S.L. Brown v. WCAB (Abington Memorial Hospital) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sharon Leonard Brown, :
Petitioner :
:
v. : No. 2040 C.D. 2016
: Submitted: July 7, 2017
Workers' Compensation Appeal :
Board (Abington Memorial :
Hospital), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: November 7, 2017
Sharon Leonard Brown (Claimant) petitions for review from an order
of the Workers’ Compensation Appeal Board (Board) that affirmed in part, reversed
in part and modified a Workers’ Compensation Judge’s (WCJ) decision. Relevant
here, the Board denied Claimant’s review petition to the extent Claimant sought to
add complex regional pain syndrome/reflex sympathetic dystrophy (CRPS/RSD)
and chronic pain to the description of her accepted work injuries. Claimant argues
the WCJ and the Board erred in failing to amend the description of the accepted
work injury to include CRPS/RSD. She also asserts the Board erred in reversing the
WCJ’s determination that she suffers from a chronic pain condition. Upon review,
we affirm.
I. Background
Claimant worked for Abington Memorial Hospital (Employer) as a
safety sitter, assisting elderly patients in various capacities. She suffered a work
injury in August 2012 for which Employer issued a notice of compensation payable
(NCP) recognizing a right foot contusion and a low back strain.
In June 2013, Employer filed a termination petition alleging Claimant
fully recovered from her accepted work injuries. Claimant denied the material
allegations.
About a month later, Claimant filed a review petition alleging the
NCP’s injury description should be amended to include: CRPS/RSD, right
sacroiliitis, adjustment disorder with anxious and depressed mood and chronic pain
syndrome. Employer denied the material allegations. The termination and review
petitions were consolidated. Hearings ensued before a WCJ.
Before the WCJ, Claimant testified she worked for Employer as a safety
sitter. Her job entailed sitting with elderly patients with conditions such as dementia,
depression and bipolar disorder for the patients’ safety. In August 2012, Claimant
was sitting with a patient on suicide watch. The patient suddenly jumped up out of
a large hospital recliner, and both he and the recliner fell on Claimant. The foot rest
of the chair hit Claimant’s right foot, as did the patient. After nurses lifted the patient
off of Claimant, a nurse took Claimant to the emergency room in a wheelchair.
Claimant testified she suffers pain in her lower back across her groin
and inner thighs and into her right foot. She receives treatment from Dr. Steven M.
2
Rosen, M.D. (Claimant’s Physician) every three months. She also treats with a
neurologist. Claimant uses crutches at all times as recommended by her physical
therapist. She is unable to put a shoe on her right foot. Claimant wore a walker boot
for a period, and she now wears a shoe boot with a sock to prevent irritation;
however, she experiences pain when putting on a sock. Claimant tends to fall while
using the crutches, but if she does not use them, the pressure causes pain in her right
groin. Claimant has an implanted spinal stimulator that lessens her pain. She takes
medication for pain as well as for depression. Claimant has difficulty sleeping
because of her pain, and she experienced a loss of appetite. Claimant has not looked
for work because her doctors have not released her to do so.
In support of her review petition and in opposition to Employer’s
termination petition, Claimant presented the testimony of her Physician, who is
board-certified in anesthesia with added qualifications in pain management.
Claimant’s Physician first examined Claimant in January 2013 after a referral from
a neurologist. Claimant provided her Physician with a history of the work accident.
She indicated she developed increasing pain soon after the injury radiating from the
right foot and ankle up through her groin and buttocks. Upon physical examination,
Claimant’s right foot was sensitive to light touch with pain radiating to the back and
her foot was cold and damp. Claimant experienced tenderness in the right sciatic
notch in the buttocks, where the sciatic nerve is most superficial. Ultimately,
Claimant’s Physician opined Claimant developed RSD as a result of the August 2012
work accident. He further opined Claimant was incapable of performing her pre-
injury job or other gainful employment.
3
In addition, Claimant presented the deposition testimony of Ira H.
Solomon, Ph.D. (Claimant’s Psychologist), a licensed clinical psychologist.
Claimant’s Psychologist first evaluated Claimant in March 2013 after a referral from
Claimant’s Physician. Claimant’s Psychologist diagnosed adjustment disorder with
anxious and depressed mood, and chronic pain syndrome as a result of the August
2012 work accident. Claimant’s Psychologist opined Claimant is incapable of
performing gainful employment because of her mental state.
In opposition to Claimant’s review petition and in support of its
termination petition, Employer submitted the deposition testimony of Dr. Dennis
Ivill (Employer’s Physician), who is board-certified in physical medicine and
rehabilitation. Based on Claimant’s history, his review of Claimant’s medical
records and diagnostic test results, and his physical examination, Employer’s
Physician opined Claimant fully recovered from her accepted right foot contusion
and low back sprain. He also opined Claimant does not suffer from RSD.1
Employer’s Physician further opined Claimant could return to work without
restrictions, and she required no further medical treatment for her work injuries.
In addition, Employer submitted the deposition testimony of Dr.
Wolfram Rieger, M.D. (Employer’s Psychiatrist), who is board-certified in
psychiatry. Based on his evaluation, Claimant’s history, and a review of Claimant’s
medical records, Employer’s Psychiatrist opined that Claimant did not suffer a work-
related psychiatric disorder. Employer’s Psychiatrist further opined Claimant fully
1
Both Claimant’s Physician and Employer’s Physician agreed that reflex sympathetic
dystrophy (RSD) is the same condition as complex regional pain syndrome (CRPS).
4
recovered from any adjustment disorder or depression as of the time of his
evaluation.
Based on the evidence presented, the WCJ made the following
determinations (with emphasis added):
12. Claimant’s testimony is credible and persuasive in
part. This Judge had the ability to observe Claimant’s
demeanor during her testimony at the … hearing. This
Judge believes that Claimant has ongoing
symptomatology, both physical and psychological, that is
related to the work injury.
13. This Judge finds [Employer’s Physician] more
credible than [Claimant’s Physician] on the issue of
whether or not Claimant suffers from RSD and whether it
is work-related. This Judge does not find that Claimant
suffers from RSD. This Judge finds [Employer’s
Physician] more credible based upon the results of his
physical examination, showing Claimant’s temperature in
her lower extremities to be consistent, no shiny or mottled
skin, no abnormal nail growth, no edema, no sweating, and
no muscle atrophy. In addition Claimant’s objective test
studies were normal and while many tests will not indicate
RSD, the triple phase bone scan does, and is customarily
relied upon for the diagnosis of this disease. Claimant’s
bone scan was normal. For these reasons, this Judge finds
[Employer’s Physician’s] testimony and opinions more
credible than those of [Claimant’s Physician], which
aren’t supported by any objective test studies and whose
observations on examination are in contrast to the
observations by [Employer’s Physician]. While Claimant
does experience right foot pain, it does not rise to the level
of RSD.
14. On the issue of psychological impairment arising from
the work injury, [Claimant’s Psychologist’s] testimony is
found more credible and persuasive than [Employer’s
Psychiatrist]. [Claimant’s Psychologist’s] opinions were
5
supported by his multiple evaluations of Claimant and his
findings upon examination. While [Employer’s
Psychiatrist] attributes Claimant’s psychological
symptoms to her spouses’ prior deaths, this Judge finds
that her ongoing psychological symptoms are attributable
to her work injury and her subsequent disability.
Furthermore, this Judge had the opportunity to view
Claimant’s affect in person at the time of her testimony
which supports a finding that a work-related psychological
injury has been sustained.
15. In addition to the right foot contusion and low back
strain listed on the NCP, Claimant sustained additional
work injuries in the nature of adjustment disorder with
depressed and anxious mood and chronic pain in both her
right foot and lower back. Claimant remains temporarily
totally disabled by reason of her physical and
psychological work injuries.
WCJ’s Op., 3/13/15, Findings of Fact (F.F.) Nos. 12-15.
Based on these findings, the WCJ amended the NCP to include chronic
pain in the right foot and lower back as well as adjustment disorder with depressed
and anxious mood. The WCJ also determined Claimant did not prove she suffered
RSD as a result of the work injury. Additionally, the WCJ determined Employer did
not prove Claimant fully recovered from the work injuries arising from the August
2012 work incident. Employer and Claimant filed cross appeals to the Board.
On appeal, the Board rejected Claimant’s argument that the WCJ erred
in failing to amend the description of the work injury to include CRPS/RSD.
Specifically, the Board explained no error was apparent in the WCJ’s decision to
credit Employer’s Physician’s opinion that Claimant did not suffer from CRPS/RSD
over the contrary opinion of Claimant’s Physician.
6
However, the Board determined the WCJ erred in finding Claimant
sustained chronic pain in her right foot and lower back. Specifically, the Board
explained, the WCJ erred in amending the NCP to include chronic pain based on the
testimony of Claimant’s Psychologist where that testimony was based on an
incorrect assumption that Claimant’s CRPS/RSD was work-related. Because
Claimant’s Psychologist’s opinion that Claimant suffers from chronic pain relied on
Claimant’s Physician’s opinion that Claimant suffers from work-related CRPS/RSD,
which the WCJ rejected, the Board determined Claimant’s Psychologist’s testimony
was not competent to support an amendment to the NCP to include chronic pain.
In addition, the Board determined the WCJ erred in denying
Employer’s termination petition in its entirety. In particular, the Board concluded
the uncontroverted evidence revealed Claimant fully recovered from her right foot
contusion and low back strain. Thus, the Board determined the WCJ should have
treated Employer’s termination petition as a modification petition, and modified the
NCP to reflect that Claimant fully recovered from the accepted right foot contusion
and low back strain, while recognizing Claimant continues to be disabled from her
psychological injury, adjustment disorder with depressed and anxious mood. See
Section 413(a) of the Workers’ Compensation Act (Act).2 Before the Board,
Employer did not challenge the WCJ’s determination that Claimant sustained
adjustment order with depressed and anxious mood or that she is temporarily and
totally disabled from this work-related condition.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
7
As a result, the Board reversed the WCJ’s decision to the extent the
WCJ granted Claimant’s review petition to include chronic pain and to the extent
the WCJ denied Employer’s termination petition in its entirety. The Board modified
the WCJ’s decision to recognize Employer is entitled to a termination of medical
benefits for the previously accepted right foot contusion and low back strain. The
Board also concluded Claimant’s entitlement to ongoing benefits for her work-
related psychological injuries continues. This appeal by Claimant followed.
II. Issues
On appeal,3 Claimant argues the WCJ and the Board erred in failing to
amend the description of the accepted work injury to include CRPS/RSD. She also
asserts the Board erred in reversing the WCJ’s determination that she suffers from a
chronic pain condition.
III. Discussion
A. CRPS/RSD
Claimant first argues the WCJ and the Board erred in determining she
did not sustain RSD as a result of the work injury. She asserts all of her treating
physicians diagnosed RSD, and the objective test Employer’s Physician relied on in
reaching his opinion that Claimant does not suffer from CRPS/RSD is unreliable.
Claimant further contends the WCJ’s determination that she does not suffer from
CRPS/RSD does not constitute a reasoned decision.
3
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).
8
At the outset, we note, as the ultimate fact-finder in workers’
compensation cases, the WCJ “has exclusive province over questions of credibility
and evidentiary weight ….” A & J Builders, Inc. v. Workers’ Comp. Appeal Bd.
(Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ may accept or reject the
testimony of any witness in whole or in part. Id.Further, “[i]t is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the critical inquiry is whether
there is evidence to support the findings actually made.” Furnari v. Workers’ Comp.
Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation omitted).
We examine the entire record to see if it contains evidence a reasonable person might
find sufficient to support the WCJ’s findings. Id. If the record contains such
evidence, the findings must be upheld, even though the record may contain
conflicting evidence. Id. Additionally, we must view the evidence in the light most
favorable to the prevailing party and give it the benefit of all inferences reasonably
deduced from the evidence. Id.In addition, to satisfy the reasoned decision requirements of Section
422(a) of the Act, 77 P.S. §834, a WCJ must set forth the rationale for the decision
by specifying the evidence relied upon and reasons for accepting it. Daniels v.
Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003); Dorsey
v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth.
2006). When conflicting evidence is presented, the WCJ must adequately explain
the reasons for rejecting or discrediting competent evidence. Daniels. “[T]he
purpose of a reasoned decision is to spare the reviewing court from having to
9
imagine why the WCJ believed one witness over another.” Dorsey, 893 A.2d at 196(citation omitted).
A WCJ may base a credibility determination solely on a witness’s
demeanor when the witness testifies live before the WCJ. Daniels. However,
“[w]here medical experts testify by deposition, a WCJ’s resolution of conflicting
evidence must be supported by more than a statement that one expert is deemed more
credible than another.” Dorsey, 893 A.2d 194. To allow effective appellate review,
the WCJ must articulate an objective basis for the credibility determination. Id. at
194-95. Although there are countless objective factors that may support a credibility
determination, these factors must be identified and enunciated. Id.
Nevertheless, “Section 422(a) does not permit a party to challenge or
second-guess the WCJ’s reasons for credibility determinations.” Id. at 195. “Unless
made arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld
on appeal.” Id.
In addition, under Section 413(a) of the Act, a WCJ may amend an NCP
at any time during litigation of any petition if the evidence shows the injury sustained
in the original work incident is different or more expansive than that listed in the
NCP.4 Harrison v. Workers’ Comp. Appeal Bd. (Auto Truck Transp. Corp.), 78
A.3d 699, 704 (Pa. Cmwlth. 2013) (citing Cinram Mfg., Inc. v. Workers’ Comp.
Appeal Bd. (Hill), 975 A.2d 577, 580-81 (Pa. 2009)). This is known as a “corrective
amendment.” Id. Additionally, the NCP can be amended if the claimant files a
4
Section 413(a) states, in relevant part: “A [WCJ] may, at any time, review and modify or
set aside a [NCP] and an original or supplemental agreement ... if it be proved that such [NCP] or
agreement was in any material respect incorrect.” 77 P.S. §771.
10
review petition and proves that another injury subsequently arose as a consequence
of the original injury. Id. The party seeking to amend the NCP has the burden of
proving the NCP is materially incorrect. Id. (citing Namani v. Workers’ Comp.
Appeal Bd. (A. Duie Pyle), 32 A.3d 850 (Pa. Cmwlth. 2011)).
Further, the causal connection between the work injury and the alleged
disability, if not obvious, must be established by unequivocal medical testimony.
Haynes v. Workers’ Comp. Appeal Bd. (City of Chester), 833 A.2d 1186 (Pa.
Cmwlth. 2003). “The causal connection between RSD and [a] [c]laimant’s work-
related injury is not obvious, like falling down and breaking a leg for example, but
instead RSD is a syndrome that needs to be medically diagnosed and related back to
the injury.” Krepps v. Workers’ Comp. Appeal Bd. (HCR Manor Care, Inc.) (Pa.
Cmwlth., No. 2158 C.D. 2008, filed April 8, 2009), slip op. at 12, 2009 WL 9100375at *5 (unreported).
Here, in determining Claimant did not prove she suffered from
CRPS/RSD so as to warrant amendment of the NCP to add that condition, the WCJ
credited the testimony of Employer’s Physician over that of Claimant’s Physician.
F.F. No. 13. The WCJ based this determination on: (1) the results of Employer’s
Physician’s physical examination, which showed Claimant’s temperature in her
lower extremities to be consistent, no shiny or mottled skin, no abnormal nail
growth, no edema, no sweating, and no muscle atrophy; and, (2) the fact that
Claimant’s objective test studies, including a bone scan, were normal. Id. The WCJ
further explained that Claimant’s Physician’s opinions that Claimant suffers
CRPS/RSD were not supported by any objective test studies, and Claimant’s
11
Physician’s observations on examination conflicted with Employer’s Physician’s
observations. Id. Thus, the WCJ determined, although Claimant experiences right
foot pain, it does not rise to the level of RSD. Id.The WCJ’s determinations are adequately supported by the record. See
Dep. of Dennis Ivill, M.D., 9/30/13, Notes of Testimony (N.T.), at 16-17, 21-22, 25-
29; Reproduced Record (R.R.) at 182A-83A, 184A, 185A-86A; see also Dep. of
Steven M. Rosen, M.D., 2/20/14, N.T., at 33-34, 61-62; R.R. at 113A-14A, 141A-
42A. Because the record amply supports the WCJ’s bases for his credibility
determinations, we cannot disturb them. Further, the WCJ’s objective bases for
crediting Employer’s Physician’s testimony that Claimant does not suffer
CRPS/RSD as a result of her work injuries over the contrary testimony of Claimant’s
Physician satisfies the reasoned decision requirement of Section 422(a) of the Act.
In addition, although Claimant points to the fact that her other treating
physicians diagnosed CRPS/RSD, Claimant did not present the testimony of any of
these other physicians. Thus, as the Board explained (with emphasis added):
While Claimant contends that all of her treating doctors
diagnosed RSD, Claimant chose to present [her Physician]
on this issue and the WCJ chose to accept [Employer’s
Physician’s] opinion over [Claimant’s Physician’s]
opinion, as was within her purview as fact-finder.
Claimant attacks the WCJ’s reliance on [Employer’s
Physician] because he agreed there is no gold standard test
for RSD, that bone scans may or may not be positive
depending on the stage, and that Claimant’s normal bone
scan was done only months after her work injury.
However, [Employer’s Physician] also testified that the
diagnosis of RSD is often based on history and physical
examination and he consistently stated that he found no
objective evidence of RSD on physical examination as
Claimant had normal hair and nail growth, normal
12
temperatures, etc. He also noted that the fact that
Claimant’s sympathetic blocks made her pain worse
argues against the diagnosis. [Employer’s Physician’s]
did not recant his opinion that Claimant did not sustain
RSD, at any time, in any respect. Given the testimony and
the WCJ’s complete explanation, we cannot agree that the
WCJ’s acceptance of [Employer’s Physician’s] opinion
was erroneous. Rendering credibility determinations is
the quintessential function of the fact-finder, and in
reviewing credibility determinations, substantial
deference is due.
Bd. Op., 11/21/16, at 10-11 (citations omitted). We discern no error in this analysis.
Therefore, we reject Claimant’s argument that the WCJ erred in failing to amend the
NCP to include CRPS/RSD.
B. Chronic Pain
Claimant next argues the Board erred in determining that the WCJ’s
finding that Claimant suffers chronic pain in her right foot and lower back was not
supported by substantial, competent evidence. At a minimum, Claimant contends,
the Board should have remanded to the WCJ for a reasoned decision. To that end,
Claimant argues, it is clear from the WCJ’s findings and conclusions that the WCJ
determined Claimant continues to suffer physical and psychological injuries.
However, the Board’s decision left Claimant with only psychological injuries. As
such, Claimant maintains a remand for further proceedings or clarification as to the
physical injuries was required.
13
“While an expert witness may base his opinion on facts of which he has
no personal knowledge, those facts must be supported by evidence of record.”
Newcomer v. Workmen’s Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d
1062, 1066 (Pa. 1997). Additionally, “the supposed facts forming the basis of [the]
determination must be proven by competent evidence and accepted as true by the
[WCJ].” Somerset Welding & Steel v. Workmen’s Comp. Appeal Bd. (Lee), 650
A.2d 114 (Pa. Cmwlth. 1994). An opinion of a medical expert that relies solely on
inaccurate facts is incompetent as a matter of law. Casne v. Workers’ Comp. Appeal
Bd. (Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008).
Here, the WCJ determined Claimant suffers chronic pain in her right
foot and lower back. Although Claimant’s Psychologist diagnosed chronic pain
syndrome, in arriving at this diagnosis, Claimant’s Psychologist testified, “[t]o
qualify for chronic pain syndrome[5] one needs to have a physiological disorder of a
chronic nature. In this case we are relying upon the basis of chronic regional pain
syndrome [(CRPS)] or reflex sympathetic dystrophy [(RSD)] being present ….”
Dep. of Ira H. Solomon, Ph.D., 12/16/13, N.T. at 17; R.R. at 33A (emphasis added);
see also Solomon Dep. at 19; R.R. at 35A. As explained above, however, the WCJ
rejected Claimant’s Physician’s opinion that Claimant suffers from CRPS/RSD.
F.F. No. 13. Because Claimant’s Psychologist relied on a diagnosis of work-related
CRPS/RSD in forming his opinion as to the existence of chronic pain syndrome and
its cause, his testimony was not competent to satisfy Claimant’s burden of proving
5
Although the WCJ found the work injury to include “chronic pain in [Claimant’s] right
foot and lower back,” WCJ’s Op., 3/13/15, Finding of Fact No. 15, Claimant’s Psychologist
testified as to a diagnosis of “chronic pain syndrome.” Dep. of Ira H. Solomon, Ph.D., 12/16/13,
Notes of Testimony (N.T.), at 17, 19; Reproduced Record (R.R.) at 33A, 35A.
14
she suffered from chronic pain as found by the WCJ. See, e.g., Hawkins v.
Workmen’s Comp. Appeal Bd. (Med. College of Pa.), 587 A.2d 387 (Pa. Cmwlth.
1991) (expert medical opinion that is contrary to established facts is valueless).
Thus, the Board properly determined the WCJ erred in amending the NCP to include
chronic pain, and, contrary to Claimant’s assertions, a remand is unnecessary on this
issue.6
For these reasons, we affirm the Board’s order.7
ROBERT SIMPSON, Judge
6
Further, while Claimant asserts that the logical conclusion to be drawn from the record is
that Claimant’s chronic pain in her right foot and lower back are both psychiatric and physical in
nature, we cannot “draw medical conclusions in the absence of a medical opinion supporting such
a conclusion.” Bd. Op., 11/21/16, at 12 n.4. As the Board properly explained, Claimant’s
Physician did not diagnose chronic pain or chronic pain syndrome; rather, he diagnosed
CRPS/RSD. The diagnosis of chronic pain syndrome was raised in the context of Claimant’s
Psychologist’s testimony as to Claimant’s work-related psychological conditions.
7
In the Statement of Questions Involved Section of her brief, Claimant also asks “Whether
the WCJ properly denied Employer’s termination petition?” However, Claimant presents no
argument on this issue. Therefore, it is waived. Pa. State Univ. v. Workers’ Comp. Appeal Bd.
(Sox), 83 A.3d 1081 (Pa. Cmwlth. 2013) (failure to properly develop issue in brief results in
waiver). In any event, even if not waived, no error is apparent in the Board’s determination that
Employer was entitled to a termination of benefits as to Claimant’s right foot contusion and lower
back strain. Indeed, Claimant’s Physician himself acknowledged that these injuries fully resolved.
Dep. of Steven M. Rosen, M.D., 2/20/14, N.T. at 33; R.R. at 113A.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sharon Leonard Brown, :
Petitioner :
:
v. : No. 2040 C.D. 2016
: Submitted: July 7, 2017
Workers' Compensation Appeal :
Board (Abington Memorial :
Hospital), :
Respondent :
ORDER
AND NOW, this 7th day of November, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sharon Leonard Brown, :
:
Petitioner :
:
v. : No. 2040 C.D. 2016
: Submitted: July 7, 2017
Workers' Compensation Appeal :
Board (Abington Memorial :
Hospital), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE WOJCIK FILED: November 7, 2017
Respectfully, I disagree that the workers’ compensation judge (WCJ)
erred in amending the description of the work injury to include chronic pain and
denying the termination petition filed by Abington Memorial Hospital (Employer).
Accordingly, I would reverse.
Employer filed a termination petition alleging that Sharon Leonard
Brown (Claimant) was fully recovered from her accepted work injuries as of April
12, 2013. Claimant filed a review petition seeking to amend the description of the
work injury to include complex regional pain syndrome/reflex sympathetic
dystrophy (CRPS or RSD); right sacroiliitis;1 adjustment disorder with anxious and
1
Inflammation of the sacroiliac joint. Stedman’s Medical Dictionary 1377 (25th ed. 1990).
depressed mood; and chronic pain syndrome. The WCJ denied Employer’s
termination petition and granted Claimant’s review petition in part.
In doing so, the WCJ found the testimony of Claimant and her treating
psychologist, Ira H. Solomon, Ph.D. to be credible and relied on their testimony to
add right foot chronic pain, lower back chronic pain, and adjustment disorder with
depressed and anxious mood to the description of the work injury. The WCJ also
credited the opinion of Employer’s medical expert “on the issue of whether or not
Claimant suffers from RSD.” WCJ’s Finding of Fact No. 13. The WCJ specifically
found that, “[w]hile Claimant does experience right foot pain, it does not rise to the
level of RSD.” WCJ’s Finding of Fact No, 13.
Accordingly, the WCJ granted Claimant’s review petition in part,
adding adjustment disorder with depressed and anxious mood and injuries of “right
chronic foot pain and lower back chronic pain” to the Notice of Compensation
Payable (NCP), but denying her request to add RSD to the description of the work
injury. WCJ’s Conclusions of Law No. 2. Having found “that Claimant has ongoing
symptomatology, both physical and psychological, that is related to the work injury,”
WCJ’s Finding of Fact No 12, the WCJ denied Employer’s termination petition.
On appeal to the Board, Employer did not challenge the finding that
“Claimant sustained adjustment disorder with anxious and depressed mood or that
this injury is disabling.” (Employer’s brief at 9 n.2). However, Employer argued
that the WCJ erred in finding that Claimant sustained chronic pain as the result of
the work injury and challenged the WCJ’s denial of the termination petition as it
relates to the previously accepted injuries.
The Board reversed the WCJ’s determination that Claimant suffers
from chronic pain, opining that “the WCJ’s determination in this respect is
MHW - 2
inconsistent.” Board’s op. at 11. The Board noted a distinction between Dr.
Solomon’s testimony regarding a diagnosis of “chronic pain syndrome,” id. n.3, and
the WCJ’s finding of “chronic pain in both her right foot and lower back.” In fact,
the Board recognized that “[t]he diagnosis of chronic pain syndrome was raised in
the context of Dr. Solomon’s testimony as to his opinion of Claimant’s work-related
psychological conditions.” (Board op. at 12 n.4 (emphasis added)). Nevertheless,
the Board reasoned that because Dr. Solomon’s diagnosis of “chronic pain
syndrome” was directly related to a medical diagnosis of CRPS/RSD, and the
diagnosis of CPRS/RSD had been rejected by the WCJ, Dr. Solomon’s testimony
was insufficient to support the WCJ’s finding that Claimant suffers from chronic
pain.
The first flaw in the Board’s reasoning is its assumption that the only
evidence supporting the WCJ’s finding of chronic pain was rejected by the WCJ.
Claimant provided detailed testimony concerning her ongoing pain, which was
credited and relied upon by the WCJ. WCJ’s Findings of Fact, Nos. 4, 12.
Specifically, Claimant testified that she “has pain in her lower back across the groin
and inner thighs, down into the right foot. . . . [I]t hurts to put on [a] sock. . . . [and
she] has difficulty sleeping at night due to pain . . . .” (WCJ’s Finding of Fact No.
4(c), (d)).
Notably, whereas the WCJ added “chronic pain” to the work injuries,
the Board deliberately added the word “syndrome” to the WCJ’s determination.
Board’s op. at 11. The Majority affirms the Board’s conclusion that the WCJ erred
in including “this diagnosis in the amendment of the NCP.” (Board’s op. at 12.)
On appeal, Claimant argues that the Board “blatantly disregarded the
intent of the WCJ in finding both a physical and psychological injury” when it
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altered the WCJ’s Conclusions of Law. (Claimant’s brief at 30). I agree. Claimant
also challenges the WCJ’s credibility determinations with respect to the medical
opinion testimony. However, the WCJ explicitly rejected the medical testimony
offered to support a diagnosis of CRPS or RSD and those credibility determinations
are not subject to appellate review. Accordingly, the ultimate question on appeal is
whether a WCJ’s amendment of an NCP to include chronic pain can be sustained
without a medical diagnosis. We have repeatedly held that it can be.
In Meadow Lakes Apartments v. Workers’ Compensation Appeal Board
(Spencer), 894 A.2d 214 (Pa. Cmwlth. 2006), the claimant filed a review petition
seeking to expand the description of the injuries accepted by the employer in the
NCP. The WCJ found the claimant’s testimony credible that he had symptoms of
pain from the initial injury. However, the WCJ also noted that, while the testimony
of the claimant’s doctor supported the claimant’s testimony, the doctor never
provided a medical diagnosis. Consequently, the WCJ concluded that the claimant
had not met his burden of proof on the review petition. On appeal, the Board
reversed and amended the NCP to include “overuse syndrome.”
On appeal, we noted that pain itself that is causally related to the
employment is compensable under the Workers’ Compensation Act2.
[W]e are aware of no authority that requires a workers’
compensation injury to carry a professional diagnosis or
descriptive tag. As discussed hereafter, pain itself, if
causally related to employment, may be compensable
under the Act as an injury. The presence of a diagnosis
may impact the credibility of testimony addressing the
existence of pain or its relationship to employment, but it
is not a legal precondition. The WCJ fell into error when
he concluded otherwise.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
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Id. at 217. In so holding, we relied on Campbell v. Workers’ Compensation Appeal
Board (Antietam Valley Animal Hospital), 705 A.2d 503 (Pa. Cmwlth. 1998).3
[In Campbell, the] only evidence to support the claimant’s
review petition was her own testimony about the pain. No
physician offered a diagnosis, and her condition was not
labeled further. Because the fact-finder accepted the
claimant’s testimony about pain, this Court permitted the
expansion of the injury as requested.
Campbell controls here. As in Campbell, testimony of
pain was accepted by the fact-finder. As in Campbell, no
medical diagnosis for the pain was offered. As in
Campbell, the condition was causally related to the
accepted work injury. As in Campbell, this evidence is
sufficient as a matter of law to justify expansion of the
injury.
Meadow Lakes Apartments, 894 A.2d at 218.4 As in Meadow Lakes Apartments,
and as in Campbell, the factfinder in this case accepted Claimant’s testimony that
she continued to have pain related to the work injury.
3
The claimant in Campbell was a veterinary assistant who suffered a cat bite on her thumb,
underwent a course of rabies shots, and became acutely ill immediately thereafter. Her employer
issued an NCP recognizing the injury as a bite to her thumb. The employer subsequently filed a
termination petition, alleging that the claimant’s ongoing disability was unrelated to her work
injury. The claimant filed a review petition seeking to revise the description of the injury to include
“persistent diffuse joint and soft tissue pain and weakness secondary to … rabies shots.” Id. at
504. The WCJ credited the claimant’s testimony and granted the review petition. The Board
reversed, but on appeal, we held that the WCJ properly exercised his discretion to credit the
claimant’s testimony regarding the continuing pain that prevented her return to work.
4
We have consistently applied this analysis to reach similar results. See e.g., Alan H. Butz,
Inc. v. Workers’ Compensation Appeal Board (Wesnak) (Pa. Cmwlth., No. 1682 C.D. 2016, filed
May 12, 2017) (a claimant’s testimony of pain, credited by the factfinder, may be sufficient as a
matter of law to justify expansion of a work injury); Sharma v. Workers’ Compensation Appeal
Board (Wawa) (Pa. Cmwlth., No. 1977 C.D. 2013, filed May 9, 2014) (review petition was
properly granted; medical testimony does not have to conclusively state a diagnosis to support
findings regarding additional symptoms); Haught v. Workers’ Compensation Appeal Board (UGI
Amerigas HVAC) (Pa. Cmwlth. No. 1369 C.D. 2010, filed December 10, 2010) (based on the
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In Meadow Lakes Apartments, we also criticized the Board for
amending the NCP to include “overuse syndrome of the left knee, right hip and low
back.” Id. at 219 (emphasis added). We explained that while “this [was] a fair
inference from the accepted medical testimony, it is not the Board’s function to draw
inferences or otherwise find facts.” Id. However, we held that it was proper to
amend the NCP to include the conditions specifically found by the WCJ to be
causally related to the work injury, to wit, pain in the left knee, low back, and hip
area, and we modified the Board’s order accordingly.
Similarly, here the Board modified the WCJ’s findings of fact from
chronic pain to chronic pain syndrome, and then it determined that no support for
this diagnosis exists in the record. As noted in Meadow Lakes Apartments, the Board
exceeded its authority in doing so.
Consistent with these prior decisions, I would hold that the WCJ’s
decision to amend the description of the work injury to include chronic pain in
Claimant’s right foot and lower back is supported by the record and that the Board
erred in reversing the WCJ’s decision in this regard.
Accordingly, I would reverse.5
claimant’s credible testimony, right shoulder pain that was devoid of a specific diagnosis was
added to the NCP).
5
Upholding the WCJ’s decision amending the NCP necessarily affirms the denial of
Employer’s termination petition. It is worth noting however, that the Board exceeded its authority
and reweighed the evidence to terminate medical benefits payable for the accepted work injuries.
In her findings of fact addressing witness credibility, the WCJ specifically credited Employer’s
medical expert on one issue only, whether Claimant’s pain supported a diagnosis of RSD; the WCJ
did not address, let alone credit, his opinion that Claimant had fully recovered from the work
injury.
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MICHAEL H. WOJCIK, Judge
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