the earlier injuries
involved different areas of [C]laimant’s body.” Br. of Pet’r at 37. We disagree.
As noted above, although Employer’s Medical Expert formed his
original opinion after considering his IME of Claimant and all of the medical records
18
that were provided to him at that time, he did not have Claimant’s entire medical
history, because he did not have access to the MRI films, only to reports concerning
those films. The MRI films constituted a significant part of Claimant’s medical
history. After reviewing the MRI films themselves, Employer’s Medical Expert
concluded the condition of Claimant’s spine, as shown in the 2018 MRI, was already
present in the earlier films. Thus, the history of injuries revealed in the prior MRIs
provided substantial evidence in support of the revised opinion of Employer’s
Medical Expert. The WCJ appropriately relied upon Claimant’s history of previous
injuries to support his attribution of credibility to Employer’s Medical Expert.
Accord Dep’t of Corr. v. Workers’ Comp. Appeal Bd. (Richardson), 788 A.2d 1041,
1045 (Pa. Cmwlth. 2001) (WCJ properly relied on testimony of employer’s medical
expert as credible, where claimant provided incomplete history of prior injuries at
time of expert’s physical examination, but expert later received additional
documentation and based his testimony on claimant’s complete medical history).
In addition, although Claimant is correct in stating that he suffered
many prior injuries to other parts of his body, that observation does not alter the fact
that he also suffered previous back injuries; nor does it diminish the significance of
the various MRI films, which are part of Claimant’s medical history, and which, in
the opinion of Employer’s Medical Expert, showed the presence as early as 2013 of
the back conditions on which Claimant based his assertion of current disability and
which he claimed were the result of his January 2018 fall. Accordingly, the Board
correctly concluded the WCJ’s decision was supported by substantial evidence.
19
D. Remand Request
In his last two arguments, Claimant seeks a remand or rehearing based
on corrections he insists are needed to the record by removing the revised opinion
of Employer’s Medical Expert or allowing Claimant to respond to Employer’s
allegedly “late” medical evidence, and by admitting “after[-]discovered” evidence
of Claimant’s alleged post-hearing back surgery. Br. of Pet’r at 40 & 42. Claimant
also contends that these corrections to the record require reconsideration of the
reasonableness of Employer’s contest of the Claim Petition. Because these two
requests are interrelated, we address them together. Both are without merit.
Claimant’s request to remove or respond to the revised opinion of
Employer’s Medical Expert has been fully addressed above. As discussed, we
conclude that the Board properly affirmed the WCJ’s admission of and reliance on
the revised opinion based on Employer’s Medical Expert’s review of the MRI films
after completing his original report. We likewise conclude that Claimant cannot
claim prejudice arising from his inability to rebut the opinion of Employer’s Medical
Expert, because he failed to seek an extension of time to do so before the WCJ closed
the record.
Regarding his averment that Claimant subsequently underwent back
surgery, and that the surgery constituted “after[-]discovered evidence,” Br. of Pet’r
at 40, Claimant’s entire argument consists of a single sentence asserting that
evidence relating to the surgery was not available at the time he completed his
medical evidence. Id. This argument is insufficiently developed to allow
meaningful review, and therefore, it has been waived. See Dep’t of Env’t Prot. v.
Green ‘N Grow Composting, LLC, 201 A.3d 282, 286 (Pa. Cmwlth. 2018) (argument
is waived for lack of development when court is unable to conduct meaningful
20
review of it); see also Pa. R.A.P. 2101 (appeal may be quashed or dismissed for
substantial defects in briefing). Even if this single sentence argument were
sufficient, we would reject Claimant’s contention because he does not explain the
nature of the surgery or how it would rebut the WCJ’s finding, affirmed by the
Board, that the condition of Claimant’s back resulted from previous injuries and not
from his January 2018 fall. Accord Bradley v. Workers’ Comp. Appeal Bd. (Crucible
Compaction Metals) (Pa. Cmwlth., No. 571 C.D. 2014, filed Sept. 10, 2014), slip
op. at 9, 2014 Pa. Commw. Unpub. LEXIS 553, *14 (unreported)10 (rehearing not
merited where claimant provided only bald allegations of after-discovered evidence
without an offer of proof or supporting medical documentation); UGI Corp. v.
Workmen’s Comp. Appeal Bd. (Wagner), 566 A.2d 1264, 1265 (Pa. Cmwlth. 1989)
(rehearing not merited where appeal forms contained only bald and conclusory
statements of after-discovered evidence, with no support by affidavit, medical
documentation, or otherwise; opposing party “was entitled to have properly
supported averments and an opportunity to reply thereto”). Thus, he has not shown
that admission of this evidence would affect the outcome of his Claim Petition.
Moreover, we note that Claimant was aware during the course of the
WCJ proceeding that surgery was contemplated, Br. of Pet’r at 7 (IME report
identified possible need for surgery), 10 (as of the hearing on November 5, 2018,
Claimant “was expecting to undergo surgery”), but he did not request that the record
remain open for submission of additional evidence post-surgery. In fact, Claimant
implies he could have completed presentation of post-surgery rebuttal evidence
within five months after the record closed, and that delaying the WCJ’s decision was
a factor in his decision not to seek an extension of time for rebuttal evidence. See
10
We cite this and other unreported decisions of this Court as persuasive pursuant to 210
Pa. Code § 69.414(a).
21
id. at 31. Thus, the fact that the surgery did not actually occur until later did not
render it after-discovered evidence. Accord Green v. Workers’ Comp. Appeal Bd.
(The Salvation Army) (Pa. Cmwlth., No. 1259 C.D. 2018, filed July 23, 2019), slip
op. at 13 & n.9, 2019 Pa. Commw. Unpub. LEXIS 418, *16 & n.9 (unreported)
(Board properly denied rehearing for submission of after-discovered evidence of
claimant’s post-decision surgery, where WCJ had evidence prior to decision that
surgery was scheduled, such that evidence of occurrence of surgery was cumulative,
and where claimant agreed to closing of record although he knew surgery was
planned); Frederick v. Workers’ Comp. Appeal Bd. (Toll Bros.) (Pa. Cmwlth., No.
327 C.D. 2013, filed Aug. 6, 2013), slip op. at 7, 2013 Pa. Commw. Unpub. LEXIS
617, *10-11 (unreported) (no rehearing for after-discovered medical evidence in the
form of post-hearing medical report, where claimant could have sought continuance
to obtain such evidence but did not).
Finally, we reject Claimant’s suggestion that the finding of a reasonable
contest by Employer must be reconsidered on remand. Because we affirm the
findings and conclusions underlying the determination of a reasonable contest,
Claimant is not entitled to reconsideration of that issue.
V. Conclusion
Based on the foregoing discussion, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdullah Heard, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Philadelphia Parking Authority), : No. 767 C.D. 2020
Respondent :
ORDER
AND NOW, this 17th day of February, 2021, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge