A. Tapper v. WCAB (UPMC/Passavant)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amanda Tapper, :
: No. 135 C.D. 2014
Petitioner : Submitted: June 13, 2014
:
v. :
:
Workers’ Compensation Appeal Board :
(UPMC/Passavant), :
:
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: August 5, 2014
Amanda Tapper (Claimant) petitions for review of the December 30,
2013, order of the Workers’ Compensation Appeal Board (WCAB), which affirmed,
as modified, the decisions of a workers’ compensation judge (WCJ) denying and
dismissing Claimant’s multiple claim petitions and reinstatement petition and
granting the termination petitions filed by UPMC/Passavant (Employer). The WCAB
modified the WCJ’s decisions to reflect Claimant’s full recovery from her work
injury “as of” September 16, 2010.1 We affirm.
1
The WCJ’s decisions referenced Claimant’s full recovery from her work injury “on or
before” September 16, 2010. (WCJ’s Conclusions of Law, No. 3.)
On June 25, 2007, in the course and scope of her employment with
Employer, Claimant, a certified nursing assistant, injured her back while bending
down to lift a patient’s legs. Claimant missed four or five days of work with back
pain and then returned to work at a light-duty position for several weeks before
returning to full-duty. (WCJ’s Findings of Fact, No. 1.a.)
On February 26, 2008, Claimant slipped and fell outside of Employer’s
emergency room on snow and ice, landing on her buttocks. Claimant worked a light-
duty position for six weeks and, thereafter, returned to full-duty. (Id., No. 1.b.)
On October 27, 2008, Claimant experienced low back pain while
assisting a co-worker in pulling a combative patient upward on a recliner. Claimant
treated at Occupational Health and missed five days of work. Thereafter, Claimant
treated with James L. Cosgrove, M.D. Claimant returned to a light-duty position for
six months and, thereafter, was released to full-duty. (Id., No. 1.c.)
Claimant alleged that on July 6, 2009, while in the course and scope of
her employment with Employer, she experienced back pain when she bent over to
pick something up. Claimant reported the injury to Employer. (Id., No. 1.d.)
Claimant was placed on light-duty until November when Employer received a copy
of Dr. Cosgrove’s office notes from Claimant’s October 22, 2009, examination,
which stated that Claimant’s lumbar radiculopathy had resolved and Claimant had
completed her physical therapy program. (Id.; Employer Letter, 11/3/09, at 1.)
Employer notified Claimant by letter dated November 3, 2009, that due to Dr.
2
Cosgrove’s notes, Employer would not support Claimant’s continued work
accommodation and that Claimant’s
Return to Work Assistance Program will be suspended as of
11/03/09. You will remain off of work until WorkPartners
receive[s] medical [documentation] that supports your
requested accommodation or until you provide a note
releasing you to full duty Nursing Assistant work . . . .
Should you disagree with this decision you may provide
WorkPartners with any additional medical documentation
that you feel supports your need for an accommodation at
this time.
(Employer Letter, 11/3/09, at 1.)
Employer sent Claimant a second letter on December 2, 2009,
acknowledging that Claimant requested leave from November 3, 2009, to January 15,
2010. (Employer Letter, 12/02/09, at 1.) Employer notified Claimant that “[p]ending
receipt of the attached documents . . . your eligibility has been reviewed and you are
eligible for leave under . . . [the] Family and Medical Leave Act [FLMA] – 11 weeks
starting availability.” (Id.) Employer’s letter further stated:
[i]n order for us to determine whether your absence
qualified under the policies listed above, you must return a
completed medical certification of you[r] serious health
condition and other enclosed forms. You must furnish this
documentation within 15 days (by 12/17/2009). A
Certification form that sets forth the information necessary
to support your leave request is enclosed. Your health care
provider must complete and sign the Certification of Health
Care Provider for Employee’s Own Health Condition form.
Please return the completed, signed documents to me. . . .
Failure to return a completed Certification form
which supports your request for leave may delay the
commencement of your leave or cause UPMC to take other
3
appropriate action, up to and including termination of your
employment if unapproved leave time is taken.
(Id. at 1-2.)
On December 29, 2009, Employer sent Claimant a third letter notifying
Claimant that Employer had not yet received Claimant’s documents. Employer
informed Claimant that “[f]ailure to return this requested paperwork by 01/13/2010
and/or failure to return to work by this date could result in corrective action being
issued upon your return to work. This action would follow the UPMC correction
action policy up to and including termination.” (Employer Letter, 12/29/09, at 1.)
On January 20, 2010, Employer sent Claimant a fourth letter notifying
Claimant that her leave was not approved because “no documentation was returned to
certify the leave.” (Employer Letter, 1/20/10, at 1.) Employer set forth that
Claimant’s “unauthorized time away from work may be counted toward your
department’s time and attendance policy. This may result in disciplinary action up to
and including termination.” (Id. at 1.)
On January 27, 2010, Employer sent Claimant a fifth letter informing
Claimant that she failed to qualify for any leave time and that “your active status will
be converted to resignation [for] failure to return from a leave.” (Employer Letter,
1/27/10, at 1.)
Employer terminated Claimant on January 15, 2010. (WCJ’s Findings
of Fact, No. 1.d.) After her termination, Claimant filed four claim petitions seeking
total disability benefits from January 15, 2010, and continuing. (Id., No. 1.f.)
4
Claimant alleged a low back injury on June 25, 2007; a lumbar sprain on February
26, 2008; a lumbar strain on October 27, 2008; and a low back injury on July 6, 2009.
Employer accepted the February 26, 2008, and October 27, 2008, injuries as “medical
only” claims. Claimant also filed a reinstatement petition for the October 27, 2008,
injury, claiming a recurrence of that injury on July 6, 2009. Employer filed
termination petitions with respect to each alleged injury date. (WCJ’s Decisions,
8/18/11, at 1.)2
At the hearings before the WCJ, Claimant testified that, in 2004,
Employer counseled Claimant for excessive absenteeism and put her on “step one
counseling.” This counseling continued into 2005 because of additional call-offs. In
2007, both before and after Claimant’s work injuries, Employer again counseled
Claimant for absenteeism and tardiness and issued written warnings. In 2008,
Claimant treated with her primary care physician for back pain after lifting furniture
at home. In August 2009, Employer put Claimant on “final notice” and informed
Claimant that failure to provide a medical excuse in a timely fashion for future
absences would result in dismissal. (WCJ’s Findings of Fact, Nos. 1.e., 1.f.)
Claimant presented the deposition testimony of Dr. Cosgrove, who is
board-certified in physical medicine, rehabilitation, and electrodiagnosis. Dr.
Cosgrove first saw Claimant on February 16, 2009, after the October 27, 2008,
incident. He reviewed a magnetic resonance imaging scan (MRI) dated March 13,
2
The WCJ filed four identical decisions on August 18, 2011, under separate claim numbers:
3542397, 3425650, 3323686, and 3654180. The WCJ consolidated the separate claim,
reinstatement, and termination petitions.
5
2008, which revealed mild disc bulging at L4-5. Dr. Cosgrove felt there was a
“possible” lumbar radiculopathy and kept Claimant on light-duty restrictions. Two
weeks later, Dr. Cosgrove released Claimant to full duty. (Id., No. 4.)
Dr. Cosgrove next saw Claimant on July 15, 2009, after a recurrence of
back pain upon bending at work. Dr. Cosgrove concluded that the herniated disc
recurred. Dr. Cosgrove treated Claimant with epidural steroids and released her to
light-duty work. A repeat MRI on April 29, 2010, showed additional protrusion at
L4-5. Dr. Cosgrove opined that the October 27, 2008, incident caused a disc
protrusion at L4-5. (Id.)
On cross-examination, Dr. Cosgrove admitted that he was not provided
Claimant’s history of low back injuries before October 27, 2008. Dr. Cosgrove
agreed that Claimant’s prior physician diagnosed Claimant with degenerative disc
disease and no disc herniation. Dr. Cosgrove acknowledged that Claimant is obese,
which puts pressure on her low back. He further acknowledged that obesity is a risk
factor for degenerative disc disease, which he agreed is partially responsible for
Claimant’s low back problems and is a significant contributing factor to her light-
duty limitations. (Id.) Dr. Cosgrove also admitted that on October 22, 2009,
Claimant’s condition had resolved and that he was ready to release Claimant to
regular-duty. (Cosgrove Dep., 6/28/10, at 25.)
Employer presented the testimony of Kathleen Smith, Employer’s
emergency department unit director and Claimant’s supervisor. Smith stated that she
suspended Claimant in August 2009 and provided her a “final notice” based upon
6
violations of Employer’s absenteeism policies. Smith testified that Claimant was
later terminated for failing to report to work when her leave and light-duty position
ended. (WCJ’s Findings of Fact, No. 2.)
Employer also presented the testimony of Maureen Little, the human
resources director. Little stated that Claimant was dismissed through the progressive
discipline policy. Little further stated that after Dr. Cosgrove provided a note in
November 2009, stating that Claimant’s lumbar radiculopathy had resolved and she
could return to full-duty, Claimant applied for FMLA, which was denied. Little
stated that Claimant did not return to work after the FMLA was denied. (Id., No. 3.)
Employer presented the deposition testimony of Brian M. Ernstoff,
M.D., who is board-certified in physical medicine and rehabilitation. Dr. Ernstoff
conducted an independent medical examination (IME) on Claimant on September 16,
2010, took an oral history, and reviewed her medical records. Dr. Ernstoff weighed
Claimant in at over 350 pounds and, based upon her medical records, determined that
Claimant gained close to 50 pounds since her August 2, 2010, examination by Dr.
Bookwalter. Dr. Ernstoff found no limiting factors or findings apart from Claimant’s
obesity. Dr. Ernstoff opined that Claimant had completely recovered from any injury
she may have suffered to her low back as of September 16, 2010. Dr. Ernstoff
attributed Claimant’s degenerative disc disease to her weight and smoking. (Id., No.
5.)
The WCJ found Claimant’s testimony credible except where it conflicted
with the credible medical and lay testimony. The WCJ credited the testimony of
7
Smith and Little3 and determined that Claimant was dismissed for failing to return to
her full-duty position with Employer. The WCJ found the testimony of Dr. Cosgrove
less than convincing because he was unaware of Claimant’s 2007 back problems and
her 2008 injury that occurred after a lifting incident at home. Further, Dr. Cosgrove
failed to adequately explain whether the work injury or Claimant’s obesity caused her
light-duty restrictions. The WCJ credited Dr. Ernstoff’s testimony because it was
consistent with the objective medical evidence, Claimant’s history, and common
sense. (Id., Nos. 3-5.)
The WCJ concluded that Claimant failed to meet her burden of proof in
the claim and reinstatement petitions and that Employer met its burden of proving
that Claimant had completely recovered from her work injuries “on or before”
September 16, 2010. (WCJ’s Conclusions of Law, No. 1.) The WCJ denied and
dismissed Claimant’s claim and reinstatement petitions and granted Employer’s
termination petitions effective September 16, 2010. Claimant appealed to the
WCAB.
The WCAB found that the WCJ properly denied and dismissed
Claimant’s claim and reinstatement petitions. The WCAB further determined that
Claimant was not entitled to disability benefits from the date of her termination on
January 15, 2010, to the date she allegedly recovered, September 16, 2010, because
Claimant was unable to establish that her restrictions at the time of her termination
3
Little testified that Claimant took FMLA as of November 3, 2009; however, the leave was
not ultimately approved. Little stated that Claimant failed to report to work or produce medical
documentation that she could not work. Smith terminated Claimant on January 15, 2010, for
“failure to return from leave.” (N.T., 7/15/10, at 13, 22-24.)
8
were causally related to her work injury. Finally, to the extent that the WCJ’s
conclusion that Claimant recovered from her work injury “on or before” September
16, 2010, could be interpreted as a finding that Claimant was fully recovered before
the date of Dr. Ernstoff’s examination, the WCAB modified the WCJ’s decision to
reflect that Claimant fully recovered “as of” September 16, 2010. Claimant now
petitions this court for review.4
Initially, Claimant contends that the WCAB erred in finding that the
WCJ’s decisions denying Claimant’s claim and reinstatement petitions and granting
Employer’s termination petitions are supported by substantial evidence. We disagree.
It is well settled that in a claim petition, a claimant bears the burden of
proving all elements necessary for an award. Inglis House v. Workmen’s
Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). Specifically, a
claimant must establish that she sustained an injury during the course and scope of
her employment and that the injury was causally related to her employment.
Delaware County v. Workers’ Compensation Appeal Board (Baxter-Coles), 808 A.2d
965, 967-68 (Pa. Cmwlth. 2002). A claimant must also prove that the injury resulted
in a disability that caused a wage loss. Id. at 968. Similarly, in a reinstatement
petition, a claimant bears the burden of proving that her disability increased or
recurred and that her physical condition actually changed in some way, along with the
duration of her disability. Mader v. Workmen’s Compensation Appeal Board (USAir,
4
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary factual findings are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
9
Inc.), 669 A.2d 511, 513 (Pa. Cmwlth. 1996). Conversely, in a termination petition,
the employer bears the burden of proving that all disability related to a work injury
has ceased or that ongoing disability results from a non-work-related source.
Campbell v. Workers’ Compensation Appeal Board (Antietam Valley Animal
Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998).
Our review in this matter is not a re-weighing of all of the evidence, but
a review of whether the necessary findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
“Substantial evidence is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. It is irrelevant whether the record contains
evidence to support findings other than those made by the WCJ; the critical inquiry is
whether there is evidence to support the findings actually made.” Delaware County,
808 A.2d at 969 (internal citations omitted). “If supported by substantial evidence, a
WCJ’s findings are conclusive on appeal, despite the existence of contrary evidence.”
Watson v. Workers’ Compensation Appeal Board (Special People in Northeast), 949
A.2d 949, 953 (Pa. Cmwlth. 2008). When reviewing witnesses’ testimony,
determinations as to weight and credibility are solely for the WCJ as fact-finder.
Cittrich v. Workmen’s Compensation Appeal Board (Laurel Living Center), 688 A.2d
1258, 1259 (Pa. Cmwlth. 1997). A WCJ may accept or reject the testimony of any
witness in whole or in part. Lombardo v. Workers’ Compensation Appeal Board
(Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997).
Here, Claimant sought full disability benefits from her termination date
of January 15, 2010. Thus, Claimant was required to establish that her restrictions at
10
the time of her termination were causally related to her work injuries. The WCJ
relied upon Dr. Ernstoff’s credible testimony that, based upon Claimant’s medical
records from Dr. Cosgrove, Claimant’s lumbar radiculopathy had resolved and,
therefore, no objective findings supported a continued need for modified duty work
as of November 2009.5 (Ernstoff Dep., 2/24/11, at 13; Employer Letter, 11/3/09, at
1.)
Dr. Ernstoff credibly testified that the progression of Claimant’s
degenerative disc disease in the MRI scan reports from March 13, 2008, through
April 29, 2010, was related to Claimant’s obesity, smoking, and lack of exercise, not
to any work-related event or activity.6 (See Ernstoff Dep., 2/24/11, at 34-35; Ernstoff
IME, 10/5/10, at 10.) Dr. Ernstoff further opined that Claimant had fully recovered
from any alleged work-related injury as of September 16, 2010, the date he examined
Claimant, and that Claimant could return to full, unrestricted activities. (Ernstoff
Dep., 2/24/11, at 36.)
Dr. Ernstoff’s credible testimony supports the WCJ’s finding that
Claimant’s degenerative disc disease is the result of her obesity and smoking, not her
alleged work injuries. Thus, the WCJ did not err in determining that Claimant failed
5
On cross-examination, Dr. Cosgrove admitted that on October 22, 2009, Claimant’s
condition had resolved and that he was ready to release Claimant to regular-duty. (Cosgrove Dep.,
6/28/10, at 25.)
6
We note that the cause of Claimant’s work injuries was never at issue prior to the filing of
her claim petitions. Employer accepted the February 26, 2008 and October 27, 2008, claims as
medical only. Therefore, Claimant needed to prove that the work injuries caused her current back
problems, not her prior non-work-related injury or her degenerative disc disease.
11
to prove a compensable work injury or a recurrence of a prior work injury in January
2010.7 Further, based on the credited evidence of record, the WCJ did not err in
granting Employer’s termination petitions.8
Next, Claimant contends that the WCAB went beyond the scope of its
review in changing the specific language of the WCJ’s decision to “interpret” what it
thought the WCJ meant to hold with respect to the termination of Claimant’s benefits
“on or before” the date of Employer’s IME of September 16, 2010. We disagree.
The WCAB is authorized to correct or modify a WCJ’s decision to
conform to the factual and legal findings contained in that decision. See Bentley v.
Workers’ Compensation Appeal Board (Pittsburgh Board of Education), 987 A.2d
1223, 1230 (Pa. Cmwlth. 2009) (stating that the WCAB can make a technical
correction to a WCJ’s decision to make it conform to the evidence); Morella v.
Workers’ Compensation Appeal Board (Mayfield Foundry, Inc.), 935 A.2d 598, 602
(Pa. Cmwlth. 2007) (holding that “it was within the [WCAB’s] province to make the
WCJ’s findings conform to the award”).
Here, Claimant contested the language used by the WCJ, and the WCAB
clarified the language to Claimant’s benefit by changing “on or before” to “as of.” It
7
We do not consider the non-credited testimony of Dr. Cosgrove and Claimant, as it is the
WCJ’s duty to weigh the evidence and determine its credibility, not this court’s. See Cittrich, 688
A.2d at 1259; Lombardo, 698 A.2d at 1381.
8
The credited testimony of Dr. Ernstoff reveals that Claimant had fully recovered from any
alleged work injury as of Dr. Ernstoff’s IME of Claimant on September 16, 2010. (Ernstoff’s Dep.,
2/24/11, at 27.)
12
is irrelevant whether Claimant recovered three months or three days prior to the IME
of September 16, 2010. Even with this finding, if Claimant were receiving benefits,
they would terminate on September 16, 2010, not before. The WCAB did not exceed
the scope of its review in clarifying the WCJ’s language.
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amanda Tapper, :
: No. 135 C.D. 2014
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(UPMC/Passavant), :
:
Respondent :
ORDER
AND NOW, this 5th day of August, 2014, we hereby affirm the
December 30, 2013, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge