L. Sarmiento-Hernandez v. WCAB (Ace American Insurance Company)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lourdes Sarmiento-Hernandez, :
Petitioner :
:
v. : No. 1799 C.D. 2016
: Submitted: December 6, 2017
Workers’ Compensation Appeal :
Board (Ace American Insurance :
Company), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: February 13, 2018
Lourdes Sarmiento-Hernandez (Claimant) petitions for review of an October
12, 2016 Order of the Workers’ Compensation Appeal Board (Board), which
reversed a Workers’ Compensation Judge’s (WCJ) Decision to award Claimant
unreasonable contest attorney’s fees.1 On June 27, 2014, Ace American Insurance
Company (Employer) filed a Petition to Terminate Compensation Benefits
(Termination Petition), asserting Claimant fully recovered from her work injury and
was able to return to work without restriction as of June 2, 2014. Claimant denied
that she fully recovered and filed a Petition to Review Compensation Benefits
1
The Board Order affirmed the WCJ’s Decision, granting Claimant benefits, in all other
respects. Claimant’s entitlement to benefits is not contested.
(Review Petition) on September 8, 2014, alleging the description of her injury was
incorrect. Whether Employer’s actions related to these two petitions were
reasonable is the sole issue on appeal. We conclude they were and, accordingly,
affirm.
I. Procedural and Factual History
Claimant sustained an injury to her right wrist at work on June 25, 2012.
Employer issued a Notice of Compensation Payable (NCP), accepting the injury as
a right wrist sprain, on October 18, 2012.
In 2013, prior to the filing of the instant petitions, Employer filed a Petition
to Suspend Compensation Benefits (Suspension Petition). The Suspension Petition
was resolved via a stipulation by the parties, which was adopted by a WCJ on May
22, 2014.2 Prior to the entry of the stipulation, Employer deposed Thomas J. Gillon,
M.D., Claimant’s treating physician. Dr. Gillon diagnosed Claimant with right wrist
symptomatic ulnar impaction,3 triangular fibrocartilage complex (TFCC) tear, and
extensor carpi ulnaris (ECU) tendinitis, which required surgery. Although the
Suspension Petition was resolved via stipulation and Dr. Gillon’s testimony was
never admitted as part of that proceeding,4 in her Review Petition, Claimant sought
to have the NCP amended to include the conditions to which Dr. Gillon testified.
2
The stipulation provided that, between October 21, 2013, and November 28, 2013,
Claimant returned to work with no wage loss; between November 29, 2013, and March 24, 2014,
Claimant received severance pay at her regular earnings after her position was eliminated; and
beginning March 24, 2014, Claimant’s total disability benefits were reinstated.
3
Dr. Gillon explained that Claimant’s ulna was longer than her radius, and that by
surgically shortening the ulna, the pressure on one side of Claimant’s wrist is offloaded. The
condition is often congenital.
4
Dr. Gillon’s deposition was admitted at the hearing on the instant Petitions but for the
limited purpose of showing Employer’s contest was unreasonable.
2
A number of hearings were held on the Termination Petition and Review
Petition, at which Employer presented the deposition and report of Pedro
Beredjiklian, M.D. The WCJ summarized Dr. Beredjiklian’s testimony as follows:
[] On June 2, 2014, Dr. Beredjiklian performed an evaluation of
Claimant at the request of the Employer/carrier. Claimant dated her
symptoms back to June 25, 2012 with no specific traumatic episode.
[Dr. Beredjiklian] understood that Claimant was working packing
umbrellas and leather-bound portfolios and making boxes. Over the
course of several days at work [Claimant] developed pain in the wrist.
Dr. Beredjiklian opined that there was no causal relationship
between the diagnoses of right wrist ulnar impaction, right wrist
TFCC tear and tendinitis with painful hardware with any work
activity on June 25, 2012. [Dr. Beredjiklian] related these
diagnoses to a congenital condition that does not occur as a result
of repetitive activities.
[] Assuming that the accepted work injury was a right wrist sprain
due to the repetitive nature of the job occurring on June 25, 2012,
Dr. Beredjiklian opined that Claimant was fully recovered from
that injury. Claimant’s employment was not a substantial
contributing factor in bringing about the diagnosis made by Dr.
Gillon.
[] On cross-examination, Dr. Beredjiklian related Claimant’s
condition to wear and tear of daily life of which work would be a
part. He did not see a history from any other doctor indicating that
Claimant developed her wrist pain outside of work. He opined that
her work activities had “no causal role or no material causal role”
in creating the aggravation of her pre-existing condition. The
repetitive nature of her job had a very minor role in the
development of her symptoms.
[] Although Dr. Beredjiklian’s report indicates a diagnosis of TFCC
tear, status post-debridement, ulnar shortening osteotomy and hardware
removal, when questioned on cross-examination regarding his
diagnosis[,] he initially stated “I don’t think I have a specific
diagnosis.” [(R.R. at 55a.)] [Dr. Beredjiklian] was not aware of the
fact that the NCP indicated wrist sprain due to repetitive nature of the
job until the day of his deposition. When asked from what work injury
he felt she had recovered, Dr. Beredjiklian indicated that he did not see
3
a work injury. He specifically stated that[,] based on the records he
reviewed, he did not see any work injury.
(WCJ Decision, Finding of Fact (FOF) ¶ 1(a)-(d) (emphasis added).)
Claimant presented the deposition of David Bozentka, M.D., who began
treating Claimant after Dr. Gillon performed a wrist arthroscopy and ulnar
shortening osteotomy of her right wrist for treatment of the symptomatic ulnar
impaction syndrome. His testimony was summarized by the WCJ as follows:
[] Dr. Bozentka opined that Claimant initially developed the ulnar wrist
pain as a result of moving some boxes at work. Claimant had a pre-
existing ulnar positive variance with resulting ulnar impaction
syndrome with degeneration of the TFCC. As a result of her work
activities, Claimant developed an aggravation of her preexisting ulnar
impaction syndrome. Her ulnar impaction became symptomatic as a
result of her work activity.
[] Dr. Bozentka understood that[,] ultimately, Claimant had an ECU
synovectomy and plate removal due to tend[i]nitis of the tissues and
tendon adjacent to the plate. This procedure was related to the initial
surgery in which the plate was inserted.
***
[] Dr. Bozentka related Claimant’s aggravation of her ulnar impaction
syndrome requiring arthroscopy, ulnar shortening osteotomy, and
ultimately plate removal, therapy and treatment by Dr. Gillon[,] as well
as himself[,] to her work activities moving boxes. She has not fully
recovered from her condition. To his knowledge, she has not developed
similar symptoms in her left hand. Claimant had an ulnar positive
variance of the left side as well. She is right hand dominant.
(WCJ Decision, FOF ¶¶ 2-3, 6.)
As stated above, Claimant also submitted the deposition testimony of Dr.
Gillon, which was taken in support of the prior Suspension Petition and was admitted
for the limited purpose of supporting the unreasonable contest claim. The WCJ
summarized Dr. Gillon’s testimony as follows:
4
[Dr. Gillon] first treated Claimant on August 30, 2012 for the work
injury of June 25, 2012. Claimant presented for a second opinion
regarding ongoing pain on the ulnar side of her right wrist and surgical
recommendation by Dr. [Mark] Rekant [of the Philadelphia Hand
Center]. Claimant first noticed the pain on June 25, 2012 after working
all day. On that particular day, in addition to her duties as
administrative assistant, [Claimant] was helping to put a cubic[le]
together for a new employee.
[] X-rays revealed right and left wrist ulna lengthening known as ulnar
impaction. [Dr. Gillon] diagnosed Claimant with right wrist
symptomatic ulnar impaction. The MRI revealed a tear/hole in the
triangular fibrocartilage complex (TFCC) with a small effusion into the
distal radioulnar joint consistent with ulnar impaction.
[] On October 9, 2012, Dr. Gillon performed surgery in the nature of a
right arthroscopic TFCC debridement and a right wrist ulnar shortening
osteotomy. [Claimant] was restricted from work following the surgery.
. . . On April 23, 2013, Claimant had residual swelling and probably
extensor carpi ulnaris (ECU) tendinitis. [Dr. Gillon] saw Claimant
again on May 2, 2013 and July 2, 2013. At that time, Claimant had a
second opinion by Dr. Bozentka who agreed with the recommendation
of hardware removal.
[] As of July 2, 2013, Dr. Gillon diagnosed Claimant with right wrist
stiffness, right ECU tendinitis, and right wrist painful hardware. On
August 12, 2013, Dr. Gillon performed surgery for hardware removal
and ECU tenolysis to free up the tendon from the ulna and take away
any inflammation around the tendon. Thereafter, he saw Claimant on
August 20, 2013, September 19, 2013, [and] October 16, 2013[,] at
which time he released Claimant to full duty work.
[] When asked to assume that the accepted injury is a right wrist sprain
and provide an opinion as to whether or not she was fully recovered
from that injury as of October 16, 2013, Dr. Gillon replied: “It’s
difficult to say because I didn’t treat her . . . for a right wrist sprain.”
When the question was asked again, he stated “I can’t say fully and
completely only because of the decreased – somewhat decreased
motion and decreased pain. . . .”
[] Dr. Gillon diagnosed Claimant with right wrist ulnar impaction,
TFCC tear, and ECU tend[i]nitis. The wrist ulnar impaction and TFCC
5
tear he related to her congenital condition of an ulna being longer than
her radius and wear and tear over time causing the tear. The ECU
tend[i]nitis he related to the surgery and placement of the hardware.
When asked if any of these conditions are related to her employment,
Dr. Gillon stated: “What she related from the incident on June 25,
2012, was putting together a cubic[le]. She could have put more stress
on her wrist at that point, and I consider it a potential exacerbation,
but not a cause.”
[] On cross-examination, however, Dr. Gillon stated that he believed
the work [constructing the cubicle] was the “main cause” of her wrist
becoming symptomatic to the point that he performed surgery. Dr.
Gillon submitted bills for his treatment[,] including two surgeries[,] to
the Workers’ Compensation carrier because he believed that he was
treating her for work-related conditions.
(WCJ Decision, FOF ¶ 3 (citations omitted) (emphasis added).)
Claimant also testified on her own behalf and introduced a number of letters
from her counsel to Employer’s counsel, which requested that Employer recognize
the injury diagnosed by Dr. Gillon and withdraw the Termination Petition.
Based upon the testimony, the WCJ granted Claimant’s Review Petition,
concluding Claimant met her burden of proving the work injury should be amended
to include aggravation of her right ulnar impaction syndrome with TFCC tear
requiring arthroscopy, ulnar shortening osteotomy, and plate removal for ECU
tendinitis. The WCJ denied and dismissed Employer’s Termination Petition, finding
it failed to meet its burden of proving Claimant fully recovered from her work
injuries. In reaching this conclusion, the WCJ found “the opinion of Dr. Bozentka
to be more credible and persuasive than the opinion of Dr. Beredjiklian because Dr.
Bozentka is one of Claimant’s treating doctors and is therefore in a better position
than Dr. Beredjiklian to render an opinion in this matter.” (WCJ Decision, FOF ¶
7.) The WCJ rejected Dr. Beredjiklian’s opinion as neither competent nor credible
on the basis that “Dr. Beredjiklian did not believe that Claimant sustained a work
6
injury and did not learn of the NCP that acknowledged a work injury in the nature
of a right wrist sprain due to the repetitive nature of the job until just prior to his
deposition.” (Id.) Further, based upon the letters between counsel and the testimony
of Dr. Gillon and Dr. Beredjiklian, the WCJ found Employer’s contest of the
Termination Petition and Review Petition was not reasonable. (Id. ¶ 15.)
Employer appealed to the Board solely arguing that the WCJ erred in
concluding the contest was unreasonable and awarding attorney’s fees. On appeal,
the Board agreed, finding there was conflicting medical evidence to support
Employer’s contest. Specifically, the Board noted that Employer presented the
testimony of Dr. Beredjiklian who testified that Claimant had no additional work-
related diagnoses and disputed the expanded injuries as being work-related, which
was in opposition to the Review Petition, and that Claimant was fully recovered from
the accepted work injury, which was in support of the Termination Petition. (Board
Op. at 4.) Although the WCJ rejected Dr. Beredjiklian’s testimony, the Board noted
that it still supported a reasonable contest. (Id.) Thus, the Board reversed the WCJ’s
award of unreasonable contest attorney’s fees. In doing so, the Board rejected
Claimant’s argument that Dr. Beredjiklian’s testimony was incompetent because he
did not believe Claimant had sustained the original, accepted work injury. The
Board explained:
[w]hile Dr. Beredjiklian had questions as to whether Claimant ever
sustained a work-related injury, he still opined that assuming that
Claimant had sustained the accepted work injury, described as “right
wrist sprain due to repetitive nature,” that she was fully recovered from
that injury at the time of his examination.
(Id. at 5.)
7
Claimant then appealed to this Court arguing the Board erred in reversing the
award of attorney’s fees.5 Specifically, Claimant argues that Employer failed to offer
sufficient evidence to demonstrate that its contest was reasonable because the only
evidence presented by Employer was Dr. Beredjiklian’s testimony and Dr.
Beredjiklian testified he did not believe a work injury occurred. In addition,
Claimant argues it was unreasonable for Employer to present no evidence to
contradict Dr. Gillon’s testimony and to refuse to amend the NCP and seek to
terminate Claimant’s benefits on the basis that she fully recovered.
II. Analysis
Under Section 440 of the Workers’ Compensation Act,6 a claimant is entitled
to reasonable attorney’s fees unless an employer can show a reasonable basis for its
contest. 77 P.S. § 996. Whether an employer’s contest is reasonable is a question
of law based upon the WCJ’s findings of fact. Yespelkis v. Workers’ Comp. Appeal
Bd. (Pulmonology Assocs., Inc.), 986 A.2d 194, 196 (Pa. Cmwlth. 2009). “In
determining whether a contest is reasonable, we must look to the totality of the
circumstances.” Grady v. Workers’ Comp. Appeal Bd. (Lutz), 26 A.3d 1229, 1232
(Pa. Cmwlth. 2011). “A reasonable contest exists when medical evidence is
conflicting or is susceptible to contrary inferences, and there is no evidence that the
employer’s contest was frivolous.” Schachter v. Workers’ Comp. Appeal Bd. (SPS
Techs.), 910 A.2d 742, 746 (Pa. Cmwlth. 2006). Here, like the Board, we conclude
5
This Court’s standard of review in workers’ compensation appeals is limited to
determining whether necessary findings of fact are supported by substantial evidence, whether an
error of law was committed, or whether constitutional rights were violated. Steeple v. Workers’
Comp. Appeal Bd. (Pa. Liquor Control Bd.), 796 A.2d 394, 396 (Pa. Cmwlth. 2002).
6
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. Section 440
was added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 996.
8
Employer presented competent, conflicting medical testimony that rendered its
contest reasonable.
First, with regard to the Termination Petition, under our precedent, a medical
expert must, at a minimum, acknowledge an accepted or established work injury.
See, e.g., Hall v. Workers’ Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734, 740 (Pa.
Cmwlth. 2010) (“[A] medical expert’s opinion will not support a termination if that
medical expert does not acknowledge the accepted work injuries and does not opine
full recovery from those injuries”) (emphasis added); Gillyard v. Workers’ Comp.
Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991, 997 (Pa. Cmwlth. 2005)
(termination petition based “solely on testimony that failed to acknowledge the
established work injury” was insufficient to support a termination petition)
(emphasis added). Here, the accepted or established work injury was a right wrist
sprain, as described in the NCP. Although Dr. Beredjiklian also testified, when
pressed on cross-examination, that he did not believe Claimant suffered any work
injury, as the Board correctly noted, he still testified, assuming Claimant had
suffered the right wrist sprain, that she fully recovered from it. This is sufficient to
satisfy the standard set forth in To v. Workers’ Compensation Appeal Board (Insaco,
Inc.), 819 A.2d 1222, 1225 (Pa. Cmwlth. 2003). Therefore, Employer did present
competent medical evidence that Claimant fully recovered from the accepted work
injury.7 Because Employer never accepted the expanded work injury and because
the Review Petition seeking to expand the accepted work injury was still pending,
meaning the expanded injury was not yet “established,” Employer was not required
7
Questions of competency involve questions of law that are fully subject to our review.
Cerro Metal Prods. Co. v. Workers’ Comp. Appeal Bd. (PLEWA), 855 A.2d 932, 937 (Pa. Cmwlth.
2004). Therefore, while we are bound to accept the WCJ’s credibility determinations, we are not
bound by the WCJ’s finding of incompetence.
9
to do anything more than it did. Although the WCJ discredited the testimony of
Employer’s expert in favor of Claimant’s expert, which was within the WCJ’s sole
province to do, this does not render Employer’s filing of the Termination Petition
unreasonable especially in light of the conflicting medical evidence.
Second, with regard to the Review Petition, Claimant appears to argue that it
was clear from the time of Dr. Gillon’s deposition that aggravation of Claimant’s
pre-existing condition was at issue, and, therefore, Employer should have been
prepared to present evidence to counter this testimony. 8 Employer did, in fact,
present such testimony. Dr. Beredjiklian testified that Claimant’s work played no
role in aggravating Claimant’s pre-existing condition. In summarizing the testimony
of Employer’s expert, the WCJ specifically found Dr. Beredjiklian “opined that
[Claimant’s] work activities had ‘no causal role or no material causal role’ in
8
We do not believe that it was clear that Claimant was alleging an exacerbation of her pre-
existing, congenital condition, as compared to alleging that the existence of the condition itself
was work-related. First, Dr. Gillon’s testimony was equivocal, at best. He testified work was a
“potential exacerbation, but not a cause,” (R.R. at 164a (emphasis added)), and that “loading of
the wrist [] could exacerbate this. Or lifting – putting that cubic[le], that could have been the straw
that broke the camel’s back, putting that cubic[le] together.” (Id. at 186a (emphasis added).)
Despite this testimony (including that work was not a cause), Dr. Gillon went on to testify, when
questioned by Claimant’s counsel, that “work was the main cause of her pain.” (Id. (emphasis
added).) It is noteworthy that Claimant did not rely on the testimony of Dr. Gillon, one of her
treating physicians, to support her Review Petition and instead utilized a different doctor to
establish her case. Second, neither Claimant’s Review Petition nor the letters Claimant’s counsel
sent Employer’s counsel asking that the NCP be amended make it clear what the amendment being
sought actually was. The Review Petition simply states the NCP has an “Incorrect Description of
Injury.” (R.R. at 3a.) The letters from Claimant’s counsel similarly are vague and only ask for
recognition of the injury as diagnosed by Dr. Gillon, which, as discussed above, was unclear. (R.R.
at 229a-32a.) In one of the letters, Claimant’s counsel states that Employer elicited those opinions
from Dr. Gillon during its case in chief. (Id. at 232a.) However, it was under questioning from
Claimant’s counsel that the treating physician testified that “work was the main cause of her pain.”
(R.R. at 186a.) Moreover, the letters reasonably could be interpreted as referring to the diagnosis
of ulnar impaction syndrome, the condition itself, not its aggravation. Simply put, because it was
not clear what Claimant was alleging – the existence of the congenital condition itself or
exacerbation of the condition – we cannot conclude that Employer’s contest was unreasonable.
10
creating the aggravation of her pre-existing condition.” (WCJ Decision, FOF ¶
1(c) (emphasis added).) Thus, Employer’s expert did address the exacerbation claim
and offered conflicting testimony to that offered by Claimant’s expert.
III. Conclusion
In conclusion, by failing to have its expert express an opinion about whether
Claimant fully recovered from the expanded work injury alleged in Claimant’s
Review Petition, Employer assumed a risk that its Termination Petition would be
denied and Claimant’s Review Petition would be granted if the WCJ did not credit
its expert’s testimony. However, this does not make Employer’s contest of the
Review Petition unreasonable. Employer presented competent medical evidence
that Claimant fully recovered from the accepted work injury, i.e., a right wrist sprain,
and was free to dispute the work-relatedness of the expanded injury alleged in the
Review Petition, i.e., aggravation of the ulnar impaction syndrome. The sole issue
before us is whether Employer’s contest was reasonable. Again, although the WCJ
credited Claimant’s expert over Employer’s expert, this does not make the opinion
of Employer’s expert incompetent or Employer’s contest of the Review Petition
unreasonable. Accordingly, we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lourdes Sarmiento-Hernandez, :
Petitioner :
:
v. : No. 1799 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Ace American Insurance :
Company), :
Respondent :
ORDER
NOW, February 13, 2018, the Order of the Workers’ Compensation Appeal
Board, dated October 12, 2016, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lourdes Sarmiento-Hernandez, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Ace American Insurance :
Company), : No. 1799 C.D. 2016
Respondent : Submitted: December 6, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
DISSENTING OPINION BY
JUDGE COVEY FILED: February 13, 2018
I respectfully dissent from the Majority’s conclusion that “failing to have
[Employer’s] expert express an opinion about whether [Sarmiento-Hernandez
(]Claimant(]) fully recovered from the expanded work injury alleged in Claimant’s
Review Petition[]” “does not make [Ace American Insurance Company’s
(]Employer[)] contest of the Review Petition unreasonable.” Majority Op. at 11.
Because Employer was well aware of Claimant’s expanded work injury months in
advance of the Workers’ Compensation Judge (WCJ) hearings and rather than accept
the expanded work injury or produce competent medical evidence to challenge it,
Employer chose to file a Petition to Terminate Compensation Benefits (Termination
Petition) on the basis of an opinion of a doctor who refused to accept the original
work-related injury, I would reverse the Workers’ Compensation Appeal Board’s
(Board) order reversing the WCJ’s decision awarding unreasonable contest attorney’s
fees. See Noverti v. Workmen’s Comp. Appeal Bd. (Newtown Squire Inn), 686 A.2d
455 (Pa. Cmwlth. 1996) (Employer cannot establish grounds for termination based on
evidence that Claimant’s expanded injury is not work-related because, in fact, the
original work injury is not work-related).
The law is well-established that
[w]here a claimant succeeds in a litigated case, she is
entitled to reasonable attorney fees pursuant to Section
440 of the Workers’ Compensation Act, (Act)[1] unless the
employer meets its burden of establishing facts sufficient
to prove a reasonable basis for its contest. The issue of
whether an employer’s contest was reasonable is a legal
conclusion based on the WCJ’s findings of fact. The
reasonableness of an employer’s contest depends on
whether the contest was prompted to resolve a
genuinely[-]disputed issue or merely to harass the
claimant.
Yespelkis v. Workers’ Comp. Appeal Bd. (Pulmonology Assocs., Inc.), 986 A.2d 194,
196 (Pa. Cmwlth. 2009) (footnote and citations omitted; emphasis added). “In
determining whether a contest is reasonable, we must look to the totality of the
circumstances.” Grady v. Workers’ Comp. Appeal Bd. (Lutz), 26 A.3d 1229,
1232 (Pa. Cmwlth. 2011). “A reasonable contest exists when medical evidence is
conflicting or is susceptible to contrary inferences, and there is no evidence that the
employer’s contest was frivolous[.]” Schachter v. Workers’ Comp. Appeal Bd. (SPS
Techs.), 910 A.2d 742, 746 (Pa. Cmwlth. 2006); see also Gunther v. Workmen’s
Comp. Appeal Bd., 444 A.2d 1342 (Pa. Cmwlth. 1982). “The question . . . is not
whether the [WCJ] believed the employer[’s] witness but whether the opinion of the
witness provided a reasonable basis for the [employer’s] contest of the claim.”
Spatola & Thompson v. Workmen’s Comp. Appeal Bd., 401 A.2d 877, 880 (Pa.
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L. 25,
77 P.S. § 996.
AEC - 2
Cmwlth. 1979). Because “[t]he existence of a reasonable contest is a question of law,
based on the WCJ’s findings of fact, [it is] fully reviewable by this Court.” Crouse v.
Workers’ Comp. Appeal Bd. (NSP Energy SVC), 801 A.2d 655, 657 (Pa. Cmwlth.
2002).
First, in determining whether there was conflicting medical evidence to
oppose Claimant’s Review Petition, the Board acknowledged that the WCJ rejected
the testimony of Employer’s medical expert, Pedro Beredjiklian, M.D. (Dr.
Beredjiklian), “as not credible.” Board Op. at 4. However, the Board stated that if
the WCJ had accepted said testimony it would have supported Employer’s opposition
to the Review Petition. To the contrary, Claimant’s Review Petition sought
expansion of the accepted work injury and Dr. Beredjiklian’s testimony was limited
to his belief that there was no work injury, but assuming a work injury existed,
Claimant had recovered. Dr. Beredjiklian expressly related that Claimant’s ulnar
impaction was congenital. Further, he presented no testimony with respect to
Claimant’s Review Petition that her ulnar impaction had become symptomatic as a
result of her work activities or that Claimant had recovered from the expanded work
injury.
Moreover, the WCJ also rejected Dr. Beredjiklian’s testimony because it
was not “competent.” Reproduced Record (R.R.) at 255a. “When expert medical
testimony for the claimant is . . . competent and the employer’s expert medical
testimony is . . . incompetent, employer’s testimony will not suffice as substantial
evidence supporting a finding upon which an award for the employer is based.”
Manners v. Workers’ Comp. Appeal Bd. (McDonald’s Restaurant), 688 A.2d 786,
788 (Pa. Cmwlth. 1997). Because the WCJ found Dr. Beredjiklian’s testimony
incompetent and that was the only medical evidence Employer presented in
opposition to Claimant’s Review Petition, the WCJ concluded that Employer’s
contest was unreasonable.
AEC - 3
Although it is solely the role of the WCJ to assess
credibility and resolve conflicts in the evidence, the
question of the competency of the evidence is one of law
and fully subject to our review. Cramer v. Workmen’s
Comp[.] Appeal [Bd.] (Uni-Marts & PMA Group), . . . 627
A.2d 231, 233 ([Pa. Cmwlth.] 1993). ‘Competency when
applied to medical evidence, is merely a question of
whether the witnesses’ [sic] opinion is sufficiently definite
and unequivocal to render it admissible.’ Id. We have
often observed that medical evidence is unequivocal as
long as the medical expert, after providing a foundation,
testifies that in his professional opinion he believes or
thinks the facts exist.
Cerro Metal Products Co. v. Workers’ Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937
(Pa. Cmwlth. 2004) (citation omitted; emphasis added).
Here, Dr. Beredjiklian opined that there was no causal relationship
between Claimant’s diagnoses of right wrist ulnar impaction, right wrist TFCC tear
and tendinitis with painful hardware with any work activity on June 25, 2012. Dr.
Beredjiklian related these diagnoses to a congenital condition that does not occur as a
result of repetitive activities. Dr. Beredjiklian specifically stated that, based on
the records he reviewed, he did not see any work injury. However, based on
Claimant’s reports of right wrist pain, Employer through a Notice of Compensation
Payable (NCP) accepted a right wrist sprain due to repetitive use, and Thomas J.
Gillon, M.D. (Dr. Gillon) testified, prior to Dr. Beredjiklian’s deposition, that the
ulnar impaction that Dr. Beredjiklian referred to became symptomatic, i.e.,
producing pain requiring surgery, due to Claimant’s work activity of putting together
a cubicle.
Dr. Beredjiklian never addressed Claimant’s pain or her ulnar impaction
becoming symptomatic. Rather, Dr. Beredjiklian testified that Claimant’s ulnar
impaction was a non-work-related congenital condition. However, there was no
dispute that Claimant had an ulnar impaction nor was it disputed that it was a
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congenital condition. What Dr. Beredjiklian needed to address, but failed to do so,
was Claimant’s pain which led to her two surgeries and whether Claimant’s ulnar
impaction had become symptomatic due to a work-related activity.2 Because Dr.
Beredjiklian never addressed Dr. Gillon’s or David Bozentka, M.D.’s unequivocal
medical testimony that Claimant’s performance of her work duties aggravated her
ulnar impaction to the point of it becoming symptomatic and requiring two surgeries,
Employer failed to produce any evidence that Claimant’s expanded injury was not
2
The Majority states: “We do not believe that it was clear that Claimant was alleging an
exacerbation of her pre-existing, congenital condition, as compared to alleging that the existence of
the condition itself was work related.” Majority Op. at 10 n.8. However, a reading of Claimant’s
counsel’s letters leaves no doubt as to what Claimant was seeking. Claimant’s counsel specifically
advised Employer’s counsel on October 9, 2014:
During [Dr. Gillon’s] deposition, Dr. Gillon diagnosed a right wrist
symptomatic ulnar impaction and an injury to the triangular
fibrocartilage complex. Dr. Gillon also testified that the surgery in
the form of debridement and ulnar shortening osteotomy were related
to Claimant’s employment. . . .
R.R. at 230a (emphasis added). On December 30, 2014, Claimant’s Counsel again advised
Employer’s Counsel:
During our conversation, I told you that the doctor’s medical opinions
are fatally deficient concerning your current [Termination] Petition.
The doctor did not even acknowledge that an injury took place and in
light of the fact that there is a recognized injury, the doctor’s medical
opinions that the Claimant did not suffer any injury at all, renders his
opinions unacceptable in any workers’ compensation case. . . .
R.R. at 229a.
Finally, Claimant complained about pain in her wrist, and Employer accepted that the pain
was caused by her work activities. See NCP, R.R. at 241a. Claimant did not allege, nor did her
doctors so testify, that the congenital condition (ulnar impaction syndrome) was work-related. In
fact, Claimant sought recognition of the work injury as described by Dr. Gillon. See R.R. at 229a,
230a. Thus, Claimant clearly communicated she was alleging that the exacerbation of her condition
was work-related, not the congenital condition itself. Moreover, the Majority stated: “[I]n her
Review Petition, Claimant sought to have the NCP amended to include the conditions to which Dr.
Gillon testified.” Majority Op. at 2-3.
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work-related. Accordingly, the WCJ properly determined that Dr. Beredjiklian’s
testimony was incompetent.3 Since Dr. Beredjiklian’s testimony was incompetent
and that was the only medical evidence Employer presented in opposition to
Claimant’s Review Petition, the Board erred when it concluded that Employer
presented conflicting medical testimony. As Employer failed to present competent
medical evidence and had no support for challenging Claimant’s Review Petition,
Employer’s contest was unreasonable.4
Further, since Employer did not present any competent conflicting
medical testimony with respect to the Review Petition, it was not reasonable for
3
The Dissent acknowledges the WCJ’s finding that Dr. Beredjiklian, on cross-
examination, “opined that [Claimant’s] work activities had ‘no causal role or no material causal
role’ in creating the aggravation of her pre-existing condition.” WCJ FOF 1(c) (emphasis added).
However, when asked “[w]hat do you mean by no causal role or no material role?” Dr. Beredjiklian
responded: “[Claimant’s] work did not cause her ulnar impaction, and her work did not have
any significant or important role in creating her condition.” R.R. at 44a (emphasis added). Dr.
Beredjiklian’s explanation reveals that he was referring to Claimant’s ulnar impaction being
congenital. Even assuming he was referring to the aggravation, Dr. Beredjiklian did not accept the
work injury, making his testimony incompetent. It is irrelevant whether Employer’s expert was
believed because “[w]hen the party without the burden of proof does not present any competent
evidence it is the same as if that party presented no evidence.” Kondrat v. Workmen’s Comp.
Appeal Bd. (Westinghouse Elec. Corp.), 603 A.2d 689, 691 (Pa. Cmwlth. 1991).
4
The Majority addresses the reasonableness of the Termination Petition before the
reasonableness of the Review Petition. By addressing the Termination Petition first, it appears that
the only issue is whether the original work injury resolved. However, Dr. Gillon testified with
respect to Claimant’s expanded injuries before Employer filed its Termination Petition, and
Claimant’s Counsel advised Employer’s Counsel that Claimant was seeking to expand the injury
before the hearing thereon. See Weidner v. Workmen’s Comp. Appeal Bd., 332 A.2d 885 (Pa.
Cmwlth. 1975) (employer’s pursuit of its petition to terminate, after the claimant filed an answer
claiming residual disability and asserting continued medical care, was not a contest for which there
was a reasonable basis; the facts of disability and continued treatment were readily available to the
employer and its carrier). Claimant’s Counsel expressly advised Employer’s Counsel that “Dr.
Gillon diagnosed a right wrist symptomatic ulnar impaction and an injury to the triangular
fibrocartilage complex[,]” and that Employer’s “doctor’s medical opinions are fatally deficient
concerning [its] current [Termination] Petition” prior to the hearing. R.R. at 229a-230a. Thus, the
analysis should be reversed, thereby, like the WCJ, first addressing the Review Petition then the
Termination Petition. Reversing the issues makes it clear the contest was unreasonable.
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Employer to proceed as if the WCJ would not accept the expanded work injury.5 The
Majority opines: “Because Employer never accepted the expanded work injury and
because the Review Petition seeking to expand the accepted work injury was still
pending, meaning the expanded injury was not yet ‘established,’ Employer was not
required to do anything more than it did.” Majority Op. at 9-10. However, whether
the expanded work injury was yet to be “established” is not the issue and ignores the
reasons for the WCJ hearings. The issues before the WCJ were whether
Claimant’s work injury should be expanded. If not, did Claimant fully recover
from the work injury Employer had accepted. If so, did Claimant fully recover
from the expanded work injury. Knowing the issues, and the medical
documentation and testimony in support of Claimant’s expansion of her work
injury, Employer was obligated to present evidence to refute expansion of the
work injury for purposes of the Review Petition, and if the WCJ accepted the
same, suffer the consequence of paying Claimant’s attorney’s fees for an
unreasonable contest with respect to the Termination Petition. This case does
not involve the sole issue, as the Majority so seeks to characterize the action, of
whether Claimant recovered from her accepted work injury. Pursuant to the Act and
as a practical matter, the WCJ does not conduct days of hearings for the parties to
present their evidence on Claimant’s Review Petition, wherein, she seeks to expand
her work injury and Employer’s Termination Petition for Employer to have no legal
obligation to address whether Claimant fully recovered from the expanded work
injury.
5
Employer cannot credibly claim that it did not know the extent of Claimant’s injury as it
paid for Claimant’s two surgeries through its workers’ compensation insurance and provided
Claimant workers’ compensation disability benefits during her absence from work due to the
surgeries.
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As the Majority acknowledges: “[I]n [Claimant’s] Review Petition,
Claimant sought to have the NCP amended to include the conditions to which Dr.
Gillon testified [Dr. Gillon ‘diagnosed Claimant with right wrist symptomatic ulnar
impaction’ WCJ Dec. FOF 3(b)].” Majority Op. at 2-3. The Majority also points out
that the WCJ held several days of hearings. Given that Employer had notice of the
expanded injuries prior to those hearings, Employer was obligated to refute those
injuries in order to maintain a reasonable contest. Employer chose not to contest the
expanded injuries. “[B]y failing to have its expert express an opinion about whether
Claimant fully recovered from the expanded work injury alleged in Claimant’s
Review Petition, Employer assumed a risk that its Termination Petition would be
denied and Claimant’s Review Petition would be granted if the WCJ did not credit
[Employer’s] expert’s testimony[,]” Majority Op. at 11, as well as payment of
Claimant’s attorney’s fees for an unreasonable contest. Accordingly, the Board erred
by finding there was a reasonable basis for the Termination Petition.
“The Act’s overall purpose [is to] provid[e] workers expeditious
coverage for their medical expenses and financial stability during their work-related
disability . . . .” Nagle v. True Blue, Inc., 148 A.3d 946, 961 (Pa. Cmwlth. 2016.)
“The purpose of Section 440 of the Act is to discourage unreasonable contests of
workers’ claims and to ensure that successful claimants receive compensation
benefits that are undiminished by the costs of litigation.” Steeple v. Workers’ Comp.
Appeal Bd. (Pa. Liquor Control Bd.), 796 A.2d 394, 397 (Pa. Cmwlth. 2002).
Further, “‘we keep in mind that the [Act] is remedial in nature and intended to benefit
the worker, and, thus, should be construed liberally to effectuate its humanitarian
objectives.’ Sch. Dist. of Phila. v. Workers’ Comp. Appeal Bd. (Hilton), 117 A.3d
232, 241–42 (Pa. 2015).” Northtec, LLC v. Workers’ Comp. Appeal Bd. (Skaria), 147
A.3d 63, 67 (Pa. Cmwlth. 2016) (footnote omitted). To permit Employer to prevail in
this case would produce a long-term chilling effect as it would encourage employers
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to deny claims notwithstanding the lack of any evidence to address the specific issues
raised. Here, Employer was well aware of Claimant’s alleged expanded work injury,
months in advance of the WCJ hearings, and rather than accept it or produce
competent medical evidence to challenge the specific issue raised, i.e., aggravation of
Claimant’s symptomatic ulnar impaction, it chose to file a Termination Petition on
the basis of the opinion of a doctor who refused to accept the work-related injury.
Clearly, Employer’s actions are contrary to the Act’s purpose.
For all of the above reasons, I would reverse the Board’s order with
respect to the award of unreasonable contest attorney’s fees, but affirm in all other
respects.
___________________________
ANNE E. COVEY, Judge
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