K. Toro v. WCAB (Pocono Mtn. Sch. Dist. & Inservco Ins. Svcs.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karen Toro, :
Petitioner :
:
v. : No. 1585 C.D. 2019
: No. 1586 C.D. 2019
Workers’ Compensation Appeal : SUBMITTED: March 6, 2020
Board (Pocono Mountain School :
District and Inservco Insurance :
Services), :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 29, 2020
In these consolidated appeals, Karen Toro (Claimant) petitions for review of the
October 22, 2019 Orders of the Workers’ Compensation Appeal Board (Board)
affirming the decisions of a workers’ compensation judge (WCJ).1 In his decisions, the
WCJ dismissed Claimant’s Claim Petition for Workers’ Compensation Benefits (Claim
Petition) filed against Pocono Mountain School District (Employer) and granted
Employer’s Petition to Terminate Workers’ Compensation Benefits (Termination
Petition).2 For the reasons that follow, we affirm the Board’s Orders.
1
The Board entered the same Order under both agency docket numbers.
2
Inservco Insurance Services is identified as a Respondent in the caption but did not file a
brief on appeal.
Background
On October 1, 2014, Claimant was injured in the course of her employment with
Employer when she stood up from a desk chair and fell (October 2014 injury). Bd.’s
Op., 10/22/19, at 1; WCJ’s Finding of Fact (F.F.) No. 2.3 Employer accepted
Claimant’s October 2014 injury as a neck strain in a Medical-Only Notice of
Compensation Payable. WCJ’s F.F. No. 2.
On August 31, 2017, Claimant filed a Claim Petition, averring that on March 3,
2017, while in the course of her employment with Employer, she injured her low back,
neck, and knees when she fell from a wheeled desk chair (March 2017 injury). Id. No.
1.
On September 14, 2017, Employer filed a Termination Petition, averring that
Claimant had fully recovered from the October 2014 injury as of April 19, 2017. Id.
No. 2.
The WCJ held evidentiary hearings on September 29, 2017 and January 12,
2018, after which he made the following relevant factual findings. Claimant is 62 years
old and has worked for Employer as a substitute teacher since 2007. Id. No. 3. On
October 1, 2014, while she was standing behind a desk, Claimant’s foot caught on a
wire, causing Claimant to fall forward and jerk her neck. Id. As a result of the fall,
Claimant injured her elbows, shoulders, and neck. Id.
Following the October 2014 injury, Claimant treated with Steven Mazza, M.D.,
who prescribed physical therapy and medication. Id. At the time of the January 12,
2018 hearing, Claimant was still treating with Dr. Mazza. Id. Claimant testified that
she was restricted in her activities at home, such as cooking, cleaning, and personal
3
The WCJ issued two identical decisions on November 20, 2018, one disposing of the
Termination Petition and the other disposing of the Claim Petition. As such, the citations herein to
the WCJ’s findings of fact and conclusions of law can be found in both November 20, 2018 decisions.
2
grooming, because she had difficulty lifting. Id. Claimant regularly felt pain in her
neck, arms, and low back, “but more[]so it was all my neck.” Id.; Notes of Testimony
(N.T.), 1/12/18, at 14. Dr. Mazza referred Claimant for a magnetic resonance imaging
(MRI) of her neck; however, Claimant did not get the MRI “because something [was]
wrong with the machine plus . . . I’m so highly claustrophobic[,] so I made [the
appointment] and then . . . cancelled.” WCJ’s F.F. No. 3; N.T., 1/12/18, at 16.
Claimant further testified that on March 3, 2017, she fell from a wheeled desk
chair while at work. Id. Claimant testified that she fell on her buttocks, and her neck
hit the seat of the chair. Id. Claimant testified that after the March 2017 fall, she
experienced more numbness and pain in her neck and pain in her shoulders. Id.
Claimant immediately reported this incident to Employer’s secretary, but Claimant did
not see a doctor for the injury until April 24, 2017. Id. Claimant testified that before
the March 2017 injury, her neck pain level was 5 or 6 out of 10, but after that injury, it
was 10 out of 10. Id.
Claimant testified that she treats with Dr. Mazza every three months and takes
Flexeril and Tramadol twice per day. Id. The amount of pain medication has not
increased since the March 2017 injury. Id. Since the March 2017 injury, Claimant
has had difficulty with grocery shopping and even more difficulty with cooking and
cleaning than before the injury. Id. Her balance has worsened and she has trouble
doing household chores. Id.
Claimant testified that after the March 2017 injury, she looked for a new job that
involves less walking. N.T., 1/12/18, at 23. On Mondays and Thursdays, she teaches
at the Monroe County Correctional Facility, which requires her to use a dry erase board.
Id. at 29; WCJ’s F.F. No. 3. Claimant also works in the evenings at CDE Institute,
where she teaches medical office assistant classes 24 hours per week. WCJ’s F.F. No.
3
3. That position requires her to stand and use a projector, but she uses a chair when
needed. Id.
On cross-examination, Claimant testified that after the March 2017 injury, she
had pain in her neck and shoulders and numbness in her hands. Id. She admitted that
she had numbness and pain in her neck before the March 2017 fall, but she stated that
the pain and numbness worsened after the fall. Id. Claimant testified that she also
injured her low back during the March 2017 fall, but it was just “an ouch pain” and
“nothing that drastic.” Id.; N.T., 1/12/18, at 32. Claimant testified that the symptoms
in her low back have not progressed. WCJ’s F.F. No. 3. Claimant also hurt her knees
during the fall, but she stated that it was “[j]ust an aching and . . . basically it went
away.” N.T., 1/12/18, at 32. Claimant testified that she has been walking with a cane
consistently since 2013. WCJ’s F.F. No. 3. Claimant testified that she is 4 feet, 8 inches
tall, weighs 250 pounds, and has been that weight for about 4 years. Id.
Claimant presented the deposition testimony of her treating physician, Dr.
Mazza, who is board certified in physical medicine and rehabilitation. WCJ’s F.F. No.
5. Dr. Mazza testified that he first evaluated Claimant in June 2012 for an April 2012
work-related injury to her lumbar spine. Id. Before the October 2014 injury, he had
seen Claimant most recently on August 26, 2014 for pain in her low back, knee, and
lower extremity. Id.
Dr. Mazza testified that on the day of the October 2014 injury, Claimant went to
an urgent care facility, complaining of pain radiating down her arms, intermittent
numbness in her upper extremity, and pain in her low back, knee, and ankle. Id.
Claimant was seen by a physician assistant, whose assessment was cervical neuritis,
multiple contusions, and ankle and right knee pain. Id.; Mazza Dep., 2/27/18, at 8-9.
4
Dr. Mazza treated Claimant on October 21, 2014 for cervical tenderness and
spasms. WCJ’s F.F. No. 5. He recommended physical therapy, ice, and a muscle
relaxer and limited her standing and walking to her tolerance level. Id. Claimant
continued to treat with Dr. Mazza on an ongoing basis for her October 2014 injury. Id.
In June 2015, Dr. Mazza recommended a cervical MRI, but Claimant did not get the
study done. Mazza Dep., 2/27/18, at 37.
In November 2015, Claimant was stable but continued to have pain and
numbness in her neck and upper extremity. WCJ’s F.F. No. 5. Dr. Mazza again
referred Claimant for an MRI, but she did not get the MRI because “there was a
machine problem at [one] facility” and Claimant “was looking for an open MRI
facility,” but that facility “was too far for her to drive [there].” Mazza Dep., 2/27/18,
at 13. Dr. Mazza referred Claimant for an MRI on two more occasions, in July 2016
and January 2017, but she did not get either study done. Id. at 37. Dr. Mazza continued
to treat Claimant through January 6, 2017, and her symptoms did not significantly
change during that time. Id. at 13-15; WCJ’s F.F. No. 5.
Dr. Mazza testified that on April 24, 2017, Claimant went to an urgent care
facility where she was seen by Dr. Nathan Johnson and a nurse practitioner. WCJ’s
F.F. Nos. 5, 7; Mazza Dep., 2/27/18, at 16. Claimant complained of neck and low back
pain as a result of a fall at work on March 3, 2017. WCJ’s F.F. No. 5. Upon
examination, Dr. Johnson found “[n]othing significant” and “[n]o significant
neurologic findings [were] noted.” Mazza Dep., 2/27/18, at 17. Claimant was
restricted to sitting and walking as tolerated with a five-pound lifting restriction.
WCJ’s F.F. No. 5. Dr. Johnson recommended that Claimant undergo an MRI. Mazza
Dep., 2/27/18, at 17.
5
Dr. Mazza testified that he examined Claimant on May 30, 2017. WCJ’s F.F.
No. 5. Claimant complained of more neck pain radiating into her upper extremity and
low-back pain radiating into her hips. Id. Dr. Mazza diagnosed cervical neuritis,
cervical radiculopathy, and cervical segment dysfunction. Id. Claimant underwent a
cervical MRI on June 14, 2017, which showed multi-level degenerative changes,
significant degenerative disc disease, severe spinal canal stenosis at C4-5 and C5-6
with spinal cord compression, and myelomalacia. Id. Dr. Mazza explained that
myelomalacia is “a fluid buildup within the structure of the spinal cord,” which
“indicates injury or damage to the nerves due to the more significant compression.”
Mazza Dep., 2/27/18, at 20.
Dr. Mazza referred Claimant to Christopher Wagener, M.D., an orthopedic spine
surgeon, who examined her on July 7, 2017. WCJ’s F.F. No. 5. A computerized
tomography (CT) scan showed severe bony stenosis at C-3 through C-7. Id. Dr.
Wagener recommended that Claimant undergo a surgical decompression and spinal
fusion. Id.
Dr. Mazza testified that when he saw Claimant on October 24, 2017, her
symptoms were “basically unchanged.” Id.; Mazza Dep., 2/27/18, at 22. Dr. Mazza
saw Claimant again on January 23, 2018, and his examination revealed “[n]o
significant changes.” WCJ’s F.F. No. 5; Mazza Dep., 2/27/18, at 23.
Dr. Mazza opined, within a reasonable degree of medical certainty, that Claimant
sustained acute cervical neuritis as a result of the October 2014 injury. WCJ’s F.F. No.
5; Mazza Dep., 2/27/18, at 24. Dr. Mazza further opined that Claimant had not fully
recovered from her October 2014 injury at that time. WCJ’s F.F. No. 5.
With regard to the March 2017 fall, Dr. Mazza opined, within a reasonable
degree of medical certainty, that Claimant sustained an aggravation of spinal stenosis
6
as a result of that fall, which caused radiculopathy and myelopathy. Id. The June 2017
MRI of Claimant’s cervical spine showed “significant degenerative changes and
degenerative disc disease and severe stenosis.” Mazza Dep., 2/27/18, at 49-50. Dr.
Mazza admitted that some of the findings on the June 2017 MRI were “age-related or
degenerative.” Id. at 29; WCJ’s F.F. No. 5.
On cross-examination, Dr. Mazza testified that in 2012, Claimant had advanced
degenerative changes and stenosis in her low back, which had progressed since 2010.
WCJ’s F.F. No. 5. Dr. Mazza also testified that before the October 2014 injury,
Claimant had preexisting spinal stenosis and other degenerative changes in her cervical
spine. Mazza Dep., 2/27/18, at 34, 52. Dr. Mazza testified that the October 2, 2014 x-
rays of Claimant’s cervical spine showed moderate degenerative changes. WCJ’s F.F.
No. 5.
Employer presented the deposition testimony of Lucian Bednarz, M.D., who is
board certified in physical medicine and rehabilitation. Id. No. 4. Dr. Bednarz
examined Claimant on December 12, 2014 and April 19, 2017. Id. During his
December 2014 examination, Dr. Bednarz obtained from Claimant a history relating to
the October 2014 injury. Id. Dr. Bednarz testified that as a result of the October 2014
fall, Claimant sustained contusions to her hands, a sprain to her ankles, and a contusion
to her right knee, all of which were resolved. Id. At the time of Dr. Bednarz’s
December 12, 2014 examination, Claimant was still having muscle spasms related to
the cervical strain she sustained in October 2014. Id. Dr. Bednarz further noted that
Claimant had degenerative joint and disc disease and osteoarthritis in her spine. Id.
7
Dr. Bednarz testified that on April 19, 2017, he obtained an updated history from
Claimant, and she reported an additional fall at work on March 3, 2017. Id.4 Upon
examination, Dr. Bednarz found “a change in [Claimant’s] neurological status,”
“hyperreflexia of all of her extremities,” “sensory changes,” and “cervical range of
motion restrictions.” Bednarz Dep., 12/13/17, at 13-14. Dr. Bednarz testified that these
neurological findings were unrelated to her October 2014 neck strain injury and
resulted from the progression of her preexisting spinal stenosis. WCJ’s F.F. No. 4.
Dr. Bednarz testified that he found no evidence of a neck strain, nor any residual
effects of a neck strain, at the time of his April 19, 2017 examination. Id. Dr. Bednarz
opined, within a reasonable degree of medical certainty, that Claimant had fully
recovered from her October 2014 work injury at that time and that Claimant could
perform her pre-injury job without restrictions. Id.; Bednarz Dep., 12/13/17, at 17.
On cross-examination, Dr. Bednarz testified that, at the time of his April 19,
2017 examination, Claimant’s symptomatology in her cervical spine was “consistent
with progressive spinal stenosis, which she has had since at least 2012. It’s a slowly
progressive process that leads to falls and gait dysfunction, sensory findings, and pain.”
Bednarz Dep., 12/13/17, at 25-26. Dr. Bednarz specifically declined to make a causal
connection between his examination findings and Claimant’s March 2017 fall. Bd.’s
Op., 10/22/19, at 11.
Employer presented the deposition testimony of Joshua Auerbach, M.D., a
board-certified orthopedist and spine surgeon. WCJ’s F.F. No. 6. Dr. Auerbach
examined Claimant on August 11, 2017 and obtained a history of her prior injuries. Id.
4
At the time of Dr. Bednarz’s April 19, 2017 examination, Claimant had not yet seen a doctor
for the March 2017 injury. As discussed earlier, Claimant first sought medical treatment for that
injury at an urgent care facility on April 24, 2017.
8
Dr. Auerbach also reviewed medical records from Dr. Mazza and Dr. Wagener, as well
as the various diagnostic studies. Id.
Dr. Auerbach testified that Claimant related to him a “series of work[-]related
injuries that took place, the first of which was [on] April 30, 2012.” Auerbach Dep.,
5/11/18, at 9. Claimant reported that she first experienced neck and low back pain after
the April 2012 fall and never fully recovered from these symptoms thereafter. WCJ’s
F.F. No. 6.
Claimant reported to Dr. Auerbach that since the March 2017 injury, “she has
worsening neck pain with pain in the arms, numbness and tingling into the fingers.”
Auerbach Dep., 5/11/18, at 12. Dr. Auerbach noted that Claimant had not “undergone
any physical therapy as of the date of [his] exam.” Id.
Dr. Auerbach testified that, based on his review of Claimant’s medical records,
Claimant had been inconsistent in her descriptions of the March 2017 fall. Claimant
told Dr. Auerbach that “she fell backwards and hit her neck on the chair behind her and
that led her to have increased neck pain.” Id. at 21. However, Claimant previously
reported to other providers that “she fell off a rolling chair at work[, which] caused her
to land on the ground. There was no mention that she struck her head.” Id. When Dr.
Wagener saw Claimant on July 7, 2017, he “noted that [Claimant] had recently fallen
off a chair, hitting her head, which is consistent with what she told [Dr. Auerbach] but
not consistent with what she told other providers, and subsequent to that she’s had
multiple falls at work.” Id. at 26.
Based on his examination of Claimant on August 11, 2017, Dr. Auerbach opined,
within a reasonable degree of medical certainty, that Claimant had “experienced
progressive degenerative disease, but did not in fact experience a work injury of March
3, 2017.” Id. at 32; WCJ’s F.F. No. 6. Dr. Auerbach noted that the first report of
9
medical treatment for the alleged injury was on April 24, 2017. WCJ’s F.F. No. 6. Dr.
Auerbach opined that “if [Claimant] had in fact sustained a new injury[,] there would
have been reported a more contemporaneous timing of injury with the worsening of
symptoms, and this would have either [been] reported and/or treated by a provider
much sooner than [seven] weeks.” Auerbach Dep., 5/11/18, at 32. Rather, Dr.
Auerbach opined that Claimant’s symptoms resulted from the progression of her
degenerative spinal disease. WCJ’s F.F. No. 6. He explained:
[G]iven the absence of records that show contemporaneous
complaints of pain with the timing of injury, coupled with the fact that
there is a conflict as to what actually happened and whether or not
[Claimant] struck her head, I would indicate there is no injury of March
3, 2017 that has led to the worsening of symptoms. . . . [I]f [Claimant] did
seek medical treatment earlier and had more contemporaneous complaints
of neck or worsening upper extremity or low back pain with the timing of
injury, then that is something that would . . . need[] to be considered.
But in the absence of these records, [I believe] this is the
progression of [Claimant’s] degenerative disease and not the result of [an]
injury that took place [seven] weeks prior to seeking any medical
treatment.
Auerbach Dep., 5/11/18, at 33.
On cross-examination, Dr. Auerbach admitted that no doctor had made a finding
of hyperreflexia before Claimant’s March 2017 injury, as it was first noted by Dr.
Bednarz in April 2017. WCJ’s F.F. No. 6. Dr. Auerbach explained that hyperreflexia
can result from the progression of degenerative disease or an acute traumatic event. Id.
He noted that hyperreflexia was not recorded in Dr. Johnson’s notes from April 24,
2017, nor did Dr. Mazza find hyperreflexia when he examined Claimant on May 30,
2017. Id. Given Claimant’s history of spine deterioration over time, Dr. Auerbach
10
concluded that her hyperreflexia was more likely the result of her progressive spinal
disease rather than an acute event. Id.; Auerbach Dep., 5/11/18, at 36-37, 50.
On November 20, 2018, the WCJ issued two decisions, granting Employer’s
Termination Petition for the October 2014 injury and dismissing Claimant’s Claim
Petition for the March 2017 injury. First, the WCJ concluded that Employer proved by
sufficient, competent, and credible evidence that Claimant had fully recovered from
the October 2014 injury as of April 19, 2017. WCJ’s Conclusion of Law (C.L.) No. 2;
see WCJ’s F.F. No 9. Second, the WCJ concluded that Claimant failed to prove by
sufficient, competent, and credible evidence that she sustained an aggravation of her
preexisting neck condition as a result of the March 2017 injury. WCJ’s C.L. No. 3; see
WCJ’s F.F. No. 10.
The WCJ accepted as credible Dr. Bednarz’s testimony that, at the time of his
April 19, 2017 examination, Claimant had fully recovered from her October 2014 neck
strain injury. WCJ’s F.F. Nos. 8, 9. With regard to the March 2017 injury, the WCJ
made the following credibility findings:
This [WCJ] has compared and contrasted the testimony of the three . . .
medical doctors in this matter. All of them are in agreement that the
Claimant has severe spinal stenosis and that the Claimant is a surgical
candidate. Dr. Mazza states this neurological involvement is caused by
the March 3, 2017 fall. However, . . . the April 24, 2017 office notes show
that the Claimant did not yet have neurological involvement and
complaints on that date[,] which was seven . . . weeks after the [March
2017] injury. Accordingly, the opinion of Dr. Mazza in this regard is
rejected. The opinions of Drs. Auerbach and Bednarz that the Claimant’s
condition is a result of the natural progression of spinal stenosis are
accepted as credible.
Id. No. 8.
11
Finally, the WCJ credited Claimant’s testimony that she experienced “significant
pain and that her day[-]to[-]day activities are impaired by this pain.” Id. No. 7.
However, the WCJ ultimately found that “Claimant’s credibility is dubious with
respect to her history and the progression of her symptoms.” Id. In particular, the WCJ
noted that “the entire timing of this case is rather unusual” because “Claimant sustained
her second work injury on March 3, 2017” and immediately “reported the injury [to
Employer] but did not seek [medical] treatment” until seven weeks later. Id. The WCJ
further determined:
Claimant [testified] that following the March 3, 2017 incident[,] she did
not see any doctor until she saw Dr. Johnson and his [n]urse [p]ractitioner
on April 24, 2017 because that was the earliest appointment she could get.
However, Dr. Mazza’s testimony makes it clear that Dr. Johnson and his
[n]urse [p]ractitioner practice in the [u]rgent [c]are part of the practice.
This is inconsistent with the Claimant’s testimony since the nature of
[u]rgent [c]are is that somebody can come in on an emergency basis. The
Claimant obviously did not wait seven . . . weeks for an [u]rgent [c]are
appointment.
Id.
On appeal, the Board affirmed the WCJ’s decisions, concluding as follows:
As to the claim for a new injury in [March] 2017, the onus was on
Claimant to establish entitlement to relief. In this respect, because the
WCJ rejected the testimony of Dr. Mazza purporting to establish that
Claimant sustained an injury requiring treatment, she could not meet her
burden of proof. With regard to the Termination Petition for the [October]
2014 injury, because the WCJ accepted Dr. Bednarz’[s] testimony that as
of the time of his examination on April 19, 2017 she had fully recovered,
[Employer] was able to meet its burden of proof. Rendering credibility
determinations is the quintessential function of the fact[]finder.
Claimant asserts that [Employer’s medical] evidence was
insufficient to defeat her claim for a new injury or a continuing work
injury. The WCJ did not find the opinions of these physicians to be
12
contradictory and our review fails to support Claimant’s contention that
they are inconsistent. Dr. Bednarz did not, contrary to Claimant’s
contention, opine that Claimant sustained a new injury in 2017, as he
specifically declined to make a causal connection between any
examination findings and a 2017 incident. Dr. Auerbach, contrary to
Claimant’s contention, did not relate Claimant’s complaints to her 2014
work injury but to her underlying degenerative condition and the
progression of her severe disease process. With her contentions,
Claimant is essentially asking us to reweigh the evidence, but questions
of weight and credibility are for the fact[]finder.
Bd.’s Op., 10/22/19, at 10-11 (internal citations omitted) (emphasis added). Claimant
now petitions this Court for review.5
Analysis
1. Termination Petition for October 2014 Injury
Claimant asserts that the WCJ’s decision granting Employer’s Termination
Petition “represent[s] a travesty of justice” and is unsupported by substantial evidence.
Claimant’s Br. at 21. Specifically, Claimant contends that the WCJ “ignore[d] Dr.
Auerbach’s testimony that . . . Claimant’s medical records indicate that she had been
stable with her neck pain and that her neck and upper extremity symptoms were
unchanged as of the January 6, 2017 office visit with Dr. Mazza.” Id. at 21. Claimant
asserts that this testimony, together with Claimant’s evidence, established that she has
not recovered from the October 2014 neck strain injury. We disagree.
“To succeed in a termination petition, an employer bears the burden of proving
by substantial evidence that a claimant’s disability ceased[] or [that] any remaining
conditions are unrelated to the work injury.” Westmoreland County v. Workers’ Comp.
Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). The employer satisfies
5
Our scope of review is limited to determining whether the WCJ’s findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 1037,
1042 n.3 (Pa. Cmwlth. 2011).
13
this burden when its medical expert “unequivocally testifies that it is his opinion, within
a reasonable degree of medical certainty, that the claimant is fully recovered[] [and]
can return to work without restrictions and that there are no objective medical findings
[that] either substantiate the claims of pain or connect them to the work injury.” Udvari
v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997). The
WCJ may terminate benefits only if the WCJ finds that the claimant is fully recovered
from all aspects of the work injury. Central Park Lodge v. Workers’ Comp. Appeal
Bd. (Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998).
Here, the WCJ credited the testimony of Employer’s medical expert, Dr.
Bednarz. Dr. Bednarz opined that, as of April 19, 2017, Claimant was fully recovered
from her October 2014 neck strain injury. WCJ’s F.F. Nos. 4, 9. Dr. Bednarz
explained, “The residual deficits from the [October 2014] work injury including the
cervical . . . sprain, strain at that point had resolved, typically does within a few months.
[Claimant] no longer had muscle spasms and [she had] functional range. She had
completed treatment.” Bednarz Dep., 12/13/17, at 14. Dr. Bednarz found new
neurological symptoms in Claimant’s spine that he believed needed further evaluation,
but he opined that “they were unrelated to [Claimant’s October 2014] work injury.”
Id. Rather, Dr. Bednarz opined that Claimant’s symptoms in April 2017 resulted from
the natural progression of her preexisting spinal stenosis, which she has had since at
least 2012. WCJ’s F.F. No. 4; Bednarz Dep., 12/13/17, at 25. Finally, Dr. Bednarz
testified that his review of the recent medical records, including the June 2017 MRI,
“confirmed that [Claimant] did have an underlying spinal stenosis” but revealed “no
other acute abnormalities,” and thus, his opinion that Claimant’s “work[-]related [neck]
sprain had resolved, therefore, remained unchanged.” Bednarz Dep., 12/13/17, at 17.
We agree with the Board that Dr. Bednarz’s testimony, which the WCJ credited,
14
established that Claimant had fully recovered from her October 2014 work injury as of
April 19, 2017.
We further reject Claimant’s contention that the testimony of Employer’s
medical experts contradicted each other and were, thus, incompetent to support the
WCJ’s findings. Contrary to Claimant’s assertion, Dr. Auerbach did not testify that
Claimant’s symptoms in April 2017 stemmed from the October 2014 neck strain injury.
Rather, like Dr. Bednarz, Dr. Auerbach opined that Claimant’s symptoms in April 2017
were the result of the natural progression of her degenerative spinal stenosis, which she
has had since at least 2012. WCJ’s F.F. No. 6; Bd.’s Op., 10/22/19, at 11.
In concluding that Claimant had fully recovered from her October 2014 neck
strain injury, the WCJ accepted the medical opinion of Dr. Bednarz as credible,
rejected the contrary opinion of Dr. Mazza, and explained his reasons for doing so.
WCJ’s F.F. Nos. 8, 9. In a workers’ compensation proceeding, the WCJ is the ultimate
factfinder, and matters of credibility, conflicting medical evidence, and evidentiary
weight are within the WCJ’s sole province. Williams v. Workers’ Comp. Appeal Bd.
(USX Corp.-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004). The WCJ’s
findings are binding on appeal as long as they are supported by substantial evidence.
Agresta v. Workers’ Comp. Appeal Bd. (Borough of Mechanicsburg), 850 A.2d 890,
893 (Pa. Cmwlth. 2004). We conclude that Dr. Bednarz’s testimony constitutes
substantial, competent evidence to support the WCJ’s findings. Therefore, the Board
properly affirmed the WCJ’s grant of Employer’s Termination Petition.
2. Claim Petition for March 2017 Injury
Next, Claimant asserts that the WCJ’s decision dismissing her Claim Petition
“represent[s] a travesty of justice” and is unsupported by substantial evidence.
Claimant’s Br. at 21. Claimant asserts that Dr. Mazza opined that Claimant had
15
continued neck pathology stemming from the October 2014 injury, which was
aggravated by the March 2017 injury. Claimant also contends that the WCJ ignored
Dr. Bednarz’s testimony that when he saw Claimant in April 2017, a few weeks after
the March 2017 injury, he found new neurological symptoms in her cervical spine.
In a claim proceeding, the claimant bears the burden of establishing all elements
necessary to support an award. Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy),
634 A.2d 592, 595 (Pa. 1993). The claimant must prove both the existence of a work-
related injury and that the injury continues to cause disability throughout the pendency
of the claim petition. Id. A claimant seeking compensation for the aggravation of a
preexisting condition must prove that: (1) the aggravation arose in the course of his or
her employment, and (2) the aggravation was related to that employment. Knapp v.
Workmen’s Comp. Appeal Bd. (GTE), 671 A.2d 258, 261 (Pa. Cmwlth. 1996).6 If it is
unclear whether the aggravation injury was related to the claimant’s employment,
unequivocal medical testimony is necessary. Id.
While Claimant testified that her neck symptoms worsened after the March 2017
injury, the WCJ expressly discredited her testimony regarding her history and the
progression of her symptoms and explained his reasons for doing so. WCJ’s F.F. No.
7. In particular, the WCJ noted that Claimant: disregarded Dr. Mazza’s multiple
recommendations for a cervical MRI for two years; delayed seeking medical treatment
for the March 2017 injury for seven weeks; provided inconsistent accounts of the
March 2017 fall; and was not forthcoming with Dr. Bednarz about the March 2017
injury. Id. Nos. 5-7. The WCJ also rejected Dr. Mazza’s opinion that Claimant
sustained an aggravation injury on March 3, 2017 as not credible, because Claimant
6
A work-related aggravation of a preexisting condition is an “injury” within the meaning of
Section 301(c) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77
P.S. § 411(1). See Knapp, 671 A.2d at 261 n.2.
16
sought no medical treatment until seven weeks later. Id. No. 8. Notably, Dr. Mazza
did not attempt to explain the reason for this significant time gap.
In contrast, the WCJ credited the opinions of Dr. Auerbach and Dr. Bednarz that
Claimant’s symptoms in April 2017 resulted from the natural progression of her spinal
stenosis, which preexisted her October 2014 injury. WCJ’s F.F. Nos. 8, 10. While Dr.
Auerbach acknowledged the possibility that an acute injury could aggravate Claimant’s
preexisting spinal condition, he ultimately determined that Claimant did not suffer an
acute injury on March 3, 2017 as she had claimed. Id. No. 6. Dr. Auerbach explained
that if Claimant had sustained a new acute injury, she would have experienced a
significant change in symptoms immediately afterward, warranting more
contemporaneous medical treatment. Id. Dr. Auerbach credibly testified that
Claimant’s significant delay in seeking medical treatment was inconsistent with having
experienced a material increase in symptoms as a direct result of the March 2017 fall.
Id. In rendering his opinions, Dr. Auerbach also considered Claimant’s long history of
degenerative spinal disease, including the severe, end-stage osteoarthritis in her lumbar
spine, as further support for his conclusion that Claimant is suffering from the same
progressively degenerative disease in her cervical spine. Auerbach Dep. 5/11/18, at
24-25; see WCJ’s F.F. Nos. 8, 10.
Furthermore, Dr. Bednarz credibly testified that the finding of hyperreflexia in
April 2017 was also the result of Claimant’s degenerative spinal stenosis. WCJ’s F.F.
No. 4. Dr. Bednarz explained, “[Y]ou reach a critical state of stenosis where you
suddenly develop a compromise to the spinal cord that elicits rather acute findings, so
that [an] individual with known spinal stenosis for many years will develop those
findings[,] and when they do they’re rather dramatic[,] and [Claimant’s] were quite
obvious.” Bednarz Dep., 12/13/17, at 26; see WCJ’s F.F. No. 8.
17
As noted earlier, the WCJ, as the factfinder, was free to reject the testimony of
Claimant and Dr. Mazza and to accept the testimony of Employer’s medical experts as
credible. See Williams, 862 A.2d at 143. We conclude that the testimony of Dr.
Auerbach and Dr. Bednarz constitutes substantial, competent evidence to support the
WCJ’s findings. Therefore, the Board properly affirmed the WCJ’s dismissal of
Claimant’s Claim Petition.
Conclusion
Accordingly, we affirm the Board’s Orders.
__________________________________
ELLEN CEISLER, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karen Toro, :
Petitioner :
:
v. : No. 1585 C.D. 2019
: No. 1586 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Pocono Mountain School :
District and Inservco Insurance :
Services), :
Respondents :
ORDER
AND NOW, this 29th day of April, 2020, the Orders of the Workers’
Compensation Appeal Board, dated October 22, 2019, are hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge