Geisinger Wyoming Valley Med. Ctr. v. C. Drozda (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geisinger Wyoming Valley :
Medical Center, :
Petitioner :
:
v. :
:
Colleen Drozda (Workers’ :
Compensation Appeal Board), : No. 427 C.D. 2021
Respondent : Argued: December 16, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: February 28, 2022
Geisinger Wyoming Valley Medical Center (Employer) petitions for
review of the March 30, 2021 order of the Workers’ Compensation Appeal Board
(Board) affirming the decision of the Workers’ Compensation Judge (WCJ) granting
Claimant’s claim petition. Upon review, we affirm.
I. Background
Claimant works for Employer as an x-ray technologist. WCJ’s
Decision, 3/5/20 at 3, Finding of Fact (F.F.) 8, Reproduced Record (R.R.) at 97a.
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
On March 27, 2019, Claimant was assisting a patient to get off an x-ray table when
the patient pulled on Claimant’s left arm, causing immediate pain in Claimant’s neck
and down her left arm. Id. Claimant also experienced a sensation down her entire
left arm and her left-hand fingers went numb. Id.; see also Transcript of Testimony
(T.T.), 11/26/19 at 12, R.R. at 39a. Claimant worked alone and immediately notified
her supervisor of the incident via e-mail. F.F. 8. Claimant presented to Employee
Health Services (Employee Health) the following morning and was prescribed
muscle relaxers and four weeks of physical therapy. Id.; see also T.T., 11/26/19 at
13-14, R.R. at 40a-41a. Claimant continued to work, even though her condition did
not improve. Id. Employee Health discharged Claimant on April 29, 2019. F.F. 8.
Claimant was still experiencing extreme pain and began treatment with Dr. Ryan
Ness for pain management. Id. Dr. Ness referred Claimant to Dr. Russell Strom, a
neurosurgeon with Employer’s Department of Neurosurgery, for a surgical
consultation. F.F. 8-9; see also T.T., 11/26/19 at 19, R.R. at 46a. Claimant was
prescribed another course of physical therapy by Dr. Akash Agarwal, Assistant
Professor of Neurosurgery with the Milton S. Hershey Medical Center Department
of Neurosurgery, in June 2019. F.F. 8 & 10. Both Dr. Agarwal and Dr. Strom
recommended that Claimant undergo neck surgery. F.F. 8.
Employer initially accepted a work-related injury in the form of “left
shoulder/neck strains” in connection with the March 27, 2019 work incident. See
Notice of Temporary Compensation Payable dated April 23, 2019, R.R. at 1a; see
2
also F.F. 2.2 Employer, Arch Indemnity Insurance Company and Esis, Inc.3
(collectively, Respondents) halted the payment of benefits as of May 1, 2019 by
means of a notice stopping temporary compensation and a notice of workers’
compensation denial on the basis that Claimant did not sustain a work-related injury.
F.F. 3. In May 2019, Claimant filed a claim petition alleging that she sustained a
work-related injury on March 27, 2019 in the form of a cervical disc herniation4 as
well as left shoulder, left arm and left thumb numbness. F.F. 5. The claim petition
described Claimant’s work-related injuries as “injury to neck including but not
limited to cervical disc herniation,” along with “[l]eft shoulder injury,” “[l]eft arm
injury,” and “[l]eft thumb numbness,” further specifying that “Claimant may have
other injuries which are not yet known[.]” Claim Petition at 2, R.R. at 8a.
Respondents filed a timely answer to Claimant’s claim petition, denying the material
allegations. F.F. 6.
Claimant submitted a report based on an evaluation conducted by Dr.
Strom on May 23, 2019. F.F. 9. Dr. Strom noted that he was treating Claimant on
2
The Notice of Temporary Compensation Payable specifically described the “nature of
injury” as “Strain or Tear (Internal derangement, the trauma to the muscle or the musculotendinous
unit from violent contraction or excessive forcible stretch)” with “no tears,” and noted that it
occurred when a “[patient] pulled herself up using employee[’]s arm.” See R.R. at 1a.
3
Arch Indemnity Insurance Company was identified as Employer’s insurer and Esis, Inc.
was identified as Employer’s third-party administrator. See Notice Stopping Temporary
Compensation at 1, R.R. at 3a; Notice of Workers’ Compensation Denial at 1, R.R. at 5a.
4
The cervical spine contains six intervertebral discs, which are situated between adjacent
vertebrae (one above and one below). See Cervical Herniated Disc Symptoms and Treatment
Options, SPINE-HEALTH, available at https://www.spine-health.com/conditions/herniated-
disc/cervical-herniated-disc-symptoms-and-treatment-options (last visited Feb. 25, 2022). “A
herniated disc occurs when part or all of its protective outer layer tears and some of the nucleus
pulposus[, the gel-like interior which provides additional cushioning and flexibility,] leaks into the
tear.” Id.
3
referral from Dr. Michael James Grasso5 for neck pain radiating to the left thumb
with associated numbness and due to her difficulty with fine motor skills and her
tendency to drop objects. Id.; see also Dr. Auerbach Independent Medical
Examination (IME) at 1, R.R. at 93a. Dr. Strom concluded that the magnetic
resonance imaging (MRI) study revealed a disc herniation at C5-C6 causing severe
cord compression, and that these findings correlated with Claimant’s complaints.
F.F. 9; see also Dr. Strom Report at 8, R.R. at 78a. Further, Dr. Strom explained
that the weakness in Claimant’s left hand was consistent with early cervical
spondylotic myelopathy6 from cord compression, which usually results in
progressive neurologic decline. Id.; see also Dr. Strom Report at 8-9, R.R. at 78a-
79a. Dr. Strom recommended surgical intervention. F.F. 9.
Claimant also submitted a report from Dr. Agarwal dated June 12, 2019
following his examination of Claimant. See Dr. Agarwal Outpatient Letter at 1, R.R.
at 80a. Dr. Agarwal noted that Claimant “describe[d] symptoms of cervical
radiculopathy on the left as well as neck pain.” Id. at 2, R.R. at 81a; see also F.F.
10. Dr. Agarwal further noted that Claimant’s MRI study demonstrated disc
herniation and disc osteophyte complex eccentric7 causing neural foraminal
5
Claimant testified that Dr. Grasso was her family doctor. See T.T., 11/26/19 at 17, R.R.
at 44a.
“Cervical spondylotic myelopathy . . . is myelopathy (spinal cord damage) caused by
6
spondylosis (degeneration) in the cervical spine (neck).” Cervical spondylotic myelopathy,
COLUMBIA NEUROSURGERY, available at https://www.neurosurgery.columbia.edu/patient-
care/conditions/cervical-spondylotic-myelopathy (last visited Feb. 25, 2022).
“Disc osteophyte complex is the development of osteophytes (bone spurs) affecting more
7
than one intervertebral disk or spinal vertebrae.” Disc Osteophyte Complex, THE BONATI
INSTITUTE, available at https://www.bonati.com/blog/treatmetn-disc-osteophyte-complex/ (last
visited Feb. 25, 2022).
4
narrowing,8 left more than right, which would account for Claimant’s symptoms.
Dr. Agarwal Outpatient Letter at 2, R.R. at 81a; see also F.F. 10.
Employer submitted a report based on an IME of Claimant conducted
by Dr. Joshua Auerbach, an orthopedic surgeon, on August 19, 2019. F.F. 11. Dr.
Auerbach opined that Claimant had a longstanding history of complaints pertaining
to her neck, which predated the March 27, 2019 work incident, and that Claimant
had not been forthcoming regarding her medical history. Id. Dr. Auerbach further
opined that Claimant had sustained a cervical strain and sprain but experienced no
aggravation of any preexisting degenerative cervical disc disease. Id.
Employer also submitted an addendum report from Dr. Auerbach dated
November 12, 2019, based on his review of additional medical records of Claimant
generated by orthopedic surgeon Dr. David Kolessar and Dr. Grasso. See Dr.
Auerbach Addendum at 1, R.R. at 93a. Dr. Auerbach noted that his review of the
records indicated that Claimant received treatment for isolated left-sided carpal
tunnel syndrome prior to the March 27, 2019 work incident. Id. at 2, R.R. at 94a.
Dr. Auerbach stated that his opinion remained unchanged, and that Claimant
experienced a cervical strain and sprain in the setting of preexisting degenerative
cervical disease. Id.
8
The term “Neural foraminal narrowing,” also referred to as “neural foraminal stenosis,”
refers to “compression of a spinal nerve as it leaves the spinal canal through the foramen (the
opening between the vertebrae through which spinal nerve roots travel and exit to other parts of
the body).” Neural Foraminal Stenosis Definition, SPINE-HEALTH, available at
https://www.spine-health.com/glossary/neural-foraminal-stenosis (last visited Feb. 25, 2022).
Neural foraminal narrowing “may occur in either the lower back (lumbar spine) or the neck
(cervical spine), and be caused by an osteophyte, a foraminal herniated disc, or collapse of the disc
space.” Id.
5
Claimant testified that she underwent surgery to alleviate carpal tunnel
syndrome in January 2019, from which she completely recovered in six weeks. She
experienced no other problems with her left hand pre-dating the March 27, 2019
work incident. F.F. 8; see also T.T., 11/26/19 at 19, R.R. at 46a.
After falling down a set of steps in 2009, Claimant experienced muscle
pain in the back of her neck which resolved in about 10 days. F.F. 8. Claimant had
not been diagnosed with a herniated cervical disc prior to the March 27, 2019 work
incident, nor had she previously experienced similar symptoms. Id. Claimant
asserted that in addition to other inaccuracies,9 Dr. Grasso’s records erroneously
indicated that she was treating with him for neck pain. Id.; see also T.T., 11/26/19
at 17, 22, 35-36, R.R. at 44a, 49a, 62a-63a.
Claimant has been able to perform her regular job duties, although she
struggles to transfer heavier patients. F.F. 8. Claimant also experiences difficulty
vacuuming, carrying her purse on her left shoulder, reading the newspaper, turning
her head to the right, and sleeping. Id.10
On March 5, 2020, the WCJ rendered a decision and order granting the
claim petition. See WCJ’s Decision, 3/5/20 at 1-6, R.R. at 95a-100a. The WCJ
9
Claimant further noted that Dr. Grasso’s records incorrectly identified her height and
erroneously stated that she had an aneurism in a lower extremity and that her cerebral aneurism
was non-ruptured. See T.T., 11/26/19 at 37, R.R. at 63a.
10
Claimant further testified that she has received medical care in the past for a ruptured
brain aneurism, and that she treats with Dr. Ness for pain management necessitated by a prior
lumbar spinal fusion and problems with her sacroiliac joints. F.F. 8.
“The sacroiliac joint connects the hip bones (iliac crests) to the sacrum, the triangular bone
between the lumbar spine and the tailbone (coccyx). The primary function of the sacroiliac joints
is to absorb shock between the upper body and the pelvis and legs.” Sacroiliac Joint Dysfunction
(SI Joint Pain), SPINE-HEALTH, available at https://www.spine-health.com/conditions/sacroiliac-
joint-dysfunction/sacroiliac-joint-dysfunction-si-joint-pain (last visited Feb. 25, 2022).
6
found Claimant’s testimony genuine and credible based on his observations of her
bearing and demeanor at the hearing. F.F. 8. The WCJ reasoned that “Claimant’s
credibility [was] further bolstered by the fact that [she] has continued to work despite
her injuries.” Id. Thus, the WCJ “specifically accepted [Claimant’s testimony] as
fact.” Id.
The WCJ also pointed out that Dr. Strom and Dr. Agarwal noted a
correlation between the findings in the MRI study and Claimant’s subjective
presentation, and that both doctors agreed that Claimant’s work-related injury was
the cause of her complaints. Id. Thus, even though Claimant had not missed any
time from work due to her injuries, the WCJ concluded that Claimant met her burden
of demonstrating that she suffered disc herniations at C4-C5 and C5-C6 as a result
of a work-related injury sustained in the March 27, 2019 work incident. F.F. 13;
Conclusion of Law (C.L.) 2.11
The WCJ rejected Dr. Auerbach’s opinions as lacking credibility. F.F.
12. The WCJ found Claimant’s factual testimony concerning her personal medical
history more credible than the “inferences” made by Dr. Auerbach following his
review of Claimant’s medical records. Id. Moreover, the WCJ reasoned that the
qualifications of Dr. Strom and Dr. Agarwal as neurosurgeons were “more
persuasive” than those of Dr. Auerbach as an orthopedic surgeon, given the nature
of Claimant’s injuries. Id. The WCJ further reasoned that the opinions of Dr. Strom
and Dr. Agarwal were consistent and supported by Claimant’s credible testimony,
11
In addition to granting Claimant’s claim petition, the WCJ ordered that Respondents
shall be responsible for the payment of medical bills associated with treatment of Claimant’s work-
related injury and also for reimbursement of Claimant’s reasonable litigation costs. WCJ’s
Decision, 3/5/20 at 6, R.R. at 100a.
7
whereas the opinions of Dr. Auerbach were contradicted by those of Claimant’s
doctors and were undermined by Claimant’s testimony. Id.
Employer appealed to the Board, which affirmed the WCJ’s decision
by opinion and order dated March 30, 2021. See Board’s Opinion and Order, 3/30/21
at 1-9, R.R. at 108a-16a. The Board concluded that the WCJ did not err in
determining that Claimant met her burden of establishing that she sustained a work-
related injury, because the WCJ accepted her testimony regarding her work injury
and the pain she felt immediately afterwards. Id. at 6, R.R. at 113a (citing Inglis
House v. Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592, 597 (Pa. 1993);
Morgan (Workmen’s Comp. Appeal Bd.) v. Giant Mkts., Inc., 397 A.2d 415 (Pa.
1979))f. The Board noted that Claimant’s credible testimony and the diagnosis of
disc herniations at C4-C5 and C5-C6 rendered by Dr. Strom and Dr. Agarwal
supported the WCJ’s decision. See id.12 Thus, the Board rejected Employer’s
assertion that the WCJ’s decision lacked substantial and competent evidentiary
support. Id. The Board further noted the Pennsylvania Supreme Court’s holding
that medical testimony is not required to establish the requisite causal connection
where a claimant sustains an alleged work injury while engaging in an act requiring
force or strain and experiences pain at the point of force or strain. Id. (citing
Morgan). Thus, the Board concluded that even without the additional medical
evidence, Claimant’s credible testimony as to pain experienced in her neck and left
arm, with associated numbness and tingling in her left arm and hand, immediately
Employer notes that Dr. Strom’s diagnosis did not include a C4-C5 disc herniation. See
12
Employer’s Br. at 27. This observation appears to be correct. See Dr. Strom Report at 8, R.R. at
78a.
8
following the March 27, 2019 work incident, alone sufficed to establish the requisite
causal connection. Id. at 6-7, R.R. at 113a-14a.
The Board acknowledged that an expert medical opinion rendered in
the absence of a full understanding of the alleged work incident or the claimant’s
medical situation may be deemed incompetent. Id. (citing Long v. Workers’ Comp.
Appeal Bd. (Integrated Health Serv., Inc.), 852 A.2d 424, 428 (Pa. Cmwlth. 2004)).
Further, the Board “acknowledge[d] that the WCJ’s finding that both Dr. Strom and
Dr. Agarwal agree[d] that Claimant’s work-related injury was the cause of her
complaints . . . [was] not clearly supported by [the Board’s] review of their reports.”
Id. at 7 n.2, R.R. at 114a (citing F.F. 12).
Nevertheless, the Board reasoned, “the mere fact that Dr. Strom did not
specifically mention the work-related incident in his report [was] not enough to
establish that he did not have a full understanding of Claimant’s situation and [to]
find him incompetent.” Id. at 7, R.R. at 114a. The Board noted that its “review of
Dr. Strom’s report reveal[ed] a detailed assessment and plan based upon Claimant’s
presenting symptoms and previous treatments up until that point,” and that “Dr.
Strom also reviewed radiographic imaging to support his diagnoses.” Id. Therefore,
the Board rejected Employer’s contention that Dr. Strom’s opinion was not
competent on the basis that he failed to opine regarding whether Claimant’s injuries
were work-related. Id. at 7, R.R. at 114a.
Further, the Board “reiterate[d] that a medical opinion establishing
causation was not required in [the present] matter as the injury was obvious pursuant
to Morgan.”13 Id. The Board concluded that both Dr. Strom’s failure to specifically
13
The chairman of the Board dissented on the basis that “[w]hile it [was] not beyond reason
that Claimant sustained an injury, the medical evidence [did] not support [the] conclusory
9
mention a work injury and Dr. Agarwal’s failure to proffer an explicit opinion on
causation were harmless errors in light of its determination that Claimant’s credible
testimony sufficed to establish causation. Id. (citing Morgan).
Employer petitioned this Court for review.14
II. Issues
Before this Court,15 Employer contends that the Board erred in relying
on Morgan because Claimant’s alleged work injury in the form of disc herniations
at C4-C5 and C5-C6 was not obvious. See id. at 25-32. Further, Employer maintains
that Morgan is distinguishable from the present matter, because “[a]lthough pain is
an excellent indication of [an] injury, pain, in and of itself, is simply insufficient . .
. to [support] a diagnosis of disc herniations in the cervical spine.” Id. at 26. Thus,
Employer asserts that Claimant failed to prove that she sustained a work-related
injury in the form of disc herniations at C4-C5 and C5-C6 as a result of the March
27, 2019 work incident simply by testifying to the pain she felt immediately
following the incident. Id. at 26-27.
determination of C4-[C]5; C5-[C]6 disc herniation.” Board’s Opinion and Order, 3/30/21 at 9,
R.R. at 116a. The dissenting chairman thus reasoned that it was “plausible” Claimant sustained
irritation with muscle spasm, further noting that osteophyte formation and narrowing is
degenerative. Id.
14
In June 2021, Employer filed a petition for supersedeas, which this Court denied by order
dated July 12, 2021. See Geisinger Wyo. Valley Med. Ctr. v. Drozda (Workers’ Comp. Appeal
Bd.) (Pa. Cmwlth., No. 427 C.D. 2021, filed July 12, 2021).
15
This Court’s scope of review is limited to determining whether constitutional rights have
been violated, whether an error of law was committed or whether any finding of fact necessary to
support the decision is not supported by substantial evidence. Odd Fellow’s Home of Pa. v.
Workmen’s Comp. Bd. of Appeal (Cook), 601 A.2d 465, 467 (Pa. Cmwlth. 1991) (citing Section
704 of the Administrative Agency Law, 2 Pa.C.S. § 704).
10
Additionally, Employer asserts that the medical evidence proffered by
Claimant fails to establish the requisite causal connection. See id. at 24-26.
Employer notes that Dr. Strom’s May 23, 2019 report contains no reference to any
work-related injury. Id. at 24. Employer also points out that Dr. Strom identified
only a C5-C6 disc herniation causing severe cord compression, omitting mention of
a C4-C5 disc herniation and failing to opine regarding whether Claimant’s C5-C6
disc herniation was caused by the March 27, 2019 incident. Id. at 27. Thus,
Employer asserts that the WCJ’s finding that Dr. Strom agreed Claimant’s work
injury was the cause of her complaints is “simply untrue[.]” Id. at 24-25 (citing F.F.
12).
Employer also maintains that although Dr. Agarwal confirmed in his
June 14, 2019 letter16 that Claimant suffers from C4-C5 and C5-C6 disc herniations
and osteophyte complexes, Dr. Agarwal nevertheless failed to specifically opine as
to whether the March 27, 2019 work incident was the cause. Id. at 24-25 & 29.
Thus, Employer asserts that the WCJ erred in finding that both Dr. Strom and Dr.
Agarwal agreed that the March 27, 2019 work incident was the cause of Claimant’s
injury in the form of disc herniations at C4-C5 and C5-C6. Id. at 25. Employer
“concedes that expert medical evidence would not be required to establish a
diagnosis of neck pain radiating down the left arm with numbness and tingling in the
hand,” as such symptoms “would be [indicative of] an obvious injury[.]” Id. at 29-
30. However, Employer notes that the WCJ identified Claimant’s work injury as
C4-C5 and C5-C6 disc herniations and maintains that the causal relation to the
March 27, 2019 work incident is not obvious, as it is not readily discernible by an
16
Employer presumably intends to reference Dr. Agarwal’s report dated June 12, 2019 and
signed electronically on June 14, 2019. See Dr. Agarwal Outpatient Letter at 1, R.R. at 80a.
11
untrained layperson. See id. Thus, Employer maintains that the Board erred in
affirming the WCJ’s determination on the basis that Claimant’s testimony alone
sufficed to establish that she sustained a work-related injury in the form of disc
herniations at C4-C5 and C5-C6. See id.
Moreover, Employer contends that Claimant’s failure to seek medical
treatment immediately following the March 27, 2019 incident and her ability to
continue performing her regular job duties undermines her position. See id. at 31.
Employer, therefore, maintains that Claimant’s testimony would “[a]t best” support
a causal relationship between the March 27, 2019 work incident and a diagnosis of
strain or contusion. Id. Thus, Employer requests that this Court reverse the Board’s
March 30, 2021 order. Id. at 34.
III. Discussion
“In a workers’ compensation claim petition proceeding, the claimant
has the burden of establishing the right to compensation and all of the elements
necessary to support an award, i.e., an injury sustained in the course of employment
and related thereto.” Giant Eagle, Inc. v. Workers’ Comp. Appeal Bd. (Thomas),
725 A.2d 873, 876 (Pa. Cmwlth. 1999) (citing Inglis House, 634 A.2d 592).
“[U]nequivocal medical testimony is required to establish a causal connection
between an accident and a disability [o]nly where the connection is not obvious.”
Morgan, 397 A.2d at 416; see also Giant Eagle, Inc., 725 A.2d at 876 (“What is
required to establish this causal connection is dependent upon whether or not the
injury is obviously work-related.”). “An obvious relationship exists where the
claimant’s injuries immediately and directly or naturally and probably result from a
work incident; in such cases, the fact finder is not required to depend alone, or at all,
12
upon medical testimony to find the causal connection.” Metelo v. Workmen’s Comp.
Appeal Bd. (Old Original Bookbinders Rest.), 642 A.2d 653, 655 (Pa. Cmwlth.
1994) (emphasis omitted); cf. Whiteside v. Workmen’s Comp. Appeal Bd. (Unisys
Corp.), 650 A.2d 1202, 1204-07 (Pa. Cmwlth. 1994) (“claimant was required to
provide unequivocal medical testimony that her physical condition was caused by
her work environment” where claimant testified that an increase in job-related stress
caused various physical maladies and “there [was] no discrete incident to which the
injury [could] be attributed”). This Court has explained:
An obvious injury is one that immediately manifests itself
while a claimant is in the act of doing the kind of work
which can cause such an injury. A classic example would
be the laborer who grabs his back in pain after lifting his
shovel full of wet concrete. In such a case, the causal
connection is so clear that a lay[]person can see the
connection. Under such circumstances, the claimant’s
testimony is sufficient to connect the injury to the
claimant’s employment, and additional medical testimony
is not required.
Giant Eagle, Inc., 725 A.2d at 876 (citations omitted).
Employer asserts that the Board erroneously relied on Morgan to
conclude that Claimant established the requisite causal connection between the
March 27, 2019 work incident and the cervical disc herniations simply by testifying
to the pain she experienced immediately following the incident.17 See Employer’s
17
Employer’s fourth question presented reads as follows:
Whether the [] Board committed an error of law in finding that []
Claimant was not required to submit any unequivocal expert
medical opinion evidence to establish that she sustained a work[-
13
Br. at 26-27. We disagree. In Morgan, the claimant injured his back while unloading
items off of employer’s delivery truck. See Morgan, 397 A.2d at 415-16. The
claimant testified that he immediately experienced “a lot of pain” and “a feeling of
being paralyzed.” Id. He initially treated with “the company doctor,” who referred
him to an orthopedic surgeon with whom he treated for approximately three months.
Id. at 416. The claimant did not proffer any expert medical evidence. Id. at 415. He
received a favorable workers’ compensation award, which this Court reversed. Id.
On appeal, the Pennsylvania Supreme Court reversed this Court’s decision. Identif-
ying the central issue as whether the facts as testified to by the claimant established
the requisite causal connection between the work incident and the asserted injury,
id., our Supreme Court held:
The long-established rule is that unequivocal medical
testimony is required to establish a causal connection
between an accident and a disability [o]nly where the
connection is not obvious. . . . Where one is doing an act
that requires force or strain and pain is experienced at the
point of force or strain, the injury may be found to have
been established. Pain is an excellent symptom of an
]related injury and to establish causation between the work event
and the diagnosis of disc herniations at C4-[C]5 and C5-[C]6.
Employer’s Br. at 4. We note that to the extent this question could be construed as asserting that
Claimant did not sustain any work injury, such a contention would be unavailing. The WCJ
credited Claimant’s testimony that she experienced pain in her neck and down her left arm, a
sensation down her left arm and numbness in her fingers immediately following the work incident.
See F.F. 8. Further, Claimant treated with Employee Health the following morning. See F.F. 8;
T.T., 11/26/19 at 13-14, R.R. at 40a-41a. Moreover, Dr. Auerbach opined on behalf of Employer
that Claimant sustained a cervical strain/sprain. See F.F. 11; see also Dr. Auerbach IME at 7-8,
R.R. at 90a-91a; Dr. Auerbach Addendum at 2, R.R. at 94a. Significantly, Employer in fact
“concedes that pain at the time of the incident would support a finding of a sprain or strain at best.”
Employer’s Br. at 26. Thus, we find that the Board did not err in affirming the WCJ’s
determination that Claimant sustained a work-related injury. See C.L. 2; Board’s Opinion and
Order, 3/30/21 at 6-7, R.R. at 113a-14a.
14
injury. Of course, the trier of fact will determine the
credibility of the witness’s testimony as to the total
situation. We, therefore, find substantial competent
evidence in the record to support the conclusion of the
[Board] that the above facts establish a causal connection
between the work incident and [claimant’s] injury.
Id. at 416 (citations and quotation marks omitted).
Here, the WCJ credited Claimant’s testimony that she experienced pain
in her neck and down her left arm, a sensation down her left arm and left-hand
numbness in her fingers immediately after the March 27, 2019 work incident. See
F.F. 8; see also T.T., 11/26/19 at 12, R.R. at 39a. Like the injured employee in
Morgan, Claimant was “doing an act that requires force or strain and pain [was]
experienced at the point of force or strain[.]” Morgan, 397 A.2d at 416. As noted
above, “[a]n obvious injury is one that immediately manifests itself while a claimant
is in the act of doing the kind of work which can cause such an injury. . . . Under
such circumstances, the claimant’s testimony is sufficient to connect the injury to
the claimant’s employment, and additional medical testimony is not required.”
Giant Eagle, Inc., 725 A.2d at 876; see also Tobias v. Workmen’s Comp. Appeal Bd.
(Nature’s Way Nursery, Inc.), 595 A.2d 781, 784-85 (Pa. Cmwlth. 1991) (noting that
an “‘[o]bvious’ . . . connection between [an] injury and a disability” may “involve
an immediacy of occurrence such as an immediate back injury following heavy
lifting”); Davis v. Workmen’s Comp. Bd. of Appeal (United Parcel Serv.), 499 A.2d
703, 705 (Pa. Cmwlth. 1985) (“[T]here [could] be no doubt that unequivocal medical
testimony [was] not required . . . to establish the relationship of [c]laimant’s
disability to his employment . . . where the claim [was] for a back injury which
immediately manifest[ed] itself while [c]laimant [was] in the act of doing the kind
15
of heavy work which can cause such an injury”; thus, “medical opinion testimony
[was] not required.”).
Moreover, this Court has specifically held that a claimant’s testimony
regarding pain experienced immediately following a work incident may alone
suffice to establish the requisite causal connection between the incident and an injury
subsequently diagnosed as a disc herniation. See, e.g., Nw. Med. Ctr. v. Workers’
Comp. Appeal Bd. (Cornmesser), 880 A.2d 753, 754-56 (Pa. Cmwlth. 2005)
(testimony of claimant, a registered nurse, that he felt something pop in his back and
experienced pain while moving a large patient at work established the requisite
causal connection between the work incident and a work injury subsequently
diagnosed as a herniated disc); Workmen’s Comp. Appeal Bd. v. Bethlehem Mines
Corp., 349 A.2d 529, 530 (Pa. Cmwlth. 1975) (claimant’s testimony alone sufficed
to establish that being pinned against a plank at work while attempting to remove a
piece of a steel chute weighing several hundred pounds caused a lower back injury
in the form of disc herniations, where claimant immediately complained of back pain
following the work incident); Malecki v. Workers’ Comp. Appeal Bd. (Franklin
Reg’l Sch. Dist.) (Pa. Cmwlth., No. 582 C.D. 2020, filed Mar. 26, 2021), slip op. at
1-3, 9-13 (reversing the Board’s affirmance of the WCJ’s determination that
claimant failed to establish a work-related injury, reasoning that claimant’s
testimony that he experienced pain in his lower back and extending down the side
of his left leg to his toes while lifting garbage into a dumpster established that
claimant sustained a herniated disc as a result of the work incident); City of
Allentown v. Workers’ Comp. Appeal Bd. (Porter) (Pa. Cmwlth., No. 1038 C.D.
2011, filed Dec. 21, 2011), slip op. at 1-6 (claimant’s injury in the form of a herniated
lumbar disc and radiculitis was obviously work related, where claimant testified that
16
he immediately experienced pain after pulling his back while lifting a heavy tool
onto a truck at work).18
Notably, the WCJ also credited Claimant’s testimony that she had no
prior diagnosis involving herniated cervical discs and that she had not previously
experienced similar symptoms. Cf. Sacks v. Workmen’s Comp. Appeal Bd., 402
A.2d 293, 294 (Pa. Cmwlth. 1979) (citing Morgan) (factfinder did not require
medical testimony to find the requisite causal connection where claimant, a school
bus driver for handicapped children, experienced severe pain in his right knee and
foot immediately after lifting a 17-year-old boy onto a bus, noting that claimant had
no prior history of back trouble, the pain began as soon as he lifted the child and the
incident was reported immediately).
We are unpersuaded by Employer’s assertion that Claimant’s purported
delay in seeking medical care19 and her ability to continue performing her regular
job duties undermine her position. See Odd Fellow’s Home of Pa. v. Workmen’s
Comp. Appeal Bd. (Cook), 601 A.2d 465, 468-69 (Pa. Cmwlth. 1991) (noting
employer’s contention that claimant “continued to perform her duties without
complaint for four months before seeking medical attention” and holding, in relevant
part, that “[a]lthough [claimant’s] [roughly four-month] delay in seeking medical
care may have weakened the causal chain of events and raised the question of
credibility, this did not preclude the referee from finding that [claimant] suffered a
compensable injury,” noting that “[t]he [WCJ] found [claimant] to be credible, and
18
We cite these unreported opinions as persuasive authority pursuant to this Court’s
Internal Operating Procedures. See 210 Pa. Code § 69.414(a).
19
We note Claimant’s testimony that the work incident occurred sometime around 5:30
p.m. to 6:00 p.m. the evening of March 27, 2019 and that she sought medical attention the
following morning. See F.F. 8; T.T., 11/26/19 at 13-14, R.R. at 40a-41a.
17
from her testimony determined that the requisite relationship existed to establish a
work-related injury”); Greene Cnty. Mem’l Hosp. v. Workmen’s Comp. Appeal Bd.
(Cole), 432 A.2d 1166, 1167 (Pa. Cmwlth. 1981) (affirming grant of workers’
compensation benefits and holding that “unequivocal medical testimony [was] not
required” where claimant “alleged that she injured her back while lifting and turning
a very heavy patient,” noting that while “[c]laimant continued to work for several
weeks after the [work] incident, this [did] not preclude a finding that she suffered a
compensable injury”).
Moreover, here, the WCJ actually determined that “Claimant’s
credibility [was] further bolstered by the fact that Claimant [] continued to work
despite her injuries.” F.F. 8; see also Davis v. Workers’ Comp. Appeal Bd. (City of
Phila.), 753 A.2d 905, 909 (Pa Cmwlth. 2000) (“In workers’ compensation cases,
the WCJ is the ultimate fact-finder who must determine witness credibility and
evidentiary weight. . . . The WCJ’s assessment of witness credibility is not subject
to our review on appeal.”). We, therefore, agree with the Board that Claimant’s
credible testimony concerning the pain and sensations she experienced immediately
following the March 27, 2019 work incident sufficed to establish the causal relation
between Claimant’s injury in the form of C4-C5 and C5-C6 disc herniations and the
work incident. See, e.g., Giant Eagle, Inc., 725 A.2d at 876; Morgan, 397 A.2d at
415-16.20
20
Like the Board, we acknowledge Employer’s observation that neither Dr. Strom nor Dr.
Agarwal specifically opined that the March 27, 2019 work incident was the cause of Claimant’s
C4-C5 and C5-C6 disc herniations, and that Dr. Strom’s report does not reference any work-related
injury. See Board’s Opinion and Order, 3/30/21 at 7 and 7 n.2, R.R. at 114a. Employer also points
out that Dr. Strom’s diagnosis did not include a C4-C5 disc herniation. However, the WCJ found
that “both Doctors [Strom and Agarwal] agree[d] that Claimant’s work-related injury was the
cause of her complaints,” specifically describing Claimant’s compensable work-related injury
18
Employer asserts the following in its appellate brief:
Dr. Agarwal confirm[ed] that the MRI of April 16, 2019
reveals disc osteophyte complex at C4-[C]5 centered to
the left causing moderate left neuroforaminal narrowing.
He also confirmed that at C5-[C]6 there is moderate to
severe central canal narrowing secondary to disc
osteophyte complex and bilateral neuroforaminal
narrowing. Dr. Agarwal [did] not specifically relate these
findings to any work injury of March 27, 2019. []
Claimant’s testimony, in the absence of any unequivocal
expert medical opinion evidence, cannot support [a] causal
relationship between the March 27, 2019 event and the
development of disc herniations and osteophyte
complexes at C4-[C]5 and C5-[C]6.
Employer’s Br. at 29. Employer further contends that “[d]isc herniations are not
obvious injuries and can be present in the absence of any injury or trauma.” Id. at
30. Nowhere in its appellate brief, however, does Employer specifically assert that
any preexisting condition caused Claimant’s injury in the form of disc herniations at
C4-C5 and C5-C6 prior to the March 27, 2019 work incident, or that Claimant’s
injury resulted from the aggravation of any preexisting condition.21 Further, we note
stemming from the March 27, 2019 work incident as “disc herniations at C4-[C]5 and C5-[C]6[.]”
See F.F. 12; C.L. 3. To the extent the WCJ’s findings may be inconsistent with the medical reports
submitted by Dr. Strom and Dr. Agarwal, we note that any such discrepancy constitutes harmless
error in light of our disposition of this matter. See Sacks v. Workmen’s Comp. Appeal Bd. (Sacks),
402 A.2d 293, 294 (Pa. Cmwlth. 1979) (citing Morgan) (affirming award of benefits even though
claimant failed to present unequivocal medical testimony because “neither physician expressed
any opinion on the relationship, if any, between claimant’s disability and the [work incident]
incident,” where “claimant’s disability [was] immediately and directly the result of [the] work
incident”).
21
We note that even if Employer had asserted that Claimant’s disc herniations resulted
from the aggravation of a preexisting condition, Employer has cited no authority for its implicit
argument that a claimant’s testimony alone cannot establish that a work incident caused
“aggravation symptoms” where the causal connection is obvious. Cf. Knapp v. Workmen’s Comp.
Appeal Bd. (GTE), 671 A.2d 258, 262 (Pa. Cmwlth. 1996) (“Of course, where there is no obvious
19
that the WCJ credited Claimant’s testimony regarding her medical history,
specifically finding that “Claimant had never been diagnosed with a herniated
cervical disc prior to her work-related injury and never previously experienced
similar symptoms.” F.F. 8. Even though Dr. Agarwal noted that Claimant’s April
16, 2019 MRI revealed a disc osteophyte complex causing neural foraminal
narrowing at C4-C5 and C5-C6 of the cervical spine, the WCJ also credited
Claimant’s testimony that she did not treat with Dr. Grasso for “neck complaints”
prior to the work incident and that despite experiencing some muscle pain in the
back of her neck after falling down a set of steps in 2009, that pain resolved in about
10 days. See F.F. 8 & 10; Dr. Agarwal Report at 2, R.R. at 81a. Further, the WCJ
credited Claimant’s testimony that she completely recovered within six weeks from
her January 31, 2019 carpal tunnel surgery. See F.F. 8.22 These credibility
determinations and factual findings are binding on this Court. See A & J Builders,
Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238, 1243 (Pa. Cmwlth.
causal connection between the aggravation symptoms and the alleged work-related cause, that
connection must be established by unequivocal medical evidence.”) (emphasis added); Somerset
Welding & Steel v. Workmen’s Comp. Appeal Bd. (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994)
(“In light of his previous back pain, an obvious causal connection does not exist between
[c]laimant’s work-related incident and his injury.”) (emphasis added).
22
As summarized by Dr. Auerbach, a February 8, 2019 clinical note from Dr. Kolessar
indicates that Claimant was pain-free following the January 31, 2019 carpal tunnel release. See
Dr. Auerbach Addendum at 1, R.R. at 93a. Although Dr. Auerbach’s summary of Dr. Kolessar’s
clinical note further indicates that Claimant experienced “[m]inor numbness in the fingertips,” this
complaint presumably resolved by the time of the March 27, 2019 work incident, as the WCJ
credited Claimant’s testimony that she achieved full recovery within six weeks of the carpal tunnel
surgery. See F.F. 8.
20
2013) (“Unless made arbitrarily or capriciously, a WCJ’s credibility determinations
will be upheld on appeal.”).23
Accordingly, we affirm.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
23
We acknowledge 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 v.
Workers’ Comp. Appeal Bd. (Pocono Mountain Sch. Dist.), 976 A.2d 597, 599 (Pa. Cmwlth.
2009). However, contrary to the present matter, Moyer involved a “work-related aggravation of a
pre-existing back problem” for which claimant had treated prior to the work incident, where the
work incident resulted in an increase in Claimant’s existing back pain. Id. at 598-601. Here, the
WCJ found that “Claimant had never been diagnosed with a herniated cervical disc prior to her
work-related injury” and that she “never previously experienced similar symptoms.” F.F. 8.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geisinger Wyoming Valley :
Medical Center, :
Petitioner :
:
v. :
:
Colleen Drozda (Workers’ :
Compensation Appeal Board), : No. 427 C.D. 2021
Respondent :
ORDER
AND NOW, this 28th day of February, 2022, the March 30, 2021 order
of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge