T. Harris v. City of Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tawanda Harris, :
Petitioner :
:
v. : No. 1353 C.D. 2021
:
City of Philadelphia (Workers’ : Submitted: July 29, 2022
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 7, 2023
In this workers’ compensation case, Tawanda Harris (Claimant) petitions
for review of the November 9, 2021 Opinion and Order of the Workers’ Compensation
Appeal Board (Board). The Board affirmed the February 10, 2021 Decision and Order
of Workers’ Compensation Judge (WCJ) Lawrence Beck, who granted the City of
Philadelphia’s (Employer) Termination Petition, denied Claimant’s Review Petition,
and denied as moot Employer’s Suspension Petition. After careful review, we affirm
the Board.
I. FACTS AND PROCEDURAL HISTORY
On February 1, 2019, Claimant tripped over a mail bin in the course and
scope of her employment with Employer as a clerical assistant. Employer
acknowledged the injury in a Notice of Compensation Payable (NCP)1 that recognized
soft tissue injuries to Claimant’s neck, shoulders, back, and knee, for which she
received workers’ compensation (WC) benefits. Employer filed its Termination
Petition and an accompanying Suspension Petition on December 11, 2019, alleging in
both that Claimant had fully recovered from her injuries as of November 20, 2019, the
date of an independent medical examination (IME) performed by Dr. James Bonner
(Dr. Bonner). Claimant thereafter filed her Review Petition on January 13, 2020, in
which she sought to amend the NCP and add the injuries of bilateral cervical
radiculopathy, cervical disc herniation, and a right shoulder partial rotator cuff tear.
All three petitions were consolidated for hearing before the WCJ on July 20, 2020.
At the hearing, Employer submitted the deposition testimony of Dr.
Bonner, who testified that he performed an IME of Claimant on November 20, 2019.
As part of the IME, Dr. Bonner reviewed Claimant’s medical history, which included
a back injury caused by an automobile accident. Claimant informed Dr. Bonner that
she was continuing to receive treatment for her February 1, 2019 work injury with
physical therapy and medication and that she continued to have back pain, shoulder
discomfort, and occasional neck pain. Dr. Bonner testified that Claimant’s subjective
complaints of pain were inconsistent with the results of his physical examination. He
also noted Claimant’s significant preexisting conditions involving her lumbar, spine,
neck, and shoulders, and that Claimant’s primary care physician, Dr. Murray Brand
(Dr. Brand), previously had diagnosed Claimant with neuropathy, radiculopathy, and
degenerative joint disease of the spine. (WCJ Finding of Fact (FOF) 1(b)-(g); R.R.
036a-37a.) Based on his physical examination of Claimant and review of her medical
1
The NCP is a converted Notice of Temporary Compensation Payable. (Reproduced Record
(R.R.) 0361a-62a.)
2
history and diagnostic records, Dr. Bonner made the following conclusions, as
summarized by the WCJ:
[ ] Following his review of Claimant’s history, examination, and
records, Dr. Bonner related that Claimant sustained soft tissue
injuries to her neck, shoulders, back, and knees on February
1, 2019. Claimant had received appropriate medical
treatment for her injuries, which included use of [nonsteroidal
anti-inflammatory drugs (NSAIDs)] and physical therapy.
Claimant ha[s] fully recovered from all of the injuries she had
sustained on February 1, 2019. She needs no additional
treatment and can return to work as a clerical assistant without
restrictions related to the February 1, 2019 injury. While
Claimant does have some restrictions due to her pre[ ]existing
frozen left shoulder, they are not related to the work injury.
[ ] Dr. Bonner further related that there was no clinical or
diagnostic indication that Claimant sustained bilateral
cervical radiculopathy on February 1, 2019. The
[electromyogram (EMG)] findings were more consistent with
a neuropathic process than radiculopathy. Additionally, there
is no indication that Claimant sustained a cervical disc
herniation on February 1, 2019. Claimant’s cervical
[magnetic resonance imaging scan (MRI)] showed
pre[ ]existing degenerative changes with no acute findings,
which would have presented as increased signals with certain
protrusions.
[ ] Dr. Bonner further related that there was no clinical or
diagnostic indication that Claimant sustained a right shoulder
partial rotator cuff tear on February 1, 2019. The right
shoulder MRI did not show any evidence of acute injury and
the mechanism of injury was not of the type to case a rotator
cuff tear. The partial thickness tears of the supraspinatus seen
on the MRI are very common in people Claimant’s age[ ] and,
because of the lack of acute signals and the fact that she has
degenerative disease in the shoulder, Dr. Bonner believe[s]
the tear to be pre[]existing.
(FOF 1(h)-(j); R.R. 037a-38a) (subfinding letter designations removed).
3
Claimant testified by telephone on July 20, 2020, and also submitted a
transcript of her deposition testimony taken on February 6, 2020. Claimant testified
that her work with Employer as a clerical assistant primarily involved standing at a
desk, but also involved lifting mail tubs. She also described two prior injuries caused
by a motor vehicle accident and a bus accident. Although she received treatment for
injuries to her back and left shoulder as a result of the accidents, she continued to work.
After the February 1, 2019 work injury, Claimant underwent right shoulder, neck, and
lower back MRIs and an EMG. She received treatment from several physicians and
continues to utilize electrical stimulation and a heated pillow. She has not returned to
work and does not believe that she can return to her pre-injury job with Employer
because she cannot stand for prolonged periods or lift and carry mail tubs. She also
has difficulty performing daily tasks like washing dishes and continues to have pain in
and difficulties with her neck, back, and right shoulder. (FOF 2(a)-(f); R.R. 038a-39a.)
Claimant also submitted a transcript of the deposition testimony of Dr.
Richard Mandel (Dr. Mandel), one of her treating physicians. Dr. Mandel first saw
Claimant on August 20, 2019, and saw her again multiple times in 2019 and 2020.
After performing his examinations and reviewing the results of Claimant’s multiple
post-injury diagnostic tests, Dr. Mandel ultimately opined that Claimant was not fully
recovered from her work injury and continued to suffer from her work-related injuries,
including aggravation of several of her preexisting conditions. Although Dr. Mandel
agreed with Dr. Bonner that most of Claimant’s symptoms were subjective, Dr. Mandel
also testified that he did not observe any symptom magnification, exaggeration, or
embellishment during his examinations of Claimant. (FOF 3(s)-(v); R.R. 041a-42a.)
In a Decision and Order circulated on February 10, 2021, the WCJ denied
Claimant’s Review Petition, granted Employer’s Termination Petition, and denied as
4
moot Employer’s Suspension Petition. In rendering his decision, the WCJ made the
following relevant findings and credibility determinations:
[ ] [The WCJ] has reviewed Claimant’s testimony and finds it
credible, in part. This determination is not made based upon
Claimant’s deportment and demeanor while testifying live
before [the WCJ] as Claimant did not testify in[ ]person, but
rather through teleconference. [The WCJ] has no doubt
Claimant suffers symptoms in her shoulder, neck, and back,
and finds that testimony credible; however, regarding the
source of such symptomatology, [the WCJ] credits the
testimony of Dr. Bonner over that of Claimant and Dr.
Mandel. In [the WCJ’s] assessment, Claimant’s testimony
downplayed her significant pre[ ]existing issues and
diagnoses, including prior accidents and diseases, in favor of
what, by the accepted diagnostic medical record, was a minor
trip and fall that resulted in little impact on those
pre[ ]existing conditions. Further, [the WCJ] discredits
Claimant’s testimony regarding her status and ability to return
to work as a result of her injury. Notwithstanding the obvious
secondary gain attributable to ongoing disability, Claimant’s
full recovery is established by the credible testimony of Dr.
Bonner.
[ ] [The WCJ] has reviewed the testimony of Dr. Bonner and Dr.
Mandel and credits the testimony of Dr. Bonner. Dr. Bonner
credibly, cogently, and clearly related Claimant’ subjective
complaints to her pre-existing diagnostic findings, diagnoses,
and conditions. Dr. Mandel, while acknowledging that
Claimant’s complaints are mostly subjective[,] gave scant
attention to Claimant’s pre-existing complaints and
diagnoses, including prior diagnoses of radiculopathy and
neuropathy. The diagnostic studies, as credibly explained by
Dr. Bonner, indicate no traumatic symptomatology, but rather
longstanding and degenerative findings relative to Claimant’s
prior accidents and pre-existing diseases. [The WCJ] notes
that both doctors, as well as Claimant, agree that Claimant
recovered from her knee injury.
(FOF 4, 5; R.R. 042a-43a) (subfinding letter designations removed).
5
Claimant appealed to the Board on February 22, 2021, arguing chiefly that
the WCJ’s findings were not supported by substantial evidence. By Opinion and Order
mailed November 9, 2021, the Board affirmed. Claimant filed a petition for review
(PFR) in this Court on December 7, 2021.
II. DISCUSSION2
A. Issues Presented
In her PFR and brief, Claimant contends that the Board erred in affirming
the WCJ’s decision granting Employer’s Termination Petition and denying her Review
Petition. Claimant argues that the WCJ erred as a matter of law in these respects and
that his decision was not supported by substantial evidence.
B. Analysis
1. Termination Petition
“To succeed in a termination petition, an employer bears the burden of
proving by substantial evidence that a claimant’s disability ceased, or any remaining
conditions are unrelated to the work injury.” Westmoreland County v. Workers’
Compensation Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). An
employer seeking to terminate benefits therefore bears the burden of proving either that
the claimant’s disability has ceased or that any current disability arises from a cause
unrelated to the claimant’s work injury. Campbell v. Workers’ Compensation Appeal
Board (Antietam Valley Animal Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998).
Where a claimant complains of continued pain, an employer meets its burden when its
“medical expert unequivocally testifies that it is his opinion, within a reasonable degree
2
Our scope and standard of review of an order of the Board is limited to determining whether
the WCJ’s findings are supported by substantial evidence, whether applicable procedures were not
followed, whether an error of law was committed, or whether constitutional rights were violated.
Hershgordon v. Workers’ Compensation Appeal Board (Pepboys, Manny, Moe & Jack), 14 A.3d 922,
924 n.4 (Pa. Cmwlth. 2011).
6
of medical certainty, that the claimant is fully recovered, can return to work without
restrictions[,] and that there are no objective medical findings which either substantiate
the claims of pain or connect them to the work injury.” Udvari v. Workmen’s
Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997) (footnote
omitted). “If the WCJ credits this testimony, the termination of benefits is proper.” Id.Claimant does not argue that Dr. Bonner’s opinions were incompetent or
equivocal. Rather, she contends that the WCJ’s acceptance of Dr. Bonner’s opinion
that Claimant’s ongoing subjective symptoms and pain were not caused by the
February 1, 2019 fall violates the principles set forth in Gumro v. Workmen’s
Compensation Appeal Board (Emerald Mines Corp.), 626 A.2d 94 (Pa. 1993) and
Beissel v. Workmen’s Compensation Appeal Board (Wanamaker, Inc.), 465 A.2d 969(Pa. 1983). Claimant argues that Gumro and Beissel require an employer that seeks to
terminate WC benefits on the ground that the claimant’s disability no longer is work-
related to establish an independent cause for the disability that arose after the filing of
the original NCP. (Claimant’s Br. at 17-19.) We disagree.
In Beissel, the claimant sought WC benefits for an injury to her back that
occurred when she slipped and fell while working for the employer. After multiple
hospitalizations and back surgery, the claimant filed a claim petition. 465 A.2d at 970.
The employer eventually filed an NCP acknowledging an injury to the claimant’s lower
back. Two years later, the employer filed a termination petition seeking to terminate
benefits on the ground that the claimant’s ongoing condition was unrelated to her work
injury. Id. at 970. A referee, now WCJ, determined that the claimant’s current
symptoms were not, in fact, related to the original work injury but, instead, were related
to a “coughing and laughing spell while playing cards” that occurred approximately
one year prior to the filing of the NCP. Id. The referee therefore concluded that the
7
claimant’s condition was unrelated to the original work injury and terminated benefits.
Id. The Board and this Court affirmed. Id. at 971.
The Pennsylvania Supreme Court reversed, concluding that the employer
failed to carry its burden to establish that the claimant’s disability changed after the
filing of the NCP. Id. The Court concluded:
It is clear that [the employer] has sought to prove, not that [the
claimant’s] disability has terminated since 1977, but that [the
claimant’s] current disability, which has remained unchanged
since March [ ]1976, was never related to [the claimant’s]
[work injury].
....
[The Pennsylvania Supreme] Court has stated that in a
termination case, the employer must show either that the
disability has ceased or that the continued disability is the
result of an independent cause. [McGee v. L. F. Grammes &
Sons, Inc., 383 A.2d 864, 865 (Pa. 1978).]
....
Just as we have held that the burden is on [an employer] to
prove that an employe[e]’s disability has increased or
decreased after the filing of [an NCP], we also hold that [an
employer] has the burden of proving that an independent
cause of an employe[e]’s disability arose after the filing of [an
NCP] if the [employer] is seeking to justify the termination of
benefits on the grounds that the employe[e]’s disability is no
longer work-related.
Id. at 971-72.
Similarly, in Gumro, the claimant sustained a work-related injury to his
knee when he slipped and fell in his employer’s coal mine. Gumro, 626 A.2d at 95.
He received WC benefits for approximately 16 months based on an NCP filed by the
employer, during which time he had surgery on the knee and subsequently developed
8
pain and swelling due to deep venous insufficiency. Id. The employer in Gumro
eventually filed a termination petition. The referee found the claimant’s medical
evidence regarding the venous insufficiency to be equivocal and therefore concluded
that there was no established causal connection between that symptom, which the
claimant’s treating physician stated was the “underlying and fundamental reason why
the [c]laimant [was] unable to perform his pre-injury employment,” and the claimant’s
ongoing disability. Id. at 95-96. The referee therefore terminated benefits, and the
Board and this Court affirmed. Id. at 96. The Pennsylvania Supreme Court reversed,
relying on Beissel. That Court noted that the employer’s medical expert specifically
indicated that he could not testify regarding the causal relationship between the venous
insufficiency and the claimant’s work-related knee injury. Id. at 97. The Court
therefore concluded that the employer did not satisfy its burden to establish an
independent cause of the claimant’s ongoing disability that arose after the NCP was
filed acknowledging the claimant’s knee injury. Id.
Beissel and Gumro easily are distinguishable when the equivocation of
terms in Claimant’s argument is corrected. As Beissel instructs, the employer in a
termination case must show either that the disability has ceased or that the continued
disability is the result of an independent cause. Thus, the employer has the burden of
proving that an independent cause of an employee’s disability arose after the filing of
an NCP only if the employer is seeking to justify the termination of benefits on the
basis that the employee’s ongoing disability is no longer work-related.
Here, Employer is not arguing that Claimant’s disability remains ongoing
but, nevertheless, is no longer related to her work injury. That argument would require,
under Gumro and Beissel, Employer to establish an independent cause for the disability
that arose after the filing of the NCP. Employer instead argues that Claimant’s
9
disability has ceased altogether because she has fully recovered from the injuries
identified in the NCP and is no longer disabled. Although the WCJ acknowledged that
Claimant has ongoing symptoms and pain, he nevertheless found, based on Dr.
Bonner’s testimony, both that the ongoing symptoms are not related to Claimant’s
February 1, 2019 fall and that Claimant is capable of returning to work in full capacity.
We reiterate:
[The WCJ] has no doubt Claimant suffers symptoms in her
shoulder, neck, and back, and finds that testimony credible;
however, regarding the source of such symptomatology,
[the WCJ] credits the testimony of Dr. Bonner over that
of Claimant and Dr. Mandel. In [the WCJ’s] assessment,
Claimant’s testimony downplayed her significant
pre[ ]existing issues and diagnoses, including prior
accidents and diseases, in favor of what, by the accepted
diagnostic medical record, was a minor trip and fall that
resulted in little impact on those pre[ ]existing conditions.
Further, [the WCJ] discredits Claimant’s testimony
regarding her status and ability to return to work as a
result of her injury. Notwithstanding the obvious
secondary gain attributable to ongoing disability,
Claimant’s full recovery is established by the credible
testimony of Dr. Bonner.
(WCJ FOF 4; R.R. 042a) (emphasis added).
Thus, because Dr. Bonner testified unequivocally both that Claimant’s
ongoing pain and symptoms were related only to her pre-injury degenerative conditions
and that she, in any event, currently is not disabled from working at full capacity,
Beissel and Gumro do not apply. Because Dr. Bonner’s medical testimony is otherwise
sufficient to support the WCJ’s termination of benefits, we conclude that Claimant’s
challenge to the WCJ’s decision in this regard is without merit.
10
2. Review Petition
In her Review Petition, which Claimant filed after Employer filed its
Termination Petition, Claimant sought to correct the description of the work injury in
the original NCP by adding the injuries of bilateral cervical radiculopathy, cervical disc
herniation, and right shoulder partial rotator cuff tear. (R.R. 020a-23a.) As both parties
correctly acknowledge, a claimant who files a review petition seeking to add injuries
to those already accepted by an employer in an NCP bears the same burden of proof
that applies to a claim petition. See Colagreco v. Workers’ Compensation Appeal
Board (Vanguard Group Inc.), 232 A.3d 971, 978-79 (Pa. Cmwlth. 2020); Aldridge v.
Workers’ Compensation Appeal Board (Kmart Corp.), 113 A.3d 861, 867 n.7 (Pa.
Cmwlth. 2015). Claimant here bore the burden to prove that the alleged additional
injuries were caused by her February 1, 2019 fall and that she suffered a resultant loss
of earning power, i.e., a disability. Zuchelli v. Workers’ Compensation Appeal Board
(Indiana University of Pennsylvania), 35 A.3d 801, 804 (Pa. Cmwlth. 2011) (citing
Potere v. Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d 684, 689-90 (Pa.
Cmwlth. 2011), and Coyne v. Workers’ Compensation Appeal Board (Villanova
University), 942 A.2d 939 (Pa. Cmwlth. 2008)). The requirements to establish
causation depend on whether the injury is obviously work related. An injury that does
not immediately manifest itself while the employee is working is not “obvious,” and in
that circumstance the claimant must establish causation by unequivocal medical
evidence. Albert Einstein Healthcare v. Workers’ Compensation Appeal Board
(Stanford), 955 A.2d 478, 482 (Pa. Cmwlth. 2008); Jeanette District Memorial
Hospital v. Workmen’s Compensation Appeal Board (Mesich), 668 A.2d 249, 251 (Pa.
Cmwlth. 1995).
11
Claimant argues that the WCJ erred in accepting Dr. Bonner’s opinion
that nothing in the post-injury diagnostic studies support a finding that Claimant’s
work-related injury caused any of the additional conditions alleged in her Review
Petition. She argues that the WCJ’s findings in this regard are not based on substantial
evidence because Dr. Bonner “completely downplayed the findings on the post-
accident diagnostic studies” which, according to Dr. Mandel, clearly indicated that
Claimant’s fall aggravated Claimant’s preexisting degenerative conditions.
Accordingly, Claimant argues that “no reasonable mind would have accepted [Dr.
Bonner’s] opinion . . . .” (Claimant’s Br. at 19, 21.) We again disagree.
Although Claimant couches her arguments in this regard in terms of
“substantial evidence,” her argument in reality is a veiled challenged to the WCJ’s
credibility determinations, which we will not disturb on appeal unless, in making those
determinations, the WCJ acted arbitrarily or capriciously and disregarded evidence.
Empire Steeling Castings, Inc. v. Workers’ Compensation Appeal Board (Cruceta),
749 A.2d 1021, 1027 (Pa. Cmwlth. 2000). Here, Dr. Mandel diagnosed Claimant with
multiple injuries in addition to those identified in the NCP, attributing the additional
injuries to Claimant’s fall on February 1, 2019. Dr. Mandel based his diagnoses in
large part on the differences between the results of diagnostic studies conducted prior
to Claimant’s work-related injury and those of studies performed after the injury.
Although Dr. Mandel’s testimony in this regard could be sufficient to support
Claimant’s Review Petition, the WCJ found Dr. Mandel’s testimony to be not credible
because the WCJ accepted Dr. Bonner’s contrary testimony that Claimant’s ongoing
symptoms were related to Claimant’s significant preexisting degenerative conditions.
We conclude that the WCJ’s credibility determinations in this regard were
neither arbitrary nor capricious. Rather, and contrary to Claimant’s contention, a
12
reasonable mind could, and did, accept Dr. Bonner’s testimony. As summarized above,
Dr. Bonner testified that there was no objective clinical or diagnostic evidence that
Claimant sustained any of the additional injuries included in her Review Petition. He
indicated that, in his opinion, the post-injury EMG and MRI results were more
consistent with Claimant’s preexisting degenerative conditions and age than with an
injury caused by Claimant’s February 1, 2019 fall. Dr. Bonner further testified that the
diagnostic results did not indicate any evidence of acute trauma or injury, which would
be expected if Claimant’s conditions were caused by Claimant’s fall. Dr. Bonner’s
testimony therefore was competent and unequivocal and provides substantial evidence
to support the WCJ’s findings and credibility determinations. Claimant’s challenge on
this ground thus also is without merit.3
III. CONCLUSION
Because we conclude that the WCJ’s decision is free of legal error and
supported by substantial evidence, we affirm the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
3
We further note that, as discussed above, Dr. Bonner testified that Claimant does not have
any conditions that restrict her ability to return to her pre-injury work in full capacity. Thus, even
assuming that Claimant’s Review Petition had been granted, there still is competent, substantial
evidence in the record indicating that these additional symptoms and conditions do not result in a
“disability” that would entitle Claimant to ongoing WC benefits.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tawanda Harris, :
Petitioner :
:
v. : No. 1353 C.D. 2021
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 7th day of August, 2023, the November 9, 2021 Order
of the Workers’ Compensation Appeal Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge