MacTough v. WCAB (City of Philadelphia)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian MacTough, :
Petitioner :
:
v. : No. 748 C.D. 2019
: Submitted: November 27, 2019
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: May 13, 2020
Brian MacTough (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board), dated May 22, 2019. The Board affirmed an
order of Workers’ Compensation Judge Patricia Bachman (WCJ Bachman), which
granted the termination petition filed by the City of Philadelphia (Employer).1 We
now affirm.
I. BACKGROUND
The history of this matter involves two separate injuries that Claimant
sustained during the nineteen years he worked for Employer. On August 31, 1993,
1
WCJ Bachman also denied Claimant’s penalty petitions. Only the grant of the termination
petition, however, is before the Court in this appeal.
while working for Employer as a mechanic, Claimant sustained an injury to his
cervical spine, which the parties described as “cervical spine trauma” (1993 work
injury). (Reproduced Record (R.R.) at 36a, 57a.) In February 1994, Claimant
returned to light-duty work for Employer as a mechanical maintenance coordinator
at no loss of earnings. (Id. at 24a, 36a.) In spring of 2010, however, Claimant began
to experience the same type of pain in his cervical spine that he had previously
experienced in 1993 and 1994. (Id. at 36a.) The pain gradually worsened each day
that Claimant worked for Employer. (Id.) As a result, on June 10, 2010, Claimant
filed a reinstatement petition and a penalty petition, alleging that his 1993 work
injury had recurred and that he had returned to full disability as of April 25, 2010,
the date on which his family doctor restricted him from working. (Id. at 36a-37a.)
Thereafter, on September 1, 2010, Claimant also filed a claim petition, alleging that
he sustained a new injury on April 25, 2010—i.e., an aggravation of his 1993 work
injury. (Id.)
In support of his petitions, Claimant produced the deposition testimony of
Leonard Bruno, M.D., who diagnosed Claimant with acute and chronic disc
herniations at the C5-6 and C6-7 levels, resulting in left-sided radiculopathy.
(Id. at 37a.) Dr. Bruno opined that Claimant’s repetitive work duties from
1994 to 2010—i.e., the bending of his head at his computer and desk—accelerated
the degenerative changes in Claimant’s cervical spine at C5-6 and C6-7, both of
which were injured at the time of Claimant’s 1993 work injury. (Id. at 37a-38a.) In
opposition to Claimant’s petitions, Employer submitted the deposition testimony of
Mario Arena, M.D., who opined that the degenerative changes in Claimant’s spine
were preexisting and unrelated to a work injury. (Id. at 38a.) By decision and order
dated October 28, 2011, WCJ Bachman granted Claimant’s claim petition, dismissed
2
Claimant’s penalty petition, and denied Claimant’s reinstatement petition as moot
(2011 WCJ decision). (Id. at 40a.) In so doing, WCJ Bachman credited Dr. Bruno’s
testimony, specifically noting that she was “persuaded that an aggravation of
Claimant’s neck and cervical injury [occurred] over time, [because] Claimant
continued to work on and after 1994 up until April 25, 2010.” (Id. at 39a.)
Accordingly, WCJ Bachman essentially concluded that Claimant established that he
sustained “a new injury” on April 25, 2010, in the form of an
aggravation/acceleration of the degenerative changes at C5-6 and C6-7 (2010 work
injury), cervical levels that had previously been injured at the time of the 1993 work
injury. (Id. at 37a, 40a.)
Sometime thereafter, Employer filed a termination petition, alleging that
Claimant had fully recovered from his 2010 work injury. (Id. at 24a.) In support
thereof, Employer presented the deposition testimony of Robert Keehn, M.D., who
acknowledged that Claimant continued to demonstrate objective findings on
physical examination, including “atrophy of the cervical spine in the area of the
shoulders consistent with a cervical radiculopathy in the left trapezius.”
(Id. at 26a-27a.) Despite these objective findings, Dr. Keehn opined that Claimant
had fully recovered from his 2010 work injury and that any ongoing impairments
and restrictions relative to Claimant’s cervical spine were not work related at least
as of July 3, 2013, the date of his physician’s affidavit of recovery. (Id. at 26a, 30a.)
In opposition to Employer’s termination petition, Claimant presented the deposition
testimony of Mark DeLaurentis, M.D., who indicated that Claimant’s magnetic
resonance imaging (MRI) films from 2010, 2012, and 2013, evidenced “significant
adhesions in the epidural spaces of C5-6 and C6-7, as well as extensive scar tissue.”
(Id. at 29a.) Ultimately, Dr. DeLaurentis opined that Claimant’s ongoing
3
impairments and restrictions—i.e., degeneration and bilateral radiculopathy in the
cervical spine—were related to Claimant’s 2010 work injury. (Id. at 28a-30a.) By
decision and order dated August 12, 2015, Workers’ Compensation Judge Stephen
Harlen (WCJ Harlen) accepted Dr. DeLaurentis’ testimony as credible, concluded
that Claimant had not recovered from the 2010 work injury, and denied Employer’s
termination petition (2015 WCJ decision). (Id. at 30a-32a.)
Subsequent thereto, on January 20, 2017, Employer filed the termination
petition that is the subject of this appeal (Termination Petition), alleging that
Claimant had fully recovered from the 2010 work injury as of December 20, 2016.
In opposition to Employer’s Termination Petition, Claimant testified that, since the
time of WCJ Harlen’s decision, he has treated with Randal Smith, M.D., for his
cervical spine injury. (Id. at 53a.) Dr. Smith has prescribed a corrected course of
medication and home heat therapy. (Id. at 54a.) Claimant explained that he
continues to suffer pain and numbness in his neck, left side, arm, and fingers since
the 2010 work injury and that such pain prevents him from engaging in activities for
more than an hour at a time and from sleeping well. (Id. at 56a-59a.) Claimant
testified further that his position with Employer as a mechanical maintenance
coordinator involved approximately sixty percent office work and forty percent
“field work”—i.e., daily trips around the maintenance facility and trips to various
work sites—and required him to be able to climb ladders and lift up to fifty pounds.
(Id. at 57a-58a.) Claimant did not believe that he was physically capable of
returning to that position at any point during the two-year period before the
October 12, 2017 hearing. (Id. at 58a.)
On cross-examination, Claimant admitted that he began seeing Dr. Smith at
the suggestion of his attorney. (Id. at 63a.) He discussed his use of a variety of
4
medications since the 2010 work injury and explained that he had never had neck
surgery and could not undergo physical therapy without sustaining further injury.
(Id. at 63a-69a.) Claimant also stated that he has not sought or obtained any
employment since he stopped working for Employer at the time of the 2010 work
injury. (Id. at 68a-69a.) Finally, Claimant explained that he suffered a fall in 2015,
resulting in a few broken ribs but no increased pain in his neck. (Id. at 72a.)
Claimant also presented the deposition testimony of Dr. Smith, who is board
certified in orthopedic surgery and who has treated Claimant since March 2016.
(Id. at 83a, 90a.) Dr. Smith recounted Claimant’s symptoms upon presentation as
including pain and stiffness in the neck, pain and numbness in the left arm, and night
sweats. (Id. at 91a.) Dr. Smith’s initial physical exam of Claimant revealed spasms
in Claimant’s left trapezius and a guarded range of motion, both of which indicated
the protection of an injured area. (Id. at 93a.) Dr. Smith described his initial
diagnosis of Claimant’s 2010 work injury as herniated discs, progressive
degenerative disc disease in the cervical spine, and resulting chronic cervical pain
and radiculopathy. (Id. at 94a.) Dr. Smith also explained that he has continued to
treat Claimant regularly since his initial exam and diagnosis, during which time his
diagnosis has not changed and Claimant’s symptoms have not improved.
(Id. at 96a.) Dr. Smith testified further that, on December 14, 2016, six days before
Lawrence Barr, D.O., performed an independent medical examination (IME) of
Claimant, Claimant’s symptoms remained virtually unchanged from what they had
been since he had first treated Claimant approximately nine months earlier.
(Id. at 97a-98a.) Dr. Smith also described a subsequent exam on January 13, 2017,
during which he found that Claimant’s symptoms had worsened, with additional
symptoms of radiculopathy on Claimant’s right side. (Id. at 99a.) Dr. Smith further
5
testified that Claimant had not fully recovered from his 2010 work injury and
requires further treatment for such injury. (Id. at 99a.) Furthermore, he considers
Claimant to be permanently disabled from all employment. (Id. at 113a.)
Dr. Smith also discussed some of Claimant’s test results, including an MRI
conducted on July 15, 2016, and an electromyography test (EMG) conducted on
November 23, 2016. (Id. at 100a-01a.) Concerning the MRI, Dr. Smith testified
that its results were consistent with Claimant’s history and clinical examination.
(Id. at 102a-03a.) Concerning the EMG, he stated that the test showed left-sided
C6-7 radiculopathy with acute and chronic denervation, and right-sided C6-7
radiculopathy with chronic denervation—findings which were consistent with the
MRI, his diagnosis, and the 2011 and 2015 WCJ decisions. (Id. at 103a-04a.) When
questioned about how acute (as opposed to chronic) denervation could be consistent
with a six-year-old injury, Dr. Smith explained that the 2010 work injury produced
chronic symptoms that are exacerbated by daily activities, resulting in acute
symptoms. (Id.) Dr. Smith testified that Claimant’s symptoms arising from the
2010 work injury have been constant and progressive and that Claimant has not
recovered and remains disabled because of the 2010 work injury. (Id. at 106a.) He
also explained that objective medical evidence—including multiple MRIs showing
progressive cervical degeneration, multiple EMGs, and Claimant’s loss of
mobility—supports his opinion that the 2010 work injury has not ceased and that
Claimant requires further treatment for recovery. (Id. at 106a-07a, 113a.)
On cross-examination, Dr. Smith explained that he treats adult patients of all
ages and is aware that a progressive disease could suffer an intervening aggravation
and then return to a previous baseline condition once the aggravation resolves.
(Id. at 115a-17a.) Dr. Smith described the progression of Claimant’s degenerative
6
disc disease and radiculopathy, however, as being primarily caused by his
work-related injuries and not primarily age related. (Id. at 122a-23a.) Dr. Smith
explained that “[Claimant’s] level of disability, his level of discomfort would not be
nearly what it is now if he had not had his work injuries.” (Id.)
In support of its Termination Petition, Employer presented the deposition
testimony of Dr. Barr, who is board certified in orthopedic surgery. (Id. at 249a.)
Dr. Barr testified that, during the physical examination portion of his IME, Claimant
reported tenderness in his back and reduced sensation in his left arm and hand, but
Dr. Barr observed no spasms, clonus, arm atrophy, or other clinical evidence of
radiculopathy. (Id. at 259a-61a.) After a comprehensive review of Claimant’s
medical history and records—including the 2011 WCJ decision and MRIs from
2012 to 2016—Dr. Barr concluded that, although Claimant continues to suffer from
disc degeneration in the cervical spine, he has recovered from the 2010 work injury.
(Id.) Dr. Barr explained that the progressive degeneration and radiculopathy shown
in Claimant’s MRI and EMG results were caused by “the normal aging process” that
occurred after the 2010 work injury and are not causally related to the 2010 work
injury. (Id. at 263a-65a, 270a.)
Dr. Barr also opined that Claimant was capable of returning to his position as
a mechanical maintenance coordinator with Employer. (Id. at 265a.) He explained
that the medium-duty restrictions that he placed upon Claimant were related to “the
degenerative disc disease of the cervical radiculopathy,” not the 2010 work injury.
(Id. at 265a-66a.) On cross-examination, Dr. Barr confirmed that Claimant
presented with cervical radiculopathy, which is consistent with the results of the
EMG conducted about one month before the IME. (Id. at 271a.) Dr. Barr conceded,
7
however, that Claimant continues to suffer from one of the “subject work injuries”
identified in the 2011 WCJ decision—i.e., C6-7 radiculopathy. (Id. at 272a.)
By decision and order dated March 9, 2018, WCJ Bachman granted
Employer’s Termination Petition. In so doing, WCJ Bachman summarized the
witnesses’ testimony and made the following relevant findings of fact and credibility
determinations:
6. This Workers’ Compensation Judge [(WCJ)] . . . finds
Claimant’s testimony credible regarding his work
injury and depiction of his symptoms but does not find
Claimant’s testimony credible as to his perception that
his condition is currently related to the [2010 work]
injury on and after December 20, 2016.
7. This [WCJ] . . . finds that the opinions of [Dr. Barr]
are more credible than those of [Dr. Smith],
particularly when Dr. Barr testified that Claimant has
fully recovered from his [2010 work injury]. This
[WCJ] adopts Dr. Barr’s opinion as a finding of fact.
In support, the following considerations are noted:
a) There is no dispute that Claimant suffers from
degenerative disease of the cervical spine. In [the
2011 WCJ decision], this [WCJ] adopted the
opinion of [Dr. Bruno] that Claimant suffered from
disc herniation at the C5-6 and C6-7 level[s] with
left-sided radiculopathy. [This WCJ] also adopted
Dr. Bruno’s opinion that “Claimant’s injuries were
aggravated by the repetitive work duties Claimant
performed over the years” including “repetitive
bending of the head at the computer and desk,”
which “caused an acceleration of the disease
process, and radiculopathy complaints.”
b) Both physicians agree that the disease process
continues and that Claimant’s cervical spine in 2017
is in worse condition than in 2010. He now has
right-sided radiculopathy, which Dr. Smith opined
is related to the work events. However, Claimant
has not worked since 2010. He cannot argue that a
degeneration that occurred, say, in 2015 and
8
resulted in right-sided radiculopathy was caused by
“repetitive bending of the head at the computer and
desk” from 1993 to 2010. Claimant’s cervical spine
continues to degenerate not because of work
activities he performed decades ago but, rather,
because of the ordinary process of aging.
(WCJ Bachman’s Decision, Mar. 9, 2018, at 7.) Based on these findings and
credibility determinations, WCJ Bachman concluded that Employer met its burden
of proof and established that, as of December 20, 2016, “Claimant [had] fully
recovered from the aggravation of the underlying degenerative disc disease that
occurred on April 25, 2010” and that Claimant’s ongoing symptoms were “the result
of the underlying disease process, not the aggravation thereof.” (Id. (emphasis
added).) Claimant appealed WCJ Bachman’s March 9, 2018 decision to the Board,
which affirmed. Claimant now petitions this Court for review.
II. ARGUMENTS
On appeal,2 Claimant argues that the Board erred in affirming WCJ
Bachman’s March 9, 2018 decision to grant Employer’s Termination Petition
because: (1) WCJ Bachman permitted Employer to relitigate the cause of
Claimant’s injuries and, thus, failed to give proper issue-preclusive effect to the
2011 and 2015 WCJ decisions; and (2) WCJ Bachman’s finding that Claimant had
fully recovered from his 2010 work injury is not supported by substantial evidence.3
2
This Court’s review is limited to a determination of whether an error of law was
committed, whether findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law,
2 Pa. C.S. § 704.
3
We have reordered Claimant’s arguments for the purpose of discussion and disposition.
9
III. DISCUSSION
A. Res Judicata/Issue Preclusion
Claimant argues that the Board erred by affirming WCJ Bachman’s
March 9, 2018 decision, granting Employer’s Termination Petition, because
WCJ Bachman permitted Employer to relitigate the cause of Claimant’s injuries and,
thus, failed to give proper issue-preclusive effect to the 2011 and 2015 WCJ
decisions. More specifically, Claimant contends that the 2011 and 2015 WCJ
decisions already determined that Claimant’s cervical degeneration and
radiculopathy—from which he still suffers—are work related. The decisions,
therefore, should preclude Employer’s attempt to terminate Claimant’s benefits.
Claimant asserts that Employer’s filing of the Termination Petition is a disguised
attempt to relitigate an issue already decided (i.e., the work-relatedness of
Claimant’s injuries). In response, Employer argues that Claimant has
mischaracterized the nature of Claimant’s 2010 work injury and has overstated the
issue-preclusive effect of the 2011 WCJ decision. More specifically, Employer
contends that, rather than relitigating the cause of the 2010 work injury, it
permissibly showed that the normal aging process, rather than the work-related
aggravation, is the present cause of Claimant’s continuing disability.
The doctrine of res judicata incorporates two distinct principles of
preclusion—collateral estoppel (or issue preclusion) and technical res judicata (or
claim preclusion). Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.),
776 A.2d 362, 365 (Pa. Cmwlth. 2001). Here, although Claimant uses terminology
from both of these principles in his brief, his argument actually focuses on collateral
estoppel (or issue preclusion), which bars parties from relitigating particular issues
10
decided in prior litigation.4 See Pucci v. Workers’ Comp. Appeal Bd. (Woodville
State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Issue preclusion applies
where, inter alia, “the issue decided in the prior case is identical to the one presented
in the later case.” Id. at 648.
In the workers’ compensation context, “issue preclusion prevents an employer
from relitigating, by way of a petition to . . . terminate benefits, the original medical
diagnosis underlying a referee’s finding of a claimant’s disability as of the date of
the compensation award.” Hebden II, 632 A.2d at 1304 (emphasis added). In
Hebden II, the disease at issue had already been adjudged as progressive and
irreversible in a prior proceeding. Accordingly, our Supreme Court held that the
employer’s attempt to show that the disease had abated was “merely a disguised
attempt to relitigate what ha[d] already been settled”—i.e., that the claimant’s
work-related injury was permanent and, thus, continued to be the cause of his
disability. Id. The Hebden II court added, however, an important caveat to its
holding:
We do not lose sight of the fact that [Section 413 of the
Workers’ Compensation Act5] expressly provides that an
award may be terminated based upon changes in the
[claimant’s] disability. . . . [T]hat raises the logical
4
In contrast, technical res judicata (or claim preclusion) prevents parties from relitigating
entire claims (as opposed to specific legal or factual issues within a claim). See Henion,
776 A.2d at 365. Claim preclusion requires, inter alia, that the old and new proceedings have the
same ultimate issues. Hebden v. Workmen’s Comp. Appeal Bd. (Bethenergy Mines, Inc.),
597 A.2d 182, 190 (Pa. Cmwlth. 1991) (Hebden I), rev’d on other grounds, 632 A.2d 1302(Pa. 1993) (Hebden II). In the workers’ compensation context, we have consistently held that each
subsequent claim or termination petition presents different ultimate issues because “[t]he ultimate
issue . . . is whether the claimant is disabled at the time alleged in each petition.” Hebden I,
597 A.2d at 192 (emphasis in original). Although it reversed Hebden I on other grounds, the
Pennsylvania Supreme Court confirmed that “issue preclusion,” not claim preclusion, applies in
these situations. Hebden II, 632 A.2d at 1304 (emphasis added).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
11
question of whether [a claimant’s] disability is changeable
in a given case. If it is, [a claimant’s] condition may be
re-examined at a later time to see if he is still disabled or
not.
Id. (emphasis in original). Thus, although issue preclusion protects the original
medical diagnosis of the work-related injury from relitigation, it does not prevent
termination based on later changes in the disability unless the initial determination
declared the disability to be permanent.
Concerning an employer’s attempt to show that a disability has changed, we
have said:
It is well established that an employer seeking to
terminate workers’ compensation benefits bears the
burden of proving by substantial evidence either that the
[claimant’s] disability has ceased, or that any current
disability arises from a cause unrelated to the [claimant’s]
work injury. [The e]mployer must show that any
continued disability is the result of an independent cause
or the lack of a causal connection between the continued
disability and the original compensable injury. In either
situation, this is a considerable burden because the
claimant’s disability is presumed to continue until
demonstrated otherwise.
Parker v. Workers’ Comp. Appeal Bd. (Dock Terrace Nursing Home), 729 A.2d 102,
104-05 (Pa. Cmwlth. 1999) (emphasis added) (citations omitted). “[I]f an employer
asserts not that the disability has changed, but that there is a[ non-work-related]
cause for the disability, . . . the employer bears ‘the burden of proving that an
independent cause . . . arose after the [claimant began receiving benefits].’” Gumro
v. Workmen’s Comp. Appeal Bd., 626 A.2d 94, 97 (Pa. 1993) (emphasis in original)
(quoting Beissel v. Workmen’s Comp. Appeal Bd. (John Wanamaker, Inc.),
465 A.2d 969, 972 (Pa. 1983)). Under this line of cases, it is permissible for an
employer to (1) accept that the initial injury and resulting disability were work
12
related, and then (2) prove that “the . . . disability is no longer work[]related.” Id.(quoting Beissel, 465 A.2d at 972) (emphasis added).
Applying these principles to the instant matter, it appears that Claimant
misunderstands a crucial conceptual distinction. Contrary to Claimant’s assertions,
neither Employer nor WCJ Bachman’s March 9, 2018 decision relitigated or
revisited “the cause of Claimant’s injuries.” (Claimant’s Br. at 14.) Rather,
Employer sought to prove that Claimant had recovered from the 2010 work injury
as of a specific date—i.e., December 20, 2016—and that the cause of any remaining
disability is related to the natural aging process, not the 2010 work injury.
Importantly, the injury at issue is not the disability, but rather, the work-related
aggravation of the degenerative changes in Claimant’s cervical spine that resulted
in disability, as determined by WCJ Bachman in the 2011 WCJ decision. In
addition, in the 2015 WCJ decision, WCJ Harlen denied Employer’s prior
termination petition after determining that Claimant had not at that time recovered
from the 2010 work injury. Neither the 2011 WCJ decision nor the 2015 WCJ
decision determined that the 2010 work injury was permanent or irreversible or that
all of Claimant’s ongoing cervical degeneration and radiculopathy will necessarily
always be work related. Accordingly, neither decision precludes reexamination of
the cause of Claimant’s ongoing disability at a later date. See Hebden II, 632 A.2d
at 1304; Parker, 729 A.2d at 104-05. In other words, the 2011 and 2015 WCJ
decisions do not preclude the instant action because the issues they decided are not
“identical to the one presented” now. Pucci, 707 A.2d at 648.
B. Substantial Evidence
Claimant argues that the Board erred by affirming WCJ Bachman’s
March 9, 2018 decision granting Employer’s Termination Petition because WCJ
13
Bachman’s finding that Claimant had fully recovered from his 2010 work injury is
not supported by substantial evidence. More specifically, Claimant contends that
Dr. Barr’s full-recovery opinion does not constitute substantial evidence to support
WCJ Bachman’s March 9, 2018 decision because Dr. Barr (1) failed to acknowledge
the work-related nature of the 2010 work injury, and (2) did not possess an adequate
understanding of Claimant’s medical history because he failed to review one of
Claimant’s 2010 MRIs and the 2015 WCJ decision. In response, Employer argues
that Dr. Barr’s testimony constitutes substantial evidence to support WCJ
Bachman’s March 9, 2018 decision because Dr. Barr properly acknowledged
the 2010 work injury and 2011 WCJ decision and comprehensively reviewed
Claimant’s medical history.
In workers’ compensation proceedings, the WCJ is the ultimate finder of fact.
Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d
137, 143 (Pa. Cmwlth. 2004). Matters of credibility, conflicting medical evidence,
and evidentiary weight are within the WCJ’s exclusive province. Id. In determining
whether the WCJ’s findings are supported by substantial evidence, we may not
reweigh the evidence or the credibility of the witnesses but must simply determine
whether the WCJ’s findings have the requisite measure of support in the record as a
whole. Elk Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz,
deceased), 114 A.3d 27, 32 n.5 (Pa. Cmwlth. 2015). If substantial evidence supports
the WCJ’s necessary findings, it is irrelevant whether there is evidence to support a
contrary finding. Williams, 862 A.2d at 143-44.
To succeed in a termination petition, the employer bears the burden to prove
that the claimant’s disability has ceased and/or that any current disability is unrelated
to the claimant’s work injury. Jones v. Workers’ Comp. Appeal Bd. (J.C. Penney
14
Co.), 747 A.2d 430, 432 (Pa. Cmwlth.), appeal denied, 764 A.2d 1074 (Pa. 2000).
“An employer proves full recovery with unequivocal, competent medical evidence.”
Hall v. Workers’ Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734, 740
(Pa. Cmwlth. 2010). In order to render unequivocal, competent testimony, a medical
expert witness must have a proper foundation, two aspects of which are at issue here.
First, “[t]his Court consistently holds a medical opinion that does not recognize the
work-relatedness of an injury previously determined to be work[]related is
insufficient to support a termination of benefits.” Westmoreland Cty. v. Workers’
Comp. Appeal Bd. (Fuller), 942 A.2d 213, 218 (Pa. Cmwlth. 2008); see also
Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1199 (Pa.
Cmwlth. 2007) (“[A]n employer’s expert must recognize the work injury . . . and
opine that the claimant has fully recovered from that injury.” (emphasis added)),
appeal denied, 944 A.2d 752 (Pa. 2008). Second, the expert must have a “full
understanding” of the claimant’s medical history. Hall, 3 A.3d at 740. A partial or
inaccurate medical history will not support a full-recovery opinion. See Chik-Fil-A
v. Workers’ Comp. Appeal Bd. (Mollick), 792 A.2d 678, 689 (Pa. Cmwlth. 2002)
(holding expert testimony incompetent where expert had “no knowledge of
[c]laimant’s prior relevant medical records and treatment[] or any previous
diagnostic test results” (emphasis added)).
Here, we agree with Employer that Dr. Barr’s full-recovery opinion is
competent and provides substantial evidence to support WCJ Bachman’s finding that
Claimant had fully recovered from the 2010 work injury as of December 20, 2016,
such that it is no longer the cause of his ongoing disability. First, Dr. Barr properly
acknowledged the work-related nature of the 2010 work injury. He based his
opinion that Claimant “had recovered” on his understanding that the 2010 work
15
injury was a “work injury . . . in the nature of [an] aggravation.” (R.R. at 262a
(emphasis added).) He also specifically testified that he was aware of the 2011 WCJ
decision and the “work injuries” it described. (Id. at 272a.) Second, Dr. Barr based
his opinion on a comprehensive review of Claimant’s medical history, including
Claimant’s own description of his medical history, the 2011 WCJ decision, and
dozens of Claimant’s medical records, including, but not limited to, Claimant’s
MRIs from 2012 to 2016 and notes from Claimant’s prior physicians.
(Id. at 257a-61a, 296a-97a.) Given the extent of Dr. Barr’s review of Claimant’s
medical history, we cannot agree with Claimant that Dr. Barr’s full-recovery opinion
was based on a partial or inaccurate medical history simply because Dr. Barr did not
review a single MRI from 2010 or the 2015 WCJ decision. See Chik-Fil-A, 792 A.2d
at 689. Based on his review of Claimant’s history and medical records, Dr. Barr
concluded that, although Claimant continues to suffer from disc degeneration in the
cervical spine, he has recovered from the 2010 work injury. (Id. at 259a-61a.) Dr.
Barr attributed Claimant’s current condition and his ongoing disability to “the
normal aging process,” not the 2010 work injury. (Id. at 263a-65a, 270a.) This
competent testimony provides substantial evidence to support WCJ Bachman’s
finding that Claimant had fully recovered from the aggravation of the underlying
degenerative disc disease that occurred on April 25, 2010.6
6
Claimant further argues that Dr. Barr’s full-recovery opinion cannot provide substantial
evidence for WCJ Bachman’s findings because Dr. Barr’s opinion was based on an improper
hypothetical assumption/question. We disagree. As Employer points out, Claimant fails to
identify how the relevant question was either incomplete or hypothetical. While the question may
have asked Dr. Barr to “assume . . . Claimant was initially hurt at work on August 31, 1993,” that
is not a counterfactual assumption. (R.R. at 261a.) More importantly, neither the question nor Dr.
Barr’s response relied on that assumption. Instead, counsel made clear at the end of his question
that Dr. Barr was to give his opinion based “upon the medical history [he] gathered.” (Id. at 262a.)
16
IV. CONCLUSION
For the foregoing reasons, we conclude that WCJ Bachman did not fail to give
appropriate preclusive effect to the 2011 and 2015 WCJ decisions in granting
Employer’s Termination Petition. We further conclude that the record includes
substantial, competent evidence to support WCJ Bachman’s finding that Claimant
had fully recovered from the 2010 work injury as of December 20, 2016.
Accordingly, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian MacTough, :
Petitioner :
:
v. : No. 748 C.D. 2019
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 13th day of May, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
P. KEVIN BROBSON, Judge