N. Whitaker v. WCAB (DNA Central, Inc. d/b/a Dedicated Nursing Assoc., Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicole Whitaker, :
Petitioner :
: No. 40 C.D. 2020
v. :
: Submitted: June 26, 2020
Workers’ Compensation Appeal :
Board (DNA Central, Inc. d/b/a :
Dedicated Nursing Associates, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 11, 2021
Nicole Whitaker (Claimant) petitions for review from the December 24,
2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a workers’ compensation judge (WCJ) denying her claim petition. Upon
review, we affirm.
Background
The relevant factual and procedural history of this case are as follows.
On August 21, 2016, Claimant was employed as a home health aide by Dedicated
Nursing Associates, Inc. (Employer) and allegedly sustained injuries to her jaw and
neck, and pain in her shoulders, when she was assaulted by her nephew while
providing home health care for her father. On October 17, 2016, Employer issued a
Notice of Compensation Denial, denying that Claimant suffered a work-related
injury, including an aggravation of a preexisting condition, as a result of her
employment. On November 17, 2016, Claimant filed a claim petition under the
Workers’ Compensation Act (Act),1 seeking temporary, total disability benefits,
payment for medical expenses, and an award of counsel fees. In turn, Employer filed
an answer denying the material allegations in the claim petition and raising
affirmative defenses, including the personal animosity exception. (Findings of Fact
(F.F.) Nos. 1, 2, 5.c.)
On February 14, 2017, the WCJ convened a hearing at which Claimant
offered the following testimony. Claimant was employed as a licensed practical
nurse (LPN) with Employer since February 2015. In early August, Claimant started
working as a home health aide because her older sister, Donna Carey, called
Employer and requested that Claimant be assigned to take care of their ailing father,
who was suffering from end-stage chronic obstructive pulmonary disease. (F.F. No.
5.a.-b.) On August 21, 2016, Claimant was working as a home health aide for her
father. At approximately 9:00 p.m., Claimant was watching television downstairs,
while her parents were upstairs in the bedroom area, when her nephew, Brandon Barr,
entered the residence. Brandon Barr punched Claimant on the left side of her jaw,
grabbed her around the neck and started choking her and “slammed [Claimant] in
[her] head and neck.” (F.F. No. 5.b.) After the assault had ended, Claimant ran
home, called the police and paramedics, and later reported her injuries to Employer,
stating that she was physically attacked while working and suffered injuries to her
jaw, neck, and shoulders. The paramedics arrived at Claimant’s house and advised
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
her that she had no broken bones. (F.F. No. 5.c.) There is no evidence to suggest that
the paramedics transported Claimant to a hospital at that time.
Following the August 21, 2016 incident, Claimant continued working as
an LPN, but “called off a lot.” Approximately three to four weeks after the assault,
Claimant visited her primary care physician, Robert Scalia, M.D., and, thereafter, she
informed Employer that she could no longer work due to pain in her neck and
shoulders. After conducting a physical examination, Dr. Scalia referred Claimant to a
neurosurgeon at Hershey Medical Center, George Rung, M.D., who treated Claimant
with medicinal injections to manage her pain. Claimant stated that she could not
perform her position as an LPN because her neck injury prevented her from
performing the physical duties associated with the job. Claimant also denied having
palpable problems with her neck or receiving medical treatment for her neck prior to
August 21, 2016. However, Claimant experienced an accident when she was younger
and, as a result, developed back and upper shoulder problems. Approximately 15
years before the incident at issue, in 2001, Claimant underwent physical therapy for
her neck and shoulder area and she has experienced occasional stiffness in both her
neck and shoulder area since that time. (F.F. No. 5.d.-e., f. g.-h., l., n.)
On cross-examination, the following testimony was elicited from
Claimant. Her daughter, Mariah Whitaker, was also retained by Employer to work as
an LPN with Claimant and to assist with caring for Claimant’s father. Brandon Barr
was 24 years old at the time of the assault; Claimant helped raise him as a child
because his mother, Kimberly Barr (Claimant’s sister), worked full time; and
Claimant did not know of any reason why Brandon Barr would assault her. Kimberly
Barr was also present at the assault. On August 21, 2016, an altercation between
Claimant, Kimberly Barr, and Brandon Barr ensued at Claimant’s parents’ house.
3
Subsequently, the family members exchanged arguments and threats, with a variety
of allegations pertaining to inappropriate behavior in the past, and they eventually
filed criminal charges against each other. (F.F. Nos. 5.i.-j., 6.b.-e., g.-h.)2
In support of her claim petition, Claimant also submitted the deposition
testimony of Daniel M. Lorenzo, M.D., who is board certified in anesthesiology and
pain medicine. Dr. Lorenzo first treated Claimant on April 5, 2017, and, thereafter,
saw her on a monthly basis. Dr. Lorenzo stated that Claimant informed him that after
she was assaulted by Brandon Barr on August 21, 2016, she immediately developed
pain in the left side of her jaw and neck, which radiated into the back of her head and
into her shoulder blades, and that, at the time of the initial doctor visit, she continued
to suffer from neck pain. During his medical evaluation and treatment, Dr. Lorenzo
examined Claimant, reviewed an MRI report, conducted left-sided medial branch
blocks, and performed a left side C4-5, C5-6, and C6-7 facet joint medial branch
rhizotomy.3 Dr. Lorenzo last saw Claimant on December 7, 2017, and reviewed
additional records and testimony prior to the date of his deposition. (F.F. Nos. 7-8.)
Ultimately, when asked what injury Claimant suffered at work in August
2016, Dr. Lorenzo opined as follows:
I don’t know much about the mechanism of injury but I do
know that she had no preexisting neck pain prior to the
injury. I do know from her MRI that she had some
preexisting degenerative changes and I believe that her pain
was secondary to these preexisting degenerative changes.
2
The specific details of the familial strife need not be repeated here because they are
unnecessary to our resolution of this case.
3
According to a medical dictionary, a “rhizotomy” is a surgical procedure performed on a
“section of the spinal nerve roots for the relief of pain or spastic paralysis.” Stedman’s Medical
Dictionary 1360 (25th ed. 1990).
4
[The injury] was an exacerbation of the cervical spondylosis
or arthritis in her neck that was exacerbated by the injury.
(F.F. No. 9.) At the time of this deposition, Dr. Lorenzo stated that Claimant
continues to suffer an exacerbation to her neck and that she has not fully recovered
from her work injury. Id.
On cross-examination, Dr. Lorenzo conceded that he did not review
Claimant’s medical records from Orthopedics Associates of Pottsville from
September 1, 2011, through November 29, 2011, or records from a physician that had
treated her in the past, and stated that he only had a few records from Dr. Scalia. Dr.
Lorenzo also admitted that he “briefly read” Claimant’s testimony on the morning of
his deposition. (F.F. No. 10.) Further, Dr. Lorenzo acknowledged that Claimant’s
MRI displayed preexisting findings and that he was unaware that Claimant was in a
motor vehicle accident in September or October 2016. Dr. Lorenzo agreed that a
motor vehicle accident could exacerbate a preexisting neck problem. He was
unaware that Claimant had worked unrestricted for two months after her incident at
work. (F.F. No. 11.)
Upon re-direct examination, Dr. Lorenzo did not recall reviewing any
medical records that mentioned that Claimant had preexisting neck pain. Dr. Lorenzo
testified that Claimant stated that she did not have neck pain prior to the work-related
incident. On re-cross examination, Dr. Lorenzo testified that his records indicated
that the first time Claimant received treatment for a neck problem was on December
5, 2016, while she was under his care. (F.F. Nos. 12-13.)
In rebuttal, at a hearing held on December 5, 2017, Employer presented
the testimony of Nicole Newhart, a branch manager who oversees three offices,
including Employer’s Reading and York offices where Claimant worked. (F.F. No.
14.a.) Newhart stated that on July 16, 2016, Claimant started a home care assignment
5
for her father, who was a client of Employer, and worked with her daughter, Mariah
Whitaker, taking turns with shifts. According to Newhart, Claimant and Mariah
Whitaker called the office numerous times on Saturday, August 20, 2016, and left
messages stating that they were having family issues. Newhart called back and
advised Claimant “to keep the family issues outside of work time” and emphasized
“that [Employer] was only concerned that the client was being cared for and that both
employees were doing their jobs productively.” (F.F. No. 14.e.) Newhart testified
that the next day, Claimant called her and reported that the family was verbally
harassing her; Newhart, in turn, told Claimant that she could finish the shift or be
removed from the assignment; and, in response, Claimant said that she would stay
and care for her father until 1:00 a.m. that night. (F.F. No. 14.f.)
In addition, Newhart explained that, on August 21, 2016, around 9:00
p.m. or 9:30 p.m., Claimant called her and reported that she was assaulted by her
nephew. Particularly, Claimant stated that she was injured; that the police and
ambulance were at her house; and that she would call back after they left. Newhart
testified that Claimant called back around 10:00 p.m. and stated that the police and
ambulance had left. (F.F. No. 14.f.-g.) However, according to Newhart, Claimant
did not provide any information pertaining to her injuries or the details surrounding
the incident and Claimant only stated that “she was just a little worked up about
everything.” (F.F. No. 14.g.) During their call, Newhart advised Claimant that she
needed to provide documentation regarding the incident and to follow up with the
human resources department, but she did not receive anything from Claimant. (F.F.
No. 14.g.-h.) Meanwhile, Newhart said that she received a phone call from
Claimant’s parents’ house, asking that Claimant not return, and Employer
subsequently removed Claimant from the assignment. Newhart added that following
6
the incident on August 21, 2016, Claimant performed long-term care facility work
with no restrictions and, from the date of the incident until the last day of her
employment, Claimant never presented any work restrictions or indicated that she
was unable to work. (F.F. No. 14.i.)
Newhart further explained that Claimant had “call off” issues before the
incident and described multiple instances in July and August 2016 where Claimant
failed to attend work, did not call off, and/or performed her work in an unsatisfactory
manner. (F.F. No. 14.d.) On September 12, 2016, Employer placed Claimant on
probation. Newhart testified that on September 19, 2016, Claimant called and stated
that she was unable to attend her shift because there was a car accident. After
Claimant called to cancel her shift on September 22, 2018, to go “house hunting,”
Employer terminated her for attendance problems. (F.F. No. 14.j.-n.)
Upon cross-examination, Newhart reiterated that Claimant never
informed her that Claimant’s neck hurt or that she had a headache. Newhart noted
that she was not aware of Claimant receiving any treatment with Dr. Lorenzo or any
other provider after the incident on August 21, 2016. Newhart added that Claimant
never told her the type of injury that she experienced on August 21, 2016. (F.F. No.
15.p.)
Employer also offered, by deposition, the testimony of Robert W.
Mauthe, M.D., who is board certified in physical medicine and rehabilitation,
electrodiagnostic medicine, independent medical examinations, and impairment
rating evaluations. Dr. Mauthe performed an Independent Medical Evaluation (IME)
of Claimant on March 2, 2017, during which he obtained Claimant’s history,
reviewed Claimant’s medical records and diagnostic studies, and performed a
7
physical examination. Dr. Mauthe also reviewed Claimant’s hearing testimony, as
well as the deposition of Dr. Lorenzo. (F.F. No. 16.) Further,
17. Dr. Mauthe reviewed Claimant’s cervical MRI
performed on December 2, 2016, “which just revealed some
degenerative changes, no evidence of any kind of trauma,
anything like that.” Dr. Mauthe opined that at the time of
his IME, “[Claimant] did not have any residuals that [he]
would attribute to an injury sustained on 8-21-16.” Dr.
Mauthe also opined [that] based upon his review of records,
physical examination, and review of imaging studies, “that
there was no evidence of any aggravation of any preexisting
condition. That is to say, there was no substantial and
material change.” Dr. Mauthe did not “find that there was
an exacerbation based upon the medical records.” He did
not believe the medical records substantiated [an
exacerbation], since he did not see any medical records
contemporaneous with the incident on August 21, 2016,
until approximately thirty days later, when Claimant treated
with her family physician, Dr. Scalia. Dr. Mauthe further
opined that “[e]ven assuming [Claimant] had an
exacerbation for a period of time, [it was his] opinion that at
least at the time of [his] evaluation she had fully
recovered.” Dr. Mauthe [stated] that Claimant’s neck
treatment starting in December 2012 was not related to the
incident in question, as he noted that [the treatment]
consisted of “basically arthritic facet injections, . . . for her
long-standing preexisting condition.” Finally, Dr. Mauthe
opined that he would not have disabled [Claimant] at any
time based on the altercation.
18. Upon cross-examination, Dr. Mauthe acknowledged
that Claimant could have sustained an exacerbation of her
preexisting condition, as he believed her alleged
“mechanism of injury is sufficient to cause an
exacerbation.” Dr. Mauthe clarified that “[he could not] go
as far as to say [that Claimant] had an aggravation,” as he
“would need some kind of x-ray imaging, EMG study,
spasm or material increase in her medication, something
that would define change.”
8
19. Dr. Mauthe admitted that he was not aware of Claimant
receiving a cervical injection prior to the incident. He
acknowledged that he only saw Claimant one time
approximately six months after the incident.
20. Upon re[-]direct examination, Dr. Mauthe reaffirmed
his opinion that if Claimant had an exacerbation, she had
fully recovered, although he believed that her neck was not
injured in the incident. He believed that “[Claimant] has
preexisting arthritis” and stated [that he] did not see any
doctor restrict Claimant from returning to gainful
employment after the incident during his review of the
records.
(F.F. Nos. 17-20.)
On the evidence presented, the WCJ found the testimony of Claimant to
be credible, in part, namely “[t]o the extent that Claimant testified that an incident
occurred at work on August 21, 2016, wherein she was attacked by her nephew.”
(F.F. No. 21.) However, the WCJ “reject[ed] Claimant’s testimony that she suffered
a cervical injury because of the attack on August 21, 2016; that she suffered disability
because of a work-related neck injury; and that she missed work prior to her
termination of employment due to her work injury.” Id.
More specifically, in rejecting Claimant’s testimony in the above-
mentioned regards, the WCJ found that it was not credible for the following reasons:
“(a) Claimant failed to offer any records relative to the treatment she received with
paramedics on August 21, 2016, to corroborate her alleged injuries”; “(b) Claimant
continued working full duty without restrictions and did not seek treatment until she
went to her family physician after her employment was terminated approximately
thirty days after the work injury”; “(c) Claimant initially denied that she had
problems with her neck or received medical treatment for her neck prior to August
21, 2016,” and “[s]he subsequently admitted during cross-examination that she
experienced prior problems affecting her upper shoulders and neck and that she
9
previously had physical therapy on her neck prior to her alleged work injury”; and
“(d) Claimant’s testimony was [undermined] by the credible testimony of [] Newhart
and contemporaneous records,” which “contradict[ed] Claimant’s testimony that she
reported ongoing neck complaints to her Employer following the assault on August
21, 2016, and that she missed work after that date due to her complaints associated
with the assault.” Id.
With respect to the testimony of the medical experts, the WCJ found
“the opinions of Dr. Mauthe to be credible, logical, internally consistent, persuasive,
and [] accepted [them] as fact for purposes of establishing that Claimant did not
suffer a work injury or disability related thereto as a result of the incident described
on August 21, 2016.” (F.F. No. 23.) In so deciding, the WCJ found that “Dr.
Mauthe’s opinions [were] supported by his review of Claimant’s objective diagnostic
study,” which indicated “that Claimant’s cervical MRI only evidenced some
degenerative changes with no evidence of any kind of trauma.” Id. The WCJ further
found that “Dr. Mauthe’s opinions [were] supported by Claimant’s failure to receive
treatment following her alleged work injury until after she was terminated during
which time she was able to continue working without restrictions at her regular duty
job.” Id. Additionally, the WCJ determined that “[t]o the extent that the opinions of
Dr. Lorenzo conflicted with the credible and accepted opinions of Dr. Mauthe they
are rejected as less credible and persuasive.” (F.F. No. 24.) In making this
determination, the WCJ noted “that Dr. Mauthe obtained a more detailed history from
Claimant,” “conducted a more thorough review of records and testimony in this
case,” and “that Dr. Lorenzo never offered an opinion that Claimant was disabled as a
result of a work injury.” Id.
10
Based on his assessment of the evidence and credibility determinations,
the WCJ found “that the assault described by Claimant did not cause Claimant to
suffer a cervical injury resulting in disability, as alleged.” (F.F. No. 25.) The WCJ
further found, ostensibly in the alternative, “that Claimant’s alleged injuries were not
sustained in the course of her employment since Claimant’s alleged injuries were the
result of a third person whose intent to injure Claimant was based on personal
animosity and was not directed at Claimant because of her employment under
[s]ection 301(c)(1)” of the Act. (F.F. No. 26.) Ultimately, given his findings of fact,
the WCJ concluded that Claimant did not carry her burden of proof and failed to
establish that she suffered a work-related injury on August 21, 2016. (Conclusion of
Law No. 2.) Accordingly, the WCJ denied Claimant’s claim petition.
Claimant then appealed to the Board, contending, inter alia, that the
WCJ erred in concluding that the personal animosity exception was applicable and
that she did not sustain a work-related injury in the course of her employment. In
addressing the former contention, the Board reasoned as follows:
The WCJ found that Claimant was not in the course of her
employment because her alleged injuries were a result of a
person intending to harm her based on personal animosity.
Personal animus is an affirmative defense [to] Claimant’s
presumption that she was in the course of her employment
if she was on the premises, and [Employer] holds the
burden of proof. An injury is not compensable if it was
caused by an act for a third person who intended to injure
the employee for reasons personal to the assailant. []
Newhart testified that Claimant and Mariah [Whitaker],
Claimant’s daughter and co-worker, were having issues
because of [past familial issues]. We conclude that
[Employer] did not meet its burden of proof on its
affirmative defense of personal animus because this
testimony is not substantial, competent evidence to establish
that Claimant was attacked for personal reasons, especially
11
when the WCJ rejected Claimant’s proposed reason for the
attack.
(Board’s decision at 1, n.1) (internal citations omitted). Nonetheless, the Board
concluded that the error was “harmless” because the WCJ additionally found that
Claimant did not sustain a work-related injury. Id.
In disposing of Claimant’s latter assertion of error, the Board offered the
following rationale:
The WCJ found Claimant to be credible and persuasive, in
part, that an altercation occurred on August 21, 2016,
wherein she was attacked by her nephew. The WCJ found
Claimant not credible nor persuasive that she suffered a
disability because she failed to offer records relative to
treatment from the paramedics on August 21, 2016, she
worked full duty without restrictions until her employment
was terminated, she initially denied that she had problems
with her neck prior to August 21, 2016, and her testimony
was contradicted by the credible testimony of [] Newhart
and other records.
The WCJ found Dr. Mauthe to be more credible and
persuasive than Dr. Lorenzo because of Dr. Mauthe’s
review of diagnostic studies, his logical and internally
consistent testimony, a more detailed history obtained from
Claimant, his more thorough review of medical records and
testimony, and Claimant’s failure to receive treatment until
after she was terminated. The WCJ has complete authority
over questions of credibility, conflicting medical evidence
and evidentiary weight and is free to accept, in whole or in
part, the testimony of any witness, including medical
witnesses. Determinations of credibility and the weight to
be accorded evidence are the prerogative of the WCJ, not
the Board.
Here, Claimant bore the burden of proof that she sustained a
work-related injury. She was unable to meet her burden of
proof because the WCJ rejected her testimony that the work
incident caused a disabling injury. Therefore, the WCJ did
not err.
12
(Board’s decision at 3-4) (internal citations omitted).
Therefore, despite having concluded that Employer failed to establish a
personal animosity defense as a matter of the law, the Board affirmed the WCJ’s
decision on the ground that Claimant failed to establish, with credible evidence, that
she sustained a work-related injury on the date in question. Claimant then filed a
petition for review with this Court.
Discussion
In her first issue on appeal,4 Claimant “submits that the Board
committed an error of law in affirming the WCJ . . . after it determined that the WCJ
erred in determining that [Employer] had proven the personal animus defense.”
(Claimant’s Br. at 15.) Claimant contends that the Board’s “error was not harmless
as it barred [her] from benefits,” reasoning that, if “[Employer] failed to prove this
defense, then Claimant was indeed within the course and scope of her employment at
the time of injury.” Id. at 15-16.
In a claim petition proceeding, the 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). Pursuant to section 301(c)(1)
of the Act, 77 P.S. §411(1), an employee’s injury is compensable if it satisfies two
conditions: that is, the injury “(1) arises in the course of employment and (2) is
causally related thereto.” ICT Group v. Workers’ Compensation Appeal Board
(Churchray-Woytunick), 995 A.2d 927, 930 (Pa. Cmwlth. 2010) (emphasis added).
4
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab),
15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
13
These requirements are conjunctive in nature and analytically distinct. See Good
Shepherd Workshop v. Workmen’s Compensation Appeal Board (Caffrey), 555 A.2d
1374, 1377 n.3 & 1378-79 (Pa. Cmwlth. 1989); Workmen’s Compensation Appeal
Board v. United States Steel Corporation, 376 A.2d 271, 273-75 (Pa. Cmwlth. 1977).
Moreover, section 301(a) of the Act contains what is commonly known
as the personal animosity exception. While, under the Act, an employer is generally
liable for compensation for injuries suffered by an employee in the course of her
employment, section 301(c)(1) of the Act excludes from compensation injuries
intentionally inflicted by third parties, including co-workers, based on personal
animosity unrelated to the claimant’s employment. 77 P.S. §411(1); LeDonne v.
Workers’ Compensation Appeal Board (Graciano Corp.), 936 A.2d 124, 129 (Pa.
Cmwlth. 2007). As in all affirmative defenses, the burden is on the proponent, i.e.,
the employer, to prove that the facts and circumstances satisfy the criteria necessary
to establish personal animosity and therefore bar a claimant’s petition for benefits.
Heath v. Workers’ Compensation Appeal Board (Pennsylvania Board of Probation
and Parole), 860 A.2d 25, 29-30 (Pa. 2004).
Per section 301(a) of the Act, it is plain that an injury that is caused by
the act of a third person intending to injure an employee because of reasons personal
to the third person, and not directed against the employee because of the employment,
falls outside of the definition of “course of employment.” See 77 P.S. §431; Heath,
860 A.2d at 29. Stated otherwise, if an employer carries its burden of proof and
establishes the personal animosity exception, a claimant cannot recover benefits
because the claimant did not sustain an injury in the “course of employment.” See
LeDonne, 936 A.2d at 129.
14
Here, assuming that the Board was correct in concluding that Employer
failed to prove the personal animosity exception, and that Claimant suffered an injury
in the course of her employment, Claimant was nonetheless obligated to additionally
demonstrate that the injury was “related” to her employment. Succinctly, the “related
thereto” requirement is one of causation. As stated by one treatise: “Ultimately,
however, a causal connection must exist between the claimant’s work activities and
. . . the injury. It is in this context that the ‘related thereto’ provision has direct
application.” David B. Torrey and Andrew E. Greenberg, 8 West’s Pennsylvania
Practice, Workers’ Compensation Law and Practice §4:50 (3d ed. 2008). In United
States Steel Corporation, this Court explained that the General Assembly added the
term “and related thereto” to the Act in 1972 “for the purpose of requiring in cases of
injury or death from natural causes . . . some proof that the injuries were related to the
employment.” 376 A.2d at 274. Consequently, “[e]ven if it was determined that
Claimant was in the course and scope of [her] employment, [she] must still show the
alleged injuries were related to [her] work.” McCormick v. Workers’ Compensation
Appeal Board (Stuart Dean Company, Inc.) (Pa. Cmwlth., No. 1162 C.D. 2018, filed
June 21, 2019) (unreported), slip op. at 20 n.13.5 Therefore, in light of this case law
and legal principles, we agree with the Board that the WCJ’s error, if any, was
harmless and that to receive benefits, Claimant had to prove causation.
This brings us to Claimant’s second issue. Claimant asserts that the
Board, and necessarily the WCJ, erred in denying her benefits because the credible
testimony of Employer’s expert, Dr. Mauthe, “found that Claimant indeed sustained
5
We cite McCormick, an unreported decision, for its persuasive value in accordance with
section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a).
15
an injury as a result of her workplace assault on August 21, 2016.” (Claimant’s Br. at
12.) More specifically, Claimant contends that
Dr. Mauthe testified that he believed the mechanism of
injury in this case was sufficient to cause Claimant to suffer
a cervical sprain/strain. Because Dr. Mauthe did not
evaluate Claimant until March 2, 2017, at the very least,
Claimant’s medical treatment must be paid by [Employer]
for the period of August 21, 2016, through and including
March 2, 2017.
Id. at 17.
“In a claim petition for compensation, the claimant has . . . the burden of
establishing a causal relationship between a work-related incident and an alleged
disability.” Rife v. Workers’ Compensation Appeal Board (Whitetail Ski Co.), 812
A.2d 750, 754 (Pa. Cmwlth. 2002). To show that an injury was related to
employment, the claimant must demonstrate a causal connection between work and
the injury, and unequivocal medical evidence is required where it is not obvious that
an injury is causally related to the work incident. Povanda v. Workmen’s
Compensation Appeal Board (Giant Eagle), 605 A.2d 478, 486 (Pa. Cmwlth. 1992).
Further, “[t]he law is well established that the WCJ is the ultimate factfinder and has
exclusive province over questions of credibility and evidentiary weight. The WCJ,
therefore, is free to accept or reject, in whole or in part, the testimony of any witness,
including medical witnesses.” Dixon v. Workers’ Compensation Appeal Board
(Medrad, Inc.), 134 A.3d 518, 524 (Pa. Cmwlth. 2016) (internal citations omitted).
Here, Claimant mischaracterizes the WCJ’s findings of fact and the
nature of the testimony of Dr. Mauthe. Although Dr. Mauthe provided testimony in
the alternative, opining that, “[e]ven assuming [Claimant] had an exacerbation for a
period of time,” “at the time of [his] evaluation she had fully recovered,” (F.F. No.
17), this was a secondary diagnosis, rendered in response to a hypothetical. See F.F.
16
No. 20 (“Upon re[-]direct examination, Dr. Mauthe reaffirmed his opinion that if
Claimant had an exacerbation, she had fully recovered, although he believed that her
neck was not injured in the incident.”). As his primary opinion, Dr. Mauthe
determined that “based upon his review of records, physical examination, and review
of imaging studies, that there was no evidence of any aggravation of any preexisting
condition” and he “did not find that there was an exacerbation.” Id. (internal citations
omitted). Importantly, while the WCJ generally found the testimony of Dr. Mauthe
to be credible and persuasive, the WCJ specifically credited Dr. Mauthe’s primary
opinion and “accepted [it] as fact for purposes of establishing that Claimant did not
suffer a work injury or disability related thereto as a result of the incident described
on August 21, 2016.” (F.F. No. 23.) In other words, based on the testimony of Dr.
Mauthe, the WCJ found, as a matter of fact, that there was no causal relationship
between the work-related incident and Claimant’s alleged disability. Therefore,
given this record, we conclude that Claimant’s second argument lacks merit.6
6
In a footnote in her brief, Claimant advances two other arguments. First, “Claimant
continues to maintain that the WCJ’s credibility assessments were arbitrary and capricious and were
not based upon the evidence of record taken as a whole.” (Claimant’s Br. at 17 n.3.) Second,
“Claimant also continues to maintain that she suffered an ongoing disability stemming from her
August 21, 2016 workplace attack from the date of injury, continuing through the present.” Id.However, these cursory, one-sentence arguments are not supported with analysis or citation to legal
authority and, thus, they are insufficiently developed and “are wholly inadequate to present specific
issues for review.” Commonwealth v. Feineigle, 690 A.2d 748, 751 n.5 (Pa. Cmwlth. 1997). As
such, we conclude that these issues are waived for purposes of appellate review. See Boniella v.
Commonwealth, 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 2008).
17
Accordingly, having concluded that Claimant has not presented this
Court with a basis upon which to disturb the rulings below, we affirm the order of the
Board affirming the denial of Claimant’s claim petition.
________________________________
PATRICIA A. McCULLOUGH, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicole Whitaker, :
Petitioner :
: No. 40 C.D. 2020
v. :
:
Workers' Compensation Appeal :
Board (DNA Central, Inc. d/b/a :
Dedicated Nursing Associates, Inc.), :
Respondent :
ORDER
AND NOW, this 11th day of January, 2021, the December 24, 2019
order of the Workers’ Compensation Appeal Board, affirming the decision of a
workers’ compensation judge denying the claim petition filed by Nicole Whitaker,
is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge