Dept. of Agriculture v. S. Pieretti (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Agriculture, :
Petitioner :
: No. 1454 C.D. 2021
v. :
: Submitted: September 16, 2022
Summer Pieretti (Workers’ :
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 22, 2023
The Department of Agriculture (Employer) petitions for review of the
December 1, 2021 order of the Workers’ Compensation Appeal Board (WCAB),
affirming, with modifications, the decision of the Workers’ Compensation Judge
(WCJ), which granted the Petition to Review Compensation Benefits (Review
Petition) of Summer Pieretti (Claimant) and denying Employer’s Modification
Petition. Upon review, we affirm.
On August 30, 2017, Claimant was employed by Employer and
sustained a left ankle injury when a car backed into her and pinned her foot and ankle
between the curb and the car. Claimant filed a Claim Petition seeking benefits
pursuant to the Workers’ Compensation Act.1 On September 12, 2017, Employer
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710 (the “Act”).
filed a Notice of Compensation Payable (NCP) describing the accepted work injury
as “left ankle-severe contusion.” (Reproduced Record (R.R.) at 8a.)
On April 10, 2018, Claimant underwent surgery with Dr. Elaine Nasser
from Geisinger CMC to repair tendons in her ankle. Following the surgery, her
symptoms increased, with extensive nerve pain, burning, swelling, numbness,
shooting pain, and trouble sleeping. Claimant was referred to physical therapy and
a pain management doctor. She was also referred to Barry Bernstein, D.P.M., who
is board certified in podiatric surgery and wound management, and who began
treating her in February of 2019 for nerve complaints. (R.R. at 21a-24a.)
On July 24, 2019, Employer filed a Petition to Modify Claimant’s
benefits effective May 21, 2019, based on a labor market survey and an examination
with Dr. William Spellman, a board-certified orthopedic surgeon.
On August 9, 2019, Claimant filed a Review Petition, seeking to expand
the description of her work injury to include “left foot/ankle crush injury, post-
surgery with residual neuropathy and pain.” (R.R. at la-3a.)
In support of her Review Petition, Claimant presented the deposition
testimony of Dr. Bernstein. Dr. Bernstein completed a battery of nerve blocks over
a period of time to rule out a “purely isolated, damaged or scarred sural nerve” or
“sural nerve neuritis” and opined that Claimant had complex regional pain syndrome
(CRPS). (R.R. at 26a.) With regard to CRPS, he explained:
The more vague one which is always difficult is [CRPS].
It plagues every physician out there with establishing a
diagnosis. . . . But unlike the [[electromyograph (EMG)]
being very positive reinforcing, which was a positive sural
nerve neuropathy or neuritis, the secondary superimposing
of the [CRPS] is always much more difficult. It’s more
vague in establishing a diagnosis, it is more of a grey
margin. Where a nerve that has damage, you could register
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on a very black and white exam, you know. And the
complex regional pain is always more of a difficult thing
to establish a diagnosis. So it’s a dual diagnosis and that
would be the [CRPS] as well as the sural nerve
neuropathy.
(R.R. at 24a-25a.)
Dr. Bernstein further stated that he believed strongly that the CRPS was
there. He explained that if you block the sural nerve, and all the pain is gone, then
it would just involve the sural nerve. However, because he did not get that classic
isolated sural nerve with Claimant, he knew there was another component with the
nerve, which he believes is a more complex syndrome. He testified in this regard,
as follows:
I try to see if a person is faking, to be honest. So I use the
diagnostic nerve blocks and I make sure I follow up a
couple of times to catch them lying, you know. I have to
admit, she was consistent all the way through every time
she went to me. Her symptoms seemed vague and global
because I really do believe strongly that [CRPS] is there.
But she’s been consistent with me during the exam. And
I actually --- again, as a somewhat cynical practitioner, I
try to see if people are caught changing their story. She’s
been consistent each time.
So we established diagnostic nerve blocks to reinforce
concern that it’s not just sural nerve neuritis. Typically the
sural nerve that’s damaged, that’s purely isolated,
damaged or scarred or whatever the sequela reason is,
typically many times the surgery in that area, scar tissue
can exaggerate out of the incision line and entrap a nerve
and that’s something where a sural nerve neuropathy or
neuritis can occur. . . .
So with that, a diagnostic nerve block is typically very
strong in reinforcing a complete cessation of relief of pain.
You put Novocain on the damaged nerve, you shut them
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off for a little bit, complete pain is gone. Where the
suspicion of [CRPS] pain is occurring, is also out of the
typical realm of the nerve, an additional area, and it didn’t
block with those nerve blocks. . . .
****
Typically a positive EMG, they’re usually pretty positive
for that example, most if there’s two done in a row from
both good practitioners. So the sural nerve was not a
question. It was a done deal. Again, the [CRPS]. So not
getting that classic isolated sural, we knew there was
another component with the nerve and it was always nerve
component-related numbness, burning, hypersensitivity,
allodynia, all those things being excessive type sensation.
And that’s why I feel it’s a more complex syndrome.
Because otherwise, if you block that nerve, all her pain
would be gone while it was numb 100 percent if it was just
the sural nerve.
(R.R. at 24a-27a.)
Based on his conclusion that “this was obviously not a standard pain
syndrome” and that Claimant had sustained a “much more complex” CRPS, he
referred her to a nerve injury surgical specialist, Dr. Lee Dellon. Id. at 30a. Dr.
Bernstein opined that Claimant could not even do sedentary work due to her nerve
injury, pain, and her limited ability to walk. Id. at 40a-41a, 72a.
Employer presented the testimony of Dr. Spellman, who basically
testified that Claimant needed further treatment but, based on his limited
examination, was unable to give an expert opinion on what treatment she needs at
this point. He did opine that Claimant could return to work in a sedentary capacity.
In a decision and order circulated on February 18, 2021, the WCJ
denied Employer’s Modification Petition and granted Claimant’s Review Petition.
In his Finding of Fact No. 26, the WCJ specifically determined that “based upon Dr.
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Bernstein’s evaluations, his review of diagnostic studies, [and] his physical
examinations of [] Claimant, that she suffers from [CRPS].” (WCJ Decision,
2/18/21, Finding of Fact (FOF) No. 26.) Importantly, the WCJ also made a specific
finding that “Dr. Bernstein has determined at this point that Claimant suffers from
[CRPS], and that opinion will be explicitly accepted as Dr. Spellman did not
consider that opinion, nor did he respond to Dr. Bernstein’s examination, or agree
or disagree with Dr. Bernstein’s conclusion.” Id., FOF No. 27. In Conclusion of
Law No. 3, the WCJ found that “Claimant met her burden of proof to establish that
the work injury of August 30, 2017, should be expanded to include left foot/ankle
crush injury, post-surgery with residual neuropathy and pain, and neural nerve
neuropathy, sural, and possibly [CRPS].” Id., Conclusion of Law No. 3.
Employer appealed, arguing that the WCJ’s inclusion of “possibly
[CRPS]” in the work injury description was not supported by substantial evidence.
Specifically, Employer argued that Dr. Bernstein’s medical testimony regarding
CRPS was equivocal. The WCAB disagreed that Dr. Bernstein’s testimony was
equivocal with regard to a diagnosis of CRPS. Viewing Dr. Bernstein’s opinion as
a whole, the WCAB noted that while Dr. Bernstein explained the difficultly in
diagnosing CRPS, he repeatedly expressed an opinion that Claimant suffered from
CRPS as a result of her work injury. The WCAB ruled that there was substantial,
competent evidence to affirm the WCJ’s determination that Claimant suffers from
CRPS as a result of her work accident. As such, the WCAB amended the WCJ’s
order to include CRPS, and not “possibly CRPS” as one of Claimant’s work-related
injuries. (WCAB Decision, 12/1/21 at 4.) Employer petitioned for review in this
Court.
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Employer raises two issues.2 First, it contends that the WCJ erred in
finding that Claimant’s work-related injury should be expanded to include
“possibly” CRPS. Second, it argues that the WCAB erred in amending the
conclusion of the WCJ regarding the nature of Claimant’s work injury from
“possibly CRPS” to CRPS. We will review these issues in reverse order because
our resolution of the second issue renders it unnecessary for us to consider the first
issue.
According to Section 413(a) of the Act, 77 P.S. § 772(a), a WCJ is
authorized to modify an NCP upon the filing of a timely petition and the submission
of proof in support thereof. When an employee seeks to amend an NCP via a Review
Petition to reflect further injuries, the claimant has the burden of proving a causal
relationship by unequivocal medical evidence. Namani v. Workers’ Compensation
Appeal Board (A. Duie Pyle), 32 A.3d 850, 854 (Pa. Cmwlth. 2011). Medical
testimony is deemed incompetent if it is equivocal. Coyne v. Workers’
Compensation Appeal Board (Villanova University), 942 A.2d 939, 954 (Pa.
Cmwlth. 2008). Medical testimony is unequivocal “if the medical expert, after
providing a foundation, testifies that in his professional opinion that he believes a
certain fact or condition exists.” Lewis v. Workmen’s Compensation Appeal Board
(Pittsburgh Board of Education), 472 A.2d 1176, 1177 (Pa. Cmwlth. 1984).
2
Appellate review in a workers’ compensation matter involves “determining whether
constitutional rights were violated, whether an error of law was committed, whether the practices
and procedures of the Workers’ Compensation Bureau were followed, and whether the findings of
fact made by the WCJ and necessary to support [his] decision were supported by substantial
evidence.” Rossa v. Workers’ Compensation Appeal Board (City of Philadelphia), 839 A.2d 256,
259 (Pa. 2003) (internal citations omitted). Substantial evidence has been defined by the
Pennsylvania Supreme Court as “[s]uch relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Bethenergy Mines v. Workmen’s Compensation Appeal Board
(Skirpan), 612 A.2d 434, 436 (Pa. 1992).
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The opinion of a medical expert must be viewed as a whole. American
Contracting Enterprises, Inc. v. Workmen’s Compensation Appeal Board (Asplundh
Tree Expert Co.), 616 A.2d 764 (Pa. Cmwlth. 1992). There is no requirement that
every utterance that escapes the lips of a medical witness on a medical subject must
be “certain, positive, or without reservation, exception, or peradventure of a doubt
in order to be considered unequivocal.” Johnson v. Workers’ Compensation Appeal
Board (Abington Memorial Hospital), 816 A.2d 1262, 1267 (Pa. Cmwlth. 2003)
(quoting Philadelphia College of Osteopathic Medicine v. Workmen’s
Compensation Appeal Board (Lucas), 465 A.2d 132, 134-35 (Pa. Cmwlth. 1983)).
There are “no magic words that a doctor must recite to establish causation.” Odd
Fellow’s Home v. Workmen’s Compensation Appeal Board (Cook), 601 A.2d 465(Pa. Cmwlth. 1991). Further, “reviewing bodies are not permitted to pick one or two
sentences out of context — rather, the testimony as a whole must contain a requisite
level of certainty necessary to deem it unequivocal.” Moyer v. Workers’
Compensation Appeal Board (Pocono Mountain School District), 976 A.2d 597, 599
(Pa. Cmwlth. 2009).
In support of its contention that Dr. Bernstein’s opinion regarding
CRPS was equivocal, Employer cites the following excerpt from Dr. Bernstein’s
deposition:
having a positive [EMG] was a very strong reinforcement
of the sural nerve, neuritis, neuropathy were the
considerations. The more vague one which is always
difficult is [CRPS]. It plagues every physician out there
with establishing a diagnosis.
(Employer’s Br. at 6.)
Employer further asserts that Dr. Bernstein’s testimony was rendered
equivocal when he testified that “the secondary superimposing of the [CRPS] is
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always much more difficult. It’s more vague in establishing a diagnosis, it is more
of a grey margin.” Id.At the outset, we note that these portions of Dr. Bernstein’s deposition,
and the others relied upon by Employer in its brief, are taken out of context.
Although Dr. Bernstein spent a considerable amount of time discussing how difficult
it was to diagnose CRPS, he was, as related above, able to do so in Claimant’s case
by performing a series of nerve blocks designed to rule out sural nerve neuritis.
When read in context of his entire deposition, as set forth above, it is clear that,
despite the difficulties in diagnosing CRPS, Dr. Bernstein had determined that
Claimant had the condition and that this is why he referred her to Dr. Dellon, a nerve
specialist, for surgical intervention.
The WCAB did not err when it concluded that there was substantial,
competent evidence to affirm the WCJ’s determination that Claimant suffers from
CRPS as a result of her work accident. The WCJ determined in Finding of Fact No.
26, without qualification, that Claimant suffers from CRPS based upon the credible
and unequivocal testimony of Dr. Bernstein. After determining that Dr. Bernstein’s
opinion regarding the causal relationship of CRPS to Claimant’s work injury was
not equivocal when his testimony is read in its entirety, the WCAB agreed that Dr.
Bernstein’s testimony provided substantial, competent evidence to support the
WCJ’s determination that Claimant suffers from work-related CRPS. However,
because the inclusion of the word “possibly” in the WCJ’s Conclusion of Law No.
3 was inconsistent with Finding of Fact No. 26, in affirming the WCJ’s decision, the
WCAB simply deleted the word “possibly.” We discern no error.3 Dr. Bernstein
3
Given our disposition of the second issue, in particular our conclusion that substantial
evidence supported the WCAB’s conclusion that Dr. Bernstein’s medical opinion was
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testified at length regarding Claimant’s symptoms, his physical exam findings, and
the results of his diagnostic testing. Based upon the same, although he
acknowledged that it is not always easy to diagnose, Dr. Bernstein testified that
Claimant suffers from CRPS. Because Dr. Bernstein unequivocally testified that
Claimant suffers from CRPS, the WCAB had the authority to correct the WCJ’s
decision in this regard and find that she not merely “possibly” suffers from it, but,
in fact, does suffer from this condition.
The decision of the WCAB is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
unequivocal, it is unnecessary for us to address separately whether the WCJ erred in amending the
NCP to include “possibly CRPS.”
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Agriculture, :
Petitioner :
: No. 1454 C.D. 2021
v. :
:
Summer Pieretti (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 22nd day of August, 2023, the December 1, 2021 order
of the Workers’ Compensation Appeal Board is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge