Cardone Industries v. WCAB (Tiko)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cardone Industries, :
Petitioner :
: No. 791 C.D. 2015
v. :
: Submitted: October 30, 2015
Workers’ Compensation Appeal :
Board (Tiko), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 8, 2016
Cardone Industries (Employer) petitions for review of the April 13, 2015
decision of the Workers’ Compensation Appeal Board (Board), affirming the order of
a workers’ compensation judge (WCJ) that denied Employer’s termination and
review petitions and granted the reinstatement petition of Diana Tiko (Claimant).
Facts and Procedural History
Claimant worked for Employer as a brake caliper assembler, working
with a team of three other workers and an expectation that the team would assemble
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
900 units per day. In the course and scope of her employment on May 20, 2010,
Claimant sustained an injury to her arm/shoulder and her low back. The nature of her
arm/shoulder injury is a matter of dispute. Claimant alleges that she sustained
injuries to her right arm and shoulder; whereas Employer alleges that Claimant’s
injuries were to her left arm and shoulder. Nevertheless, Employer issued a medical-
only notice of temporary compensation payable, which later converted to a medical-
only notice of compensation payable (NCP), recognizing only a low back strain.
Following her injury, Claimant’s supervisor sent her to an on-site nurse.
However, due to Claimant’s pain, she was referred for treatment to Temple University
Hospital (Temple). Claimant does not speak English very well and she was
accompanied to Temple and subsequent medical visits by a relative, Employer’s
Chaplain, Martin Katro, who translated for her. Following an examination, a
physician at Temple released Claimant to return to work with several restrictions,
including no lifting over five pounds, no pushing/pulling over five pounds, and no
reaching above her shoulder. Claimant never missed work but did return to a light-
duty job cleaning floors and fans. On May 25, 2010, Claimant was released to return
to her pre-injury job without any restrictions. In June 2010, Claimant was transferred
to the water pump unit, which was a lighter-duty job than her brake caliper assembly
position. As of August 23, 2010, Claimant utilized two weeks of leave under the
Family Medical and Leave Act (FMLA)2 and vacation time to visit her sick mother in
Albania. Upon her return to work on September 21, 2010, she was advised that she
had been laid off for economic reasons.3
2
29 U.S.C. §§2601-2654.
3
Claimant received six weeks of separation pay, followed by unemployment compensation.
2
On May 24, 2011, Claimant filed a penalty petition, alleging that
Employer violated the Pennsylvania Workers’ Compensation Act (Act)4 by failing to
reinstate indemnity benefits following the elimination of her job. Claimant later
amended the penalty petition to a reinstatement petition, alleging that total disability
benefits should have been reinstated as of August 23, 2010. Employer filed an
answer denying this allegation.
On November 14, 2011, Employer filed a review petition seeking to
change the description of Claimant’s injury on the medical-only NCP from low back
strain to a left elbow injury. Employer asserted the initial acceptance of a low back
strain injury was due to a typographical error and that the medical records reflect that
Claimant reported and was treated for a left elbow injury. On this same day,
Employer filed a termination petition alleging that Claimant had fully recovered from
her work injury as of July 20, 2011, the date of an independent medical examination
(IME) conducted by Todd Kelman, D.O. Claimant filed answers denying the
allegations of each petition. The petitions were consolidated for purposes of hearings
before the WCJ.
Claimant testified as to the facts described above. Claimant specifically
denied ever reporting or receiving treatment for pain in her left arm/shoulder. (WCJ’s
Findings of Fact Nos. 1b, 2a.) Claimant presented the deposition testimony of
Hekuran Abedini, a former co-worker. Abedini testified that Claimant complained to
him of pain in her right arm. On cross-examination, Abedini acknowledged that he
did not work with Claimant in calipers or see her work station there. Rather, he stated
that he worked with Claimant in water pumps for approximately two and one-half
years in late 2004, prior to her transfer to calipers. Abedini also stated that he was
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
3
laid off in March 2011 and filed a human relations complaint against Employer, but
denied that such filing had any effect on his testimony. (WCJ’s Findings of Fact Nos.
3a-b.)
Claimant further presented the deposition testimony of Frederick S.
Lieberman, M.D., an orthopedic surgeon who first examined Claimant on July 15,
2011, with translation assistance provided by Claimant’s daughter. Dr. Lieberman
recalled a history provided by Claimant of right arm and low back injuries sustained
in the course of her employment on May 20, 2010, all of which continued at the time
of the examination. He stated that an MRI conducted on October 19, 2010, revealed
a midline protrusion and small annular tear in the posterior aspect of L4-5, as well as
a small protrusion at L5-S1. His exam further revealed evidence of lateral
epicondylitis and common extensor tendonitis in Claimant’s right elbow and a partial
thickness tear in her right shoulder. Dr. Lieberman ordered additional testing,
including MRIs of Claimant’s right shoulder and her cervical, thoracic, and
lumbosacral spine. He noted that these MRIs showed disc herniations at L5-S1 and
C5-6, protrusions at L4-5 and C4-5, and a disc bulge at C-7. Dr. Lieberman testified
that EMG studies confirmed multilevel cervical radiculopathy on the right at C-4
through T-1 and carpal tunnel syndrome more prevalent on the right. With the
exception of the carpal tunnel syndrome, Dr. Lieberman opined that Claimant’s
condition was directly related to her work activities for Employer. (WCJ’s Findings
of Fact Nos. 4a-e.)
On cross-examination, Dr. Lieberman acknowledged that multiple
forms, including, inter alia, Employer’s May 20, 2010 work status form and
occupational health services referral form, as well as Temple’s medical report form,
an x-ray report from Temple, progress notes from the doctor at Temple, and work
4
release status form, all describe left arm/shoulder complaints and treatment. He also
acknowledged that records from a chiropractor treating Claimant’s back injury
reference pain on October 15, 2010, resulting from an incident in Claimant’s shower
at home. (WCJ’s Findings of Fact Nos. 4f-g.)
Employer presented the testimony of Delmalyn LaBrake, an
occupational health nurse with Employer for fourteen years. LaBrake testified that
she saw Claimant on May 20, 2010, for complaints in her left shoulder, elbow, hand,
and fingers, and referred her for treatment to Dr. Evelyn Balogun at Temple
Occupation Health. LaBrake stated that Dr. Balogun saw Claimant a second time on
May 25, 2010, in her office at Employer’s facility, again examining Claimant’s left
arm. LaBrake noted that Chaplain Katro provided translation at this visit and that Dr.
Balogun released Claimant to return to her pre-injury job that day. LaBrake then
identified many of the documents referenced in Dr. Lieberman’s deposition, all of
which discuss a left arm injury. (WCJ’s Findings of Fact Nos. 5a-d.)
Employer also presented the testimony of Chaplain Katro, who worked
for Employer for fourteen years and was a distant cousin of Claimant. Chaplain
Katro testified that he accompanied Claimant to both visits with Dr. Balogun and
acted as a translator. He stated that he was one-hundred percent certain that Claimant
complained of pain in her left arm in May 2010, and that she never mentioned neck
pain, low back pain, or right arm pain to him. (WCJ’s Findings of Fact Nos. 6a-f.)
Finally, Employer presented the deposition testimony of Todd Marc
Kelman, D.O., a board-certified orthopedic surgeon who conducted the July 20, 2011
IME of Claimant. Dr. Kelman testified that Claimant complained of pain in her neck,
low back, and right arm, including her shoulder and elbow, and numbness in her
fingers. He stated that Claimant denied having any left arm symptoms. While the
5
October 2010 MRI showed small protrusions at L4-5 and L5-S1, he described these
findings as not clinically significant. With respect to a reported disc herniation at L5-
S1 following an October 2011 lumbar MRI, he noted that the report makes no
mention of indenting or impinging on the thecal sac or a nerve root. Regarding the
disc herniation at C5-6, he noted that such a finding did not correlate clinically to
Claimant’s examination, explaining that Claimant complained of numbness in her
middle three fingers. According to Dr. Kelman, such a herniation would result in
numbness in the area of Claimant’s thumb and the space between her thumb and her
index finger. (WCJ’s Findings of Fact Nos. 7a-g.)
Dr. Kelman testified that Claimant’s 2010 medical records referenced
complaints and treatment solely to her left arm. He stated that Claimant advised him
that her back pain did not start until September 2010, noting the chiropractor’s report
that such pain started at home in Claimant’s shower on October 15, 2010. He opined
that the only diagnosis that could have been partially corroborated was tendonitis
over the right forearm, which he could not relate to her work injury because her
medical records lacked any right-sided complaints. Given Claimant’s lack of any
left-sided complaints during his IME, Dr. Kelman further opined that Claimant had
fully recovered from her work injury. (WCJ’s Findings of Fact Nos. 7h-i.)
On cross-examination, Dr. Kelman reiterated that he diagnosed Claimant
as suffering from right forearm and shoulder tendonitis, as well as low back pain with
radiculopathy. He noted that he would only release Claimant to perform sedentary
work, with restrictions on repetitive manipulation and lifting over ten pounds. He
further acknowledged that Claimant described her pre-injury job as involving
repetitive use of her right arm and that it would be more likely for a person doing
6
repetitive work to develop tendonitis on the dominant side. (WCJ’s Finding of Fact
No. 7j.)
The WCJ ultimately granted Claimant’s reinstatement petition, but
denied Employer’s review and termination petitions. The WCJ accepted the
testimony of Claimant as credible. The WCJ also accepted as credible that portion of
Dr. Kelman’s testimony wherein he stated that Claimant’s complaints were related
solely to her right arm/shoulder. The WCJ rejected as not credible that portion of Dr.
Kelman’s testimony wherein he opined that Claimant had fully recovered. The WCJ
further rejected the testimony of LaBrake, Chaplain Katro, and Dr. Lieberman as not
credible. The WCJ concluded that Claimant had established that, through no fault of
her own, her earning power was once again adversely affected by disability from her
May 20, 2010 work injury, thereby entitling her to total disability benefits as of
August 23, 2010. The WCJ also concluded that the description of the injury on the
NCP should be amended to right forearm and shoulder tendonitis and that Employer
was only responsible for medical bills related to those conditions. Employer
appealed to the Board, which affirmed the WCJ’s decision. Employer then filed a
petition for review with this Court.
Discussion
Reasoned Decision/Capricious Disregard of Evidence
On appeal,5 Employer first argues that the WCJ erred in failing to
explain why he rejected and/or discredited the work and medical records referencing
5
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether findings of fact were supported by substantial
evidence. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894
A.2d 214, 216 n.3 (Pa. Cmwlth. 2006). In addition, review for capricious disregard of material,
(Footnote continued on next page…)
7
a left-arm injury. More specifically, Employer argues that the WCJ’s failure to
address these records renders his decision unreasoned and constitutes a capricious
disregard of the evidence. We agree.
Section 422(a) of the Act requires the WCJ to issue a reasoned decision,
stating in relevant part:
All parties to an adjudicatory proceeding are entitled to a
reasoned decision containing findings of fact and
conclusions of law based upon the evidence as a whole
which clearly and concisely states and explains the rationale
for the decisions so that all can determine why and how a
particular result was reached. The [WCJ] shall specify the
evidence upon which the [WCJ] relies and state the reasons
for accepting it in conformity with this section. When
faced with conflicting evidence, the [WCJ] must adequately
explain the reasons for rejecting or discrediting competent
evidence. Uncontroverted evidence may not be rejected for
no reason or for an irrational reason; the [WCJ] must
identify that evidence and explain adequately the reasons
for its rejection. The adjudication shall provide the basis
for meaningful appellate review.
77 P.S. §834. The purpose of this section is to ensure that “a legally erroneous basis
for a finding will not lie undiscovered” and that “such legal error will be evident and
can be corrected on appeal.” PEC Contracting Engineers v. Workers’ Compensation
Appeal Board (Hutchison), 717 A.2d 1086, 1088-89 (Pa. Cmwlth. 1998). A decision
(continued…)
competent evidence is an appropriate component of appellate consideration in every case in which
such question is properly brought before the court. Leon E. Wintermyer, Inc. v. Workers’
Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). Capricious disregard of the
evidence exists “when there is a willful and deliberate disregard of competent testimony and
relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a
result.” Station Square Gaming L.P. v. Pennsylvania Gaming Control Board, 927 A.2d 232, 237
(Pa. 2007).
8
is reasoned for purposes of section 422(a) if it allows for adequate appellate review
without further elucidation. Daniels v. Workers’ Compensation Appeal Board
(Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003).
In the present case, there were numerous work and medical report forms
submitted into evidence, including a work status form and an occupational health
services referral form completed by Employer, as well as a medical report form from
Temple, an x-ray report from Temple, progress notes from the doctor at Temple, and a
work release status form completed by this same doctor, all of which describe
Claimant’s complaints and treatment as relating to her left shoulder, elbow, and hand.
These forms were acknowledged by both medical experts in their respective
depositions. However, in his decision, the WCJ merely references this
documentation in his findings summarizing the testimony of Dr. Lieberman and
LaBrake. The WCJ fails to provide any explanation as to why he ostensibly rejected
this evidence, which is especially relevant in this case where the specific nature of
Claimant’s work injury, i.e., left arm versus right arm, was the central issue in
dispute.6
While Claimant describes this documentation in her brief as merely
consisting of “three or four pieces of paper [which] defense counsel refers to as
‘every’ medical record,” (Claimant’s brief at 16), we note that Claimant received
limited medical treatment after her May 20, 2010 work injury. Indeed, the record
reveals that Claimant’s original medical treatment merely consisted of a visit to
6
Contrary to the dissent, the WCJ’s findings rejecting the testimony of LaBrake and
Chaplain Katro as not credible do not sufficiently address the aforementioned work and medical
report forms. At the very most, these findings reflect the confusion in this case concerning which
arm Claimant injured. Indeed, the dissent concedes “the varying descriptions of the injury in these
forms. . . .” (Slip op. at 6.) Further, the dissent recognizes that these forms consistently reference
injuries to Claimant’s left arm and hand, thereby necessitating further findings by the WCJ.
9
Employer’s on-site nurse, an examination at Temple by Dr. Balogun, and a follow-up
visit with Dr. Balogun at Employer’s facility on May 25, 2010, at which time
Claimant was released to return to her pre-injury job. Claimant did not seek
additional medical treatment until July 2011, more than one year after her work injury
and approximately ten months after her layoff, when she visited Dr. Lieberman.
Because the WCJ never addressed the aforementioned records in his
decision, we must conclude that his decision was not reasoned and he capriciously
disregarded this evidence. As a result, the matter must be remanded to the WCJ for
further findings addressing these records.
Substantial Evidence/Internally Inconsistent
Next, Employer argues that the WCJ’s decision was not supported by
substantial evidence and that his credibility determinations and ultimate conclusion
were internally inconsistent. We agree.
The WCJ accepted the deposition testimony of Employer’s medical
expert, Dr. Kelman, as credible and persuasive, and relied on this testimony to
support his finding and conclusion that Claimant’s work injury consisted of right
forearm and shoulder tendinitis. However, it is not clear that Dr. Kelman’s testimony
supports either. While the WCJ correctly summarized Dr. Kelman’s diagnosis of
Claimant’s condition, the WCJ neglected Dr. Kelman’s opinion that he could not
relate this diagnosis to Claimant’s May 20, 2010 work injury, primarily because
Claimant’s original medical records did not reference any right-sided complaints.
Indeed, the WCJ states in Finding of Fact No. 7(i) that Dr. Kelman “did not relate this
[diagnosis] to the May 20, 2010 work injury because there was no record that
[Claimant] had right sided complaints.” To the contrary, the WCJ notes in this same
10
finding that “Claimant’s records did document a diagnosis of left elbow tendinitis”
and that Claimant “had a left sided exam.” Id. We concluded above that a remand
was necessary for the WCJ to address these very records. In the course of this
remand, we believe that the WCJ should reconsider the deposition testimony of Dr.
Kelman in its entirety.
Burden of Proof – Reinstatement or Claim Petition
Finally, Employer argues that the WCJ’s finding that Claimant was
working light-duty immediately prior to her layoff was not supported by substantial
evidence. However, this finding would only be critical with respect to the burden
borne by Claimant on her reinstatement petition. For example, when an employee
returns to work for the pre-injury employer at a light-duty job and this job is
legitimately eliminated due to economic conditions resulting in the employee’s
layoff, then benefits for total disability must be paid to the employee in the absence of
additional proof from the employer of work availability. Klarich v. Workers’
Compensation Appeal Board (RAC’s Association), 819 A.2d 626, 629 (Pa. Cmwlth.),
appeal denied, 831 A.2d 601 (Pa. 2003). In such a case, the employee is entitled to
the presumption that his or her disability, i.e., loss of earning power, is causally
related to the continuing work injury. Id.On the other hand, when an employee returns to his or her pre-injury job
without restrictions and is later laid off, the burden is on the employee to
affirmatively establish that it is the work-related injury that is causing his or her
present loss of earnings. Id. While the claimant still enjoys the presumption that
some work-related medical injury continues, the claimant is not entitled to the
presumption that his or her present disability, i.e., loss of earnings, is causally related
to that work injury. Id.11
However, neither burden is applicable in this case because Claimant
never received wage loss benefits. Rather, Employer issued a medical-only notice of
temporary compensation payable, which later converted to a medical-only NCP, for a
low back injury. Claimant never missed work following her injury. She worked
light-duty for approximately one week before being cleared to return to her pre-injury
job without restrictions. Claimant returned to her pre-injury job and was then
transferred to a job in Employer’s water pump unit, where she worked for a couple of
months before using her sick time and FMLA leave to visit and care for her ailing
mother in Albania. Claimant was laid off before she could resume working for
Employer. The proper burden to be applied by the WCJ was that of a claim petition
and the WCJ should have treated Claimant’s reinstatement petition as such. Indeed,
the WCJ has the authority under section 413(a) of the Act, with respect to any
modification, reinstatement, suspension, or termination petition before him, to “hear
evidence, make findings of fact, and award or disallow compensation, in the same
manner and with the same effect and subject to the same right of appeal, as if such
petition were an original claim petition.” 77 P.S. §773.
We addressed a similar situation in Ingrassia v. Workers’ Compensation
Appeal Board (Universal Health Services, Inc.), ___ A.3d ___ (Pa. Cmwlth., No.
1212 C.D. 2014, filed October 26, 2015). In that case, the claimant was injured in the
course and scope of his employment when he was rear-ended while driving the
employer’s van. The employer issued a medical only NCP describing the injury as a
strain/sprain of the neck and lumbar areas. The claimant reported to work the next
day but left early complaining of a headache and dizziness, and did not return to work
thereafter. The claimant filed a claim petition alleging additional injuries to his head
and left arm, as well as a penalty petition alleging that the employer acted improperly
12
in issuing a medical only NCP and not paying disability benefits. During hearings
before a WCJ, the claimant orally amended his claim petition to a reinstatement
petition because the employer had already recognized a work injury. The WCJ
concluded that the claimant had proved that his work injury should include left ulnar
neuropathy and ordered the NCP to be amended. However, the WCJ also concluded
that the claimant failed to offer credible medical evidence that his work injury
disabled him from performing his pre-injury job.
The claimant appealed to the Board, which affirmed. On appeal to this
Court, the claimant argued, inter alia, that the WCJ erred in denying him disability
benefits because the WCJ and the Board applied the wrong burden of proof. More
specifically, the claimant argued that because the employer issued a medical only
NCP, his benefits should have been treated as though they were in suspension status
and his burden was that applicable to a reinstatement petition, where a claimant’s
testimony alone could support a reinstatement and the burden shifted to the employer
to prove that any disability was unrelated to the work injury. We rejected this
argument, first noting that “[t]he employer has the option of issuing a medical only
NCP, by which it acknowledges a work injury and agrees to pay for medical expenses
but does not accept liability for or agree to pay any wage loss benefits for disability.”
Slip op. at 10.
We further explained as follows:
Here, Employer issued a medical only NCP, acknowledging
that Claimant had sustained a non-disabling neck and
lumbar strain/sprain work injury. This made Employer
responsible for paying medical expenses for that injury, but
nothing more. Because Claimant did not establish a loss of
earning capacity resulting from the work injury accepted by
Employer, there were no disability benefits to suspend or to
reinstate. In short, Claimant’s case has not ‘advanced
13
procedurally or in substance to the suspension/reinstatement
stage.’
Id., slip op. at 11 (citations omitted). In such cases, we stated that the claimant must
file a claim petition and satisfy all elements necessary to support an award of
benefits, including proof of a work injury resulting in disability, i.e., loss of earning
power, and, unless the causal connection between an injury and disability is obvious,
unequivocal medical evidence establishing this connection. Id., slip op. at 10.
Ultimately, we held that the claimant “had the burden of proving a disabling work
injury by competent medical evidence,” the burden related to a claim petition, and,
hence, the WCJ and the Board applied the correct burden of proof. Id., slip op. at 11.
Because the WCJ in the present case applied the wrong burden of proof,
i.e., the burden relating to a reinstatement petition instead of a claim petition, a
remand is further warranted to the WCJ for additional findings applying the correct
burden.7
7
The dissent would hold that once Employer filed the review petition seeking to amend the
nature of Claimant’s work injury from a low back injury to a left elbow injury, “it placed at issue
Claimant’s weekly wage loss benefits,” (Slip. op. at 7), such that the filing of a formal claim
petition was unnecessary. However, this result is contrary to our recent decision in Ingrassia.
Additionally, the dissent’s reliance on Krushauskas v. Workers’ Compensation Appeal Board
(General Motors), 56 A.3d 64 (Pa. Cmwlth. 2012), appeal denied, 63 A.3d 1250 (Pa. 2013), for
support is misplaced. Krushauskas stands for the proposition that a WCJ is empowered to take
appropriate action based upon the evidence presented regardless of the nature of the underlying
petition, so long as the other party is put on notice as to the theory of relief which is sought.
In Krushauskas, the only petition before the WCJ was a penalty petition filed by the
claimant alleging that the employer had violated the Act by unilaterally suspending his benefits
without a supplemental agreement or court order. Despite finding that the employer had violated
the Act, the WCJ denied the penalty petition and ordered that the claimant’s compensation benefits
be suspended based on a finding that the claimant had voluntarily retired from the workforce. The
Board affirmed, as did this Court. We concluded that the claimant had notice that a suspension was
possible since his penalty petition was premised on a unilateral suspension of his benefits, the
employer’s denial of the allegations of the claimant’s penalty petition made it clear that the
employer was seeking a continuation of that suspension, and the claimant was extensively
questioned at the WCJ hearing regarding his voluntary retirement from the workforce.
(Footnote continued on next page…)
14
Accordingly, the order of the Board is reversed. The matter is remanded
to the Board, with further instructions to remand to the WCJ, for further findings
consistent with this opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge
(continued…)
In the present case, Employer filed a review petition seeking to change the description of
Claimant’s injury on the medical-only NCP from low back strain to a left elbow injury. With this
petition, Employer had the burden to prove that a material mistake of fact or law was made at the
time the original NCP was issued. Anderson v. Workers’ Compensation Appeal Board
(Pennsylvania Hospital), 830 A.2d 636, 641 (Pa. Cmwlth. 2003). As we noted in Ingrassia, a party
filing a claim petition must establish that he/she sustained a disabling work injury and must present
unequivocal medical evidence causally connecting that injury to his/her work. The dissent does not
address the fact that Dr. Kelman, upon whom the WCJ relied in granting Claimant’s reinstatement
petition, could not causally connect Claimant’s right forearm and shoulder tendinitis to her May 20,
2010 work injury. In light of Ingrassia and the differing burdens of proof with respect to review
and claim petitions, a remand is warranted for the WCJ to apply the correct burden of proof.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cardone Industries, :
Petitioner :
: No. 791 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Tiko), :
Respondent :
ORDER
AND NOW, this 8th day of February, 2016, the order of the Workers’
Compensation Appeal Board (Board), dated April 13, 2015, is hereby reversed.
The matter is remanded to the Board, with further instructions to remand to the
Workers’ Compensation Judge, for further findings consistent with this opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cardone Industries, :
Petitioner :
:
v. : No. 791 C.D. 2015
: Submitted: October 30, 2015
Workers’ Compensation Appeal :
Board (Tiko), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: February 8, 2016
The central issue in this case is whether there was substantial evidence to
support the WCJ’s finding that Claimant suffered a work-related injury to her right
forearm and shoulder. Employer contends that she did not injure her right shoulder
but her left arm and shoulder. The WCJ found that she suffered “right sided” injuries
and granted benefits. The majority reverses, finding that the WCJ’s decision was not
reasoned because the WCJ did not address why he rejected certain work and medical
reports that listed left-sided injuries, was not supported by substantial evidence, and
erroneously reinstated benefits because the WCJ improperly treated the claim petition
as a reinstatement petition. The majority then remands the matter to the WCJ to
make new findings. Because I disagree with all of those conclusions, I respectfully
dissent.
There is no dispute that Claimant was injured at work; the only issue is
whether Claimant’s injury was to her right forearm and shoulder as she contends or to
her left arm and shoulder as Employer contends. Claimant, an immigrant from
Albania, does not speak English and most interactions with Employer concerning the
nature of Claimant’s injuries were done through an interpreter. Employer employs
Martin Katro as a “Chaplain” who acts as an interpreter. He is a distant cousin of
Claimant.
Claimant initially worked for Employer on a water pump assembly line
but later was transferred to a “caliper” assembly line, which involved much heavier
work. While working on that line, she incurred the injuries that are the subject of this
dispute. Employer issued a medical only NCP recognizing a “low back sprain.”
Because Claimant was transferred back to the water pump line in a light-duty
capacity, she did not lose any wages. After she was laid off, she applied for
reinstatement of benefits because work was not available.
Employer then filed a review petition seeking to change the description
of the injury from low back sprain to a left elbow injury. Employer asserted that
initial acceptance of the low back sprain was a typographical error because the
medical record reflects Claimant reported a left elbow injury. It was that petition that
placed at issue Claimant’s work-related injuries. Contemporaneously with its review
DRP - 2
petition, Employer also filed a termination petition, contending that Claimant had
fully recovered from her left elbow injury.
Before the WCJ, Claimant testified, again through an interpreter, that she
never reported or received treatment for pain in her left arm/shoulder and that her
pain was in her right arm/shoulder. She also presented the deposition of a co-worker
who testified that Claimant was complaining of pain in her right arm. Claimant
presented medical testimony that confirmed injuries to her right side which were
directly related to her work.
Employer presented the testimony of Delmalyn LaBrake, an
occupational health nurse, who testified how the injury was reported to her. She did
not testify that she ever treated Claimant. Instead, Ms. LaBrake testified that left
sided injuries were reported to her when she filled out the forms, but she was unsure
whether Claimant had the assistance of Chaplain Katro when her injuries were
reported. Chaplain Katro testified that he recalled that her injuries were to her left
side.
Employer also presented the testimony of Todd Marc Kelman, D.O. (Dr.
Kelman), a board certified orthopedic surgeon. He testified that Claimant had fully
recovered from her left arm injury (not surprisingly, as Claimant does not claim
injury to her left side) but that she had right forearm and shoulder tendonitis and
lumbar low back pain. He stated that his notes also contained a 15 page treatment
summary from Dr. Meers, a chiropractor, whose reports referred to right side
symptoms. He released Claimant to sedentary work only and reported that he ordered
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her to refrain from lifting beyond ten pounds on an occasional basis and from
engaging her right arm in any repetitive, simple, firm or fine manipulation of objects.
He stated that these restrictions would have prevented Claimant from working in the
pre-injury and modified-duty jobs that she described to him.
The WCJ accepted Claimant’s testimony that she injured her right arm
and shoulder and rejected all of Employer’s fact witnesses’ testimony as not credible.
However, while he found Claimant’s medical witness not credible, the WCJ found
Dr. Kelman credible. The WCJ accordingly amended the NCP to a right
arm/shoulder injury and found that because Claimant could not perform her pre-
injury job or light-duty job, she was entitled to benefits. Employer appealed, and the
Board affirmed.
Let us take a look at each of the reasons the majority advances to reverse
the decision of the WCJ and the Board.
I.
The majority finds that the WCJ did not issue a reasoned decision
because he failed to explain why he rejected and/or discredited the work and medical
records referencing a left-arm injury. These records were either prepared by Ms.
LaBrake or by Dr. Evelyn Balogun (Dr. Balogun), the doctor to whom Employer
referred Claimant. During Dr. Balogun’s treatment of Claimant, Chaplain Katro
provided interpretation. Dr. Balogun did not testify, and none of the records
memorialize any treatment Claimant received from her or at her direction, if any.
The records were prepared on May 20, 2010 and on May 25, 2010.
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The records dated May 20, 2010 include the following:
 Employer’s occupational health services form that
Ms. LaBrake completed, listing Claimant’s injury as left
shoulder, left elbow, and left and long ring fingers.
 Employer’s clinic authorization form given to
Claimant to take to her medical appointment at a location
off of Employer’s premises. Again, Ms. LaBrake
completed the form. It listed the injuries as left elbow pain,
left shoulder pain, and left long and ring finger pain.
 A Temple University Medical Report form signed by
Dr. Evelyn Balogun, the doctor to whom Employer referred
Claimant, that listed left hand, elbow, and shoulder
complaints.
 A Temple University Hospital Progress Note and
Work Release Status Report completed by Dr. Balogun that
only listed the left arm.
 An Employee Work Status form in which Ms.
LaBrake transcribed the work status in the above-mentioned
documents for Dr. Balogun.
The May 25, 2010 documents include:
 A May 25, 2010 Progress Note signed by Dr.
Balogun that referenced the left elbow.
 A May 25, 2010 Employer Work Status form signed
by Dr. Balogun, discharging Claimant from care and
releasing her to full duty. No injuries are listed on that
form.
The issue regarding Employer’s forms then is not what Claimant told
Ms. LaBrake, because she could not speak English, but whether Chaplain Katro, who
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served as an interpreter, was present and whether Ms. LaBrake filled out the forms
correctly based on Chaplain Katro’s statements. The question regarding the Temple
Medical forms filled out by Dr. Balogun, who did not testify, is whether they were
generated based on the Employer’s form provided to her and, thus, whether they
continued the error from the initial Employer reports.
Regarding those forms, the WCJ found as follows:
11. This WCJ finds that Ms. LaBrake’s testimony was not
credible or persuasive on the issue of whether Claimant’s
complaints were right sided or left sided. This WCJ notes
that Ms. LaBrake was aware that Claimant did not speak
English and could not specifically remember whether or not
Martin Katro was present when the medical referral forms
were completed….
12. This WCJ finds that Mr. Katro’s testimony was not
credible or persuasive on the issue of whether Claimant’s
complaints were right sided or left sided. While Mr. Katro
was present at Claimant’s May 2010 medical appointments,
this WCJ again notes that Ms. LaBrake could not
definitively state whether or not the initiating paperwork
was completed prior to his arrival at the company medical
dispensary.
(Reproduced Record [R.R.] at 456a.)
Given the varying descriptions of the injury in these forms and that
Employer’s NCP listed the injury as only a low back sprain rather than left sided
injuries, calling into question the accuracy of Employer’s records in general, these
two findings of fact sufficiently address why the WCJ did not accept the information
contained on the forms.
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II.
The majority’s holding that the WCJ’s decision was not supported by
substantial evidence and was internally inconsistent was based on Dr. Kelman’s
testimony that he could not relate this diagnosis to Claimant’s May 20, 2010 work
injury because Claimant’s original medical records did not reference any right sided
complaints. The majority then remands this matter to the WCJ to reconsider Dr.
Kelman’s testimony in conjunction with a review of the records. If the WCJ provides
adequate reasons why he rejects those records, the majority would then appear to find
that the opinion was not internally inconsistent. For the reasons set forth above, the
WCJ adequately explained why he did not accept those records. As such, even under
the majority’s analysis, there exists substantial evidence to support the WCJ’s
factfinding.
III.
The majority also finds that the WCJ applied the wrong burden of proof,
i.e., the burden relating to a reinstatement petition instead of a claim petition. It then
remands to the WCJ for additional findings applying the claim petition burden of
proof. However, Employer never raised this issue. That is not surprising considering
that if Employer’s review petition seeking to change the description of the injury
from low back strain to a left elbow injury had been granted, there likely would have
been no dispute that Claimant was entitled to weekly wage loss benefits if the WCJ
went on to find that those injuries prevented her from returning to work.
In any event, once Employer filed the review petition seeking to amend
the nature of the injury, it placed at issue Claimant’s weekly wage loss benefits,
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making the petition tantamount to a claim petition. See Krushauskas v. Workers’
Compensation Appeal Board (General Motors), 56 A.3d 64 (Pa. Cmwlth. 2012),
appeal denied, 63 A.3d 1250 (Pa. 2013). The WCJ found that Claimant sustained
work-related injuries to her right side, and, as a result, could not return to her pre-
injury or light-duty position, therefore awarding weekly loss benefits. Essentially,
these are the same findings needed to grant a claim petition.
Accordingly for the foregoing reasons, I respectfully dissent.
___________________________________
DAN PELLEGRINI, President Judge
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