P. Mendicino v. WCAB (Rivers Casino & Chubb Indemnity Ins. Co.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patrick Mendicino, :
Petitioner :
:
v. : No. 640 C.D. 2020
: Submitted: February 19, 2021
Workers’ Compensation Appeal :
Board (Rivers Casino and :
Chubb Indemnity Insurance :
Company), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: May 17, 2021
Patrick Mendicino (Claimant) petitions for review from the June 8, 2020
Order of the Workers’ Compensation Appeal Board (Board) that affirmed the
workers’ compensation judge’s (WCJ) Decision and Order, denying the Claim
Petition for Workers’ Compensation Benefits (Claim Petition), Petition for Penalties
(Penalty Petition), and Petition to Review Medical Treatment and/or Billing (Review
Medical Petition) filed by Claimant.
I. Background
On May 20, 2016, Claimant filed a Claim Petition against Rivers Casino
(Employer) alleging that he sustained a work-related injury in the nature of a left
ankle strain/sprain, on October 6, 2014, when his left foot got caught under several
unevenly stacked mats. Employer filed an Answer denying the material allegations
raised in the Claim Petition. On October 12, 2017, Claimant filed a Review Medical
Petition alleging that his medical bills remained unpaid and that his condition had
worsened. He also filed a Penalty Petition, alleging Employer violated the
Pennsylvania Workers’ Compensation Act (Act)1 by unilaterally stopping payment
of his medical bills and by failing to issue either a Notice of Compensation Payable,
a Temporary Notice of Compensation Payable, or Notice of Compensation Denial
in regard to his claim. Employer denied the material averments raised in these latter
two petitions as well. The matter was assigned to the WCJ who took evidence and
held multiple hearings before circulating a Decision and Order on May 29, 2019.
II. WCJ’s Decision and Order
In her Decision and Order, the WCJ found as follows. Claimant testified that
he worked for Employer as a cook since July 8, 2009, and that, in this role, he made
salads, pizzas, and main entrees. WCJ’s Dec., 5/29/19, Finding of Fact (FOF) No.
2. Claimant testified that, on October 6, 2014, he tripped and fell on a stack of mats
that were approximately six inches high, while he was working in the team dining
room. Id. “The mats were overlapped, and he fell forward[,] falling onto his chest,
hitting his head, breaking his glasses, and hurting his left shoulder, elbow, and left
ankle. His ankle problems have persisted.” Id. Claimant went to the Sewickley
Hospital Emergency Room and was diagnosed with an ankle sprain. Id. He began
seeing Employer’s panel physicians at Work Well, where he received physical
therapy. Id. Claimant was released from care at Work Well in February 2015, and
next received care for his left ankle by Dr. Bowman in December 2015. Id. Dr.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
Bowman administered an injection, but this did not help Claimant with his
complaints. Id. Claimant treated with Dr. Wukich, and then treated with Dr. Prisk
on February 15, 2016. Id. Both of these doctors ordered magnetic resonance
imaging (MRI), and Dr. Prisk discussed surgery with Claimant. In November 2016,
Claimant began treating with Dr. Conti for his left ankle and was scheduled for an
MRI. Id. Claimant missed work from December 5, 2016, to December 12, 2016,
due to his left ankle complaints. Id.
At the February 27, 2017 hearing in this matter, Claimant testified in regard
to his out-of-pocket medical expenses, continuing left ankle problems, and Dr.
Conti’s proposed surgery. Id. Claimant testified, on February 7, 2019, that he
continues to have problems with his left ankle but that he still works as a cook for
Employer. Id. The WCJ found that Claimant is not losing any work time and is
earning more than his pre-injury average weekly wage. Id.
On June 14, 2017, Dr. Conti gave a deposition in support of Claimant’s
position in this matter. FOF No. 4. Dr. Conti is board certified in orthopedic surgery
and specializes in problems of the leg, ankle, and foot. Id. Claimant has been a
patient of Dr. Conti’s since 1999. Dr. Conti saw Claimant on May 8, 2014, primarily
for his right foot, at that point. Claimant had a posterior tibial tendon abnormality
for which he had surgery on the right, but, as the WCJ recounted Dr. Conti’s
testimony, Claimant “[did not] do so well.” Id. Subsequently, Dr. Conti performed
surgery “to redo the tendon transfer and some bone osteotomies.” Id. After the May
2014 visit, Claimant next saw Dr. Conti on November 3, 2016, when he was having
more pain on the left than the right. Id. The WCJ found that, when Dr. Conti saw
Claimant in May 2014, he thought Claimant was experiencing problems with his
right foot, which had led to problems with his left foot. Id. Dr. Conti explained that
3
he believed Claimant was born with two congenitally flat feet. Id. He believed that
Claimant twisted his ankle at Employer and that the event either caused or
exacerbated the problem with Claimant’s tendon, bringing on a more rapid
progression of his issues, and resulting in Claimant’s current need for surgery. Id.
On April 4, 2018, Dr. Metcalf gave deposition testimony in this matter. Dr.
Metcalf is board certified in internal medicine and retired from Work Well in 2017.
He was involved in occupational medicine for 22 years prior to his retirement. FOF
No. 5. On December 2, 2014, he diagnosed Claimant with a resolving left ankle
sprain, resolving left elbow strain, and resolved left chest wall contusion and sprain.
Id. Diagnostic studies showed some degenerative changes but were otherwise
unremarkable. Id. Dr. Metcalf opined that Claimant was fully recovered. He also
noted that Claimant has preexisting degenerative changes that are not work related
in nature. Id.
Claimant attended an independent medical examination (IME) with Dr. Sferra
on or about April 17, 2017. Dr. Sferra is the head of the Foot & Ankle Center at
Allegheny General Hospital. FOF No. 6. On October 9, 2017, Dr. Sferra gave
deposition testimony in support of a June 4, 2017 IME report he had prepared in
regard to Claimant. Id. In recounting his review of Claimant’s medical records, Dr.
Sferra noted that Claimant had been seen by Dr. Wukich, who had diagnosed
Claimant with acquired flatfoot disorder Stage III. Id. The WCJ quoted Dr. Sferra
as testifying “Stage III is when it starts to become a more rigid concept so [it is] no
longer kind of a reversible problem.” Id. Dr. Sferra reviewed a June 2016 MRI that
did not show any acute pathology. Id. He testified that he did not believe there was
a relationship between the alleged work injury, as described by Claimant, and
Claimant’s diagnosis. Id. Dr. Sferra opined that Claimant’s problems are unrelated
4
to his work injury, noting that Claimant’s issues are part of a long and ongoing
process that Claimant has been undergoing relative to his left ankle. Dr. Sferra
opined that Claimant likely experienced an exacerbation of his preexisting condition,
which eventually returned to baseline. Id. Dr. Sferra agreed that a posterior tibial
tendon insufficiency and adult-onset flatfoot can result in pain and difficulty walking
and would have an effect on someone, such as a chef, who is on his feet for an entire
shift. Id.
The WCJ found that Claimant had not met his burden of proof in his Claim
Petition “for the period of disability claimed in 2017[,][2] and the ongoing medical
treatment that began in the end of 2015.” FOF No. 7. The WCJ found Claimant
credible as to his left foot problems. FOF No. 7.a. She also found that Claimant
was credible that he had a left foot injury while working for Employer. Id. The
WCJ further found that Claimant has problems with both feet and that he had
complained of left foot problems prior to October 6, 2014. Id.
The WCJ found that, to the extent they differed, Dr. Sferra’s opinions were
more credible than Dr. Conti’s on the issue of causation. FOF No. 7.c. The WCJ
did not find that Dr. Metcalf’s testimony assisted her in determining the issue of
causation. FOF No. 7.d. The WCJ determined Claimant sustained a work injury on
October 6, 2014, but that he had not met his burden of proving the treatment he
began to receive in December 2015 was work-related. FOF No. 7.e. Thus, the WCJ
dismissed Claimant’s Claim Petition and his Review Medical Petition. Id. The WCJ
also dismissed Claimant’s Penalty Petition, stating that “[a]lthough no Bureau
Documents were issued, [Employer] has paid for the immediate treatment following
the October 6, 2014 injury.” FOF No. 7.g.
2
As noted by the WCJ, “[t]his matter involves a period of time of disability from July 11,
2017[,] until December 2, 2017.” WCJ’s Dec. and Order, 5/29/19, at 3.
5
The WCJ denied and dismissed Claimant’s petitions in this matter, and
Claimant appealed to the Board.
III. The Board’s Opinion
In its June 8, 2020 Opinion, the Board affirmed the WCJ, opining:
After careful review, we discern no reversible error. The WCJ
summarized the evidence and made credibility determinations. He
succinctly explained why he accepted Dr. Sferra’s opinion. Claimant
asserts that both doctors agreed that Claimant suffers from a posterior
tibial tendon tear and that Dr. Sferra provided no explanation why
Claimant returned to a baseline condition of his pre[]existing condition.
However, Dr. Sferra did not unequivocally opine that Claimant suffered
an exacerbation of the pre[]existing condition. Even if Dr. Sferra gave
an unequivocal opinion, the doctor stated that Claimant returned to
baseline consistent with the medical records of Dr. Conti and Dr.
Metcalf. In other words, he agreed that Claimant was fully recovered
from any left foot injury or exacerbation because Dr. Metcalf found him
fully recovered. As the WCJ’s Decision allowed for adequate appellate
review, we decline to disturb [her] findings.
Bd.’s Op., 6/8/20, at 6.
Claimant now petitions this Court for review of the Board’s Opinion and
Order.3
IV. Arguments
A. Claimant’s Arguments
Claimant argues that the Board erred when it adopted the WCJ’s “inadequate
and unreasoned credibility determination that [Claimant] failed to establish that his
left posterior tibial tendon insufficiency was related to his work injury.” Claimant’s
Br. at 9. Claimant states that Dr. Sferra opined that Claimant’s underlying pain and
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).
6
disability would lead to difficulty walking and performing the duties of a chef, but
yet, Claimant had returned to his pre-injury baseline status. Claimant’s Br. at 11.
Claimant adds that this opinion was based only on his prior medical history and a
review of the records of Dr. Metcalf and Dr. Conti. Claimant’s Br. at 11-12.
Claimant argues that Dr. Sferra “provided no additional explanation on how Dr.
Metcalf’s and Dr. Conti’s records indicate that [Claimant] had returned back to
baseline. Dr. Sferra’s opinion regarding [Claimant’s] return to baseline is based on
assumptions contrary to the record and is incompetent.” Claimant’s Br. at 12. Thus,
Claimant contends that “the Board erred by adopting the WCJ’s finding that Dr.
Sferra was more credible than Dr. Conti.” Id. Further, Claimant argues that the
Board ignored the testimony of the medical experts in the present matter who opined
that Claimant’s injury could have resulted from trauma. Claimant’s Br. at 13.
In addition, Claimant contends that the Board erred by determining Claimant
did not sustain a work injury because it ignored medical testimony that Claimant
“suffered a permanent change to his physiology.” Claimant’s Br. at 14. To this
point, Claimant notes that Dr. Conti and Dr. Sferra both testified that Claimant’s
tibial tendon insufficiency would lead to pain and difficulty walking and limit his
ability to perform his job as a chef. Id.B. Employer’s Arguments
Employer states that the WCJ found the opinions of Dr. Sferra more credible
than those of Dr. Conti in regard to causation and that, given that credibility
determinations of the WCJ cannot be disturbed on appeal, the Board correctly
affirmed the WCJ. Employer’s Br. at 20.
In addition, Employer argues that, contrary to Claimant’s contentions, the
Board and the WCJ “clearly and methodically reviewed all expert medical testimony
7
of record.” Id. Employer adds: “Dr. Conti’s opinions were incompetent and not
unequivocal. Therefore, the WCJ did not err in finding Dr. Conti’s opinions to be
less credible than those of Dr. Sferra, and the WCJ did not err in relying upon that
credibility determination in finding that Claimant did not meet his burden.”
Employer’s Br. at 21.
Employer further argues that Claimant mischaracterized Dr. Sferra’s
testimony in his argument, stating:
While Dr. Sferra acknowledged that Claimant may have suffered an
aggravation to his pre[]existing posterior tibial tendon insufficiency and
long-standing pes planovalgus foot during the October 6, 2014 incident,
he also opined that Claimant had since returned to baseline. As such,
any ongoing pain, difficulty walking, or limited abilities Claimant
experienced are unrelated to the work injury.
Id. Employer maintains that the Board did not err when it affirmed the WCJ’s
determination that Dr. Conti’s opinions were less credible than Dr. Sferra’s. Id.Accordingly, Employer argues that the WCJ, and then the Board, properly
determined Claimant did not meet his burden of proof that he sustained a work-
related injury “causing the period of disability claimed in 2017, and the ongoing
medical treatment that began in the end of 2015.” Employer’s Br. at 22. Thus,
Employer requests that this Court affirm the Board’s June 8, 2020 Order.
V. Discussion
At the outset, we note that, in a claim petition, the claimant has the burden of
proof “to demonstrate not only that he has sustained a compensable injury but also
that the injury continues to cause disability throughout the pendency of the claim
petition.” Innovative Spaces v. Workmen’s Comp. Appeal Bd. (DeAngelis), 646
A.2d 51, 54 (Pa. Cmwlth. 1994).
8
In a workers’ compensation case, the WCJ is the sole arbiter of fact.
Bethenergy Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 612 A.2d 434(Pa. 1992). The findings of the WCJ can only be disturbed if there is no competent
evidence to support the findings. Universal Cyclops Steel Corp. v. Workmen’s
Comp. Appeal Bd. (Krawczynski), 305 A.2d 757 (Pa. Cmwlth. 1973). The WCJ is
free to accept or reject, in whole or in part, the testimony of any witness, including
medical witnesses. Greenwich Collieries v. Workmen’s Comp. Appeal Bd. (Buck),
664 A.2d 703, 706 (Pa. Cmwlth. 1995). Determinations of credibility and the weight
to be afforded evidence are the prerogative of the WCJ, not the Board. Vols v.
Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994).
We further note that “[a] decision is ‘reasoned’ for purposes of [the Act]
if it allows for adequate review by the [Board] without further elucidation and if it
allows for adequate review by the appellate courts under applicable review
standards. A reasoned decision is no more, and no less.” Daniels v. Workers’ Comp.
Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003).
In the present matter, which is contingent on the medical evidence to
establish causation, the WCJ provided a detailed account of the determinations of
each of the medical professionals and credited Employer’s medical expert, Dr.
Sferra, over Claimant’s doctor, Dr. Conti. In addition, “a medical expert’s opinion
is not rendered incompetent unless it is based solely on inaccurate information.
Moreover, the fact that a medical expert does not have all of a claimant’s medical
records goes to the weight given the expert’s testimony, not its competency.” Pryor
v. Workers’ Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1023 (Pa. Cmwlth.
2006) (internal citations omitted). Despite each party’s argument to the contrary,
neither Dr. Sferra’s, nor Dr. Conti’s, opinion was incompetent. It appears from the
9
record that both had sufficient information to reach their respective conclusions
relative to Claimant’s physical condition, and neither the WCJ nor the Board
determined that either doctor’s testimony was incompetent.4 The critical issue was
who was more credible, and the WCJ reasonably concluded it was Dr. Sferra.
Credibility determinations are within the purview of the WCJ. Here, the WCJ
carefully summarized the testimony of each of the witnesses and provided a clear
explanation as to why she arrived at the conclusions she reached.
After examining Claimant and reviewing Claimant’s medical records,
Dr. Sferra testified that he did not believe there was a relationship between the
alleged work injury and Claimant’s diagnosis. He opined that Claimant’s problems
are not related to his work injury and that Claimant likely experienced an
exacerbation of his preexisting condition, which eventually returned to baseline.
The WCJ provided sufficient explanation of her evaluation of the evidence and the
reasoning behind her finding that Dr. Sferra’s opinion was more credible than Dr.
Conti’s. Her thorough analysis, as part of her 16-page Decision, allowed the Board,
and now this Court, to exercise adequate review, per the reasoned decision
requirement of the Act.
VI. Conclusion
The WCJ’s Decision was reasoned and based on the substantial competent
evidence of record. Further, there was no error of law or abuse of discretion.
4
Although the WCJ did not determine that Dr. Conti’s testimony was incompetent, she did
state: “Dr. Conti did not have the benefits of reviewing Claimant’s medical records from 2014[,]
following the work injury” and that “Dr. Conti’s testimony was quite limited as to his
understanding of the work injury.” WCJ’s Dec. and Order, 5/29/19, FOF No. 7.c.v.
10
Accordingly, we see no basis upon which we would disturb the Board’s Order
affirming the WCJ.5
______________________________
J. ANDREW CROMPTON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
5
Because we affirm the denial of the Claim Petition, there is no need for us to address
Claimant’s Review Medical Petition, which, as the Board noted was “subsumed in Claimant’s
Claim Petition.” Bd.’s Op., 6/8/20, at 2. Further, given the outcome as to the Claim Petition, along
with the WCJ’s reason for not assessing penalties, and seeing no abuse of discretion by the WCJ,
we also affirm the Board’s Order affirming the WCJ’s denial of Claimant’s Penalty Petition. See
Hough v. Workers’ Comp. Appeal Bd. (AC&T Cos.), 928 A.2d 1173 (Pa. Cmwlth. 2007) (the
assessment of penalties, as well as the amount of penalties imposed, is discretionary, and absent
an abuse of discretion by the WCJ, this Court will not overturn a penalty on appeal).
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patrick Mendicino, :
Petitioner :
:
v. : No. 640 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Rivers Casino and :
Chubb Indemnity Insurance :
Company), :
Respondents :
ORDER
AND NOW, this 17th day of May 2021, the June 8, 2020 Order of the
Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge