S. Brown v. WCAB (Main Line Hospitals, Inc.) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherese Brown, :
:
Petitioner :
:
v. : No. 646 C.D. 2020
: Submitted: December 11, 2020
Workers’ Compensation Appeal :
Board (Main Line Hospitals, Inc.), :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 17, 2021
Sherese Brown (Claimant) petitions for review of the orders of the
Workers’ Compensation Appeal Board (Board) affirming the decision of a
workers’ compensation judge (WCJ) that denied Claimant’s claim petition alleging
a partially disabling June 22, 2015 work-related injury (Claim Petition 1), and
granted Claimant’s claim petition alleging a totally and partially disabling
November 30, 2016 work-related injury (Claim Petition 2) for the closed period of
November 30, 2016, to January 27, 2017, pursuant to the provisions of the
Workers’ Compensation Act (Act).1 We affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
Claimant filed Claim Petition 1 and Claim Petition 2 on April 5, 2018.
In Claim Petition 1, Claimant alleged that she suffered an injury in the nature of a
lumbar injury with broad-based disc protrusion at L4-5, in the scope and course of
her employment as a patient care technician for Main Line Hospitals, Inc.
(Employer), while assisting a patient who had suffered a stroke. With respect to
this injury, on July 10, 2015, Employer issued a Form LIBC-501, Notice of
Temporary Compensation Payable (NTCP),2 acknowledging that Claimant
2
Section 406.1(d)(1)-(2), (4)-(6) of the Act, added by the Act of February 8, 1972, P.L.
25, 77 P.S. §717.1(d) (1)-(2), (4)-(6), states, in relevant part:
(d)(1) In any instance where an employer is uncertain whether a
claim is compensable under this act or is uncertain of the extent of
its liability under this act, the employer may initiate compensation
payments without prejudice and without admitting liability
pursuant to a[n NTCP] as prescribed by the [Department of Labor
and Industry (department)].
(2) The [NTCP] shall be sent to the claimant and a copy filed with
the department and shall notify the claimant that the payment of
temporary compensation is not an admission of liability of the
employer with respect to the injury which is the subject of the
[NTCP]. The department shall, upon receipt of a[n NTCP], send a
notice to the claimant informing the claimant that:
(i) the payment of temporary compensation and the claimant’s
acceptance of that compensation does not mean the claimant’s
employer is accepting responsibility for the injury or that a
compensation claim has been filed or commenced;
(ii) the payment of temporary compensation entitles the claimant to
a maximum of ninety (90) days of compensation; and
(iii) the claimant may need to file a claim petition in a timely
fashion[,] enter into an agreement with his employer or receive a
notice of compensation payable [(NCP)] from his employer to
ensure continuation of compensation payments.
(Footnote continued on next page…)
2
sustained a work-related injury in the nature of a low back strain on June 22, 2015.
Beginning on June 23, 2015, Employer paid Claimant weekly compensation
benefits of $575.07. However, on August 21, 2015, Employer issued a Form
LIBC-502, Notice Stopping Temporary Compensation (Notice Stopping NTCP),
and a Form LIBC-496, Notice of Compensation Denial (NCD), within the 90-day
period required by Section 406.1 of the Act, in which Employer denied that
(continued…)
***
(4) Payments of temporary compensation may continue until such
time as the employer decides to controvert the claim.
(5)(i) If the employer ceases making payments pursuant to a[n
NTCP], a notice in the form prescribed by the department shall be
sent to the claimant and a copy filed with the department, but in no
event shall this notice be sent or filed later than five (5) days after
the last payment.
(ii) This notice shall advise the claimant, that if the employer is
ceasing payment of temporary compensation, that the payment of
temporary compensation was not an admission of liability of the
employer with respect to the injury subject to the [NTCP], and the
employe must file a claim to establish the liability of the employer.
(iii) If the employer ceases making payments pursuant to a
[NTCP], after complying with this clause, the employer and
employe retain all the rights, defenses and obligations with regard
to the claim subject to the [NTCP], and the payment of temporary
compensation may not be used to support a claim for
compensation . . . .
(6) If the employer does not file a notice under paragraph (5)
within the ninety-day period during which temporary
compensation is paid or payable, the employer shall be deemed to
have admitted liability and the [NTCP] shall be converted to a[n
NCP].
3
Claimant sustained a work-related low back strain on June 22, 2015. In Claim
Petition 1, Claimant sought temporary partial disability benefits for the period of
June 22, 2015, to July 13, 2015, in which she worked in a light-duty position with
Employer and her wages were reduced from $19.50 per hour to $15.00 per hour.
In Claim Petition 2, Claimant alleged that she suffered an injury in the
nature of a sprain of ligaments of the lumbar spine, strain of a muscle and tendon
of the lower back, and lumbar radiculopathy at the left L4-5 nerve root in the
course and scope of her employment with Employer, while caring for a patient.
With respect to this injury, on December 14, 2016, Employer issued an NCD,
denying that Claimant sustained a low back strain or tear during the course and
scope of her employment on November 30, 2016. In Claim Petition 2, Claimant
sought partial disability benefits for the period of November 30, 2016, and
ongoing. Employer filed answers to the claim petitions denying the material
allegations raised therein and hearings before the WCJ ensued.
In support of the claim petitions, Claimant testified and presented the
records and reports of Mark Brown, D.C.; Christine Stallkamp, M.D.; Marc
Belitsky, D.C.; and Kurt Maharay, D.C.; and the physical therapy notes of Bryn
Mawr Rehab.
On June 25, 2019, the WCJ issued a decision disposing of the claim
petitions in which he made the following relevant findings of fact. In general, the
WCJ found all of Claimant’s testimony to be credible. Reproduced Record (R.R.)
at 179a-180a. However, “[n]otwithstanding [C]laimant’s personal credibility, her
testimony is given limited weight as to the medical issues (i.e., diagnosis,
causation, disability).” Id. at 180a (emphasis in original). The WCJ noted that
Employer “has denied that either of these injuries occurred and [that its] initial
4
payment of temporary compensation on the claimed June 2015 injury cannot be
deemed an admission of liability,” citing Section 406.1(d)(5)(iii) of the Act. Id.
Specifically, with respect to the June 22, 2015 injury, the WCJ found
credible Claimant’s testimony that she sustained back pain while lifting a patient.
R.R. at 180a. “However, no contemporaneous medical evidence was presented to
establish the diagnosis, extent of treatment, or disability.” Id. The first medical
records that Claimant submitted in support were those of Dr. Brown, covering the
period of January 29, 2016, through May 25, 2016, which the WCJ did not find to
be “competent, credible or convincing as to the effect of the June 22, 2015 incident
and the key issues of diagnosis, causation and disability.” Id. Specifically, the
WCJ found that “[t]his period of treatment commences seven months after the
work incident and many months after [C]laimant had, by her own admission, been
released to full duty and discharged by the panel physician.” Id. The WCJ
determined that “[t]he records are handwritten, sketchy, and virtually illegible,”
and that he could “discern no clear opinion as to diagnosis, causal relationship or
disability.” Id.
The WCJ also explained:
It is important to note that [C]laimant’s [Claim Petition
1] alleges a disc protrusion at L4-5 caused by this injury.
She is not alleging a simple lumbar strain/sprain.
Claimant submitted the report of an [magnetic resonance
imaging (MRI)] taken on February 17, 2016, which does
indicate a broad-based protrusion eccentric to the right at
L4-5. As noted above, Dr. Brown’s comments about the
MRI are indecipherable. There is no evidence that Dr.
Belitsky ever saw the MRI or was even aware of it.
Claimant’s final treating chiropractor, Dr. Maharay,
makes mention of the MRI and says he requested it, but
apparently never followed up to obtain it. While both Dr.
Belitsky and Dr. Maharay discuss the history of the June
5
2015 claimed injury, neither of them provides any clear-
cut opinion as to its impact, or any opinion as to a
diagnosis or disability stemming from it. There is no
indication that they saw or considered the medical
records contemporaneous to the June 2015 incident.
Their periods of treatment were chronologically far
removed from the incident: Belitsky’s ran from
December 2016, to January 2017; Maharay’s from
October 2017, to March 2018. There are also large gaps
in time between the various courses of treatment . . . .
R.R. at 180a. The WCJ determined that “[a]ll of this makes causation very
tenuous, considering that there is no initial opinion connecting the disc at L4-5 to
the work injury causally, or to [C]laimant’s symptoms.” Id. at 181a.
With respect to the November 30, 2016 injury, the WCJ found
credible “[C]laimant’s testimony that she experienced back pain while helping a
patient.” R.R. at 181a. The WCJ also found credible Dr. Stallkamp’s records “to
establish that [C]laimant suffered a lumbar strain due to that incident.” Id. The
WCJ “accepted as competent and credible” the December 5, 2016 physical therapy
note of Bryn Mawr Rehab “to establish that [C]laimant had lifting restrictions of
ten pounds and that this would prevent her from performing her regular job.” Id.
The WCJ also accepted the December 7, 2016 physical therapy note as “competent
and credible to establish that [C]laimant was still not ready to return to unrestricted
work at that point.” Id.
The WCJ also “found credible and convincing” the December 9, 2016
opinion of Dr. Belitsky that Claimant is “unable to perform [her] work duties
today,” and that “[h]is history clearly relates [C]laimant’s lumbar pain to the
November 30, 2016 injury.” R.R. at 181a. The WCJ accepted Dr. Belitsky’s
December 12, 2016 release of Claimant to return to full duty as of December 15,
2016, “although she had exacerbations of her symptoms at various points.” Id.
6
The WCJ also accepted Dr. Belitsky’s January 26, 2017 Visit Notes stating that
Claimant “has had no pain for 1-2 weeks,” and that she had “no limitations at work
or in ADLs (activities of daily living),” and that Dr. Belitsky discharged Claimant
to a home exercise program. Id. The WCJ observed that “Claimant did not
specifically rebut this history. The WCJ can discern no residuals of the November
30, 2016 lumbar strain based on this note.” Id.
Finally, the WCJ found that “[t]he records of Dr. Maharay covering
the period from October 30, 2017, through March 28, 2018, do not convince the
WCJ that [C]laimant continued to have residuals of the November 30, 2016 injury
during that time.” R.R. at 181a. The WCJ explained that “[n]ine months had
passed from the time [C]laimant was discharged by Dr. Belitsky and from the time
[C]laimant left [Employer’s] employ to begin what she described as an easier job
as a phlebotomist.” Id. at 181a-182a. The WCJ noted that “Dr. Maharay g[ave] no
explanation for why [C]laimant would continue to suffer from a lumbar strain
sustained in November 2016-nearly one year before.” Id. at 182a.
Based on the foregoing, the WCJ found as fact: (1) Claimant did not
establish that she sustained a work-related disc protrusion on June 22, 2015; (2)
Claimant established that she sustained a work-related lumbar strain on November
30, 2016; (3) Claimant was disabled from her pre-injury job by the work-related
injury from November 30, 2016, through December 14, 2016, based on the
credible medical evidence; (4) Claimant is entitled to total disability benefits for
any full days of work that she lost between November 30, 2016, through December
15, 2016; (5) Claimant is entitled to partial disability benefits for any days during
that period on which she earned less than her pre-injury average weekly wage; and
(6) the credible evidence does not establish that Claimant has suffered any residual
7
impairment from the November 30, 2016 work-related injury beyond January 27,
2017, the last day that she saw Dr. Belitsky, so Employer is entitled to a
termination of benefits thereafter. R.R. at 182a-183a.
As a result, the WCJ concluded that Claimant failed to meet her
burden of proof with respect to Claim Petition 1 and met her burden of proof, in
part, with respect to Claim Petition 2. R.R. at 183a. Accordingly, the WCJ issued
an order: (1) denying and dismissing Claim Petition 1; (2) granting Claim Petition
2 in part; (3) directing Employer to pay temporary total disability benefits for the
full days of work lost between November 30, 2016, and December 14, 2016; (4)
directing Employer to pay partial disability benefits for any partial days of wage
loss between November 30, 2016, and December 14, 2016; (5) suspending wage
loss benefits on and after December 15, 2016; and (6) terminating medical and
wage loss benefits for the November 30, 2016 work-related injury on and after
January 27, 2017. Id. at 184a.
On July 8, 2019, Claimant appealed the WCJ’s decision to the Board.
On June 24, 2020, the Board issued Opinions and Orders affirming the WCJ’s
decision. Claimant then filed the instant petition for review in this Court.3
On appeal, Claimant first contends that the Board erred in affirming
the WCJ’s decision that denied and dismissed Claim Petition 1, alleging a work-
related injury in the nature of a broad-based disc protrusion at L4-5, because: (1)
Claimant’s unequivocal and unrebutted testimony, which was deemed credible by
the WCJ, established that she suffered a work-related low back injury on June 22,
3
Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, and whether necessary findings of facts are
supported by substantial evidence. Berry v. Workmen’s Compensation Appeal Board (United
Minerals & Grain Corp.), 602 A.2d 415, 417 (Pa. Cmwlth. 1992).
8
2015; (2) Claimant’s credible testimony established that she had no lower back
problems prior to the work-related injury; (3) Claimant’s credible testimony
established that she experienced pain from a pull in her back 20 minutes after
moving a patient to a chair, and worked light duty from June 22, 2015, to July 13,
2015, as a result of the injury at a rate that was $4.50 less per hour; and (4)
Employer issued the NTCP acknowledging a lower back strain and sprain work-
related injury, and did not issue the Notice Stopping NTCP until August 21, 2015,
well after Claimant had returned to full duty.
This Court has explained:
As Innovative Spaces [v. Workmen’s
Compensation Appeal Board (DeAngelis), 646 A.2d 51(Pa. Cmwlth. 1994),] provides, in a claim proceeding the
burden is on the claimant to establish a right to
compensation and prove all necessary elements to
support an award, including the burden to establish the
duration and extent of disability. Id. at 54; see also Inglis
House [v. Workmen’s Compensation Appeal Board
(Reedy), 634 A.2d 592, 595 (Pa. 1993)]. However, it is a
fundamental principle of workers’ compensation law that
the WCJ is the final arbiter of witness credibility and
evidentiary weight. Hoang v. Workers’ Compensation
Appeal Board (Howmet Aluminum Casting, Inc.), 51
A.3d 905, 909 n.7 (Pa. Cmwlth. 2012); Vols v.
Workmen’s Compensation Appeal Board (Alperin, Inc.),
[637 A.2d 711, 714 (Pa. Cmwlth. 1994)]. The WCJ may
accept or reject, in whole or in part, the testimony of any
witness. Id. Moreover, the WCJ’s fact-finding authority
includes the authority to draw reasonable inferences from
the evidence. General Electric Company v. Workmen’s
Compensation Appeal Board (Valsamaki), [593 A.2d
921, 924 (Pa. Cmwlth. 1991)] (“[I]t is clearly within the
[WCJ’s] fact-finding province to draw reasonable
inferences from the evidence.” (citing Oscar Mayer &
Company v. Workmen’s Compensation Appeal Board
(Manzi), [442 A.2d 1238 (Pa. Cmwlth. 1982)])). A
WCJ’s credibility and evidentiary determinations are
9
binding on appeal unless made arbitrarily and
capriciously. Casne v. Workers’ Compensation Appeal
Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa.
Cmwlth. 2008). The evidence, and the reasonable
inferences deducible therefrom, must be viewed in the
light most favorable to the prevailing party below. Glass
v. Workers’ Compensation Appeal Board (City of
Philadelphia), 61 A.3d 318, 325 n.4 (Pa. Cmwlth. 2013).
Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation
Appeal Board (Bonner), 85 A.3d 1109, 1114-15 (Pa. Cmwlth. 2014) (footnotes
omitted).
As outlined above, with respect to the June 22, 2015 injury in the
nature of a broad-based disc protrusion at L4-5, the WCJ found credible
Claimant’s testimony that she sustained back pain while lifting a patient;
“[h]owever, no contemporaneous medical evidence was presented to establish the
diagnosis, extent of treatment, or disability.” R.R. at 180a. As a result, the WCJ
determined that “[n]otwithstanding [C]laimant’s personal credibility, her testimony
is given limited weight as to the medical issues (i.e., diagnosis, causation,
disability).” Id. (emphasis in original).
In addition, after recounting all of the medical evidence that Claimant
submitted in support of her burden of proof, which the WCJ discounted, the WCJ
determined that “[a]ll of this makes causation very tenuous, considering that there
is no initial opinion connecting the disc at L4-5 to the work injury causally, or to
[C]laimant’s symptoms.” R.R. at 181a. We will not simply accede to Claimant’s
request to reweigh the evidence that she presented to the WCJ to sustain her
burden of demonstrating the causal connection between the June 22, 2015 work
incident and the broad-based disc protrusion at L4-5 injury that she allegedly
sustained, and for which she seeks partial disability benefits in Claim Petition 1.
10
Moreover, pursuant to Section 406.1 of the Act, the Notice Stopping
NTCP that Employer issued on August 21, 2015, well within the required 90-day
period, stated, in relevant part:
The payment of temporary compensation does not mean
that [Employer] assumed responsibility for your injury.
[Employer] and you retain all rights, defenses and
obligations with regard to the claim. Further, the
payment of temporary compensation may not be used to
support a claim for benefits in a future proceeding.
***
[X] WE HAVE DECIDED NOT TO ACCEPT
LIABILITY, AND ATTACHED IS A[N NCD]. IF YOU
BELIEVE YOU SUFFERED A WORK-RELATED
INJURY, YOU WILL BE REQUIRED TO FILE A
CLAIM PETITION WITH THE WORKERS’
COMPENSATION OFFICE OF ADJUDICATION IN
ORDER TO PROTECT YOUR FUTURE RIGHTS.
Certified Record Item 22 at 5 (emphasis in original). As a result, Claimant may
not rely upon Employer’s issuance of the NTCP to sustain her burden of proof with
respect to Claim Petition 1, i.e., that she suffered an injury in the nature of a broad-
based disc protrusion at L4-5 on June 22, 2015, while in the course and scope of
her employment with Employer. See Section 406.1(d)(5)(iii) of the Act, 77 P.S.
§717.1(d)(5)(iii) (“[A]fter complying with this clause, the employer and employe
retain all the rights, defenses and obligations with regard to the claim subject to the
[NTCP], and the payment of temporary compensation may not be used to support a
claim for compensation . . . .”). In sum, contrary to Claimant’s assertion, the
Board did not err in affirming the WCJ’s decision denying Claim Petition 1 based
on Claimant’s failure to sustain her burden of proving her entitlement to temporary
partial disability benefits under the Act.
11
Finally, Claimant contends that the Board erred in affirming the
WCJ’s decision granting Claim Petition 2 for a closed period, terminating her total
and partial disability benefits as of January 27, 2017. Claimant argues that Dr.
Belitsky’s records do not demonstrate that she was fully recovered from her
November 30, 2016 work-related injury as of January 27, 2017, but they do
demonstrate that she suffered from ongoing residual disability. Claimant asserts
that Dr. Belitsky merely opined that Claimant has reached “maximum chiropractic
improvement” as of January 27, 2017, which is qualitatively different from a full
recovery and does not support the termination of her benefits.
“[A] WCJ is authorized, when considering a claim petition, to award
compensation for a work-related injury and, in addition, to terminate benefits as of
the date the disability ceased, although a termination petition has not been filed, if
the claimant has not carried her burden of proof to establish a continuing
disability.” Ohm v. Workmen’s Compensation Appeal Board (Caloric Corp.), 663
A.2d 883, 886 (Pa. Cmwlth. 1995). With respect to the termination of disability
benefits, the Pennsylvania Supreme Court has explained that a medical expert is
not required to use the words “full recovery” to support such a termination:
We emphasize that the failure of the employer’s expert
to employ these “magic words” is not fatal to the
employer’s claim. Instead, the expert testimony must be
reviewed in its entirety to determine whether the
conclusions reached are sufficient to warrant termination
of benefits. See Callahan v. Workmen’s Compensation
Appeal Board (Bethlehem Steel Corp.), [571 A.2d 1108(Pa. Cmwlth. 1990)] (physician need not say magic
words that claimant was “fully recovered”; sufficient
that physician testified to releasing claimant to work
without restrictions because work-related injury was
resolved).
12
Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1293 n.3 (Pa. 1997) (emphasis added).
Dr. Belitsky’s January 26, 2017 Visit Notes that Claimant submitted
to the WCJ in support of Claim Petition 2 states, in relevant part:
Subjective
Mid Back Pain: Initially VAS rated 3
The symptom was described as doing well. The
condition is aggravated by no limitations, and relief is
experienced with chiropractic care.
Patient has very favorable response to treatment. No
pain past 1-2 weeks. No limitations in [activities of
daily living] or work restrictions.
Lower Back Pain: Initially VAS rated 3
The symptom was described as no pain and doing well.
The condition is relieved by chiropractic care.
***
Neurological Examination
Myotome evaluation revealed no weakness in the lower
extremity.
Prognosis/Diagnosis
The cause of the patient’s condition was a work[-]related
injury. The patient has reached maximum chiropractic
improvement[.] The patient’s prognosis is excellent[.]
Diagnosis: S33.5XXA Sprain of ligaments of lumbar
spine, initial encounter – resolved S39.012A Strain of
muscle, fascia and tendon of lower back, init – resolved
M62.830 Muscle spasm of back – resolved M64.5 Low
back pain – resolved M99.03 Segmental and somatic
dysfunction of lumbar region[.]
Assessment
Diagnoses as of the examination on 1/26/2017:
S33.5XXA Sprain of ligaments of lumbar spine, initial
encounter
13
S39.012A Strain of muscle, facia and tendon of lower
back, init
M62.830 Muscle spasm of back
M54.5 Low back pain
M99.03 Segmental and somatic dysfunction of lumbar
region
The patient has responded favorably to treatment and has
reached [her] treatment goals. [She is] experiencing no
limitations in job responsibilities or [activities of daily
living]. [She has] also reached maximum [c]hiropractic
improvement with no limitations or permanent
impairments and therefore [she] will be released from
care.
R.R. at 50a-51a (emphasis added).
Based on the foregoing, and contrary to Claimant’s assertion, Dr.
Belitsky’s January 26, 2017 Visit Notes clearly supports the WCJ’s determination
that “[t]he evidence does not establish that [C]laimant suffered residuals of the
November 30, 2016 work injury beyond January 27, 2017, the last date she saw
Dr. Belitsky. Accordingly, [Employer] is entitled to a termination of benefits
thereafter.” R.R. at 183a. As a result, the Board did not err in affirming the WCJ’s
decision awarding Claimant disability benefits for a closed period and terminating
those benefits as of January 27, 2017.
Accordingly, the Board’s orders are affirmed.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherese Brown, :
:
Petitioner :
:
v. : No. 646 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Main Line Hospitals, Inc.), :
:
Respondent :
ORDER
AND NOW, this 17th day of August, 2021, the orders of the Workers’
Compensation Appeal Board dated June 24, 2020, are AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge