W.W. Watkins v. WCAB (Caretti, Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William W. Watkins, :
Petitioner :
: No. 1280 C.D. 2017
v. :
: Submitted: December 29, 2017
Workers’ Compensation Appeal :
Board (Caretti, Inc.), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 2, 2018
William W. Watkins (Claimant) petitions for review of the July 19, 2017
order of the Workers’ Compensation Appeal Board (Board) affirming a decision of the
Workers’ Compensation Judge (WCJ) terminating Claimant’s benefits effective June
30, 2015.
Facts and Procedural History
Claimant was employed by Caretti, Inc. (Employer) as a mason. (Notes
of Testimony (N.T.), 12/21/15, at 11.) On June 3, 2014, while working for Employer,
Claimant was struck by a stone, weighing about 60 pounds, that fell from scaffolding
above him. (WCJ’s Finding of Fact (F.F.) No. 4; N.T., 12/21/15, at 10-11.) Pursuant
to a notice of temporary compensation payable (NTCP), Claimant began receiving
workers’ compensation benefits. The NTCP described Claimant’s injury as “low back,
[left] hand, [left] shoulder strain/sprain bruised contusion.” (Certified Record (C.R.)
at Item No. 24; Notice of Temporary Compensation Payable.)
On August 7, 2015, Employer filed a termination petition alleging that, as
of June 30, 2015, Claimant was fully recovered and able to return to unrestricted work.
(C.R. at Item No. 2; Employer’s Petition to Terminate.) Claimant filed an answer to
the termination petition, (C.R. at Item No. 6; Claimant’s Answer to Petition to
Terminate), and, on August 19, 2015, he filed a review petition alleging that the NTCP
incorrectly described his work injury. (C.R. at Item No. 4; Claimant’s Review
Petition.) The WCJ conducted hearings to consider both petitions on September 9,
2015, and December 21, 2015. At the September 9 hearing, Claimant sought to amend
the description of injury to include a “herniated disc at the L3-L4 level with an
aggravation of lumbar stenosis and degenerative disc disease.” (F.F. No. 3; N.T.,
9/9/15, at 6-7.) At the December 21 hearing, Claimant attempted to amend the injury
description to include a cervical injury and surgery. (F.F. No. 3; N.T., 12/21/15, at 6-
7.)
Through the testimony presented at the December 21 hearing, Claimant
admitted that he had back surgery in 2000 for a lumbar problem at L3-L4. (F.F. No. 5;
N.T., 12/21/15, at 12.) Because the disc “re-herniated,” he had a second surgery at the
University of Pennsylvania. (Id.) In April 2010, Claimant sought treatment from Dr.
Weis for a herniated disc in his lumbar spine, resulting in low back pain on his right
side, which radiated to his right buttock and lateral hip and down the anterior aspect of
his right quadriceps. (Id.) Claimant also underwent decompression to a radial nerve
in his left arm by Dr. Talsania prior to his work injury. (F.F. No. 5; N.T., 12/21/15, at
13.)
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At the time of the work injury, Claimant sought treatment from James
Sunday, M.D., at Coordinated Health. (N.T., 12/21/15, at 20.) Claimant returned to
work on June 3, 2014, and worked through June 11, 2014, when he again treated with
Dr. Sunday. (F.F. No. 8; Board’s op. at 4; N.T., 12/21/15, at 21.) At the June 11, 2014
appointment, Claimant reported that, while his neck and shoulder were feeling better,
he was starting to suffer from low back pain. (F.F. No. 9; N.T., 12/21/15, at 22.) Dr.
Sunday’s notes report that Claimant acknowledged a history of chronic low back pain,
but did not report any neck pain or pain radiating down his arms. (F.F. No. 9; N.T.,
12/21/15, at 24.)
On July 1, 2015, Claimant began treating with Dr. Li, with symptoms of
low back pain and right leg pain. (F.F. No. 13; C.R. at Item No. 19; Deposition of P.
Mark Li, M.D. (Li deposition), at 11-12.) Dr. Li’s original notes do not document pain
in Claimant’s neck or arms. (F.F. No. 13; N.T., 12/21/15, at 30.) In fact, Dr. Li did
not examine Claimant’s neck at the July 1 appointment because Claimant did not report
any neck pain. (F.F. Nos. 13; Board’s op. at 4; N.T., 12/21/15, at 31; Li deposition, at
37-38.) It was not until August 26, 2015, that Claimant called Dr. Li’s office
complaining of neck pain. (F.F. No. 14; Li deposition, at 15.) Dr. Li first examined
Claimant’s neck on September 11, 2015. (Id.)
At the December 21, 2015 hearing, Claimant presented testimony
regarding his current symptoms. Claimant testified that he suffers from headaches later
in the day; experiences pain in his neck, down through the back of his right arm (and
left arm, if he coughs or sneezes); and has back and leg pain, with numbness in his right
foot. (F.F. No. 7; N.T., 12/21/15, at 18.) Claimant also noted that his left shoulder
feels “okay,” but hurts at times; his left hand still feels a bit “uncoordinated” or
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“unresponsive”; and he still has pain in his right quad, with his right foot feeling numb
and his left foot feeling “uncoordinated.” (Id.)
On cross-examination, Claimant acknowledged that, immediately after
the injury, he told Dr. Sunday that the rock struck his hardhat, left shoulder, and left
hand. (F.F. No. 8; N.T., 12/21/15, at 20.) Dr. Sunday examined Claimant, and
Claimant returned to his full-duty job without restriction from June 3, 2014 to June 11,
2014. (F.F. No. 8; N.T., 12/21/15, at 21.) Claimant denies telling Dr. Sunday that he
suffered from chronic back pain. (F.F. No. 9; N.T., 12/21/15, at 22.) Regardless,
Claimant did not report neck or radiating arm pain. (F.F. No. 9; N.T., 12/21/15, at 24.)
Employer presented the deposition testimony of Stephen P. Banco, M.D.,
an orthopedic spinal surgeon. Dr. Banco examined Claimant on June 30, 2015. (C.R.
at Item No. 22; Deposition of Stephen P. Banco M.D. (Banco deposition), at 11-12.)
He testified that Claimant reported symptoms of low back pain and right leg pain, and
that Claimant denied having a neck pain or headache. (F.F. No. 15-16; Banco
deposition, at 6-7.) Dr. Banco testified that he reviewed Claimant’s medical records,
noting a surgical history of two prior lumbar discectomies, a left radial nerve
decompression, and anterior cruciate ligament (ACL) reconstruction. (F.F. No. 17;
Banco deposition, at 8.) Dr. Banco also reviewed Claimant’s magnetic resonance
imaging (MRI) scan from July 9, 2014, observing “stenosis at L3 and L4, and L4 and
L5 with significant epidural fibrosis from his prior discectomies” and “significant disc
degeneration secondary to [Claimant’s prior] post-operative infection.” (Banco
deposition, at 10; F.F. No. 19.) After the June 30 examination and review of Claimant’s
numerous medical records and diagnostic study results,1 Dr. Banco opined that
1
In reaching his diagnosis of Claimant, Dr. Banco testified that he reviewed the following
medical records and diagnostic studies as part of his examination of Claimant: Office notes from Dr.
4
Claimant suffered from “a work-related low back strain, a left hand sprain, and a left
shoulder contusion, and . . . he had fully recovered from those injuries.” (Banco
deposition, at 12; F.F. No. 21; Board’s op. at 2.) Dr. Banco explained that Claimant’s
MRI showed no evidence of an acute injury or herniation; rather he noticed significant
stenosis and epidural fibrosis, neither of which was related to his work injury. (F.F.
No. 21; Board’s op. at 3; Banco deposition, at 12-13.) He opined that “since there was
no acute injury and there [was] the obvious degeneration that you get ten years after
having two lumbar surgeries, this was all a degenerative process and not an acute work-
related process.” (Banco deposition, at 13; F.F. No. 21.) Ultimately, he opined that,
as of June 30, 2015, Claimant required no physical restrictions or limitations, or further
medical treatment, and he could return to full-duty work. (F.F. No. 21-22; Banco
deposition, at 13-14.)
Claimant presented the deposition testimony of Dr. Li, who did not
examine Claimant until almost one year after the work injury occurred. Dr. Li testified
that, during the July 1, 2015 examination, he reviewed Claimant’s lumbar MRI scan,
which indicated stenosis of the lumbar spine at L3 and L4, and L4 and L5. (F.F. No.
28; Board’s op. at 5; Li deposition, at 13.) Dr. Li’s examination revealed that Claimant
had normal strength in his arms and legs, and a normal gait. (F.F. No. 29; Li deposition,
at 13-14.) He ultimately opined that Claimant’s symptoms of numbness, tingling, and
Fayyazi, Mainline Spine, Dr. Mauthe, VSAS Orthopedics, OAA Orthopedic Specialists, Lehigh
Valley Rehabilitation Services, and Pain Specialists of Greater Lehigh Valley, Dr. Robert E. Wertz,
Coordinated Health, Dr. James C. Weis, Dr. Eric Holender, and Dr. Rosalie Rehrig; an operative
report from Mainline Spine regarding Claimant’s lumbar epidural injections received in February and
March 2015; a physical therapy report from Blue Mountain Health System; a functional capacity
evaluation report from Mobile FCE Consultants, an EMG dated October 9, 2014, from Dr. Mauthe;
a lab report from Gnaden Huetten Memorial Hospital; hospital records from Lehigh Valley Health
Network and the Center for Specialized Surgery; MRI reports dated April 2, 2010, June 25, 2014, and
July 9, 2014; and court documents from the Pennsylvania Department of Labor & Industry. (Banco
deposition, at 11-12.)
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pain “were due to the severe stenosis that he had at L3-4 and L4-5.” (F.F. No. 29; Li
deposition, at 14.) To relieve the symptoms, Dr. Li recommended an L3-4 and L4-5
laminectomy. (F.F. No. 29; Li deposition, at 14-15.)
On August 26, 2015, over one month after his initial examination,
Claimant called Dr. Li’s office to complain of neck pain for the first time. (F.F. No.
30; N.T., 12/21/15, at 31-32; Li deposition, at 15.) A cervical MRI was performed, and
Dr. Li testified that the MRI showed cervical myelomalacia, indicating that the spine
had been bruised. (F.F. No. 31; Li deposition, at 16.) Dr. Li performed cervical spine
surgery on Claimant on November 17, 2015. (F.F. No. 34; Board’s op. at 5-6; Li
deposition, at 19-20.) Dr. Li ultimately arrived at two diagnoses for Claimant:
“myelomalacia or injury to the spinal cord secondary to a traumatic incident dated June
3, 2014, a work-related accident. And exacerbation of symptoms of spinal stenosis
also based on injury at the time of that accident.” (Li deposition, at 25; F.F. No. 35.)
However, Dr. Li acknowledged that Claimant had not informed him of a history of low
back problems and radiating leg pain prior to the work injury. (F.F. No. 35; Li
deposition, at 34.) Dr. Li testified that, as of March 2, 2016 (the date of his deposition),
Claimant was not able to work because he “still [was] not fused and in the healing
process from the cervical surgery” and that he was “not fully recovered.” (Id., at 30-
31.)
The WCJ issued his decision and order dated October 12, 2016, granting
the termination petition and denying the review petition. In doing so, the WCJ found
Dr. Banco to be credible, but did not find Claimant and Dr. Li credible. (F.F. Nos. 37-
40.) Specifically, the WCJ did not find certain testimony of Claimant regarding his
initial reports of symptoms to Dr. Li and Dr. Banco to be credible. (F.F. No. 37.) The
WCJ accepted Dr. Banco’s opinion that Claimant had fully recovered from his work
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injury. (F.F. No. 38.) Claimant timely appealed the October 12, 2016 decision and
order to the Board. On appeal, the Board affirmed.
Claimant timely appealed the Board’s decision to this Court.
Discussion
On appeal to this Court,2 Claimant argues that his civil rights were
violated based on an alleged conflict of interest between his counsel, Gerald Strubinger,
Jr., Esq., one of his doctors, Robert W. Mauthe, M.D.,3 and the WCJ.
By asserting a violation of his civil rights, Claimant is raising a
constitutional issue. However, as aptly noted by Employer in its brief, Claimant failed
to raise any such violation in the earlier proceedings. It is well-settled that this Court
“may not consider an issue on appeal unless it is preserved at every stage of the
proceeding below.” Arnold v. Workers’ Compensation Appeal Board (Lacour
Painting, Inc.), 110 A.3d 1063 (Pa. Cmwlth. 2015). Rule 1551 of the Pennsylvania
Rules of Appellate Procedure provides:
No question shall be heard or considered by the court which
was not raised before the government unit except:
(1) Questions involving the validity of a statute.
2
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006). The scope of review on questions of law is plenary and the standard of review is de novo. Pitt
Ohio Express v. Workers’ Compensation Appeal Board (Wolff), 912 A.2d 206, 207 (Pa. 2006).
3
Claimant began treating with Dr. Mauthe in July 2014. (F.F. No. 11.) Claimant testified
that Dr. Mauthe provided him with pain pills and prescribed physical therapy. (N.T., 12/21/15, at
13.) Dr. Mauthe referred Claimant to Dr. Lerman with Mainline Spine. (Id., at 13-14.)
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(2) Questions involving the jurisdiction of the
government unit over the subject matter of the
adjudication.
(3) Questions which the court is satisfied that
the petitioner could not by the exercise of due
diligence have raised before the government
unit. If, upon hearing before the court, the court
is satisfied that any such additional question
within the scope of this paragraph should be so
raised, it shall remand the record to the
government unit for further consideration of the
additional question.
Pa.R.A.P. 1551(a). Furthermore, under section 703(a) of the Administrative Agency
Law:
A party who proceeded before a Commonwealth agency
under the terms of a particular statute shall not be precluded
from questioning the validity of the statute in the appeal, but
such party may not raise upon appeal any other question not
raised before the agency (notwithstanding the fact that the
agency may not be competent to resolve such question)
unless allowed by the court upon due cause shown.
2 Pa.C.S. §703(a).
In this case, Claimant contests neither the validity of a statute, nor the
jurisdiction of the Board over the subject matter at hand. Instead, the issue raised by
the Claimant—namely, the effectiveness of his counsel in the proceeding before the
WCJ—could have been raised before the Board. Therefore, because Claimant did not
raise any issue regarding a violation of his constitutional rights before the Board, he
has waived such argument on appeal to this Court.
Even if we were to determine that Claimant did not waive his right to raise
this constitutional issue, Claimant did not meet his burden to support such a claim. The
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allegations made by Claimant amount to grievances lodged against his attorney, his
doctors, and the WCJ himself. In asserting a conflict of interest between the various
participants in this matter, Claimant essentially argues that his counsel and witnesses
erred in their presentation of the case. Specifically, for example, he calls into question
Dr. Banco’s credibility and his attorney’s strategy in presenting and admitting evidence
into the record. Because an appeal to the Court is not the proper means to address the
adequacy of representation by counsel, we will consider Claimant’s arguments as a
challenge to the WCJ’s credibility determinations.
It is a fundamental tenant of workers’ compensation law that the WCJ, as
the fact-finder, has complete authority over questions of witness credibility and
evidentiary weight. Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal
Board (Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). For purposes of this Court’s
review, it is irrelevant whether evidence exists to support contrary findings; rather, if
substantial, competent evidence exists to support the WCJ’s necessary findings, those
findings will not be disturbed on appeal. Id. “Substantial evidence is such relevant
evidence which a reasonable mind might accept as adequate to support a finding.”
Berardelli v. Workmen’s Compensation Appeal Board (Bureau of Personnel State
Workmen’s Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth. 1990). Accordingly,
the WCJ has exclusive province over credibility and weight determinations, and may
accept or reject the testimony of any witness, in whole or in part. Verizon Pennsylvania
Inc., 116 A.3d at 1162. We may overturn a credibility determination “only if it is
arbitrary or capricious or so fundamentally dependent on a misapprehension of facts,
or so otherwise flawed, as to render it irrational.” Casne v. Workers’ Compensation
Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
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Here, substantial evidence exists to support the WCJ’s findings of fact.
Our review of the record demonstrates that the WCJ carefully considered the testimony
of both Dr. Banco and Dr. Li, as well as each doctor’s medical notes, interpretation of
Claimant’s test results, and ultimate diagnoses. The evidence shows that each doctor
performed a thorough examination of the Claimant. As the Board acknowledged, the
WCJ clearly explained each of his findings, which included his reasoning for making
the credibility determinations that he did. As such, we shall not disturb those findings
on appeal.
Conclusion
Based on the foregoing, we conclude that because Claimant did not raise
any issue regarding a violation of his constitutional rights before the Board, he waived
such argument on appeal to this Court. However, even if we were to consider such
argument, Claimant did not meet his burden to demonstrate that his constitutional rights
were violated or that the record did not contain substantial evidence to support the
WCJ’s determinations.
Accordingly, the order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William W. Watkins, :
Petitioner :
: No. 1280 C.D. 2017
v. :
:
Workers’ Compensation Appeal :
Board (Caretti, Inc.), :
Respondent :
ORDER
AND NOW, this 2nd day of April, 2018, the order of the Workers’
Compensation Appeal Board, dated July 19, 2017, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge