M. Valerio v. WCAB (Georgio Fresh Co.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Miguelina Valerio, :
Petitioner :
:
v. : No. 1418 C.D. 2018
: Submitted: March 8, 2019
Workers’ Compensation Appeal :
Board (Georgio Fresh Company), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: July 12, 2019
Miguelina Valerio (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) that granted Claimant
compensation for a closed period and, thereafter, terminated benefits. In doing so,
the Board affirmed the decision of the Workers’ Compensation Judge (WCJ) that
Claimant proved that her bilateral carpal tunnel syndrome was work-related, but did
not prove a work-related back injury. Claimant argues that the Board erred in
reaching these conclusions and, further, that it should have granted her application
for costs because the claim petition was granted in part. We affirm.
In 2011, Claimant began working for Georgio Fresh Company
(Employer) on a production line, lifting baskets of mushrooms for weighing and
returning them to the line for packaging. Claimant alleged that on January 26, 2014,
she lost her grip on a basket and in trying to recover it, lost her balance and fell,
striking her hands, knees and back on the floor. Claimant sought medical treatment
and returned to work the following day. She continued to work until January 19,
2016, when the pain in her arms and back became too intense to work. On June 30,
2016, pursuant to the Workers’ Compensation Act (Act),1 Claimant filed a claim
petition asserting that the 2014 incident caused bilateral carpal tunnel syndrome and
a low back injury.
On August 9, 2016, Employer filed a medical-only Notice of
Compensation Payable (NCP) accepting liability for Claimant’s bilateral carpal
tunnel syndrome but asserting that the injury was not disabling. On January 10,
2017, Employer filed a petition to terminate benefits, alleging that as of September
21, 2016, Claimant had fully recovered from her bilateral carpal tunnel syndrome
and any other work injury she might be found to have suffered in the 2014 incident.
At the hearing before the WCJ, Claimant testified that the 2014 accident
occurred because she had lost strength in her hands. When she tried to pick up a
basket of mushrooms, she lost her balance and fell. After visiting the emergency
room, she returned to work the next day. For the next two months, she did light-
duty work until she returned to her pre-injury job. The pain in her arms and back
increased over time, and on January 19, 2016, she stopped working.
In support of her claim of a work-related back injury, Claimant
presented the testimony of her chiropractor, Lori Kalie, D.C.,2 who first examined
Claimant on June 15, 2016. Claimant reported to Dr. Kalie that in 2014 she fell at
work and injured her back. Claimant also reported that treatment she received from
a pain management physician did not provide relief. Claimant reported burning,
tingling and stabbing pain radiating from her back to the posterior left thigh, for
which she wore a lumbar support brace.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.4, 2501–2710.
2
Dr. Kalie did not treat Claimant for carpal tunnel syndrome.
2
Dr. Kalie reviewed a magnetic resonance imaging (MRI) report done
on February 16, 2016. It showed bulges at the L5-S1 level that Dr. Kalie believed
were caused by trauma. She opined that Claimant’s complaints were consistent with
the 2014 work incident described by Claimant. She diagnosed Claimant with low
back pain, left-side sciatica, muscle spasm, lumbar spine segmental dysfunction, and
intervertebral disc disorder, with radiculopathy and lumbar spine stiffness. Dr. Kalie
did not believe Claimant could return to her pre-injury position because it required
frequent bending and twisting. She restricted Claimant to a maximum of three to
four hours a day bending, twisting, or standing.
Claimant also presented the testimony of Norman Stempler, D.O., an
orthopedic surgeon, who first examined her on February 1, 2016. He also reviewed
Claimant’s 2016 MRI report and her 2016 electromyography. He opined that
Claimant’s work injuries consisted of bilateral carpal tunnel syndrome, for which
she needed left carpal tunnel release surgery, and aggravation to her lumbar disc
degeneration with intermittent left leg radiculopathy. On cross-examination, Dr.
Stempler conceded that Claimant’s medical records between the 2014 incident and
2016 did not report any work-related back pain.
Employer presented the testimony of its production supervisor, Magaly
Soto Almodovir. On January 26, 2014, Claimant reported that her hands were
hurting. Almodovir gave Claimant an injury report to complete, on which Claimant
wrote that she injured both hands while weighing mushrooms. The report did not
list any witnesses or state that she fell or hurt her back. Claimant was placed on
light-duty work for two months, after which she returned to her pre-injury job.
Employer also presented the testimony of Lizbeth Colon, Employer’s
Human Resources Manager. In January of 2016, Claimant completed a short-term
3
disability leave form on which she stated she was having back problems that were
not work-related. Claimant did not state that her inability to work was related to her
hands. Claimant received leave under the Family and Medical Leave Act3 and short-
term disability benefits. After the expiration of her benefits, Claimant reported that
she remained unable to work. Employer responded that if she did not return by June
5, 2016, her employment would terminate. Claimant filed a claim petition on June
30, 2016.
Finally, Employer offered the testimony of Robert Mauthe, M.D., who
conducted an independent medical examination (IME) of Claimant on September
21, 2016. He found Claimant to have multi-level degenerative disc disease that was
related to her age, i.e., 56 years. He did not find spinal spasms, and noted that her
complaints of pain in response to superficial compression showed symptom
embellishment. Her complaints of diffuse left leg sensory loss, which did not
correspond to any dermatome or peripheral nerve, were also signs of symptom
exaggeration. Importantly, Claimant’s emergency room records from January 26,
2014, did not mention complaints of back pain. It was not until June 2016, that
Claimant’s medical records first note a complaint of work-related back pain, and this
was made to Dr. Kalie. Claimant’s medical records from 2012 to 2013 show she
complained of back pain and sciatica long before her alleged fall at work.
Dr. Mauthe found that the results of the 2014 EMG established that
Claimant had work-related bilateral carpal tunnel syndrome. However, the 2016
EMG showed normal sensory distal latencies. Dr. Mauthe stated this was the most
sensitive portion of the test. If this test is normal, carpal tunnel syndrome does not
3
29 U.S.C. §§2601-2654.
4
exist. Accordingly, Dr. Mauthe opined that Claimant could work at her pre-injury
job without restrictions.
The WCJ found that Claimant had sustained work-related bilateral
carpal tunnel syndrome as of January 26, 2014. The WCJ credited Dr. Mauthe’s
opinion that Claimant’s bilateral carpal tunnel syndrome had resolved by the date of
the IME, i.e., September 21, 2016. However, this work injury did not cause a loss
of earning power because Claimant worked from January 26, 2014, until January 16,
2016, when she stopped working due to low back pain. The WCJ found that
Claimant’s back complaint was not work-related. Claimant’s medical records
established she had preexisting back pain, and it was questionable that she actually
fell at work. Employer’s witnesses credibly testified that Claimant never reported
that she fell, and none of Claimant’s 2014 medical records reported either a fall or a
back injury.
Consistent with these factual findings, the WCJ granted the claim
petition with respect to Claimant’s bilateral carpal tunnel syndrome as of January
26, 2014, and granted Employer’s termination petition regarding this injury as of
September 21, 2016. The WCJ denied Claimant’s bill of costs, which Claimant
incurred after Employer filed its NCP. Thus, Claimant was not entitled to an award
of costs.
Claimant appealed to the Board, but Employer moved to quash the
appeal as lacking specificity. Agreeing that the notice of appeal could have been
more precise, the Board, nonetheless, gave it “a generous construction,” and decided
that Claimant challenged the WCJ’s credibility findings and denial of costs. Board
Adjudication at 4. The Board affirmed the WCJ’s decision on the merits.
5
Claimant petitioned for this Court’s review.4 First, Claimant argues
that the WCJ’s findings of fact are not supported by substantial evidence. Second,
Claimant argues that the WCJ erred by denying her bill of costs in light of his
decision to grant her claim petition, at least in part.
In a claim for compensation, the claimant must establish that she
sustained a compensable injury that has continued throughout the claim petition
proceeding. Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes
Engineering Associates), 33 A.3d 702, 707 (Pa. Cmwlth. 2011). It is the claimant’s
burden to establish a causal relationship between the work injury and the disability,
which is a loss of earning power. Somerset Welding and Steel v. Workmen’s
Compensation Appeal Board (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994). When
evaluating the evidence, the WCJ is free to reject the testimony of any witness in
whole or in part. Minicozzi v. Workers’ Compensation Appeal Board (Industrial
Metal Plating, Inc.), 873 A.2d 25, 28 (Pa. Cmwlth. 2005). The WCJ, as the ultimate
fact finder, determines the credibility of witnesses and the weight to assign the
evidence. Green v. Workmen’s Compensation Appeal Board (Association for
Retarded Citizens), 670 A.2d 1216, 1221 (Pa. Cmwlth. 1996).
4
This Court’s review of an order of the Board determines whether the necessary findings of fact
are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated or whether an error of law was committed. Cytemp Specialty
Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth.
2012). Review for capricious disregard of material, 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).
6
Claimant asserts that the evidence of record does not support the WCJ’s
finding of fact that her bilateral carpal tunnel syndrome had resolved. By contrast,
the record supports the fact that she sustained a work-related back injury. Employer
responds that the WCJ credited Employer’s evidence that the 2016 EMG established
that Claimant’s bilateral carpel tunnel syndrome had resolved. Further, Claimant’s
medical records did not report a fall until 2016, two years after the incident. Nor
could Claimant’s medical expert explain why a 2014 back injury would suddenly
become disabling two years later.
The Board concluded that Claimant specifically appealed two issues,
i.e., whether the WCJ’s credibility determinations were supported by substantial
evidence and whether litigation costs were properly denied. Claimant does not
challenge this determination of the Board. In her appeal to the Board, Claimant
stated as follows:
I hereby appeal from the decision of [the WCJ] and allege the
following findings of fact are in error and are not supported by
substantial evidence, or contain other errors as specifically set
forth below. A copy of the [WCJ’s] decision is attached.
3, 16, 18, 20, 22, 23, 24, 25, 28, 29. The defendant did not file a
Medical Only Notice of Compensation Payable for carpal tunnel
syndrome until after the [C]laimant filed a Claim Petition, so
alleging, despite a two-year interval between the [C]laimant’s
injury and the litigation. Therefore, it was Claimant’s efforts that
successfully allowed her to receive at least her medical treatment.
Claimant requests that the litigation costs be awarded. Claimant
also requests review by the [Board] of the denial of her Claim
Petition.
***
Errors of Law:
7
I hereby appeal from the decision of [the WCJ] and specify the
following errors of law committed by the said Judge, and the
reasons why the decision does not conform to the provisions of
the Workers’ Compensation Act or the Occupational Disease
Act. A copy of the Judge’s decision is attached.
3, 4, 5, 8, 9.
Certified Record, Item No. 10 at 2 (emphasis omitted). Issues not raised before the
Board are waived on appeal to this Court. Starr Aviation v. Workers’ Compensation
Appeal Board (Colquitt), 155 A.3d 1156, 1162 (Pa. Cmwlth. 2017). Pennsylvania
Rule of Appellate Procedure 1551 establishes:
Review of quasijudicial orders shall be conducted by the court
on the record made before the government unit. No question shall
be heard or considered by the court which was not raised before
the government unit [limited to exceptions regarding
jurisdiction, the validity of a statute, or issues that could not have
been raised before the government unit].
PA. R.A.P. 1551. In short, we confine our analysis to the issues addressed by the
Board.
The WCJ credited Employer’s Human Resources Manager, who
testified that Claimant did not report a work-related back injury and did not attribute
her back problem to her work duties. The WCJ found Claimant’s testimony that her
back condition resulted from a 2014 fall at work not credible. The WCJ credited the
testimony of Employer’s medical expert, Dr. Mauthe, who found no evidence of a
work-related back injury but, rather, multi-level degenerative disc disease consistent
with Claimant’s age. The WCJ noted that neither of Claimant’s medical witnesses
could explain how Claimant could work two years and then suddenly become
disabled due to her back problems. The WCJ’s findings that Claimant had suffered
from bilateral carpel tunnel syndrome in 2014 and that that injury had fully resolved
8
by 2016 are supported by substantial evidence of record. His decision to reject
Claimant’s evidence is fully explained. We reject Claimant’s first assertion of error.
In her second issue, Claimant argues the WCJ should have granted her
request for litigation costs because Employer did not acknowledge her bilateral
carpal tunnel syndrome as work-related until she filed a claim petition. Employer
responds that Claimant’s costs were not related to an issue on which she prevailed.
Employer acknowledged liability for Claimant’s bilateral carpal tunnel syndrome,
whereas Claimant did not prevail in her attempt to prove a work-related back injury.
The Act permits an award of costs to a successful litigant in a claim
petition. Section 440(a)5 states as follows:
In any contested case where the insurer has contested liability in
whole or in part, including contested cases involving petitions to
terminate, reinstate, increase, reduce or otherwise modify
compensation awards, agreements or other payment
arrangements or to set aside final receipts, the employe or his
dependent, as the case may be, in whose favor the matter at issue
has been finally determined in whole or in part shall be awarded,
in addition to the award for compensation, a reasonable sum for
costs incurred for attorney’s fee, witnesses, necessary medical
examination, and the value of unreimbursed lost time to attend
the proceedings: Provided, That cost for attorney fees may be
excluded when a reasonable basis for the contest has been
established by the employer or the insurer.
77 P.S. §996(a). “This Court has consistently held that ‘a claimant must prevail on
the contested issue in order to be awarded litigation costs.’” Reyes v. Workers’
Compensation Appeal Board (AMTEC), 967 A.2d 1071, 1078 (Pa. Cmwlth. 2009)
(quoting Jones v. Workers’ Compensation Appeal Board (Steris Corp.), 874 A.2d
717, 721 (Pa. Cmwlth. 2005)).
5
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. §996.
9
Claimant requested payment of $3,176.25 for Dr. Stempler’s deposition
testimony and transcript and $626.25 for Dr. Kalie’s deposition testimony and
transcript. The Board found the expenses reasonable but held they were not
recoverable because they were not incurred before August 9, 2016, the date on which
Employer accepted responsibility for Claimant’s medical treatment of her bilateral
carpal tunnel syndrome. Simply, the costs were not attributable to any contested
issue on which Claimant prevailed. We agree with the Board.
Dr. Kalie’s testimony related solely to Claimant’s back injury, and this
claim was denied. Dr. Stempler testified about Claimant’s bilateral carpel tunnel
syndrome, but he was not deposed until March 31, 2017. By that time, Claimant
was aware that Employer had accepted liability for a medical-only work-related
bilateral carpal tunnel injury, resolving as of September 21, 2016. Claimant did not
prevail on a contested issue and, thus, is not entitled to an award of costs.
Accordingly, the order of the Board is affirmed.
______________________________________
MARY HANNAH LEAVITT, President Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Miguelina Valerio, :
Petitioner :
:
v. : No. 1418 C.D. 2018
:
Workers’ Compensation Appeal :
Board (Georgio Fresh Company), :
Respondent :
ORDER
AND NOW, this 12th day of July, 2019, the order of the Workers’
Compensation Appeal Board, dated September 27, 2018, in the above-captioned
matter is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge