Advanced Dermatology Associates (Selective Insurance Company of America) v. WCAB (Bunce)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Advanced Dermatology Associates :
(Selective Insurance Company of :
America), :
Petitioners :
:
v. : No. 2186 C.D. 2014
: Submitted: May 22, 2015
Workers’ Compensation Appeal :
Board (Bunce), :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: August 5, 2015
Advanced Dermatology Associates and Selective Insurance Company
of America (collectively, Employer) petition for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) that affirmed the Workers’
Compensation Judge’s (WCJ) award of benefits to Michele Bunce (Claimant) for a
surgical scar on her neck. In doing so, the Board concluded that Claimant is
entitled to this compensation because the scar resulted from surgery that treated a
work injury. Employer argues that this was error because Claimant did not present
evidence sufficient to establish a causal connection between the surgery and a
work injury. We affirm.
Claimant has worked for Employer as a medical assistant and medical
note scribe since May 2005. Her job requires her to stand and type on a laptop
computer located on the counter in the exam room with her head lowered for eight
to ten hours a day. Over time, Claimant began experiencing pain and stiffness in
her neck that worsened as her workday progressed.
On October 12, 2011, Claimant was working in a new wing of the
building that has lower counters, requiring even more bending of her neck. After a
few hours of work, she reported her neck pain to Employer. In response, Employer
issued a medical only Notice of Temporary Compensation Payable (NTCP)
describing the injury as a “neck sprain.” Reproduced Record at 3a (R.R. ___).
On May 19, 2012, Claimant’s doctor removed her from work because
of her reaction to an epidural injection, which was done to treat her neck pain. On
June 1, 2012, Employer issued a Notice of Compensation Payable (NCP) accepting
liability for total disability benefits as of May 19, 2012. In the NCP, Employer
described the work injury as a “Cervical Spine Pinched nerve at C5-C6.” R.R. 4a.
In July 2012, Claimant returned to work part-time for one week.
Claimant and Employer executed a supplemental agreement providing for partial
disability benefits from July 23rd through July 29th and resumption of total
disability benefits as of July 30, 2012. The supplemental agreement described
Claimant’s injury as a “Cervical Spine Bulging Disk.” R.R. 5a.
In October 2012, Employer filed a termination petition alleging that
Claimant had fully recovered from her work injury as of September 13, 2012.
Claimant filed an answer denying the allegations. Claimant also filed a petition to
review medical treatment alleging that she had undergone cervical disc surgery
2
necessitated by her work injury and seeking disfigurement benefits for the surgical
scar on her neck.1 Employer filed an answer denying liability.
On January 14, 2013, Claimant returned to work with restrictions but
no wage loss. Accordingly, Employer issued a notification suspending Claimant’s
disability benefits.
The matter was assigned to a WCJ for a hearing. Both parties
appeared. Employer presented medical evidence. Claimant testified but did not
present any medical evidence.
Claimant described pain in her neck and left arm that had developed
from standing and using a computer on a low counter all day. Claimant testified
that she did not sustain any neck injuries from any other source such as sports or an
automobile accident. Claimant received physical therapy, injections and traction
for her work injury. Because that treatment did not resolve her symptoms,
Claimant underwent neck surgery on September 27, 2012. Claimant returned to
work in January 2013 with a restriction on repetitive bending of the neck.
Claimant testified that Employer honored the restriction by providing an adjustable
stand for her computer.
The surgery left a scar on the front left portion of Claimant’s neck.
The WCJ viewed the scar and described it as 1.75 inches long, located in the
natural crease of the left side of Claimant’s neck, slightly darker than the
surrounding skin with two small puckered areas.
1
Claimant also filed a penalty petition alleging that Employer had failed to pay over $36,000 in
medical bills related to the surgery. However, Claimant did not submit any unpaid bills into
evidence. The WCJ denied the penalty petition and it is not at issue on appeal.
3
Employer submitted the deposition testimony of Scott Naftulin, D.O.,
who is board certified in physical medicine and rehabilitation with an added
certificate in pain medicine. Dr. Naftulin performed an independent medical
examination (IME) of Claimant on September 13, 2012, two weeks before her
neck surgery. Claimant reported pain in her neck, upper trapezius area and left
arm as well as tingling in her left hand. She told Dr. Naftulin that neck surgery had
been scheduled. The physical examination revealed tenderness and spasm in the
neck muscles, and left-sided cervical radicular pain. Dr. Naftulin reviewed
cervical MRIs from January 2012, May 2012 and August 2012; cervical x-rays
from January 2012; and a CT scan from September 2012. Dr. Naftulin opined that
Claimant had a central disc protrusion at C5-6, disc bulging at C6-7 and
degenerative changes. Dr. Naftulin also reviewed the report of Christopher
Wagener, M.D., who did the cervical surgery on Claimant.
Employer attached Dr. Wagener’s report to Dr. Naftulin’s deposition
as an evidentiary exhibit. Dr. Wagener reported that he performed a complete
discectomy and foraminotomy2 at C5-6 and C6-7 and a fusion from C5 through
C7.
Based on Claimant’s history, the physical examination and his review
of the medical records and radiographic test results, Dr. Naftulin diagnosed
Claimant with left cervical radicular pain, probably at C6-7, as well as mild
multilevel cervical disc disease and spondylosis. Dr. Naftulin opined that
2
A foraminotomy is “a decompression surgery that is performed to enlarge the passageway
where a spinal nerve root exits the spinal canal.” The surgeon “removes bone or tissue that
obstructs the passageway and compresses (pinches) the spinal nerve root.”
http://www.spineuniverse.com/treatments/surgery/foraminotomy-taking-pressure-spinal-nerves
(last visited July 10, 2015).
4
Claimant’s work activities would not cause her degenerative condition or her
symptoms. Dr. Naftulin opined that Claimant’s work injury was solely a cervical
sprain from which she had fully recovered as of the date of the IME.
The WCJ accepted Claimant’s testimony as credible.3 The WCJ also
credited Dr. Naftulin’s testimony that Claimant was fully recovered from her
cervical sprain. However, the WCJ found that Dr. Naftulin had addressed only
part of the work injury, which was more than a cervical sprain. The WCJ found as
follows:
With the issuance of the June 2012 Notice of Compensation
Payable and the Supplemental Agreement, I find [Employer]
voluntarily accepted responsibility for a bulging disc in the
cervical spine, resulting in a pinched nerve at C5-6.
WCJ Decision, August 9, 2013, at 2; Finding of Fact No. 5. The WCJ thus
rejected Dr. Naftulin’s opinion that Claimant’s bulging disc and radiculopathy
were not related to her work activities. That was inconsistent with Employer’s
NCP and the Supplemental Agreement that these conditions were work-related.
Likewise, the WCJ rejected Dr. Naftulin’s opinion that the surgery was not related
to Claimant’s work injury.
Accordingly, the WCJ granted in part the termination petition with
respect to the cervical sprain but denied it with respect to the bulging cervical disc
and pinched nerve at C5-6. The WCJ found that Claimant’s benefits would remain
suspended in accordance with the notification of suspension. In light of
Employer’s acknowledgement of responsibility for a bulging cervical disc and a
3
The WCJ has complete authority over questions of credibility, conflicting medical evidence and
evidentiary weight. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995).
5
pinched nerve at C5-6, the WCJ granted Claimant’s review petition, finding that
the cervical scar was permanent and unsightly. The WCJ awarded 21 weeks of
disfigurement benefits. Finally, the WCJ concluded that Employer’s contest was
unreasonable and ordered Employer to pay Claimant’s attorney’s quantum meruit
fee.
Employer appealed the WCJ’s award of disfigurement benefits, and
the Board affirmed. Employer then petitioned for this Court’s review.4
On appeal, Employer presents one issue. Employer argues that
disfigurement benefits should have been denied because Claimant failed to
establish by expert medical evidence that the surgery performed by Dr. Wagener
on September 27, 2012, which created the cervical scar, was causally related to her
work injury.5 We disagree.
It is well-settled that an employer is only liable for payment of
benefits (of whatever kind) arising out of work-related injuries. Green v.
Workmen’s Compensation Appeal Board (Association for Retarded Citizens), 670
A.2d 1216, 1220 (Pa. Cmwlth. 1996). Once liability for a work injury has been
established or acknowledged by the employer through an NCP, the claimant need
not prove a causal connection between medical treatment for that condition and her
work injury because the connection is obvious. Kurtz v. Workers’ Compensation
Appeal Board (Waynesburg College), 794 A.2d 443, 447 (Pa. Cmwlth. 2002);
4
In reviewing an order of the Board, this Court must determine whether the necessary findings
of fact are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated or 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).
5
Employer does not challenge the WCJ’s determination that the scar is unsightly, permanent, not
normally incident to Claimant’s employment, and is worth 21 weeks of benefits. Employer
challenges only causation.
6
Gens v. Workmen’s Compensation Appeal Board (Rehabilitation Hospital of
Mechanicsburg), 631 A.2d 804, 806-07 (Pa. Cmwlth. 1993). The claimant need
only prove a causal connection through medical evidence if the treatment is for a
new symptom or injury that is not obviously connected to the compensable work
injury. Kurtz, 794 A.2d at 448; Gens, 631 A.2d at 806.
The WCJ found that the disabling work injury accepted by Employer
included “a bulging disc in the cervical spine, resulting in a pinched nerve at C5-
6.” WCJ Decision, August 9, 2013, at 2; Finding of Fact No. 5. Employer did not
challenge that finding. Dr. Wagener’s surgery treated Claimant’s nerve
compression at C5-6 and left a scar. The causal connection between Dr.
Wagener’s surgery and Claimant’s accepted work injury is obvious, and a medical
opinion on causation was not necessary. See Gens, 631 A.2d 804 (holding that
where the claimant’s work injury was an aggravation of a pre-existing back
problem and the medical treatment was for the back, a medical opinion of
causation was unnecessary because the causal connection was obvious). Employer
presented Dr. Naftulin’s medical opinion that the surgery was not related to the
work injury. However, the WCJ correctly rejected that opinion as incompetent
because Dr. Naftulin did not recognize a bulging disc and pinched nerve as part of
the work injury.
In short, the Board did not err in concluding that Claimant is entitled
to an award of disfigurement benefits for the scar left by her neck surgery.
Accordingly, the order of the Board is affirmed.
______________________________
MARY HANNAH LEAVITT, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Advanced Dermatology Associates :
(Selective Insurance Company of :
America), :
Petitioners :
:
v. : No. 2186 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Bunce), :
Respondent :
ORDER
AND NOW, this 5th day of August, 2015, the order of the Workers’
Compensation Appeal Board dated November 4, 2014, in the above-captioned
matter is hereby AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge