R. Bunner v. WCAB (Delcora)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Bunner, :
Petitioner :
: No. 25 C.D. 2016
v. :
: Submitted: July 15, 2016
Workers’ Compensation Appeal :
Board (Delcora), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 20, 2017
Robert Bunner (Claimant) petitions for review of the December 16, 2015
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of the Workers’ Compensation Judge (WCJ) denying his review and
reinstatement petitions.
On February 9, 2010, while in the course and scope of his employment
with Delcora (Employer) as a truck driver, Claimant was involved in a motor vehicle
accident and suffered a work-related injury to his lower back region. Through a
Notice of Temporary Compensation Payable, and later a Notice of Compensation
Payable (NCP), Employer accepted liability for a strain/sprain to Claimant’s low
back. (WCJ’s Findings of Fact Nos. 1-3.)
Employer subsequently filed a termination petition and, on May 25,
2012, a WCJ granted that petition, concluding that Claimant had fully recovered from
his strain/sprain injury as of June 25, 2010. (Reproduced Record (R.R.) at 4a-11a.)
Critically, the WCJ determined that Claimant’s expert’s testimony and a September
27, 2010 MRI failed to establish that the following condition was work related:
degenerative disc disease, disc bulging, and lateral recess narrowing located in
Claimant’s lower lumber spine at the L3-4 and L4-5 levels. (R.R. at 4a-11a.)
Thereafter, the Board affirmed, and this Court dismissed Claimant’s petition for
review on July 22, 2013. (WCJ’s Findings of Fact Nos. 4-6.)
Meanwhile, Claimant filed the instant reinstatement petition on June 18,
2013, and a review petition on December 27, 2013. In these petitions, Claimant
alleged that as of May 1, 2013, he suffered a worsening of his low back injury and
that the NCP contained an incorrect description of his work-related injury. Employer
filed a timely answer denying the material allegations, and a WCJ convened a
hearing. (WCJ’s Findings of Fact Nos. 7-9.)
Claimant testified that on February 9, 2010, he suffered injuries to his
lower back when he stopped Employer’s truck for a school bus and a vehicle rear-
ended him. Claimant stated that, since this incident, the pain in his back has never
stopped and that on January 28, 2011, he began seeing Christian Fras, M.D., an
orthopedic surgeon. Claimant said that Dr. Fras performed surgery on May 3, 2011.
According to Claimant, this surgery provided him with some relief but he continues
to suffer constant pain in his low back, which radiates to his legs. Claimant testified
that he is unable to perform the duties of his pre-injury job but said that he might be
able to perform a light-duty job. (WCJ’s Finding of Fact No. 10.)
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Dr. Fras testified that he first treated Claimant on January 28, 2011, and
understood that Claimant was injured on February 9, 2010, as a result of a motor
vehicle accident. Dr. Fras stated that an MRI taken on September 27, 2010, revealed
degeneration of the L3-4 and L4-5 discs with narrowing at the L4 level, and that
Claimant had never been treated for back pain prior to the accident. According to Dr.
Fras, a discogram confirmed that Claimant’s L4-5 disc was causing Claimant’s
radicular pain and, consequently, he surgically fused Claimant’s L4-5 disc on May 3,
2011. Dr. Fras explained that Claimant continued to complain of back pain during a
visit on January 31, 2014. Ultimately, Dr. Fras opined that Claimant’s work injury
aggravated his pre-existing L3-4 and L4-5 degenerative disease and was a substantial
contributing factor resulting in the L4-5 fusion surgery. Dr. Fras further opined that
Claimant’s degenerative disease was relatively asymptomatic prior to the work injury
and that Claimant’s work injury caused the discs to become progressively worse to
the point where Claimant had to undergo lumbar fusion surgery. (WCJ’s Finding of
Fact No. 11.)
Employer presented the testimony of Neil Kahanovitz, M.D., an
orthopedic surgeon. Dr. Kahanovitz stated that Claimant’s work injury did not
aggravate the pre-existing degenerative changes in his lumbar spine. Dr. Kahanovitz
also stated that the May 3, 2011 lumbar fusion surgery was not casually related to
Claimant’s employment injury. According to Dr. Kahanovitz, Claimant had normal
strength and sensation in the lower extremities and could return to work without
restrictions. (WCJ’s Finding of Fact No. 12.)
In a decision dated December 4, 2014, the WCJ found Claimant’s
testimony to be credible, namely Claimant’s statements that he has had constant pain
3
at varying levels since the time of his employment injury and, as a result of this pain,
he is unable to return to his former position. (WCJ’s Finding of Fact No. 13.)
With respect to the parties’ experts, the WCJ found as follows:
14. [Dr. Fras] is credible and convincing as to his diagnosis
and determination that Claimant has had constant low back
pain since the time of the February 9, 2010 employment
incident and that the degeneration findings of the MRI
study on September 27, 2010, indicate L3-4-5 discs with
narrowing at [the] L4 level. Dr. Fras notes that in his
opinion Claimant’s symptom of pain as a result of the
February 9, 2010 employment injury aggravated and made
symptomatic the pre-existing degenerative conditions. The
[WCJ] also notes that when considering Dr. Fras’
testimony it was never his opinion that Claimant had ever
fully recovered from the aggravating symptoms caused by
the February 9, 2010 employment injury.
15. [Dr. Kahanovitz] is convincing that from the standpoint
of Claimant’s lumbar strain injury, Claimant could return to
work without restrictions. Dr. Kahanovitz is not convincing
that the work injury did not aggravate the pre-existing
degenerative changes in Claimant’s lumbar spine. This
[WCJ] has accepted the opinions of Dr. Fras with regard to
these conditions.
(WCJ’s Findings of Fact Nos. 14-15) (emphasis added).
Although the WCJ accepted the medical opinions of Dr. Fras as credible,
the WCJ felt constrained to conclude that Dr. Fras’s testimony was legally
incompetent. Citing Namani v. Workers’ Compensation Appeal Board (A. Duie
Pyle), 32 A.3d 850 (Pa. Cmwlth. 2011), the WCJ determined that Dr. Fras did not
offer any testimony accepting the fact that Claimant had fully recovered from his
work-related injury and, thus, his expert opinions failed to establish that Claimant
suffered from a physical condition that has changed or worsened since his benefits
were terminated. Based upon this reasoning, the WCJ concluded that Claimant failed
4
to adduce sufficient evidence to support his reinstatement and review petitions as a
matter of law. Accordingly, the WCJ denied these petitions. (WCJ’s Conclusions of
Law Nos. 2-3.)
Claimant appealed, and the Board affirmed. The Board concluded that
Dr. Fras’s testimony was legally inadequate to support a reinstatement of benefits
because “he did not explain how Claimant’s condition had changed, or his disability
had recurred or increased, after termination of benefits on June 25, 2010.” (Board’s
Decision at 10.) The Board also noted that Claimant’s work injury had previously
been established as a low back strain/sprain; a WCJ concluded in the termination
proceedings that Claimant had fully recovered from that injury as of June 25, 2010;
and Claimant had presented evidence in the prior termination proceedings regarding
degenerative disc conditions, but the WCJ rejected that evidence as not credible and
found that those conditions were not causally related to the work injury. With respect
to the WCJ’s denial of Claimant’s review petition, the Board succinctly explained:
Claimant was aware of any alleged degenerative disc
conditions, including aggravations, during the litigation of
the prior termination petition, and he even presented some
evidence in that regard that was simply rejected by the WCJ
[in the termination proceedings]. [Claimant] therefore
cannot now argue that his work injury includes that
condition in an attempt to relitigate matters already resolved
by [the] WCJ [in the termination proceedings].
Id. at 8-9.
Before this Court,1 Claimant does not challenge the denial of his review
petition and, instead, contends that the WCJ erred in denying his reinstatement
1
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
(Footnote continued on next page…)
5
petition. For support, Claimant points to excerpts of Dr. Fras’s testimony and argues
that, in these passages, Dr. Fras acknowledged and accepted the fact that Claimant
had recovered from a low back sprain/strain. Claimant also contends that Dr. Fras’s
testimony established that Claimant’s lumbar strain injury recurred, worsened, and/or
was aggravated after his benefits were terminated. For these reasons, Claimant
argues that Namani is inapplicable and that he met his burden of proof for a
reinstatement. We disagree.
Section 413 of the Workers’ Compensation Act provides for
reinstatement of benefits when compensation benefits have been terminated.2 “A
claimant seeking reinstatement of benefits following a termination carries a heavy
burden because the claimant has been adjudicated to be fully recovered.” National
Fiberstock Corporation (Greater New York Mutual Insurance Company) v. Workers’
Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008).
“[T]he claimant must prove that [his] disability has increased or recurred since the
prior decision and that [his] physical condition has changed in some manner.” Taylor
v. Workers’ Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713
(Pa. Cmwlth. 2005). In satisfying this burden, “[t]he claimant must prove a change in
his physical condition by precise and credible evidence of a more definite and
specific nature than that upon which initial compensation was based and the change
must be shown to have occurred after the date of the claimant’s total physical
(continued…)
evidence. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894
A.2d 214, 216 n.3 (Pa. Cmwlth. 2006).
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
6
recovery.” Namani, 32 A.3d at 854 (citation and internal quotation marks omitted)
(emphasis added).
While the WCJ, as fact finder, has exclusive power over questions of
credibility and evidentiary weight, a WCJ’s credibility determination cannot serve to
preclude this Court from determining whether an expert’s testimony is legally
incompetent. Potere v. Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d
684, 690 (Pa. Cmwlth. 2011); Stalworth v. Workers’ Compensation Appeal Board
(County of Delaware), 815 A.2d 23, 29-30 (Pa. Cmwlth. 2002). This is because
“[t]he question of the competency of evidence is one of law and fully subject to our
review.” Namani, 32 A.3d at 854 (citation and internal brackets omitted). “[I]t is
well established that the opinion of a medical expert must be viewed as a whole, and
that inaccurate information will not defeat that opinion unless it is dependent on those
inaccuracies.” Id. at 854-55. “Where an expert’s opinion is based on an assumption
that is contrary to the established facts of record, that opinion is incompetent.” Id.
In Namani, the employer accepted liability for the claimant’s work-
related accident in a NCP, which described the injury as left arm and hand
contusions. After the WCJ granted the employer’s termination petition, the claimant
filed a reinstatement petition, alleging a worsening of his condition, specifically that
he developed cervical injuries. The WCJ determined that the testimony of the
claimant’s expert, Andrew Freese, M.D., was legally insufficient because he failed to
appropriately consider the fact that the claimant had fully recovered from his work-
related injury and specifically explain how the injury had recurred. The WCJ also
determined that the results of an EMG study indicating that the claimant had
sustained cervical injuries were available to Dr. Freese prior to the termination
7
proceedings. Accordingly, the WCJ denied the claimant’s reinstatement and review
petitions and the Board affirmed.
On appeal, this Court also affirmed, concluding that the testimony of Dr.
Freese was legally incompetent. We reasoned:
A review of Dr. Freese’s entire deposition testimony reveals
that Dr. Freese did not address or consider the termination
of Claimant’s workers’ compensation benefits due to a total
recovery of his work-related left hand and left arm
contusions . . . . Because Dr. Freese did not offer any
testimony with regard to Claimant’s full recovery of the
accepted work-related injuries, nowhere in Dr. Freese’s
testimony does he relate that Claimant’s physical condition
has changed in some manner since the termination of
Claimant’s benefits. Instead, Dr. Freese opines that
Claimant not only suffered hand and arm injuries, but that
he suffered undiagnosed cervical injuries on the date of his
work-related . . . injury. Dr. Freese specifically testified
that it was clear that a nerve compression in the cervical
spine can manifest itself with significant hand
symptomatology and that there was no question that a
significant component of Claimant’s hand symptoms were
related to his cervical spine injuries. Thus, Dr. Freese
essentially testified that there has been no change in
Claimant’s condition . . . which contradicts the WCJ’s
[decision] granting Employer’s Termination Petition based
on a finding of full recovery. Accordingly, Dr. Freese’s
opinions on causation are contrary to the established facts
of record and are based on inaccuracies. As such, the WCJ
did not err by finding Dr. Freese’s opinions on causation
legally insufficient to support a reinstatement of Claimant’s
workers’ compensation benefits.
Id. at 855.
At its core, Namani stands for the proposition that an expert’s testimony
is incompetent when it does not explain how a resolved injury has later recurred or
worsened, but instead is based on the theory that a general medical condition that is
known to exist at the time of the termination proceedings progresses through a
8
manifestation of new or worsening symptoms or ailments. In this situation, the
expert’s testimony never actually accepts that the work-related injury has resolved or
healed, but rather, is grounded on the notion that the origin of the allegedly recurring
injury was diagnostically present and able to be claimed as an injury prior to or
during the termination proceedings. Essentially, the expert in this context is asserting
a misdiagnosed or overlooked injury under the label of a recurring or a worsening of
a work-related injury, which has the effect of defeating or disregarding the WCJ’s
conclusion that the claimant had fully recovered from his work-related injury as a
matter of law. When understood in this light, the facts of this case fit neatly within
our holding in Namani.
Here, Claimant sustained a low back sprain/strain on February 9, 2010,
and the WCJ concluded that Claimant had fully recovered from this injury in a
decision dated May 25, 2012. In making this determination and granting Employer’s
termination petition, the WCJ found as fact:
Records of Premier Imaging established that a MRI of
Claimant’s lumbar spine on September 27, 2010, showed
the presence of degenerative disc disease at the levels of
L3-4 and L4-5, very mild disc bulging, lateral recess
narrowing at the levels of L3-4 and L4-5 with relationships
to a disc contour abnormality and very mild facet
hypertrophy, and impingement upon the nerve root at the
level of L4 right within the lateral recess. Records at
Premier Imaging established that Claimant’s clinical history
at the time of the MRI was that of pain after an injury,
[however, the records] did not establish that any of the
conditions on the MRI film had a nexus to Claimant’s work
injury . . . .
(R.R. at 7a-8a.) Clearly, the fact that Claimant had a degenerative disc disease,
specifically at the L3-4 and L4-5 levels, was known to Claimant and his expert during
9
the termination proceedings and Claimant offered evidence to suggest that this
condition was work-related, but the WCJ rejected this evidence as not credible.
During the reinstatement and review proceedings, Claimant testified that
the pain in his low back has never stopped and that he “cannot go back [to work]
because of the low back pain.” (R.R. at 89a, 102a.) Dr. Fras testified that Claimant
was referred to him for evaluation and treatment of low back pain complaints. (R.R.
at 110a.) When asked what type of information he relied upon in order to determine
the nature of Claimant’s back pain and the appropriate treatment, Dr. Fras stated, in
pertinent part, as follows:
His MRI of 9/27/2010 I reviewed, and I noted there to be
degeneration of the discs at L3-4 and L4-5 with facet
arthropathy. So the facet joints are small joints in the
posterior part of the spine, the back of the spine, and these
were somewhat arthritic.
I also noted an element of stenosis that I characterized as
mild.
Q. That’s narrowing?
A. That’s right. At L4-5. The impression that I had at that
point was that of chronic back pain that could be related to
his degenerative changes.
(R.R. at 111a-12a.)
Dr. Fras then stated that he ordered and later reviewed an MRI dated
February 4, 2011, and observed “loss of disc height and hydration primarily at L4-5”
and “to a lesser degree at L3-4” and “degeneration focused on particularly one level
in the spine, the L4-5.” (R.R. at 114a.) In addition, Dr. Fras explained that
“[u]ltimately, the diagnosis for which I operated on [Claimant] is that of an
aggravation of his lumbar degenerative disc disease,” noting that Claimant “already
10
had a compromised disc at the L3-4 level even before [the surgery] was pursued.”
(R.R. at 121a-22a.) Dr. Fras further testified that Claimant’s “disc degeneration,
while likely present to some degree before the motor vehicle accident in question,
was not symptomatic to the degree that it was eventually thereafter” and that “the
grand arc of things is one of gradual decline in function such that [Claimant]
ultimately ended up with surgery[.]” (R.R. at 125a.)
Despite all this testimony establishing that Dr. Fras diagnosed Claimant
as suffering from a degenerative disc condition that was nearly identical to the one
that Claimant had claimed to have suffered in the termination proceedings, Claimant
argues that the testimony reproduced below establishes that Dr. Fras accepted the fact
that Claimant had fully recovered from his lumbar strain and sprain and that his
previous injury had recurred or worsened:
Q. I want you to assume, as a matter of law in this case,
that the injury that originally was attributed to the motor
vehicle accident . . . . was a lumbar strain and sprain . . . .
Q. I want you to assume also, Doctor, that upon [a] one-
time examination by [Employer’s expert in the termination
proceedings] on June 25, 2010 . . . he found objectively that
there were no signs of a lumbar strain and sprain . . . . [I]s
that medically conceivable and acceptable?
A. Yes.
Q. Does that preclude, frankly, the possibility of an
exacerbation or a waxing of symptoms at a later date –
A. It does not.
Q. – in the nature of that injury.
A. It does not.
* * *
11
Q. Is there a way that you link medically a waxing and
waning of a lumbosacral strain and sprain in conjunction
with or somehow related [sic] to a degenerative process that
was going on in the spine after the accident?
A. I think that, first, it can be initially challenging early in
the course of an injury to distinguish between an
aggravation of a degenerative condition versus a sprain and
strain. That may be challenging on a one-time evaluation.
But even that issue aside, certainly with the passage of time
as a consequence of the waxing and waning, and of the
condition in total with the sprain and strain, the aggravation
of the degenerative condition at the L4-5 level can become
evident.
* * *
Q. [I]s it fair to state that within a reasonable degree of
medical certainty [that] you believe, assuming that the
original injury, and we accept that, was a lumbar strain and
sprain, that that recurred and worsened in the way that
you’ve indicated and affected the degenerative disc disease
process that pre-existed in his spine.
A. Yes.
(R.R. at 132a-33a, 138a.)
Viewing Dr. Fras’s testimony as a whole, we conclude that, akin to the
claimant’s expert in Namani, Dr. Fras basically opined that “Claimant not only
suffered [a lumbar strain/sprain], but that he suffered [an] undiagnosed [degenerative
disc condition] on the date of his work-related . . . injury.” 32 A.3d at 855. In point
of fact, Dr. Fras admitted that Claimant’s September 27, 2010 MRI, which was taken
before the WCJ terminated benefits, revealed the presence of degenerative disc
disease at L3-4 and L4-5 levels, and he merely opined that Claimant’s symptoms of
pain have recessed and increased through time. Akin to the situation in Namani, Dr.
12
Fras “specifically testified that it was clear that [degenerative disc disease] can
manifest itself with significant [back pain] symptomatology and that there was no
question that a significant component of Claimant’s [back pain was] related to
[lumbar strain/sprain].” Id.
In essence, Dr. Fras testified that Claimant had suffered from
degenerative disc disease prior to the termination proceedings, that this condition was
not properly diagnosed at that time, and that further degeneration occurred through
time. Yet, and most importantly, Dr. Fras failed to offer any testimony explaining
how Claimant’s lumbar strain/sprain had dissipated and then later recurred by
manifesting itself into a new or different type of injury. In other words, although Dr.
Fras assumed in a hypothetical model that Claimant’s symptomatic presentation of
pain “waxed” and “waned,” he conceded that the underlying medical condition,
degenerative disc disease, was diagnostically present prior to the termination
proceedings and testified that this condition existed prior to the accident and
continues to exist, albeit with a more severe symptomology. In short, Dr. Fras did
not provide any testimony to substantiate the notion that Claimant had fully recovered
from his lumbar strain/sprain and that this lumbar strain/sprain had recurred into a
discrete and previously unknown injury. As the WCJ and the Board correctly
concluded, under Namani, this failure on Dr. Fras’s part renders his testimony legally
incompetent to support a reinstatement of benefits.
In addition, we note that a “claimant must establish a causal connection
between his current condition and the prior work-related injury in order to have
benefits reinstated.” Pieper v. Ametek-Thermox Instruments Division, 584 A.2d 301,
305 (Pa. 1990). Here, the WCJ in the termination proceedings already concluded that
Claimant failed to establish that his degenerative disc disease was work related, and
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Claimant’s current degenerative disc disease is not a materially distinct injury than
the one he was known to have suffered from prior to the termination proceedings.
Pursuant to the doctrine of collateral estoppel, Claimant cannot now contend in these
reinstatement proceedings that his present diagnosis of aggravated degenerative disc
disease has a causal connection to his work-related injury. See Namani, 32 A.3d at
858 (concluding that under principles of collateral estoppel, the claimant could not
relitigate the issue of whether he suffered from cervical injuries during a
reinstatement proceeding because the claimant knew that he had such injuries prior to
the termination proceedings and, therefore, “should have litigated the issue of his
cervical injuries during the termination proceedings.”) (emphasis in original).
Therefore, having concluded that the WCJ properly determined that Dr.
Fras’s testimony was inadequate as a matter of law, we conclude that the Board did
not did err in affirming the WCJ’s denial of Claimant’s reinstatement petition.
________________________________
PATRICIA A. McCULLOUGH, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Bunner, :
Petitioner :
: No. 25 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Delcora), :
Respondent :
ORDER
AND NOW, this 20th day of January, 2017, the December 16, 2015
order of the Workers’ Compensation Appeal Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge