A. Mercado v. Antonio Origlio, Inc. (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antonio Mercado, :
Petitioner :
:
v. : No. 500 C.D. 2022
: Submitted: December 9, 2022
Antonio Origlio, Inc. (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: April 18, 2023
Antonio Mercado (Mercado) petitions for review (Petition for Review) of the
May 4, 2022 order of the Workers’ Compensation Appeal Board (Board) affirming
the Workers’ Compensation Judge’s (WCJ) Decision and Order (WCJ Order), which
denied Mercado’s Claim Petition (Claim Petition). After review, we conclude the
Board properly affirmed the WCJ Order, and we affirm.
I. Background and Procedural History
On July 29, 2020, Mercado filed a Claim Petition under the Workers’
Compensation Act (Act)1 alleging he sustained a work injury on June 1, 2020, while
bending and lifting as an order picker for Antonio Origlio, Inc. (Employer). He
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Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
sought partial disability benefits from June 1, 2020, through July 5, 2020, and then
ongoing full disability benefits from July 6, 2020, forward. Employer filed a timely
Answer denying the material allegations.
On October 13, 2020 and June 22, 2021, the WCJ held hearings on the Claim
Petition. The WCJ received testimony both in support of and in opposition to
Mercado’s request. On December 16, 2021, the WCJ set forth the testimony he
received in a Findings of Fact, and he issued an order denying Mercado’s Claim
Petition. In its opinion, the Board presented the factual background as follows:
[Mercado] testified that his job duties for [Employer] involved
selecting and loading cases of beer onto a skid steer to be shipped out
to customers. He believed that most of the time the lifting involved ten
to fifteen pounds at most. He testified that on June 1, 2020, he was
lifting thirty can packs of beer when he felt a heat and pain in his back
between his shoulder blades and lower back. [Mercado] indicated that
he notified his supervisor, whose name he was not sure of, but it was a
third shift supervisor, and subsequently left work and sought medical
treatment at Urgent Care. [Mercado] was eventually seen at WorkNet
and placed on light duty restrictions. [Mercado] testified he continued
to work through June 22, 2020, but did not feel he could perform the
assigned position. [Mercado] then came under the care of Dr. Stempler,
who took [Mercado] out of work as of July 6, 2020. [Mercado] testified
he does not feel he has been physically capable of performing his
regular job. [Mercado] denied ever injuring his neck or back prior to
June 1, 2020, or July 6, 2020.
On cross examination, [Mercado] acknowledged that he began
working for [Employer] on December 11, 2019, and had numerous non-
work related absences since that time. [Mercado] acknowledged that
some of his absences were no-shows. [Mercado] gave numerous
explanations for his absences, including not having a ride, the covid
virus and family matters related to the same, and his children.
[Mercado] acknowledged that he eventually received a written warning
on March 14, 2020, regarding his absences. [Mercado] denied having a
conversation with Jocelyn Miranda, his supervisor, that he hurt his back
at home while playing with his children.
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[Mercado] presented the deposition testimony of Norman
Stempler, a previously board-certified orthopedic surgeon who first
performed a medical teleconference examination of [Mercado] on July
1, 2020. At that time, Dr. Stempler obtained a history of [Mercado]’s
alleged work injury, and he noted that [Mercado] reported mid to lower
back pain with numbness and tingling in his hands and feet. Dr.
Stempler recommended an MRI [Magnetic Resonance Imaging] to go
with the nerve testing, physical therapy, as well as chiropractic
treatment. An MRI was obtained August 28, 2020, which revealed a
L4/5 posterior bulge with pivoted ligament hypertrophy causing some
canal narrowing, with a disc bulge of the side. A July 7, 2020, EMG
[Electromyography] study of the lower extremity showed a right L5
radiculopathy, which Dr. Stempler found to be consistent with
[Mercado]’s complaints of pain. Dr. Stempler ultimately opined that as
a result of the June 1, 2020, incident, [Mercado] sustained chronic
refracturing, which may be difficult to treat, cervical thoracolumbar and
lumbosacral, as well as sacroiliitis musculoligamentous with
myofascitis with microfiber musculoligamentous disruption with tears,
chronic sacroiliitis, myofascitis, and intermittent lumbar radiculitis. In
his opinion, [Mercado] would not be physically capable of performing
his regular position of employment without restrictions.
[Employer] presented the testimony of Jocelyn Miranda, the
Executive Supervisor for [Employer]. Ms. Miranda testified that she
was familiar with [Mercado], having worked with him on a daily basis
when he came to work. She indicated that on or around June 1, 2020,
she noticed that [Mercado] was a little “offish” and she asked him what
was wrong. Ms. Miranda stated [Mercado] said his back was hurting,
and when she asked what had happened, he said he hurt his back while
messing with his kids at home. She further indicated that she asked
[Mercado] if he injured his back at work, and he said he did not,
reiterating that he hurt his back at home playing with his kids. Ms.
Miranda acknowledged that she eventually became aware that
[Mercado] alleged a work injury. She stated that she then advised her
supervisor, Rob[ert] Wagner, that [Mercado] had told her that he hurt
himself at home. Ms. Miranda agreed that she made this conversation
known to the company attorney around August 2020, but she had
informed Mr. Wagner of the same prior to that meeting.
[Employer] presented the testimony of Robert Wagner, who is
presently the Safety Manager for [Employer]. Mr. Wagner indicated
that he is familiar with [Mercado], having been the one to have hired
him on December 19, 2019. He indicated that when [Mercado] was
3
hired, he was advised as to the [Employer]’s attendance policy, with
employees being allowed five unexcused absences within 365 days.
Mr. Wagner indicated that [Mercado]’s attendance was not very good
at all, and confirmed that between December 11, 2019, and the alleged
date of injury, [Mercado] had 20 absences in that six-month period. Mr.
Wagner indicated [Mercado] had not been terminated, as he felt
[Mercado] was a good kid, and a hard worker when he was at work, and
was going through some tough times in his life. Mr. Wagner confirmed
that as of May 14, 2020, [Mercado] was provided with a final written
counseling, advising him that a doctor’s note would be required when
calling off. Mr. Wagner confirmed he first became aware that
[Mercado] was alleging a work injury on June 1, 2020, when he
received a call from Patient First. Mr. Wagner testified that he
eventually spoke with Ms. Miranda, and she told him that [Mercado]
did not hurt himself at work, but at home playing with his children. Mr.
Wagner stated that his conversation with Ms. Miranda happened on
June 2, 2020.
[Employer] presented the deposition testimony of Menachem M.
Meller, M.D., an orthopedic surgeon who examined [Mercado] on
October 19, 2020. Dr. Meller obtained a history of [Mercado]’s alleged
work injury and subsequent medical treatment, and also reviewed
[Mercado]’s diagnostic studies. Dr. Meller indicated that [Mercado]’s
symptoms are not corroborated and do not correlate with the diagnostic
studies. He explained that the location of [Mercado]’s asserted
continuing complaints is not consistent with any of the mild, relatively
unremarkable findings on the diagnostic studies. Dr. Meller testified
that he performed a physical examination which revealed only mild
findings. Ultimately, Dr. Meller opined that there was no hard evidence
that [Mercado] sustained a work-related injury.
Board Opinion (Bd. Op.), 5/4/22 at 2-6 (citations to the record omitted).
Ultimately, the WCJ found Mercado “failed to sustain his [b]urden of [p]roof
that he sustained a work injury on June 1, 2020 or that any subsequent disability or
medical care and treatment [was] causally related to the same.” WCJ Order,
Conclusions of Law, ¶ 3. Mercado appealed the WCJ Order to the Board. The Board
affirmed the WCJ Order, finding it “contains the necessary findings of fact,” and
agreeing Mercado failed to meet his burden of proof. Bd. Op., 5/4/22, at 7-8.
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Mercado filed his Petition for Review with this Court. He raises the following
issue: “Whether the decision of the [Board] affirming the [WCJ]’s complete denial
of the Claim Petition is supported by substantial competent evidence and is well
reasoned?” Mercado’s Brief at 4. Mercado argues, “[t]he evidence submitted does
not support a complete denial of the petition.” Petition for Review ¶ 3. Specifically,
he alleges, “[t]he findings are inconsistent and are not supported by the record and
crucial issues were not addressed,” and the WCJ “failed to resolve the inherent
inconsistencies in the [E]mployer’s fact testimony which impacted his credibility
findings.” Id.
II. Discussion
In a claim petition, a claimant has the burden of establishing a right to
compensation and must prove all the elements necessary to support an award of
benefits. Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595
(Pa. 1993). As an essential element for an award of benefits, the claimant must
establish he sustained a work-related injury. Sch. Dist. of Phila. v. Workers’ Comp.
Appeal Bd. (Lanier), 727 A.2d 1171, 1172 (Pa. Cmwlth. 1999).
“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.” Frankiewicz v. Workers’ Comp.
Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991, 995 n.2 (Pa. Cmwlth. 2017).
Questions of credibility, conflicting medical evidence, and evidentiary weight fall
within the WCJ’s authority, and the WCJ is free to accept the testimony of any
witness, including medical witnesses, in whole or in part. Ingrassia v. Workers’
Comp. Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394, 399 n.5 (Pa.
Cmwlth. 2015).
5
Mercado questions the WCJ’s credibility determinations. While credibility
determinations generally are not subject to review, in order to offer a “reasoned
decision” in compliance with the Act, Section 422(a), the WCJ must issue a 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. This Court has held a WCJ must provide reasons for accepting or rejecting
evidence. Ingrassia, 126 A.3d at 402-403 Further, our Supreme Court concluded,
“[a]bsent some articulation of the basis for [the WCJ’s] conclusion on credibility . .
. [a] credibility decision does not meet the standard found in Section 422(a).”
Daniels v. Worker’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1054 (Pa.
2003).
In the WCJ Order, the WCJ provided reasons he accepted or rejected
evidence. For example, the WCJ did not find Mercado’s testimony credible and
rejected it in its entirety. The WCJ explained his testimony was “replete with
inconsistencies, both internally and as compared to credible Employer witness
testimony.” WCJ Order, Findings of Fact, ¶ 11.c. On the other hand, the WCJ
accepted the testimony of both Mr. Wagner and Ms. Miranda, employees of
Employer, finding it “credible, probative and persuasive.” Id. ¶ 11.d. The WCJ
expanded on this credibility determination, explaining Mr. Wagner “was very non-
adversarial on cross-examination, acknowledging he made every attempt to give
[Mercado] the benefit of the doubt and tried to maintain [Mercado’s] employment
status.” Id. The WCJ found Ms. Miranda’s recollection of discussions with
Mercado were “far more credible, probative and persuasive” compared to Mercado’s
6
“extremely inconsistent recollection of times, dates [and] reasons for his unexcused
absences . . . .” Id.
The WCJ also received testimony from two physicians. The WCJ found the
testimony of Dr. Meller “credible, probative and persuasive” and found his
“description of the nature and extent of his physical examination and review of the
evidentiary record . . . quite comprehensive and detailed.” Id. ¶ 11.e. However, the
WCJ rejected the testimony of Dr. Stempler, explaining his opinions were
“significantly based upon an acceptance of the history as presented by [Mercado],”
and were formulated after a telemedicine conference, without physical examination
or review of records, and did not change despite “subsequent conflicting diagnostic
findings.” Id. ¶ 11.f.
The WCJ considered the medical evidence presented, reports of other
employees of Employer, and Mercado’s own testimony. Ultimately, the WCJ
rejected Mercado’s testimony and medical evidence, and as a result, Mercado failed
to meet his burden of proof in establishing he sustained a work injury. The WCJ
set forth substantial evidence, along with rationale for his credibility determinations,
to support his decision to deny Mercado’s Claim Petition. In so doing, the WCJ
issued a reasoned decision in compliance with Section 422(a).
III. Conclusion
For the foregoing reasons, we conclude the WCJ’s findings are supported by
substantial evidence, he issued a reasoned decision, and the Board properly affirmed
the WCJ Order. Accordingly, we affirm the Board’s Order.
______________________________
STACY WALLACE, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antonio Mercado, :
Petitioner :
:
v. : No. 500 C.D. 2022
:
Antonio Origlio, Inc. (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 18th day of April 2023, the May 4, 2022 order of the
Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
STACY WALLACE, Judge