Great Arrow Builders v. B. Shemenski (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Great Arrow Builders, :
Petitioner :
:
v. : No. 134 C.D. 2022
: Submitted: July 15, 2022
Barry Shemenski (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: October 28, 2022
Great Arrow Builders (Employer) petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of the Workers’ Compensation Judge (WCJ). The WCJ granted the
petition for benefits filed by Barry Shemenski (Claimant). Employer challenges the
testimony of Dr. Howard Senter, Claimant’s medical expert, as incompetent because
it was based on an inaccurate and incomplete medical history. Upon review, we
affirm.
I. BACKGROUND
Employer hired Claimant as a union laborer who assisted carpenters
working with concrete.1 For 58 hours per week, Claimant primarily moved
1
Unless stated otherwise, we adopt the factual background for this case from the WCJ’s
opinion, which is supported by substantial evidence of record. See WCJ’s Op., 5/6/21, at 3-8;
accord Board’s (Bd.) Op., 1/19/22, at 2-4; see generally Notes of Testimony (N.T.) H’rg, 10/21/19,
at 6-28; N.T. Hr’g, 12/7/20, at 9-25.
construction materials weighing at least 80 to 100 pounds up and down a hill covered
with large rocks. In February 2019, Claimant began having neck pain, visited his
primary care physician, and started taking pain medication. Claimant then
developed severe hip pain, which he believed was from walking on the large rocks.
Claimant again visited his primary care physician, who diagnosed back pain.2 As a
result, Claimant had back surgery, and he has not worked since May 2019.
Claimant filed a claim petition. The WCJ held several hearings at
which Claimant testified and the parties introduced the trial depositions of Dr. Senter
and Dr. James Cosgrove, who was the independent medical examiner. In relevant
part, Dr. Senter opined that Claimant’s injury was caused from his job. N.T. Senter
Dep., 6/23/20, at 16-17. Dr. Senter testified that he asked Claimant whether
Claimant had any ongoing treatment for back pain prior to the instant injury, and
Claimant denied any ongoing treatment. Id. at 24, 27. Dr. Senter, however, noted
that because Claimant had a prior back surgery 25 years earlier, he nonetheless
presumed that Claimant would suffer from occasional back pain due to the nature of
the surgery. Id. at 24.
Dr. Senter reviewed Claimant’s prior medical records but
acknowledged he was unaware that several doctors had previously treated Claimant
for back pain prior to February 2019. Id. at 20, 23, 27-35. Dr. Senter initially noted
that even if Claimant had required medical treatment prior to February 2019, his
opinion would not change. Id. at 27. Dr. Senter subsequently clarified that unless a
pre-injury magnetic resonance imaging (MRI) scan of Claimant’s back revealed a
2
The WCJ found that Claimant suffered a disc herniation at L2-L3, and an aggravation of
a preexisting injury at L3-L4. Bd.’s Op., 1/19/22, at 1.
2
preexisting injury, his opinion would not change. Id. at 28, 36-37.3 In contrast, Dr.
Cosgrove conducted two independent medical examinations (IME) of Claimant and
testified that Claimant was not suffering from an acute work-related injury. N.T.
Cosgrove Dep., 11/13/20, at 14.
The WCJ credited the testimony of Claimant and Dr. Senter and
rejected the testimony of Dr. Cosgrove to the extent that Dr. Cosgrove’s testimony
differed from Dr. Senter’s testimony. WCJ’s Op., 5/6/21, at 7-8. The WCJ accepted
Dr. Senter’s opinion that Claimant suffered a herniated disc at L2-L3 and aggravated
a preexisting injury at L3-L4. Id. at 8. The WCJ also acknowledged that Claimant
was a “poor historian” of his prior treatment history. Id. The WCJ granted
Claimant’s petition, and Employer appealed to the Board.
On appeal to the Board, Employer argued that Dr. Senter’s opinion on
causation was incompetent because Dr. Senter did not review Claimant’s prior
medical records and was unaware of Claimant’s complete medical history of back
pain. Bd.’s Op. at 4. The Board acknowledged that Dr. Senter “was not familiar
with the entire [breadth] of Claimant’s extensive medical history” but noted that Dr.
3
To briefly summarize, Employer attempted to discredit Dr. Senter based upon his failure
to review a 2010 MRI, which nonetheless depicted no injury. More precisely, Dr. Senter testified
that if a pre-injury MRI revealed a hernia “the same size or smaller” than Claimant’s present
hernia, then his opinion may change. N.T. Senter Dep. at 28, 36-37. Dr. Senter testified that he
reviewed Claimant’s 2003 MRI, which in Dr. Senter’s view revealed no preexisting injury at L2-
L3. N.T. Senter Dep. at 30. During Dr. Senter’s cross-examination, Employer’s counsel
referenced Claimant’s 2010 MRI scan purportedly revealing a preexisting injury at the relevant
location, but it was not presented to Dr. Senter for his review. Id. at 33; see also id. at 38-39.
Employer’s counsel, however, did not question Dr. Cosgrove about Claimant’s 2010 MRI
scan. See generally N.T. Cosgrove Dep. We note that Dr. Cosgrove reviewed Claimant’s 2010
MRI scan and opined that he saw no disc herniation at the relevant location, i.e., a preexisting
injury. Ex. B to Cosgrove Dep. (noting that Dr. Cosgrove reviewed Claimant’s 2010 MRI and
disagreed with a report identifying at the L2-L3 level “a left-sided disc herniation [because there
was no] distinct thecal sac or nerve root compression and no significant disc protrusion can be
identified”).
3
Senter “explained that this history did not affect his opinions.” Id. at 5. The Board
also reiterated the WCJ’s conclusion that Claimant did not disclose every detail of
his 25 years of back treatment, but that Claimant credibly testified that his injury
was work related. Id. at 6. Employer timely petitioned this Court for review.
II. DISCUSSION
On appeal, Employer raises one issue, asserting that Dr. Senter’s
opinion on causation was incompetent because it was based on an inaccurate and
incomplete medical history. Employer’s Br. at 1. In support, Employer argues that
Dr. Senter was “completely unaware” of Claimant’s “length[y] medical history of
complaints” and improperly assumed that Claimant was asymptomatic prior to the
injury. Id. at 2. Employer primarily relies on the holding of three cases for the
proposition that a medical expert’s opinion should be disregarded when the expert
did not review the claimant’s medical records and relied solely on an
inaccurate/incomplete medical history. Id. at 10 (discussing Newcomer v.
Workmen’s Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d 1062 (Pa. 1997),
Sw. Airlines/Cambridge Integrated Serv. v. Workers’ Comp. Appeal Bd. (King), 985
A.2d 280 (Pa. Cmwlth. 2009) (King), and Chik-Fil-A v. Workers’ Comp. Appeal Bd.
(Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002)).
In a workers’ compensation appeal, our review is limited to determining
whether an error of law was committed, constitutional rights were violated, and
necessary findings of fact are supported by substantial evidence. Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244,
1252 n.5 (Pa. Cmwlth. 2019) (citation omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
4
conclusion.” City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d 762,
769 (Pa. 2011) (citation omitted).
It is well settled that “the WCJ is the fact[-]finder, and it is solely for
the WCJ . . . to assess credibility and to resolve conflicts in the evidence.” Hawbaker
v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. & Uninsured Emp.
Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (cleaned up). This principle
applies to expert medical testimony. Bartholetti v. Workers’ Comp. Appeal Bd. (Sch.
Dist. of Phila.), 927 A.2d 743, 747 (Pa. Cmwlth. 2007) (“A WCJ is free to accept or
reject . . . the testimony of . . . medical witnesses.”). “[T]he fact that a medical expert
does not have all of a claimant’s medical records goes to the weight given the
expert’s testimony, not its competency.” Huddy v. Workers’ Comp. Appeal Bd. (U.S.
Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006) (en banc) (citation omitted).
“[W]here both parties present evidence, it is irrelevant that the record
contains evidence which supports a finding contrary to that made by the WCJ; rather,
the pertinent inquiry is whether evidence exists that supports the WCJ’s findings.”
Wilgro Servs., Inc. v. Workers’ Comp. Appeal Bd. (Mentusky), 165 A.3d 99, 103-04
(Pa. Cmwlth. 2017) (citation omitted). Further, the party that prevailed before the
WCJ is entitled to the benefit of all favorable inferences drawn from the evidence.
Id. at 104.
In Newcomer, the claimant’s medical expert did not review any of the
claimant’s medical records and was not “involved in any of the treatment that
immediately followed [the claimant’s] injury.” Newcomer, 692 A.2d at 1063. Based
solely on the medical history provided by the claimant, the Newcomer medical
expert opined that the claimant’s injury was caused by the accident in question. Id.
5
Because the medical history was false, the Newcomer Court held the expert’s
testimony was incompetent. Id. at 1064.
In King, the claimant did not disclose relevant prior injuries to her
doctor, and her doctor did not review any of the claimant’s relevant medical records,
which would have revealed relevant prior injuries. King, 985 A.2d at 287. Because
the medical opinion of the claimant’s doctor was based on (1) an incomplete and
inaccurate medical history, and (2) the claimant’s own opinion, the King Court held
that the opinion was incompetent to establish causation. Id.Similarly, in Chik-Fil-A, the claimant’s expert did not review any of the
claimant’s medical records before opining that the claimant’s injury at issue was
work related. Chik-Fil-A, 792 A.2d at 683. The claimant’s expert had also testified
that “if [the] claimant’s medical history was not as reported, his evaluation would be
incorrect.” King, 985 A.2d at 287 (summarizing Chik-Fil-A). For these reasons, the
Chik-Fil-A Court held that the expert’s testimony was incompetent as to causation.
Chik-Fil-A, 792 A.2d at 689.
Here, unlike the experts in Newcomer, King, and Chik-Fil-A, Dr. Senter
reviewed Claimant’s various medical records and did not base his expert opinion
solely on Claimant’s reported medical history. Cf. Newcomer, 692 A.2d at 1063;
King, 985 A.2d at 287; Chik-Fil-A, 792 A.2d at 683. Further, unlike the expert in
Chik-Fil-A, Dr. Senter testified that his opinion would not change unless Claimant’s
pre-injury MRI revealed a preexisting injury at L2-L3. See N.T. Senter Dep. at 28,
36-37; cf. Chik-Fil-A, 792 A.2d at 682. To the extent that Employer argues that Dr.
Senter was unaware of, and therefore did not review, aspects of Claimant’s medical
history, Employer’s argument goes to the weight of Dr. Senter’s testimony and not
its competency. See Huddy, 905 A.2d at 593 n.9.
6
In this case, the WCJ credited Dr. Senter’s and Claimant’s testimony
that Claimant’s back injury was a work-related injury. See WCJ’s Op. at 7-8. The
WCJ also did not credit Dr. Cosgrove’s testimony to the extent it differed from Dr.
Senter’s testimony, which is the prerogative of the fact-finder. See Hawbaker, 159
A.3d at 69; Bartholetti, 927 A.2d at 747. Because there is substantial evidence of
record supporting the WCJ’s findings, and because Claimant is entitled to the benefit
of all favorable inferences drawn from the evidence, we agree with the Board that
the WCJ’s findings are neither arbitrary nor capricious, and we decline to reweigh
this evidence or disturb the WCJ’s credibility determinations. See Wilgro Servs.,
165 A.3d at 103-04; Hawbaker, 159 A.3d at 69.
III. CONCLUSION
For these reasons, we discern no legal error in the WCJ’s Decision or
the Board’s affirmance. See Bryn Mawr Landscaping, 219 A.3d at 1252 n.5.
Accordingly, we affirm the Board’s order.
LORI A. DUMAS, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Great Arrow Builders, :
Petitioner :
:
v. : No. 134 C.D. 2022
:
Barry Shemenski (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 28th day of October, 2022, we AFFIRM the January
19, 2022 order of the Workers’ Compensation Appeal Board.
LORI A. DUMAS, Judge