UPMC Pinnacle Hospitals v. R. Orlandi (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
UPMC Pinnacle Hospitals, :
Petitioner :
:
v. :
:
Renee Orlandi (Workers’ :
Compensation Appeal Board), : No. 596 C.D. 2022
Respondent : Submitted: February 3, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: July 21, 2023
UPMC Pinnacle Hospitals (Employer) petitions for review of the May
13, 2022, order of the Workers’ Compensation Appeal Board (Board), which
modified in part, reversed in part, and otherwise affirmed a December 14, 2021,
order of the Workers’ Compensation Judge (WCJ) in this matter. The WCJ’s order
denied Employer’s termination petition and granted a review petition filed by Renee
Orlandi (Claimant). The Board affirmed the WCJ’s denial of the termination
petition, reversed the WCJ’s grant of the review petition to the extent that it
erroneously added a supraspinatus left shoulder tear to the description of Claimant’s
work injury, modified the WCJ’s description of injury to correctly reflect the
evidence, and modified the WCJ’s order to reflect the WCJ’s intent to award
Claimant temporary total disability benefits beginning on April 14, 2021. Upon
review, we affirm the Board’s order.
I. Background
On August 6, 2019, Claimant sustained a work-related injury.
Reproduced Record (R.R.) at 1a. On September 24, 2019, Employer issued a
medical-only Notice of Temporary Compensation Payable (NTCP) accepting a left
shoulder sprain “from scanning patients.” Id. On October 12, 2020, Employer filed
a termination petition asserting that Claimant fully recovered from her injuries as of
a June 23, 2020, independent medical examination (IME). Id. at 3a. On October
22, 2020, Claimant filed a review petition seeking to expand the description of injury
to include “left shoulder supraspinatus tear, cervical strain and cervical
radiculopathy.” Id. at 6a. This litigation ensued.
Claimant testified in a deposition on November 17, 2020. R.R. at 9a.
She worked for Employer as a registered vascular ultrasound technologist. Id. at
16a-17a. She used her left arm to operate the machine and her right arm to perform
compressions on patients; she did these tests 7-9 times per day. Id. at 18a. While
working on her last patient of the day on August 6, 2019, she felt pain from the left
side of her neck down to her trapezius, deltoid muscle areas, and left arm. Id. at 19a.
She went the next day to an orthopedic walk-in clinic and was given prednisone; she
missed a few days of work. Id. at 20a. Upon her return, her managers agreed to
transfer her to another location where she did not have to do as many scans. Id. at
21a. She treated conservatively with chiropractic care and physical therapy and
underwent MRI and EMG exams. Id. at 23a. She continued working at the same
pay rate, but had ongoing pain from her scanning duties, which she reported to her
2
supervisors. Id. at 24a & 28a. As of the date of her deposition, she was on
restrictions limiting lifting, pushing, and pulling, but still had pain. Id. at 28a.
Claimant acknowledged having received treatment on her left shoulder
in February 2019, six months before the injury at issue. R.R. at 28a. At that time,
she received an injection from Employer’s doctors and was able to resume full duty
full time work until the injury at issue in August 2019; this previous treatment had
been handled as a workers’ compensation matter. Id. at 29a. She also recalled
having some bilateral shoulder pain on both sides in the 1990s that resolved with
over-the-counter supplements. Id. at 29a-30a. She stated she did not have neck pain
or treatment prior to August 2019. Id. at 36a.
At the time of her deposition, Claimant felt pain and stiffness from her
ongoing work duties in the left side of her back at the trapezius muscles, over her
left scapula area, and in her left shoulder. R.R. at 32a & 46a. Overall, however, her
condition had improved from a 6/10 pain level to 3/10. Id. at 44a-45a. She stated
that she used to ride horses and still owned a horse, but did not ride it as of the time
of her deposition. Id. at 47a.
Claimant testified at a second deposition on May 10, 2021. R.R. at 62a.
She had worked mostly full duty and in pain until undergoing neck surgery on April
14, 2021, and had not yet returned to work as she was still healing. Id. at 69a-70a.
She had hoped to avoid surgery, but conservative measures had not helped. Id. at
71a. She was about to start physical therapy and had begun receiving Employer-
funded short-term disability payments at 40% of her regular pay, which was $29.61
per hour at 40 hours per week. Id. at 72a & 81a. Since the surgery, her neck felt
much better, but she still had left arm weakness and pain. Id. at 74a. She took
Percocet, Zanaflex, and a steroid after the surgery and was taking Meloxicam (an
3
anti-inflammatory) and Gabapentin for nerve pain. Id. at 75a. Since her previous
deposition but before her surgery, she rode her horse occasionally with a horse
trainer’s assistance at slow speeds for short periods of time (up to 10 minutes), but
had not done so since the surgery. Id. at 77a & 82a. She intended to return to full
duty work once she was released to do so.1 Id. at 79a & 83a.
Claimant’s treating orthopedic surgeon, Dr. Tyson Maugle, D.O.,
testified in a March 29, 2021, deposition. When he first saw Claimant in December
2019, she reported experiencing pain since August 2019 in the left side of her neck
radiating into the left shoulder and arm. R.R. at 135a. She told him that her work
required her to turn her neck in ways that exacerbated her pain. Id. He took x-rays
that showed degenerative conditions at C5-6, and he also detected left side cervical
and arm radiculopathy; he initially attributed her condition to degenerative changes,
but also believed that her work duties “contributed to her symptoms.” Id. at 138a-
39a. He concluded that her left shoulder issues were due to referred pain from her
cervical condition. Id. at 141a. She underwent a cervical MRI later in December
2019 that was consistent with mild degenerative changes. Id. at 142a & 144a.
Dr. Maugle stated that at subsequent visits, Claimant continued to
report pain when doing her work duties. R.R. at 143a & 148a. As of his March
2021, deposition, Claimant’s radiculopathy had not improved with conservative
treatment, and she had decided to undergo surgery. Id. at 149a-50a. She would have
to stop working for the surgery and to heal afterwards; he thought she could return
to full duty about three months after the surgery. Id. at 154a & 167a. Dr. Maugle’s
ultimate diagnosis was cervical degenerative disc disease at C5-6 and C6-7 with
1
According to Employer’s brief, Claimant returned to work on or about July 11, 2021.
Employer’s Br. at 8 n.1.
4
bilateral foraminal stenosis at C5-6 and left side foraminal stenosis at C6-7 with left
upper arm cervical radiculopathy. Id. at 150a-51a. Based on Claimant’s reports to
him about her work duties and pain when repeatedly turning her neck while doing
her job, he related her diagnosis and clinical presentation to her work-related
activity. Id. at 151a-52a & 156a-57a.
During cross-examination, Dr. Maugle acknowledged that his
conclusions as to causation depended on the veracity and accuracy of the history
Claimant reported to him and that she had not told him about any prior left shoulder
or neck issues. R.R. at 160a & 166a-67a. He had not discussed causation in his
contemporary medical notes. Id. at 161a. He conceded that Claimant’s diagnostics
showed no acute findings and that her degenerative conditions are common at the
C5-6 and C6-7 levels and could cause pain with certain maneuvers of the neck. Id.
at 162a-64a. Her horseback riding could also cause symptoms. Id.
Employer’s medical expert, Dr. Lawrence Pollack, D.O., an orthopedic
surgeon, testified in a February 25, 2021, deposition. He saw Claimant for an IME
on June 23, 2020. R.R. at 92a. Claimant told him of past left shoulder pain in early
2019 with numbness, tingling, and a “buzzing sensation” that was treated with
chiropractic care and an injection. Id. at 92a. She told him that on August 6, 2019,
while working regular duty, she was performing a scan on a patient when she felt
left shoulder and left cervical spine pain. Id. He read her medical records from her
initial treatment for that injury beginning three days later; she reported in those
records that her pain flared up from working. Id. at 93a. He noted in the records
that after the August 2019 incident, she reported a “buzzing sensation” in her left
arm as she had earlier that year. Id. at 95a.
5
Dr. Pollack agreed with Dr. Maugle that “the source of [Claimant’s]
issue is cervical spine.” R.R. at 96a. He disagreed, however, that her condition was
more serious and ultimately concluded that she sustained “at most” a left shoulder
and cervical strain from her work duties that had fully resolved by the June 2020
IME. Id. at 94a-96a & 98a. To the extent she continued to feel symptoms, Dr.
Pollack attributed these to her underlying degenerative conditions. Id. at 98a.
At a hearing on April 27, 2021, Claimant’s counsel advised the WCJ
and Employer’s counsel that Claimant had taken time off work to undergo surgery.
Certified Record (C.R.) at 88.2 The WCJ stated that both doctors’ depositions had
been submitted into evidence along with Claimant’s prior and upcoming depositions
on May 10, 2021. Id. at 87. When asked by the WCJ if anything further would be
added to the record, Employer’s counsel stated that other than a statement of wages,
he did not believe so, and he reiterated this several minutes later. Id. at 88-89. The
WCJ did not expressly close the record but advised the parties that they would have
60 days from the hearing date to complete Claimant’s second deposition and submit
briefs on their respective petitions. Id. at 88. As noted above, Claimant’s second
deposition took place on May 10, 2021.
June 27, 2021, was 60 days from the April 27, 2021, hearing. The
reproduced record prepared by Employer in association with this appeal includes a
July 7, 2021, letter by Employer’s counsel to the WCJ; the letter lists Employer’s
objections to Dr. Maugle’s deposition testimony.3 R.R. at 191a. The letter adds that
Claimant’s counsel “has no objection to the timing of this request” and thanks the
2
References to the Certified Record are to electronic pagination.
3
Employer’s Counsel objected to certain questions on causation as leading and “asked and
answered.” R.R. at 139a & 151a-52a.
6
WCJ for his “kind attention to this request.” Id. The letter indicates “VIA WCAIS”4
at the top. Id. However, the letter does not include proof of filing in the WCAIS
system and does not appear in the certified record or in the listing of exhibits in the
WCJ’s December 14, 2021, decision on this matter. See id. at 193a; see also
generally C.R.
The WCJ’s decision credited Claimant’s testimony as clear, concise,
logical, and consistent with both the medical records and Dr. Maugle’s testimony.
R.R. at 196a. The WCJ credited Dr. Maugle’s testimony for the same reasons, as
well as because Dr. Maugle was Claimant’s treating doctor. Id. at 197a. The WCJ
did not credit Dr. Pollack’s testimony as it contradicted that of Claimant and Dr.
Maugle. Id. at 195a. The WCJ granted Claimant’s review petition because she had
established that her work-related injury description should be expanded to include
“left shoulder supraspinatus tear, cervical strain, and cervical radiculopathy,” which
is how Claimant phrased her injury in her review petition. Id. at 197a; see also id.
at 6a. The WCJ denied Employer’s termination petition because it had not shown
that Claimant fully recovered from her work-related injury. Id. The WCJ’s decision
did not expressly award wage loss benefits to Claimant as of April 14, 2021, when
she went out of work for her surgery, but did state in the order that “Employer is
ordered to deduct 20% from the Claimant’s compensation and pay same to
Claimant’s counsel. The remainder of Claimant’s compensation is to be paid
directly to the Claimant.” Id. at 199a.
Both sides appealed to the Board, which issued a May 13, 2022,
decision and order. R.R. at 206a-22a. The Board reversed the WCJ’s inclusion of
4
WCAIS is a web-based system for workers’ compensation claims management and
adjudication. Parties use it to file petitions, applications, forms, exhibits, and other documents
online with the Bureau of Workers’ Compensation, the Workers’ Compensation Office of
Adjudication, and the Board.
7
a supraspinatus left shoulder tear in the expanded description of injury and modified
the description of injury from the “cervical strain and cervical radiculopathy” in the
WCJ’s decision to “cervical strain, left shoulder strain or tear, and cervical
degenerative disc disease at C5-C6 and C6-C7, bilateral foraminal stenosis at C5-
C6, and left sided foraminal stenosis at C6-C7, and left upper extremity cervical
radiculopathy,” which was consistent with Dr. Maugle’s diagnosis.5 Id. at 222a; see
also id. at 150a-51a. The Board noted that Employer’s objections to Dr. Maugle’s
causation testimony may have been waived and, in any event, were meritless because
that testimony was consistent and unequivocal that Claimant’s condition was related
to her work duties. Id. at 220. In the alternative, the Board noted that even if the
WCJ erred in accepting Dr. Maugle’s testimony, it would be harmless error since
Claimant’s testimony relating her condition to her work duties was also found
credible and “an exacerbation of her cervical issues was an obvious injury.” Id.
Finally, the Board noted that even though the WCJ had not expressly awarded
Claimant wage loss benefits in his decision, the order’s language indicated that the
WCJ clearly intended to do so as of when she went out of work on April 14, 2021,
for her surgery. Id. at 212a. Employer petitioned for review in this Court.
II. Issues
Employer raises three claims to this Court.6 Employer first asserts that
the Board erred by affirming the WCJ Decision expanding the description of
5
Claimant has not appealed any aspect of the Board’s decision, which stated that “Dr.
Maugle did not testify that the supraspinatus left shoulder tear was work-related and that Claimant
conceded that that injury was not work-related.” R.R. at 217a.
6
This Court’s scope of review is limited to determining whether the WCJ’s necessary
findings of fact are supported by substantial evidence, whether an error of law was committed, or
8
Claimant’s work injury to include work-related cervical conditions because Dr.
Maugle’s causation testimony was equivocal and therefore incompetent. See
Employer’s Br. at 18-26. Second, Employer claims the Board erred by failing to
rule on its objections. See id. at 26-32. Third, Employer argues that the Board erred
by interpreting the WCJ’s order as intending to award Claimant wage loss benefits
from the date of the surgery on April 14, 2021. See id. at 32-34.
III. Discussion
A. Claimant’s Doctor’s Causation Testimony
When a claimant files a review petition seeking to expand an accepted
description of a work injury, the claimant must show that the asserted additional
injuries are causally related to the work injury. Degraw v. Workers’ Comp. Appeal
Bd. (Redner’s Warehouse Mkts., Inc.), 926 A.2d 997, 1000 (Pa. Cmwlth. 2007). In
this regard,
[a] claimant bears the burden of presenting unequivocal
medical testimony to establish the causal link between a
work incident and a disability when such a causal link is
not obvious, and the causal link is not obvious if a claimant
has a pre-existing condition related to the same body part
the claimant alleges was injured at work. The question is
one of law and is fully reviewable. In reviewing medical
testimony, the testimony must be examined as a whole.
whether constitutional rights were violated. Russell v. Workmen’s Comp. Appeal Bd. (Volkswagen
of America), 550 A.2d 1364, 1365 (Pa. Cmwlth. 1988). On appeal, the prevailing party is entitled
to the benefit of the most favorable inferences to be drawn from the evidence. Fulton v. Workers’
Comp. Appeal Bd. (Sch. Dist. of Phila.), 707 A.2d 579, 582 (Pa. Cmwlth. 1998). The appellate
role in a workers’ compensation case is not to reweigh the evidence or review the credibility of
the witnesses; rather, the Board or reviewing court must simply determine whether, upon
consideration of the evidence as a whole, the WCJ’s findings have the requisite measure of support
in the record. Bethenergy Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 612 A.2d 434(Pa. 1992).
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Moyer v. Workers’ Comp. Appeal Bd. (Pocono Mountain Sch. Dist.), 976 A.2d 597,
599 n.3 (Pa. Cmwlth. 2009) (internal citation omitted; emphasis in original). This
Court has explained:
The question of whether expert medical testimony
is unequivocal, and, thus, competent evidence to support
factual determinations is a question of law subject to our
review. In such cases, we review the testimony as a whole
and may not base our analysis on a few words taken out of
context. Taking a medical expert’s testimony as a whole,
it will be found to be equivocal if it is based only upon
possibilities, is vague, and leaves doubt. Medical
testimony is unequivocal if a medical expert testifies, after
providing foundation for the testimony, that, in his
professional opinion, he believes or thinks a fact exists.
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa.
Cmwlth. 2012) (internal citations, quotation marks, and brackets omitted). “Medical
testimony is equivocal if it is less than positive or merely based upon possibilities.”
Potere v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684, 690 (Pa. Cmwlth.
2011) (citing Lewis v. Workmen’s Comp. Appeal Bd., 498 A.2d 800 (Pa. 1985)).
However, “there are no magic words that a doctor must recite to
establish causation.” Campbell v. Workers’ Comp. Appeal Bd. (Pittsburgh Post
Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). “There is no requirement that
every utterance that escapes the lips of a medical witness on a medical subject must
be certain, positive, and without reservation, exception, or p[e]radventure of a doubt
in order to be considered unequivocal.” Id. “Moreover, it is not necessary that the
claimant’s medical expert rule out with absolute certainty other factors that may have
caused or contributed to a condition.” Id.Additionally, if a medical expert’s opinion is based on certain
assumptions, the potential inaccuracy of those assumptions will not render the
10
expert’s opinion equivocal and incompetent if the expert’s opinion is supported by
the medical record. In Somerset Welding and Steel v. Workmen’s Compensation
Appeal Board (Lee), 650 A.2d 114 (Pa. Cmwlth. 1994), the treating doctor stated
that he assumed the medical history provided by the claimant was true and accurate
when he assigned causation of the claimant’s condition to a work incident. Id. at
118. To the extent that assumption was incorrect, this Court concluded that the
doctor’s causation testimony was nevertheless competent and unequivocal: “medical
causation testimony is not rendered equivocal because it is based on the medical
expert’s assumption of the truthfulness of the information provided; however, the
supposed facts forming the basis of that determination must be proven by competent
evidence and accepted as true by the [WCJ].” Id. In Somerset Welding, the medical
record included competent evidence that the actual injury occurred as described by
the claimant, and therefore the doctor’s causation testimony was deemed competent.
Id. at 118-19.
In Moyer, the claimant had preexisting back issues but was performing
his full and usual work duties when he sustained a back injury after an incident and
could not work afterwards. 976 A.2d at 598-99. The treating doctor, who had seen
claimant previously for his back issues, assumed the incident was the cause of the
claimant’s disability. Id. at 600. We deemed the doctor’s testimony competent
because it was not solely based on his assumption but was ultimately supported by
“the fact that there was a definite and documented injury at work requiring hospital
treatment as well as corroborating medical documents that [the c]laimant had indeed
suffered an injury while lifting a heavy object and had sought emergency treatment.”
Id. The doctor’s causation opinion was valid because it was “not based on an
assumption that [the c]laimant's injuries could cause such results, but rather, that if
11
the accident occurred as [the c]laimant described it, then it was the cause of those
results.” Id. (emphasis in original). In essence, the doctor’s opinion was competent
because it was not based on an assumption, “but rather on a host of factors that led
him inescapably to that conclusion.” Id.Here, the WCJ credited Dr. Maugle’s causation testimony and
expanded the description of the work-related injury to include, inter alia, work-
related cervical radiculopathy. R.R. at 197a. The Board concluded that, taken as a
whole, Dr. Maugle’s testimony regarding causation was unequivocal and consistent.
Id. at 220a. Employer argues that Dr. Maugle’s causation testimony was
contradictory and equivocal and, thus, incompetent. Employer’s Br. at 18-21 & 25-
26 (citing Potere). Employer adds that Dr. Maugle’s lack of knowledge of
Claimant’s medical history, including prior symptoms identical to those she reported
in August 2019, rendered his testimony incompetent. Id. at 21-23 (citing Sw.
Airlines/Cambridge Integrated Serv. v. Workers’ Comp. Appeal Bd. (King), 985
A.2d 280 (Pa. Cmwlth. 2009)). Claimant responds that the WCJ’s expansion of the
description of injury was proper and therefore the Board did not err in affirming.
Claimant’s Br. at 8-10.
In his deposition, Dr. Maugle stated that when he first saw Claimant,
he initially attributed her condition to degenerative changes. R.R. at 138a. However,
based on her description of how she specifically felt pain when she had to turn her
neck repeatedly to do her work duties, he added that “I did believe those contributed
to her symptoms.” Id. at 139a; see also 135a, 143a & 148a. He then reiterated that
he related her diagnosis and reported symptoms “to her work-related activity around
August of 2019”; agreed when asked if “her clinical presentation is related to the
12
way she described she performs her work duties”; and restated that he attributed her
condition to “her work-related injury in August of 2019.” Id. at 151a-52a & 157a.
On the other hand, during cross-examination, Dr. Maugle
acknowledged the possibility that Claimant’s condition and symptoms could be due
solely to her underlying degenerative changes, activities of daily living, or riding her
horse. Id. at 162a-64a. He also conceded that she had not mentioned any prior
cervical or left shoulder issues to him and he did not disagree when questioned
whether Claimant’s work duties were described as only a “contributing factor” to
her condition along with her underlying degenerative changes. Id. at 167a.
Based on the evidence as a whole, we conclude that Dr. Maugle’s
causation testimony was competent. Although he conceded the possibility that
Claimant’s degenerative conditions could become symptomatic in the absence of a
specific incident or work-related cause, he consistently related her condition to her
work duties, particularly her need to turn her neck repeatedly in order to perform
those duties. He did not express uncertainty that her condition was related to her
work duties. Cf. PetSmart, Inc. v. Workers’ Comp. Appeal Bd. (Sauter), 219 A.3d
703, 707 (Pa. Cmwlth. 2019) (holding doctor’s testimony incompetent where he
stated that the claimant’s symptomatology was of “indeterminate etiology” and that
it was his “presumption” that the claimant’s diagnosis was work-related). As noted,
“magic words” are not required to determine the competency of medical testimony
and the bar for unequivocal testimony is not particularly high. Campbell, 954 A.2d
at 730; cf. Potere, 21 A.3d at 691 (holding that contradictory opinions rendered
doctor’s testimony “less than positive, and, hence, equivocal”).
Likewise, although Dr. Maugle stated that he first thought Claimant’s
condition was solely due to her degenerative changes, his subsequent causation
13
testimony was not contradictory; once he knew of Claimant’s work duties,
specifically her need to repeatedly turn her neck, he did not opine that any of the
other possible causes, such as riding her horse or degenerative changes, were equally
or more likely to be the cause than her work duties. See Campbell, 954 A.2d at 730.
Dr. Maugle’s reasonable description of how he went from his first impression that
Claimant’s condition was due solely to her degenerative changes to his ultimate
conclusion that her condition was work-related also distinguishes this case from
Potere, on which Employer relies. There, the doctor’s entire testimony was found
to be contradictory, including an opinion that the claimant was able to return to work
full duty but, at the same time, also required light duty restrictions. 21 A.3d at 691.
Employer also argues that Dr. Maugle’s opinion is incompetent because
Claimant had similar symptoms, such as the “buzzing sensation” in her left arm, in
early 2019 and then again in August 2019 when she reported the injury at issue here,
and did not report the previous left shoulder issues to Dr. Maugle. It is true that “the
causal link is not obvious if a claimant has a pre-existing condition related to the
same body part the claimant alleges was injured at work.” Moyer, 976 A.2d at 599
n.3. However, to the extent that Dr. Maugle’s causation testimony relied on a belief
that Claimant had no prior left shoulder issues, this Court has explained that doctors’
assumptions, even if based on incomplete information, will not invalidate their
testimony if their conclusions are supported in the record and therefore borne out by
other evidence. Moyer, 976 A.2d at 600; Somerset Welding, 650 A.2d at 118.
Here, the WCJ accepted as credible Claimant’s testimony that on
August 6, 2019, she sustained pain to the left side of her neck down through her left
shoulder to her left arm when performing her work duties. R.R. at 19a. The record
reflects that she treated for it the next day and reported it to Employer, which not
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only accommodated her by transferring her to another location where her workload
would be lighter, but accepted the injury, albeit as a left shoulder issue, via a
medical-only NTCP. Id. at 1a & 20a-21a. Dr. Maugle explained that Claimant’s
injury was not based in her shoulder, but in her cervical area; this conclusion was
shared by Employer’s expert and accepted by the WCJ. Id. at 96a & 141a. Although
Claimant did report similar conditions earlier in 2019 and was treated for them as a
shoulder (rather than cervical) condition, at the time of the subject incident on
August 6, 2019, she was working full duty and had not reported pain or difficulty or
requested accommodations prior to that date.
Employer’s reliance on Southwest Airlines is misplaced. There, in the
context of a claim petition, the claimant alleged a head injury from being hit by a
jetway door; based on her account, her treating doctor diagnosed her with post-
concussive syndrome. 985 A.2d at 281-83. The claimant testified that she had no
prior head injuries or concussion symptoms and had reported no such issues to her
treating doctor. Id. at 282. However, fact witnesses could not corroborate that an
incident occurred, and medical discovery revealed that the claimant also had an
extensive history of head issues. Id. at 287-88 & n.6. The claimant’s diagnostic
tests did not reflect a head trauma and the employer’s doctor opined that she had not
sustained an injury at all or, if anything, only a non-disabling “trivial” injury. Id. at
283-85. The WCJ granted the claim petition and the Board affirmed, but this Court
reversed, concluding that the claimant’s doctor’s testimony was incompetent, not
because it was equivocal, but because he lacked knowledge of the claimant’s
extensive history of head issues and there was no other support for the claimant’s
claim. Id. at 287-88.
15
Here, by contrast, there is an accepted injury and Claimant’s review
petition burden was to establish the greater extent of her injury and its work-
relatedness, not to establish a work-related injury in the first place. Although Dr.
Maugle did not know specifically of Claimant’s early 2019 issues, this does not
invalidate his otherwise supported conclusion that her reported, documented,
accepted, and medically-treated issues that began on August 6, 2019, were indeed
work related. Employer’s allegations in this regard are therefore meritless.
B. Employer’s Objections to Dr. Maugle’s Causation Testimony
Section 131.101 of the Pennsylvania Worker’s Compensation Act7
(Act) regulations states in relevant part:
(c) The evidentiary record is closed when the parties have
submitted all of their evidence and rested or when the
judge has closed the evidentiary record on a party’s motion
or the judge’s own motion. . . . When the judge determines
that the evidentiary record is closed, the judge will notify
the parties that the evidentiary record is closed on the
record or in writing.
(d) A party may move to close the evidentiary record and
all other parties shall advise the judge within 20 days as to
whether the evidentiary record is closed or whether there
is additional evidence to be submitted. At the conclusion
of the 20-day period, the judge will determine whether the
evidentiary record will be closed or will remain open.
(e) A judge may close the evidentiary record on the
judge’s own motion even if all parties have not rested
when the judge determines that the parties have had
reasonable opportunity to present their case, provided that
reasonable notice of the closing of the evidentiary record
has been given to all parties.
7
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
16
34 Pa. Code § 131.101(c)-(e). Section 131.66(b) of the regulations states that when
depositions are conducted,
[o]bjections shall be made and the basis for the objections
stated at the time of the taking of the depositions. Only
objections which are identified in a separate writing,
introduced prior to the close of the evidentiary record, as
close of the record is specified in § 131.101(c)--(e)
(relating to briefs, findings of fact and close of record), and
stating the specific nature of the objections and the pages
where they appear in the deposition or the exhibits to
which they refer will be preserved for ruling. Objections
not so preserved are waived.
34 Pa. Code § 131.66(b) (emphasis added). When issues with written objections
have arisen, this Court has held that if they do not appear in the certified record, they
are waived. Degraw, 926 A.2d at 1001 (stating that “[t]here is no list of preserved
objections contained in the record. Thus, even if [the c]laimant’s counsel objected .
. . , those objections would be waived.”); see also Alessandro v. Workers’ Comp.
Appeal Bd. (Precision Metal Crafters, LLC), 972 A.2d 1245, 1248 n.2 (Pa. Cmwlth.
2009) (same).
Employer argues that the WCJ erred in failing to address its objections
to Dr. Maugle’s causation testimony. Employer’s Br. at 27-32. Employer reiterates
that this testimony was equivocal and adds that to the extent it was definitive, this
was only because it was elicited by Claimant’s counsel’s leading and repetitive
questions. Id. Claimant responds that Employer waived its objections because they
were never properly submitted to the WCJ for consideration. Claimant’s Br. at 11-
13.
At the April 27, 2021, hearing, the WCJ stated that both doctors’
depositions had been submitted into evidence along with Claimant’s initial and
upcoming deposition scheduled for May 10, 2021. C.R. at 87. When asked by the
17
WCJ if anything further would be added to the record, Employer’s counsel stated
that other than a statement of Claimant’s wages, he did not believe so, and he
reiterated this several minutes later. Id. at 88-89. Although the WCJ did not
expressly close the record, he advised the parties that they would have 60 days from
the hearing date to complete Claimant’s second deposition and submit briefs on their
respective petitions. Id. at 88.
The 60-day deadline was June 27, 2021. However, the reproduced
record prepared by Employer in association with this appeal includes a July 7, 2021,
letter by Employer’s counsel to the WCJ. R.R. at 191a. The letter lists Employer’s
objections raised at Dr. Maugle’s deposition and indicates “VIA WCAIS” at the top.
Id. However, the letter does not include proof of filing in the WCAIS system and
does not appear in the certified record or in the listing of exhibits in the WCJ’s
December 14, 2021, decision. See id. at 193a; see also generally C.R.
The WCJ did not include Employer’s objections in the exhibit list at the
beginning of his decision and did not address them in the decision. See R.R. at 193a-
99a. The Board suggested that Employer may have waived its objections, but
ultimately concluded that they were meritless and that any error in this regard by the
WCJ was harmless because Dr. Maugle’s testimony was ultimately deemed credible
and persuasive. Id. at 219a-20a. We agree.
As noted, Employer’s list of objections in its reproduced record does
not include proof of filing via WCAIS and is not included in the certified record.
See Degraw, 926 A.2d at 1001; Alessandro, 972 A.2d at 1248 n.2. Moreover, as
discussed above, Dr. Maugle’s causation testimony was competent, supported by the
record, and found credible and persuasive by the WCJ, who would have had
discretion to deny Employer’s objections had they been properly preserved. See
18
Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd. (Bromley), 161 A.3d 446, 467
n.26 (Pa. Cmwlth. 2017). Employer’s objections are therefore both waived and
meritless.
C. Claimant’s Eligibility for Wage Loss Benefits
The second paragraph of Section 413(a) of the Act states in relevant
part:
A [WCJ] may, at any time, modify, reinstate, suspend, or
terminate [an NCP] . . . upon petition filed by either party
with the department, upon proof that the disability of an
injured employe has increased, decreased, recurred, or has
temporarily or finally ceased[.]
77 P.S. § 772. It is also “well-established that the form of the petition is not
controlling where the facts warrant relief, and that if a claimant is entitled to relief
under any section of the Act, his petition will be considered as filed under that
section.” City of Phila. v. Workers’ Comp. Appeal Bd. (Cospelich), 893 A.2d 171,
179-80 (Pa. Cmwlth. 2006) (internal citations and quotation marks omitted). This
court has found no error where a WCJ awarded benefits under a provision of the Act
different from that under which the petition was filed. Id.; see also Steele v.
Workers’ Comp. Appeal Bd. (Findlay Twp.), 155 A.3d 1173, 1179 (Pa. Cmwlth.
2017) (citing Cospelich and Gen. Refractories Co. v. Workmen’s Comp. Appeal Bd.
(Wright), 635 A.2d 120, 122-23 (Pa. 1993) and noting that “[t]he Pennsylvania
Supreme Court has affirmed this practice”).
The flexibility of Section 413(a) has also been judicially extended to
allow corrections of WCJ decisions, which may be made on a party’s petition or sua
sponte by either the WCJ or the Board. See Johnson v. Workers’ Comp. Appeal Bd.
(Budd Co.), 693 A.2d 1015, 1017-18 (Pa. Cmwlth. 1997) (holding that “an
19
administrative agency may, on its own motion, correct typographical, clerical and
mechanical errors, as well as undisputed factual errors and factual misconceptions,
provided proper notice and explanation is given”); see also Bentley v. Workers’
Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 987 A.2d 1223, 1230 (Pa. Cmwlth.
2009) (holding that the Board may correct a “technical error” in a WCJ decision);
Pritchett v. Workers’ Comp. Appeal Bd. (Stout), 713 A.2d 1214, 1217 & n.3 (Pa.
Cmwlth. 1998) (same). However, this does not apply where correction of the alleged
error requires a change in the WCJ’s factual or legal analysis or additional factual
findings or conclusions of law. Varkey v. Workers’ Comp. Appeal Bd. (Cardone
Indus. & Fireman Fund), 827 A.2d 1267, 1273 (Pa. Cmwlth. 2003); Butcher v.
Workmen’s Comp. Appeal Bd. (Treadway Resort Inn), 517 A.2d 1023, 1026 (Pa.
Cmwlth. 1986).
Here, the WCJ’s decision did not expressly award Claimant wage loss
benefits. See R.R. at 194a-99a. However, the WCJ credited Dr. Maugle’s testimony
that Claimant’s April 2021 surgery, which ultimately took her out of work through
July 2021, was due to her accepted work-related injury. Id. at 197a. Employer notes
that because it issued a medical-only NTCP, Claimant had to file a claim petition
seeking wage loss benefits in addition to the review petition to expand the
description of injury. Employer’s Br. at 32-33. Employer asserts that wage loss
benefits were therefore never properly litigated before the WCJ. Id. Employer adds
that the WCJ’s decision did not expressly award wage loss benefits and that the
Board could not deduce that intent solely from the language of the WCJ’s order. Id.Claimant responds that the WCJ accepted Dr. Maugle’s attribution of Claimant’s
surgery and subsequent time out of work to her work injury and that the evidence
supported wage loss benefits. Claimant’s Br. at 13-15. As such, Claimant avers that
20
the Board was within its authority to correct the WCJ’s oversight in failing to
formally award wage loss benefits. Id.The WCJ also stated in his order that “Employer is ordered to deduct
20% from the Claimant’s compensation and pay same to Claimant’s counsel. The
remainder of Claimant’s compensation is to be paid directly to the Claimant.” Id. at
199a. The Board acknowledged the lack of clarity in the WCJ’s decision, but
concluded that the decision and order, read as a whole, indicated that the WCJ
intended to award wage loss benefits as of Claimant’s April 2021 surgery. Id. at
209a-12a. This was primarily because the order would not make sense if it was read
to require Employer to pay anything “directly to the Claimant” when all that had
previously been accepted by Employer were medical expenses. Id.We recognize that Claimant did not file a claim petition specifically
seeking wage loss benefits after she went out of work in April 2021due to her surgery
(while her October 2020 review petition was pending) and that the WCJ did not
expressly award them to Claimant. This is not the typical typographical or clerical
error that the Board usually corrects, such as a date, average weekly wage, or
description of injury. See, e.g., Johnson, 693 A.2d at 1016 (holding that the Board
was authorized to correct a WCJ’s misstatement of the claimant’s reinstatement
date).
However, based on our review of the record, correction of the “error”
here does not require a change in the WCJ’s factual or legal analysis or additional
factual findings or conclusions of law. Varkey, 827 A.2d at 1273; Butcher, 517 A.2d
at 1026. Employer submitted into evidence a statement of wages reflecting
Claimant’s average weekly wage of $1,361.07. C.R. at 328-29. This amount was
higher than Claimant’s testimony that she earned $29.61 per hour for a 40-hour
21
workweek ($1,184.40). R.R. at 81a. The statement of wages was included in the
list of exhibits in the WCJ’s opinion. R.R. at 193a. There was no need, therefore,
to litigate wages in this matter. Additionally, Employer was on notice as of Dr.
Maugle’s March 2021 deposition that Claimant would be undergoing surgery and
out of work for a period of time to heal, as well as Dr. Maugle’s attribution of the
need for the surgery to Claimant’s accepted work-related injury. Id. at 149a-54a &
167a. Employer was further on notice that Claimant had actually gone out of work
after her April 2021 surgery because at the April 27, 2021, hearing, Claimant’s
counsel informed Employer’s counsel and the WCJ; moreover, Claimant confirmed
at her May 2021 deposition that she had gone out of work. C.R. at 88; R.R. at 69a-
70a.
Although the WCJ’s decision and order did not expressly award
Claimant post-surgery wage loss benefits other than stating in the order that after a
20% deduction for attorney’s fees, the “remainder of Claimant’s compensation is to
be paid directly to the Claimant,” the WCJ did conclude that the surgery was related
to her work injury. The record as a whole supports that determination as well as the
reasonable inference that Claimant’s ensuing three months of disability were also
due to her injury. See Ace Wire Spring & Form Co. v. Workers’ Comp. Appeal Bd.
(Walshesky), 93 A.3d 923, 931 (Pa. Cmwlth. 2014) (holding that the reviewing
tribunal or court shall “draw all reasonable inferences which are deducible from the
evidence in support of the factfinder’s decision in favor of [the] prevailing party”).
Therefore, the Board did not err in concluding that the language in the WCJ’s order
reflected an intent to award wage loss benefits to Claimant for the period she was
22
out of work following her surgery. Employer’s argument in this regard is therefore
meritless.8
IV. Conclusion
In light of the foregoing discussion, the Board’s May 13, 2022, order
modifying in part, reversing in part, and otherwise affirming the WCJ’s December
14, 2021, order, which denied Employer’s termination petition, granted Claimant’s
review petition, and awarded wage loss benefits as of Claimant’s April 14, 2021,
surgery is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
Claimant does not dispute that Employer is entitled to a credit for short-term disability
benefits funded by Employer that Claimant received while out of work after her surgery during
the litigation of this matter.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
UPMC Pinnacle Hospitals, :
Petitioner :
:
v. :
:
Renee Orlandi (Workers’ :
Compensation Appeal Board), : No. 596 C.D. 2022
Respondent :
ORDER
AND NOW, this 21st day of July, 2023, the May 13, 2022, order of the
Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge