City of Allentown v. WCAB (Sames)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Allentown, :
Petitioner :
:
v. :
:
Workers’ Compensation :
Appeal Board (Sames), : No. 484 C.D. 2017
Respondent : Submitted: August 4, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 5, 2018
The City of Allentown (Employer) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) March 22, 2017 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting Vicki Sames’
(Claimant) Claim Petition (Claim Petition). Employer presents two issues for this
Court’s review: (1) whether the WCJ issued a reasoned decision; and, (2) whether the
WCJ erred by awarding Claimant total disability benefits because Claimant was not
released to work due to a non-work-related injury at the time she underwent surgery
for her alleged work-related injury. After review, we affirm.
Claimant was employed by Employer as a full-time paramedic. On
January 3, 2014 while responding to a call, Claimant slipped and fell over a snow-
covered curb and landed on her right shoulder. Although Claimant immediately felt
pain, she could still move her arm and did not think it was broken, so she finished the
call. Upon returning from the call, Claimant filled out an injured medic report to notify
her supervisors of the incident, and then completed her shift. She did not seek medical
treatment right away, but rather self-treated with ice and anti-inflammatory and pain
medicine. Claimant’s pain would go away on her days off and flare up when she
worked, so she continued working her full-duty position. In mid-February, after
shoveling snow from her sidewalk, Claimant experienced pain across both of her
shoulders. Because her pain persisted, Claimant sought medical treatment on March
10, 2014 and, ultimately, underwent spinal fusion surgery on April 21, 2014. Claimant
stopped working on March 10, 2014.
Because Claimant continued to experience right shoulder pain, and was
having difficulty extending her arm and lifting anything, as well as sleeping or laying
on it, she sought medical treatment on May 16, 2014. She had an MRI of her right
shoulder and was treated with physical therapy. Orthopedic surgeon Randy Jaeger,
M.D. (Dr. Jaeger) informed Claimant that her right shoulder injury could be career
ending; thus, she went to David L. Rubenstein, M.D. (Dr. Rubenstein) for a second
opinion. On August 18, 2014, Claimant underwent right rotator cuff repair surgery.
On January 20, 2015, Claimant returned to her pre-injury job.
On September 26, 2014, Claimant filed her Claim Petition, alleging that
she sustained a right shoulder rotator cuff tear on January 3, 2014, when she slipped
and fell during the course and scope of her employment. WCJ hearings were held
January 14, May 6, and October 28, 2015. On March 24, 2016, the WCJ granted
Claimant’s Claim Petition; awarded temporary total disability (TTD) benefits from
August 18, 2014 to January 19, 2015; suspended Claimant’s TTD benefits as of January
20, 2015; and terminated Claimant’s TTD benefits as of April 2, 2015. Claimant and
2
Employer cross-appealed to the Board. On March 22, 2017, the Board affirmed the
WCJ’s decision. Employer appealed to this Court.1
Employer first argues that the WCJ did not issue a reasoned decision
because Employer’s medical evidence unequivocally disputed a causal connection
between Claimant’s January 3, 2014 fall and her right rotator cuff tear. Employer
specifically contends that the WCJ capriciously disregarded the assessments of five
physicians and accepted the assessment of one doctor without explanation. We
disagree.
Initially,
Section 422(a) of the [WC] Act [(Act)2] aids meaningful
appellate review by requiring the WCJ to issue a reasoned
decision containing findings of fact and conclusions of law
based upon the record as a whole and clearly stating the
rationale for the decision. When the WCJ is faced with
conflicting evidence, [S]ection 422(a) of the Act requires the
WCJ to state the reasons for rejecting or discrediting
competent evidence. The reasoned decision requirement
does not permit a party to challenge or second-guess the
WCJ’s reasons for credibility determinations; determining
the credibility of witnesses remains the quintessential
function of the WCJ as the finder of fact. The WCJ is free to
accept, in whole or in part, the testimony of any witness.
However, the WCJ may not capriciously disregard evidence.
A ‘capricious disregard’ of evidence is a ‘deliberate
disregard of competent evidence which one of ordinary
intelligence could not possibly have avoided in reaching a
result.’ Leon E. Wintermyer, Inc. v. Workers’ Comp[.]
Appeal [Bd.] (Marlowe), . . . 812 A.2d 478, 487 n. 12 ([Pa.]
2002).
1
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
3
Reed v. Workers’ Comp. Appeal Bd. (Allied Signal, Inc.), 114 A.3d 464, 470 (Pa.
Cmwlth. 2015) (citations omitted).
At the outset, it is important to set forth the chronology of events and
Claimant’s doctor visits. On January 3, 2014, Claimant injured her right shoulder at
work for which, although she submitted an injury report that same day, she did not
immediately seek medical treatment. On February 13, 2014, Claimant injured her neck
and left shoulder while shoveling snow, which are the injuries for which Mei Wong,
M.D. (Dr. Wong) eventually performed the April 21, 2014 cervical fusion surgery.
However, before that surgery, Claimant treated with five different doctors at
Coordinated Health for her neck and left shoulder injury: Dale Bautista, M.D.; Shahid
Noor, M.D.; Dr. Jaeger; Brian Goldberg, M.D.; and Dr. Wong. According to
Employer’s medical expert Ira C. Sachs, D.O. (Dr. Sachs), none of those five medical
providers recorded any deficits or problems with Claimant’s right shoulder or any
indication of a work-related injury. See Reproduced Record (R.R.) at 130a-137a (Dr.
Sachs’ Report). These are the five assessments Employer asserts the WCJ capriciously
disregarded.
On May 14, 2014, Claimant treated with her family physician Matthew
Winas, D.O. (Dr. Winas) for her right shoulder injury. Dr. Winas diagnosed a possible
right rotator cuff tear, and referred Claimant to Dr. Jaeger, who ordered an MRI and
confirmed that Claimant had a right rotator cuff tear. Dr. Jaeger advised Claimant that
the injury could be a career-ending injury. Thereafter, Claimant sought a second
opinion from Dr. Rubenstein. See R.R. at 25a-26a (Claimant’s testimony). On August
18, 2014, Dr. Rubenstein performed Claimant’s rotator cuff repair surgery. Thereafter,
Claimant returned to her pre-injury job on January 20, 2015.
Claimant presented, inter alia, Dr. Rubenstein’s July 22, 2014 medical
record, wherein Dr. Rubenstein noted that Claimant expressed that her right shoulder
problem was related to her January 3, 2014 fall, see R.R. at 184a; and Dr. Rubenstein’s
4
June 10, 2015 narrative report in which he concluded that “[Claimant] did sustain a
work-related injury to her right shoulder that resulted in traumatic impingement
syndrome and full thickness rotator cuff tear that required surgery” on August 18, 2014.
R.R. at 201a. Employer presented, inter alia, Dr. Sachs’ deposition transcript, during
which he opined that Claimant’s “medical records contemporaneous with her treatment
and as things were unfolding [sic] would not support th[e] contention” that “the
difficulties with [Claimant’s] right shoulder which led to her surgery are in any way
related to the alleged trip-and-fall on January 3, 2014 over a snow-covered curb[.]”
R.R. at 106a-107a. Employer also presented Dr. Jaeger’s medical records wherein he
noted that the tear appeared to have been present before Claimant’s January 3, 2014
fall, and questioned whether the tear was reparable and, if so, whether it would heal.
See R.R. at 162a. The WCJ determined that Dr. Sachs’ and Dr. Jaeger’s causation
testimony was not credible and Dr. Rubenstein’s opinions were credible.
The WCJ clearly stated the rationale for these determinations:
The issue is causation. Employer’s witness, Dr. Sachs,
opined that Claimant could not have suffered such a severe
injury to her right shoulder on January 3rd, as shown in the
later MRI, and continued to work her regular job, and not
seek treatment for it until May 16th, a few months after
suffering a subsequent February 13th injury to a different
body part, for which she first sought treatment and went out
of work on March 10th. The problem with his opinion is that
there was no medical record of right shoulder injury,
symptoms, or treatment before January 3rd, nor after that
date and before May 16th. If her shoulder condition was so
significant on May 23rd that she should have immediately
complained when it happened, when did it occur? Dr. Sachs’
causation opinion is unworthy of belief and not credible. The
records of the Coordinated Health physicians reveal that
Claimant did not discuss her right shoulder problems until
after her April 21st cervical spine surgery, but she clearly
described the January incident to Dr. Jaeger at her May 27th
visit. His record stated that the tear appeared to have been
present before her fall and was so large that it could not be
5
repaired. However, not only was it repairable, Dr.
Rubenstein did such a good job that Claimant was able to
return to her pre-injury position six months after surgery and
Dr. Sachs opined, credibly, that she was fully recovered.
Thus, Dr. Jaeger’s causation and prognosis opinions are not
credible. Dr. Rubenstein, the treating surgeon, opined that
the right shoulder condition on which he operated was related
to [Claimant’s] fall. Although his records and narrative
report did not provide a detailed causation opinion based
upon a specific mechanism of injury, his July 22nd initial
examination stated that Claimant related her injury to her
January 3, 2014[] fall, and his June 10th report opined that
she sustained a work-related traumatic impingement
syndrome and full thickness rotator cuff tear for which he
performed arthroscopic debridement of a labral tear and a
frayed biceps, subacromial decompression, and
supraspinatus tendon repair. I find his opinions, as the
operating surgeon, competent, credible, consistent with
Claimant’s mechanism of injury, and persuasive.
WCJ Dec. at 9. Based on the above, we hold that the explanation aids in meaningful
appellate review as to how and on what basis the WCJ reached the conclusion. In
addition, the WCJ did not capriciously disregard any evidence, but rather properly
stated the reasons for rejecting or discrediting competent evidence. Accordingly, the
WCJ’s decision is well-reasoned pursuant to Section 422(a) of the Act.
Employer next contends that the WCJ erred by awarding Claimant total
disability benefits because Claimant was not released to work due to a non-work-
related injury at the time she underwent surgery for her alleged work-related injury.
Specifically, Employer maintains:
During the Claimant’s direct testimony, she only testified to
[Dr. Rubenstein] not releasing her to return to her paramedic
duties. However, during cross-examination, she
acknowledged during the following exchange [that Dr.
Wong] had not released her to return to work in connection
with the cervical fusion surgery performed on April 21, 2014,
prior to the August 18, 2014 surgery by [Dr. Rubenstein]:
6
A. I’m still not released from [Dr. Wong] yet. She
won’t release me until I get released from my
shoulder injury. To go back to work.
Q. So Dr. Wong has not released you to go back to
work?
A. No, she has not.
(R. 50a).
Since she was not clear to return to work from the non-work
related condition (cervical fusion surgery), regardless of the
status associated with her right shoulder, she is disqualified
from disability benefits.
Employer Br. at 29. The above-quoted language is Employer’s entire argument.
[Employer] has failed to adequately develop th[is] issue[] in
[its] brief as required by Rule 2119(a) of the Pennsylvania
Rules of Appellate Procedure, which states:
The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type
distinctively displayed—the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). Additionally, this
Court has held, ‘[w]hen issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate to
present specific issues for review, a court will not consider
the merits thereof.’ Commonwealth v. Feineigle, 690 A.2d
748, 751 n.5 (Pa. Cmwlth. 1997). ‘Mere issue spotting
without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.’
Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n.11
(Pa. Cmwlth. 2002). The additional issue[] cited above [is a]
conclusory statement[] with no supporting analysis or
citation to legal authority.
Boneilla v. Commonwealth, 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 2008). Thus, by
failing to add any discussion, legal analysis or legal citations to support its assertion,
Employer waived this issue.
7
Notwithstanding, Claimant’s testimony with respect to whether Dr. Wong
had released her to return to work is not sufficient evidence to support the conclusion
that her non-work-related injury was the cause of her disability. However, the fact that,
according to Claimant, Dr. Wong did not release Claimant from her non-work-related
injury because she had not yet been released from her work-related injury, does not
disqualify Claimant from receiving WC benefits. “The cases are clear that, where there
are alleged competing causes for disability . . . , the claimant must establish that the
work-related injury was a substantial, contributing factor to that disability . . . .” Pa.
State Univ. v. Workers’ Comp. Appeal Bd. (Rabin, Deceased), 53 A.3d 126, 133 (Pa.
Cmwlth. 2012).
When delivering a causation opinion in a [WC] case, a doctor
or medical expert is not required to use magic words such as
‘substantial contributing factor,’ ‘materially contributed,’ or
. . . ‘cause in fact.’ Rather, ‘[i]t is only necessary that the
doctor’s testimony permit a valid inference that such
causation was present.’
Id. (quoting Thomas Lindstrom Co. v. Workers’ Comp. Appeal Bd. (Braun), 992 A.2d
961, 967 (Pa. Cmwlth. 2010) (citations omitted)). Because the record clearly
established that Claimant’s rotator cuff repair surgery was a “cause in fact” of her
disability, the WCJ properly awarded Claimant total disability benefits. Id.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Allentown, :
Petitioner :
:
v. :
:
Workers’ Compensation :
Appeal Board (Sames), : No. 484 C.D. 2017
Respondent :
ORDER
AND NOW, this 5th day of January, 2018, the Workers’ Compensation
Appeal Board’s March 22, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge