J. Haugh v. WCAB (Carrier Corp. & New Hampshire Ins. Co. c/o AIG)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Haugh, :
Petitioner :
:
v. : No. 583 C.D. 2020
: SUBMITTED: December 4, 2020
Workers’ Compensation Appeal :
Board (Carrier Corporation and :
New Hampshire Insurance :
Company c/o AIG), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 26, 2021
James Haugh (Claimant) petitions for review of the May 29, 2020 Order of
the Workers’ Compensation Appeal Board (Board), which affirmed the decision of
a workers’ compensation judge (WCJ) granting Carrier Corporation’s (Employer)
Petition to Terminate Workers’ Compensation Benefits (Petition to Terminate)
under Section 413 of the Workers’ Compensation Act (Act).2 The issue on appeal
is whether Employer was precluded from presenting evidence that Claimant had
recovered from his work injury after a prior WCJ determined that Claimant’s work
injury required lifelong, light-duty restrictions. After review, we affirm the Board’s
Order.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772 (relating to a petition to
terminate benefits “upon proof that the disability of an injured employe has . . . finally ceased”)
I. Background
On July 15, 2015 Claimant filed his claim petition seeking workers’
compensation (WC) benefits from a work-related injury arising on October 1, 2014.
Certified Record (C.R.) at 235. Claimant has worked in heating, ventilation, and air
conditioning (HVAC) since 1988 and began working for Employer on July 1, 2013.
Id. at 236. Much of Claimant’s work involved servicing industrial chillers used in
air conditioning. Id. The chillers are quite tall and Claimant’s work required
extensive use of his arms at or above shoulder height and involved lifting significant
weight. Id. Shortly after beginning work for Employer, Claimant began to
experience fatigue in his arms; by January 2014 this fatigue eventually worsened
into pain “akin to a toothache” and began interfering with his sleep. Id. He began
using his left hand to work, because he could not use his right arm. Id. Claimant’s
primary care physician referred him to Dr. Mark Rodosky in July 2014, and he
underwent surgery on October 2, 2014. Id. In his claim petition, Claimant alleged
his injury as
an aggravation of bilateral glenohumeral [(shoulder)] arthritis, right
worse than left, and associated soft tissue problems including:
synovitis, partial tears of the labrum and rotator cuff, frozen shoulder
and impingement syndrome attributable to cumulative trauma as the
result of repetitive work activities involving [Claimant’s] upper
extremities.
Id. at 235.
On December 12, 2017, WCJ Alfred Benedict (WCJ Benedict)3 awarded
Claimant workers’ compensation benefits. Id. at 246. In reaching his decision, WCJ
Benedict found that Claimant suffered a work-related injury; specifically, he found
3
Because two different WCJs issued decisions in this case, we refer to each WCJ herein
by name.
2
that “Claimant had preexisting glenohumeral arthritis that was substantially
aggravated by his work at [Employer] making it symptomatic to the point where he
could not tolerate it.” Id. at 239. This aggravation of Claimant’s existing arthritis
was caused by heavy lifting and repetitive work. Id. at 238-39. WCJ Benedict
credited the testimony of Claimant’s treating physician, Dr. Rodosky, who testified
that due to the injury, Claimant would be placed on permanent, light-duty restrictions
that would last the remainder of his life. Id. at 238.
Employer’s medical expert, Dr. Victor Thomas, testified that Claimant’s work
for Employer could not have aggravated his glenohumeral arthritis, and instead any
symptoms or pain was the natural progression of the disease. Id. at 242-43. WCJ
Benedict found Dr. Thomas’s testimony less credible and persuasive than Dr.
Rodosky’s and awarded Claimant WC benefits. Id. at 243-44.
On May 5, 2017, Employer filed its Petition to Terminate, after which WCJ
Jeffrey Russell (WCJ Russell) held multiple hearings and issued an opinion on July
9, 2019. Id. at 40, 96. At the termination hearing, Claimant testified that he still
experienced “symptoms that range from fatigue to a dull ache and occasionally
sharp, shooting pain,” and that he takes over-the-counter pain medication. Id. at 86-
87. He underwent replacement surgery on his right shoulder in October 2017 and
plans to have the same procedure on his left shoulder. Id. at 88. Although the
surgery alleviated some pain, he still has limited range of motion and the same light-
duty restrictions. Id. at 87.
Claimant presented the deposition testimony of Dr. Rodosky, who explained
that the work-related injury led to an arthritic overloading and quicker breakdown
of the cartilage in his shoulder joints. Id. at 88. This overloading, coupled with the
cartilage’s limited ability to repair itself and aggravating injury, led Dr. Rodosky to
3
opine that the work injury accelerated Claimant’s underlying pathology and
symptoms that resulted in the right shoulder replacement. Id. Thus, Dr. Rodosky
opined that the work injury resulted in permanent damage to the cartilage in
Claimant’s shoulder joints, worsening his arthritic progression. Id. at 87-88.
Employer presented the deposition testimony of Dr. Michael Seel, who
testified that he reviewed Claimant’s medical records and was aware of WCJ
Benedict’s decision recognizing Claimant’s work-related injury as an aggravation of
his preexisting arthritis. Id. at 88. Dr. Seel examined Claimant on April 18, 2017,
and opined that he had recovered from the acknowledged work injury. Id. at 89. Dr.
Seel noted that Claimant’s records indicated he was at maximum medical
improvement and had been discharged from Dr. Rodosky’s care in 2016, directed to
return only as needed. Id. Dr. Seel further opined that Claimant’s right shoulder
surgery in 2017 was not related to the work injury, because the aggravation of his
arthritis caused no permanent damage to the cartilage, so the work injury did not
affect the natural progression of his arthritis. Id. Thus, Dr. Seel opined that any
remaining pain and disability were a result of the natural arthritic progression and
not related to the aggravation of his arthritis. Id. at 88-89.
Following the hearings, WCJ Russell granted Employer’s Petition to
Terminate. In reaching his decision, WCJ Russell found Dr. Seel more credible than
Dr. Rodosky. Id. at 93-94. WCJ Russell noted that WCJ Benedict never found that
Claimant sustained irreversible damage to the cartilage in his shoulders. Id. at 93.
WCJ Russell distinguished between the permanency of the restrictions and the
permanency of the injury, stating: “While the limitations were deemed permanent,
no testimony was elicited that Claimant had permanent and irreversible cartilage
damage due to the injury.” Id. WCJ Russell noted WCJ Benedict found that the
4
work injury was an aggravation of arthritis to the point of symptoms, “rather than an
alteration of the arthritic pathology.” Id. at 93. WCJ Russell concluded that “[a]ny
restrictions, complaints, and need for treatment on or after April 18, 2017 would be
a result of the pre-existing arthritic condition of the shoulders and not the work
injury.” Id. at 95.
Claimant timely appealed to the Board, which affirmed WCJ Russell’s
decision. Id. at 106. In his appeal to the Board, Claimant argued that WCJ Russell
mischaracterized Dr. Rodosky’s testimony and inappropriately redefined the work
injury as found by WCJ Benedict. Id. at 109-10. Claimant also asserted that Dr.
Seel’s testimony was incompetent because WCJ Benedict found permanent damage
to Claimant’s cartilage. Id. at 110. The Board, however, rejected these claims,
noting that “at no point did WCJ Benedict find that Claimant sustained irreversible
cartilage damage and at no point did Dr. Rodosky testify to that.” Id. at 114. Instead,
“Dr. Rodosky indicated that the aggravation was symptomatic rather than an
alteration of pathology.” Id. The Board concluded:
[WCJ Russell] did not mischaracterize Dr. Rodosky’s testimony. Nor
did he redefine the nature of the injury or misconstrue the findings in
the prior adjudication. Claimant’s arguments, while phrased as
substantive challenges, are essentially challenges to the WCJ’s
credibility determinations. However, rendering credibility
determinations is the quintessential function of the fact finder. Kasper
v. Workers’ Comp. Appeal Bd. (Perloff Bros., Inc.), 769 A.2d 1243,
1246 (Pa. Cmwlth. 2001). In reviewing credibility determinations,
substantial deference is due. Casne v. Workers’ Comp. Appeal Bd.
(STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
Id. at 115. This appeal followed.
5
II. Issue
On appeal,4 Claimant asserts that because WCJ Benedict found that his work
injury required lifelong restrictions, WCJ Russell was precluded from finding that
Claimant had fully recovered from his work injury. Claimant argues that WCJ
Russel erred in granting Employer’s Petition to Terminate because WCJ Benedict’s
findings established that Claimant had permanent, irreparable damage to the
cartilage in his shoulders stemming from the aggravation of his arthritis. Claimant’s
Br. at 13-15. Claimant contends that because he suffered a permanent, irreparable
injury, Dr. Seel could not testify, nor could WCJ Russell find, that Claimant had
recovered from this injury. Id. at 18-20. Employer responds that WCJ Benedict’s
findings do not establish permanent and irreparable damage to the cartilage and
instead acknowledged Claimant’s arthritis as predating the work injury. Employer’s
Br. at 14. Accordingly, WCJ Russell could find that Claimant had recovered from
his work injury, which was merely the aggravation of his arthritis to the point it
became symptomatic. Employer’s Br. at 17.
III. Analysis
To support a termination of WC benefits, the employer must establish that the
claimant has fully recovered from his work injury and that any remaining disability
4
“This Court’s review in workers’ compensation appeals is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated.” Whitfield v. Workers’ Comp. Appeal
Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 605 n.6 (Pa. Cmwlth. 2018). As fact
finder, the WCJ has exclusive power over questions of credibility and evidentiary weight; the WCJ
may reject the testimony of any witness in whole or in part. Potere v. Workers’ Comp. Appeal Bd.
(Kemcorp), 21 A.3d 684, 690 (Pa. Cmwlth. 2011). The WCJ’s findings of fact will not be
disturbed as long as they are supported by substantial, competent evidence in the record.
Supervalu, Inc. v. Workers’ Comp. Appeal Bd. (Bowser), 755 A.2d 715, 720 (Pa. Cmwlth. 2000).
“Substantial evidence has been defined as such relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Jacobi v. Workers’ Comp. Appeal Bd. (Wawa, Inc.),
942 A.2d 263, 268 n.7 (Pa. Cmwlth. 2008).
6
is no longer the result of the work injury. Benson v. Workmen’s Comp. Appeal Bd.
(Haverford State Hosp.), 668 A.2d 244, 247 n.4 (Pa. Cmwlth. 1995). Essential to
this determination is the nature of the workplace injury first adjudicated. Claimant
contends that WCJ Benedict found he suffered a permanent, irreparable injury, and
therefore, any testimony that he recovered from this permanent injury is
incompetent. Claimant’s Br. at 18-20. Claimant relies on Argyle v. Workers’
Compensation Appeal Board (John J. Kane McKeesport Regional Center), 33 A.3d
667, 672 (Pa. Cmwlth. 2011), for the proposition that “medical evidence is legally
incompetent when it is contrary to a fact established in a prior adjudication.” While
this is a correct statement of the law, we conclude that Argyle is factually
distinguishable from this case.
In Argyle, the claimant sought modification of WC benefits in 2008, alleging
that his workplace injury had resolved into a specific loss of the use of his right hand.
Id. at 668. The claimant’s doctors testified that the claimant lost the complete use
of his right hand in January 1995. Id. at 670. However, the doctors’ testimony was
directly contrary to the “fact established in WCJ Torrey’s February 18, 2000
decision, i.e., that ‘[C]laimant [did] not . . . suffer[ ] the complete loss of use, for all
practical intents and purposes, of his right forearm and/or hand’ as of November 2,
1998.” Id. at 672. Because the doctors’ testimony was directly contradictory to the
prior adjudication, such testimony was deemed incompetent to support a
modification of the claimant’s WC benefits. Id.
Unlike Argyle, however, WCJ Benedict did not specifically find that
Claimant’s work injury was permanent. Rather, WCJ Benedict found that Claimant
“had pre-existing arthritis that was substantially aggravated by his work at Carrier[,]
making it symptomatic to the point where he could not tolerate it.” C.R. at 239. To
7
the extent that WCJ Benedict noted any permanency, he was referring to the light-
duty restrictions that Dr. Rodosky opined “would last the remainder of Claimant’s
life.” Id. at 238. Thus, Dr. Seel’s subsequent testimony that the aggravation to
Claimant’s pre-existing arthritis had been alleviated as of April 18, 2017 is not
contrary to the prior adjudication.
Claimant also contends that WCJ Benedict found permanent, irreparable
damage to his shoulder cartilage.5 Claimant’s Br. at 15-16. With respect to
Claimant’s shoulder cartilage, Dr. Rodosky testified that cartilage is like a Teflon
coating “that loses the ability to repair itself.” C.R. at 238. Dr. Rodosky further
explained:
[W]hen you start to get damage of it, and you increase the load on it, it
damages more. It just keeps being damaged without repairing itself. So,
it stands to reason that any high loads . . . and more repetitive nature of
it, it adds up to more destruction.
Id. at 239. This overloading led to the substantial aggravation of Claimant’s arthritis
to the point it became symptomatic. Id. The permanent, light-duty restrictions were
ordered to prevent further degradation of Claimant’s arthritic condition. See id. at
354-55. These restrictions do not equate to a finding of irreparable injury; rather,
the record shows that the restrictions were intended as a preventative treatment
against future injury. See id. at 355. Furthermore, in both his original and subsequent
depositions, Dr. Rodosky acknowledged that cartilage has a limited ability to repair
5
Claimant also argues that WCJ Benedict described the injury in two parts, “aggravation
of bilateral glenohumeral arthritis,” and “associated soft tissue problems,” and this division is
indicative of WCJ Benedict finding permanent damage to the soft tissue. Claimant’s Br. at 15-16.
We reject this argument because Claimant alters the quoted language by replacing the comma with
a semicolon to divide the quote into two parts. It is evident from the plain language of WCJ
Benedict’s decision that the soft tissue problems are associated with the arthritis aggravation. See
C.R. at 235. Even if they are viewed as two separate injuries, however, there was still no testimony
or finding that they are irreparable.
8
itself. Id. at 350-51 (comparing cartilage to brain tissue that “doesn’t recover well.”)
(deposition before WCJ Benedict); id. at 446, 448 (“[Cartilage is] a highly
specialized tissue, like brain tissue, that has very little ability to repair itself.”)
(deposition before WCJ Russell). Because WCJ Benedict never found Claimant’s
injury to be permanent or irreparable, Dr. Seel’s testimony that Claimant had
recovered from the injury was not contrary to the prior adjudication or otherwise
incompetent.6
IV. Conclusion
WCJ Benedict found the work-related injury that Claimant suffered was a
substantial aggravation of his preexisting arthritis. C.R. at 239. Because WCJ
Benedict never found Claimant’s work-related injury permanent or irreparable, Dr.
Seel could competently testify that Claimant had recovered from this aggravation
and that any remaining disability was due to the gradual progression of his
preexisting arthritis and, thus, Claimant no longer required restrictions or medical
treatment for his work injury. Id. at 88-89. WCJ Russell found Dr. Seel’s testimony
more credible than Dr. Rodosky’s. Id. at 93. WCJ Russell also discredited
Claimant’s testimony that he continued to suffer from a work-related disability. Id.
at 93. These findings are supported by substantial, competent evidence and will not
be disturbed on appeal. Valenta v. Workers’ Comp. Appeal Bd. (Abington Manor
6
Claimant also argues that Dr. Seel’s testimony is contrary to the record where he disagreed
with Dr. Rodosky’s initial prognosis that heavy, repetitive work could increase damage to
cartilage. Claimant’s Br. at 19-20. However, “a medical professional is not required to believe a
condition existed; he is merely required to accept as true the adjudicated fact that a condition
existed and opine as to whether the condition continues to exist at the time of the examination.”
Folmer v. Workers’ Comp. Appeal Bd. (Swift Transp.), 958 A.2d 1137, 1147 (Pa. Cmwlth. 2008).
While Dr. Seel might have disagreed that the original injury was work-related, he nonetheless
based his reasoning on the existence of the injury to opine that Claimant had recovered from it.
See C.R. at 772-73.
9
Nursing Home & Rehab & Liberty Ins. Co.), 176 A.3d 374, 382 (Pa. Cmwlth. 2017).
Accordingly, we affirm the Board’s Order.
__________________________________
ELLEN CEISLER, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Haugh, :
Petitioner :
:
v. : No. 583 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Carrier Corporation and :
New Hampshire Insurance :
Company c/o AIG), :
Respondents :
ORDER
AND NOW, this 26th day of January, 2021, the May 29, 2020 Order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge