T. Hughes v. WCAB (Pep Boys)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Hughes, :
Petitioner :
:
v. : No. 1132 C.D. 2017
: Submitted: December 29, 2017
Workers’ Compensation Appeal :
Board (Pep Boys), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: February 26, 2018
Thomas Hughes (Claimant) petitions for review of the Order of the Workers’
Compensation Appeal Board (Board) that affirmed the Decision of a Workers’
Compensation Judge (WCJ) granting his Claim Petition for Workers’ Compensation
(Claim Petition) but terminating his workers’ compensation (WC) benefits as of
November 10, 2015, based on his full recovery. On appeal, Claimant argues that the
WCJ’s finding that he was fully recovered, the basis of the termination of his WC
benefits, is not supported by competent evidence. Because a review of the record as
a whole reveals that the WCJ’s finding of full recovery is supported by substantial,
competent evidence, we affirm.
On August 17, 2015, Claimant filed the Claim Petition, asserting he sustained
a right shoulder injury on July 20, 2015, while performing his duties as a mechanic
for Pep Boys #1425 (Employer) and had not returned to work. In particular,
Claimant averred that he “was hammering rotors on a vehicle and [he] felt a pop in
[his] right shoulder.” (Reproduced Record (R.R.) at 3a.) In addition to issuing a
Notice of Compensation Denial based on its contention that Claimant did not sustain
a work-related injury, Employer filed an Answer denying the Claim Petition’s
material allegations. The Claim Petition was assigned to a WCJ for resolution.
Claimant testified before the WCJ and via a deposition as follows. On July
20, 2015, Claimant was working full-time as a mechanic for Employer when, while
trying to remove rotors and brakes that were rusted onto the vehicle with a five-
pound mallet, he felt pain going from his right hand and thumb, into his shoulder,
and into his neck. Claimant experienced “tingling in his hand, very bad pain[,] and
[he] started dropping tools.” (WCJ Decision, Finding of Fact (FOF) ¶ 5(c).)
However, because Claimant was paid only for jobs he completed, he attempted to
finish the job but could not. After informing his supervisor about what happened,
Claimant was asked to, and he did try to, finish the day but he could not. Claimant
contacted a Registered Nurse (RN) at his supervisor’s direction, and the RN sent him
to WorkNet. Claimant received treatment from WorkNet until Employer denied his
claim, at which time he was released to work with restrictions. Claimant was
referred to an orthopedic surgeon by counsel, whom he saw once, and Claimant
subsequently began treatment with William Pavlou, M.D. Claimant cannot return
to work, and he experiences symptoms that include: problems sitting and driving;
an inability to lift anything above his shoulders; tingling in his right hand; and pain
in his neck, shoulder, and hand.
2
Claimant also offered the deposition testimony of Dr. Pavlou, who is board-
certified in family medicine and who testified as follows. Dr. Pavlou first saw
Claimant in October 2015, and, based on the history of the injury given to him by
Claimant, and a review of MRI and EMG reports, he opined that Claimant sustained
work-related injuries in the nature of a “right shoulder rotator cuff tear and
tendinopathy[,] and cervical [spine] sprain and disc disease with radiculopathy” as a
result of the July 20, 2015 incident. (Id. ¶ 7(b).) Claimant did not have any
complaints prior to the incident, and the mechanism of the injury was consistent with
a rotator cuff tear and a disc herniation. Claimant’s treatment consists of prescription
medication and physical therapy once or twice a week. Claimant has not
experienced any significant improvements. Dr. Pavlou has not released Claimant to
his pre-injury work because Claimant’s right shoulder remains symptomatic and, as
a result of debilitating pain, renders him unable to perform manual labor with his
upper extremities.
Employer presented the deposition testimony of Donald Leatherwood, M.D.,
a board-certified orthopedic surgeon who completed a fellowship in upper
extremities. Dr. Leatherwood performed an Independent Medical Examination
(IME) of Claimant on November 10, 2015, and testified as follows.1 Dr.
Leatherwood conducted a physical examination of Claimant, the results of which
were objectively normal. Claimant’s right shoulder examination was “really quite
good,” although he had some minor subjective complaints regarding tenderness and
range of motion, none of which were supported by objective findings. (Id. ¶ 8(c).)
Dr. Leatherwood reviewed Claimant’s records, including the actual MRI scans of
Claimant’s right shoulder and cervical spine. The shoulder MRI showed
1
The finding of fact summarizing Dr. Leatherwood’s testimony mistakenly identifies him
as Claimant’s witness.
3
degenerative changes to the rotator cuff, “which could be called a partial tear and
chronic[,]” but no traumatic findings. (Id. ¶ 8(d).) He agreed with the radiologist’s
findings on the cervical spine MRI that there were degenerative changes but no
traumatic changes. Dr. Leatherwood’s review included the notes of Claimant’s
treatment by WorkNet from July 20, 2015, through August 4, 2015, which diagnosed
Claimant with a sprain/strain of the right shoulder and cervical spine. Based on his
review of Claimant’s history, his physical examination of Claimant, and his review
of Claimant’s medical records, Dr. Leatherwood opined there was no objective
evidence demonstrating that an injury occurred on July 20, 2015, and that the
mechanism of the alleged injury to Claimant’s cervical spine, Claimant performing
his normal job, did “not make sense to him” particularly after his review of a
surveillance video from the date of the injury. (Id. ¶ 8(i), (k).) However, “there
[wa]s the potential for a sprain/strain of the shoulder or the muscles from the
shoulder to the base of neck.” (Id. ¶ 8(i).) “[A]s of the date of his examination, . . .
there was no evidence of any ongoing injury of any kind and Claimant could return
to his normal duty without restriction.” (Id. ¶ 8(j).)
The WCJ credited Claimant’s testimony about having pain in his neck and
shoulder on July 20, 2015, while he performed his physically demanding job duties,
that he reported his injury to his supervisor and the RN, and was sent to WorkNet
where his injuries were diagnosed. Based on her observations of Claimant’s
demeanor, the WCJ rejected his testimony that he had ongoing complaints and
disability related to the July 20, 2015 work incident. As for the medical testimony,
the WCJ credited Dr. Pavlou’s opinion that a work injury occurred over Dr.
Leatherwood’s contrary opinion, noting that WorkNet treated Claimant from July
20, 2015, through August 4, 2015, based on its diagnosis of right shoulder and
4
cervical spine sprain/strain, and Dr. Leatherwood recognized that a potential injury
from Claimant’s work activities was “a sprain/strain of the shoulder or the muscles
from the shoulder to the base of the neck.” (Id. ¶ 11.)2 However, the WCJ found
more credible and persuasive Dr. Leatherwood’s testimony regarding the nature of
Claimant’s injury and extent of Claimant’s disability. The WCJ explained that Dr.
Leatherwood had more expertise as a board-certified orthopedic surgeon with a
fellowship in upper extremities, he is qualified to read and did read the actual
imaging studies of Claimant’s shoulder and cervical spine, and his “opinions [were]
based on and supported by the examination performed and records reviewed.” (Id.
¶ 12(b).)
Based on these credibility determinations, the WCJ found that “Claimant
sustained a sprain/strain to his right shoulder and to his neck in the course of
employment on 7/20/15 and resulting in disability up to but not including 11/10/15.”
(Id. ¶ 11(2).) “Claimant was fully recovered from his work injuries as of 11/10/15.”
(Id. ¶ 12(2).) Accordingly, the WCJ granted the Claim Petition, directed Employer
to pay Claimant’s reasonable and necessary medical expenses related to his work
injury and WC benefits from July 20, 2015, “up to but not including” November 9,
2015, and terminated Claimant’s WC benefits as of November 10, 2015. (WCJ
Order.) Claimant appealed to the Board, arguing that the WCJ erred in terminating
his WC benefits based on Dr. Leatherwood’s testimony because that testimony was
not competent in that it failed to recognize the judicially-determined injury. Upon
its review of the record, the Board held that Dr. Leatherwood’s testimony was
2
The WCJ’s Decision contains two findings of fact 11 and 12. We will refer to the second
of each as 11(2) and 12(2), respectively.
5
competent and affirmed the WCJ’s Decision. Claimant now petitions this Court for
review.3
On appeal, Claimant reiterates his argument that the WCJ erred in terminating
his WC benefits because Dr. Leatherwood’s testimony was not competent due to his
refusal to recognize that Claimant sustained any injury on July 20, 2015. Hall v.
Workers’ Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734, 740 (Pa. Cmwlth. 2010);
U.S. Steel Mining Co., LLC v. Workers’ Comp. Appeal Bd. (Sullivan), 859 A.2d 877,
884 (Pa. Cmwlth. 2004). According to Claimant, the WCJ found that Claimant
sustained a work injury on that date and, in order for Dr. Leatherwood’s opinion to
be competent, he had to recognize the existence of that injury and then, to support
the termination of benefits, opine that Claimant was fully recovered therefrom. GA
& FC Wagman, Inc. v. Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087, 1092
(Pa. Cmwlth. 2001). That did not occur here and, therefore, Claimant argues, the
WCJ’s finding that he was fully recovered is not supported by competent evidence.
In a claim petition proceeding, the claimant bears the burden of proving “the
right to compensation and all of the elements necessary to support an award,
including” “the duration of disability throughout the pendency of the claim petition.”
Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750, 754-55 (Pa.
Cmwlth. 2002). If, during that proceeding, the WCJ concludes that the evidence
supports granting the claim petition only for a closed period of disability, the WCJ
may terminate the benefits, even if the employer has not requested termination.
Connor v. Workmen’s Comp. Appeal Bd. (Super Sucker, Inc.), 624 A.2d 757, 758
3
This Court’s “review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are
supported by substantial evidence.” City of Phila. v. Workers’ Comp. Appeal Bd. (Sherlock), 934
A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).
6
(Pa. Cmwlth. 1993). A termination of benefits is proper “where the employer proves
that the claimant is fully recovered from the work injury and has no remaining
disability that relates to the work injury.” Hall, 3 A.3d at 740. Full recovery must
be proven by unequivocal and competent medical evidence, and “a medical expert’s
opinion will not support a termination if that medical expert does not acknowledge
the accepted work injuries and does not opine full recovery from those injuries.” Id.
“Whether an expert’s opinion is competent is a question of law subject to plenary
review.” City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 769
(Pa. 2011).
Initially, we note that all the cases Claimant relies upon involved previously
accepted or judicially-determined injuries and an employer’s subsequent attempt
to terminate the claimant’s benefits. See, e.g., Hall, 3 A.3d at 736 (Notice of
Compensation Payable (NCP)); Gillyard v. Workers’ Comp. Appeal Bd. (Pa. Liquor
Control Bd.), 865 A.2d 991, 992 (Pa. Cmwlth. 2005) (NCP and injuries expanded
via WCJ decision); U.S. Steel Mining, Co., 859 A.2d at 881 (injuries identified in
referee decision); GA & FC Wagman, Inc., 785 A.2d at 1088 (NCP). Although
Claimant recognizes the different procedural posture of this case, he asserts that the
same principle, that the opinion of full recovery by a physician who does not
acknowledge the existence of a work injury is not competent, applies and was not
satisfied in the present matter. We are unpersuaded by Claimant’s arguments.
Here, the WCJ found that Claimant sustained a work-related injury in the
nature of a sprain/strain of the right shoulder and neck. (FOF ¶ 11(2).) This finding
is based upon WorkNet’s diagnosis and Dr. Leatherwood’s recognition that the
mechanism of injury could result in a “sprain/strain . . . of the shoulder or the muscles
which go from the shoulder to the base of the neck . . . .” (R.R. at 214a-15a.) The
7
WCJ further found that Claimant had completely recovered from this injury as of
November 10, 2015. (FOF ¶ 12(2).) Thus, while the WCJ rejected Dr.
Leatherwood’s opinion that no injury had occurred, she accepted his opinion that if
an injury had occurred, which he indicated would be a sprain/strain, Claimant had
fully recovered as of the November 10, 2015 IME. Conversely, while the WCJ
accepted Dr. Pavlou’s opinion that Claimant sustained a disabling work injury on
July 20, 2015, she rejected Dr. Pavlou’s opinion regarding the nature of that work
injury and that Claimant remained disabled as a result. The WCJ also rejected
Claimant’s testimony regarding any ongoing disability as a result of the July 20,
2015 injury.
“The WCJ is the ultimate fact finder and has complete authority for making
all credibility determinations.” Rife, 812 A.2d at 755. It is well-settled that a “WCJ
may reject the testimony of any witness in whole or in part, even if that testimony
is uncontradicted.” Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.),
721 A.2d 1152, 1156 (Pa. Cmwlth. 1998) (emphasis added). Where the WCJ is
required to assess the credibility of deposition testimony, the WCJ must articulate
objective bases for crediting one witness’s deposition testimony over another
witness’s deposition testimony. Daniels v. Workers’ Comp. Appeal Bd. (Tristate
Transport), 828 A.2d 1043, 1053-54 (Pa. 2003). Here, the WCJ made particular
credibility determinations and provided, where required, objective bases for those
determinations that are supported by the record. Thus, there was no error or abuse
of discretion in the WCJ, based on her review of the record, “select[ing] from among
the proffered testimonies,” (Claimant’s Br. at 18), to find that Claimant had
sustained a disabling work injury in the nature of a sprain/strain of the right shoulder
and neck but had fully recovered therefrom.
8
As for the competency of Dr. Leatherwood’s opinions, an examination of Dr.
Leatherwood’s entire testimony reveals that he did recognize the potential existence
of a work-related sprain/strain of Claimant’s right shoulder and neck, the judicially-
accepted injury, and did opine that Claimant had fully recovered therefrom. Dr.
Leatherwood testified:
. . . the first part of my opinion would be whether or not [Claimant]
sustained a work-related injury and my opinion at the time of my IME
was that I had no objective evidence that an injury had occurred.
In fact, [Claimant’s] mechanism as described to me didn’t really
make a lot of sense for providing an injury - - simply hammering, doing
his normal job.
However, at the time, I had no direct evidence concerning the
situation and so that was the extent of my opinions that I did not have
any objective evidence. In other words, there was no MRI scans
showing edema, there was no broken bone, there was no ecchymosis
seen, or things like that. So that was the first part of my opinion.
The second part of my opinion would be that as of the date I
saw [Claimant] on November 10th of 2015, there was no evidence
of any ongoing injury of any kind. So, in my opinion, if an injury
had been sustained such as a mild sprain and strain, there was no
evidence as of the date I saw him.
***
. . . . In my opinion as of the date I saw him on November 10th,
2015, [Claimant] could return to his normal duty without
restriction.
***
I don’t see any need for any treatment as of November 10th,
2015.
(R.R. at 209a-11a (emphasis added).) Dr. Leatherwood acknowledged that WorkNet
had diagnosed Claimant with a sprain/strain of the right shoulder and cervical spine.
(Id. at 204a-05a.) He further recognized that, as a result of Claimant’s activities on
July 20, 2015, “[t]here [was a] potential mechanism . . . for a sprain/strain . . . of the
9
shoulder or the muscles which go from the shoulder to the base of the neck.” (Id. at
214a-15a.) Dr. Leatherwood concluded his testimony by stating that “[i]f an injury
occurred, it was fully recovered as of November 10, 2015.” (Id. at 232a.)
Although Dr. Leatherwood’s primary opinion was that no work-related injury
had occurred, he also testified that any injury that may have occurred on July 20,
2015, which included a potential sprain/strain of the right shoulder and “the muscles
which go from the shoulder to the base of the neck,” had fully resolved, no further
treatment was necessary, and Claimant could return to his pre-injury position
without restrictions. (Id. at 214a-15a.) Claimant appears to argue that, in order for
Dr. Leatherwood’s testimony to be competent, he had to believe that Claimant had
been injured on July 20, 2015. However, “[a] medical expert need not necessarily
believe that a particular work injury actually occurred.” Hall, 3 A.3d at 741. Rather,
“[t]he expert’s opinion is competent if he assumes the presence of an injury and finds
it to be resolved by the time of the IME.” Id. Dr. Leatherwood’s testimony satisfies
this standard, and, therefore, that testimony was competent. The WCJ credited this
competent testimony, and it constitutes substantial evidence4 that supports the
WCJ’s finding that Claimant was fully recovered from his work-related injury as of
November 10, 2015.
Thus, although Claimant established that he sustained a work-related injury
on July 20, 2015, and was disabled thereby, the WCJ concluded, based on credited,
competent evidence, that Claimant no longer suffered a disability from that injury
because he had fully recovered as of November 10, 2015. Acting within her
authority, the WCJ granted the Claim Petition for a closed period and terminated
benefits based on the evidence presented during the proceedings on the Claim
4
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Kriebel, 29 A.3d at 769.
10
Petition. Connor, 624 A.2d at 758. Therefore, the Board correctly affirmed the
WCJ’s Decision.
Accordingly, we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Hughes, :
Petitioner :
:
v. : No. 1132 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Pep Boys), :
Respondent :
ORDER
NOW, February 26, 2018, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFRIMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge