M. Muhammad v. Kelly Services Global LLC (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Maryam Muhammad, :
:
Petitioner :
:
v. : No. 964 C.D. 2022
: Submitted: April 28, 2023
Kelly Services Global LLC :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 22, 2023
Maryam Muhammad (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a decision of the
Workers’ Compensation Judge (WCJ) granting in part her Claim Petition for a
closed period, denying her Penalty Petition, and granting Kelly Services Global
LLC’s (Employer) Termination Petition. Claimant contends that the WCJ’s decision
is not a reasoned decision as required by Section 422(a) of the Workers’
Compensation Act (Act).1 Upon review, we vacate and remand.
On September 11, 2019, Claimant, who worked for Employer as a
substitute teacher, sustained a work-related injury in the nature of a neck and back
injury. On October 10, 2019, Employer issued a medical-only Notice of Temporary
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
Compensation Payable (NTCP), recognizing a work-related injury described as a
cervical and thoracic strain.
On September 15, 2020, Claimant filed a Claim Petition seeking total
disability benefits for the September 11, 2019 injury for the closed period of
February 24, 2020, through April 6, 2020. Claimant also filed a Penalty Petition,
asserting that Employer violated the Act by failing to fully investigate the claim and
file the appropriate documents. On October 9, 2020, Claimant filed a second Claim
Petition alleging she sustained a work-related injury in the nature of a low back
injury on September 17, 2019, when she was involved in a motor vehicle accident
while being transported for treatment for the September 11, 2019 work injury. She
again sought total disability benefits from February 24, 2020, through April 6, 2020.
On January 26, 2021, Employer filed a Termination Petition alleging that Claimant
had fully recovered from all work-related injuries as of January 14, 2021. The
parties filed timely answers in response to each other’s petitions denying the material
allegations contained therein.
The petitions were consolidated and assigned to a WCJ for disposition.
Before the WCJ, Claimant testified and presented the deposition testimony of her
medical expert, Dennis W. Ivill, M.D. (Dr. Ivill). Employer presented the
Independent Medical Examination (IME) report of Dennis P. McHugh, D.O. (Dr.
McHugh), and other medical records. Based on the testimony and evidence
presented, the WCJ made the following relevant findings.
Claimant, who testified in person and by deposition, testified that the
September 11, 2019 injury occurred when a student came up from behind her and
pulled her backward. Claimant stumbled backwards but did not fall to the ground.
She immediately felt a vibrating pain in the middle of her neck. Claimant reported
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the injury to Employer and completed an incident report. The following morning,
Claimant developed a pain and a tingling sensation that radiated from her neck into
her arms. Claimant went to Concentra for treatment, where she was x-rayed and
prescribed medication and physical therapy. WCJ’s Op., 1/11/22, Finding of Fact
(F.F.) No. 6(a), (f)-(h).
On September 17, 2019, Claimant was in a motor vehicle accident
while being transported for medical treatment for the September 11, 2019 injury.
Claimant testified that she hit her back and head on the seat and headrest behind her.
Claimant went to the hospital emergency room, where she was evaluated, given
medication, and discharged the same day. Claimant reported the accident to
Employer. Claimant testified that her neck and upper extremity symptoms became
worse. She described that her neck pain radiated up from her neck into her head,
causing her dizziness and headaches. Thereafter, she began experiencing headaches
four to five times per week, pain in her upper and lower back and left and right arms
and hands, and vision issues. F.F. No. 6(j)-(p).
Between September 11, 2019, and November 2019, Claimant worked
less as a result of her injuries. Claimant continued to work until February 24, 2020,
at which point, she ceased working entirely and did not return to work until April 6,
2020, because of her work injuries. Upon her return, Claimant taught in a virtual
classroom but this accommodation ended in June of 2020 when the school year
ended. F.F. Nos. 6(i), (q), (s), 8.
Claimant receives acupuncture treatment for her neck and back twice a
week from Dr. Ivill. Claimant has treated with various specialists for her neck, back,
vision, and headache issues, including Zach Broyer, M.D. (Dr. Broyer) and Gregory
Pharo, M.D. (Dr. Pharo). Claimant’s doctors have not approved her to return to
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work in person. Claimant does not feel that she is physically capable of returning to
in-person teaching. Claimant continues to experience neck and back pain and
migraines. F.F. No. 6(t)-(cc).
Dr. Ivill, who is board certified in physical medicine and rehabilitation,
testified by deposition. Dr. Ivill began treating Claimant on November 11, 2020.
He noted positive findings suggesting cervical and lumbar pinched nerves, also
known as radiculopathies. He stated that those findings were consistent with
Claimant’s subjective complaints including neck and back pain radiating into her
arms and legs. Dr. Ivill opined that Claimant’s cervical spine MRI showed C5-6 and
C6-7 disc herniations. He related these findings to Claimant’s September 11, 2019,
work injury. Dr. Ivill explained that, based on Claimant’s history, his physical
examination, and his review of her records, Claimant had no complaints prior to that
work injury. Dr. Ivill stated that Claimant’s mechanism of injury of a flexion
extension movement to her neck could cause a disc to be herniated, which then can
pinch nerves going down into the arms causing radiculopathy. Dr. Ivill opined that
Claimant’s December 5, 2020 lumbar MRI showed L4-5 and L5-S1 disc herniations
which he believed were causally related to Claimant’s September 17, 2019, work
injury, explaining that Claimant had no prior history or complaints of low back pain.
As of March 1, 2021, Dr. Ivill restricted Claimant to virtual teaching due to the
physical limitations of in-person teaching. F.F. No. 7(a)-(r).
With respect to the September 11, 2019, work injury, based on his
review of the records, Claimant’s history, and her physical examination, Dr. Ivill
diagnosed Claimant with bilateral C5-6 radiculopathies, C5-6 and C6-7 disc
herniations, and post-traumatic headaches. With respect to the September 17, 2019,
work injury, Dr. Ivill diagnosed Claimant with aggravation of the previous cervical
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sprain/strain; bilateral C5-6 radiculopathy; C5-6 and C6-7 disc herniations,
traumatic headaches, bilateral S1 radiculopathies, and new lumbar L5-S1, L4-5 disc
herniations. He opined that Claimant had not fully recovered from her work injuries.
F.F. No. 7(s)-(t).
In defense of Claimant’s Claim Petitions and in support of its
Termination Petition, Defendant introduced the medical reports of Drs. Broyer,
Pharo, and McHugh. F.F. Nos. 10-11. Dr. McHugh, a board-certified orthopedic
surgeon, performed an IME of Claimant on January 14, 2021. Based on his review
of Claimant’s medical history and records, and a physical examination, Dr. McHugh
opined that, on September 11, 2019, Claimant sustained a cervical sprain and strain,
a thoracic sprain and strain, and bilateral trapezial sprains and strains. He further
opined that Claimant exacerbated those injuries on September 17, 2019. Dr.
McHugh opined that Claimant fully recovered from her work-related injuries and
that she did not require any further medical treatment. F.F. No. 10(a), (d).
The WCJ accepted Claimant’s testimony as credible as to the
occurrence of the September 11, 2019, and September 17, 2019 injuries and resultant
periods of partial and total disability, but not after January 14, 2021. F.F. No. 12.
The WCJ found Dr. McHugh more credible than Dr. Ivill where their opinions
differed on the nature and extent of the work-related disability and recovery. F.F.
No. 13. Specifically, the WCJ assigned “prevailing weight to Dr. McHugh’s report
and his opinions which are found to be cogent and logical regarding Claimant’s work
injuries.” F.F. No. 13.
Based on the credited evidence, the WCJ found that Claimant met her
burden of proving that she sustained a work-related cervical strain/sprain, thoracic
strain/sprain, and a bilateral trapezius strain/sprain on September 11, 2019, which
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were aggravated by the motor vehicle accident on September 17, 2019. F.F. No. 14.
The WCJ found that those work-related injuries resulted in a partial loss of earning
power from September 11, 2019, through November 15, 2019, and a total loss of
earning power from February 15, 2020, through April 10, 2020. F.F. No. 16. The
WCJ found that Employer did not violate the Act. F.F. No. 21. The WCJ further
found that Employer met its burden of proving that Claimant fully recovered from
all work-related injuries as of January 14, 2021, the date of Dr. McHugh’s IME. F.F.
No. 18. Thus, the WCJ granted Claimant’s Claim Petitions for a closed period,
denied her Penalty Petition, and granted Employer’s Termination Petition
terminating benefits as of January 14, 2021.
Claimant appealed the WCJ’s decision to the Board arguing that the
WCJ findings regarding the extent of her work-related injuries were not supported
by substantial evidence and that the WCJ failed to issue a reasoned decision. With
regard to the reasoned decision claim, Claimant asserted:
[The WCJ’s] January 11, 2022 Decision is not well
reasoned and not based on substantial competent evidence
of record. Although the [WCJ] acknowledged that Dr.
Broyer’s treatment records were admitted into the record,
he failed to incorporate Dr. Broyer’s diagnoses and
opinions into [his] Decision, which were consistent with
Dr. Ivill’s opinions and in stark contrast to Dr. McHugh’s
opinions. [The WCJ] provided no explanation as to why
Dr. McHugh was found more credible than Dr. Broyer and
Dr. Ivill especially in light of the fact that Dr. McHugh
never testified to further explain the opinions contained in
his IME report. In addition, [the WCJ] ignored the
objective, diagnostic testing that confirmed the severity of
[Claimant’s] work injuries.
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Certified Record (C.R.) at 26-27. The Board affirmed the WCJ’s decision, but in so
doing only addressed Claimant’s substantial evidence argument and did not address
her reasoned decision claim.
Claimant now petitions this Court for review.2 On appeal, Claimant
again argues that the WCJ’s decision does not meet the reasoned decision
requirements of Section 422(a) of the Act. More particularly, Claimant asserts that
the WCJ failed to articulate an objective basis for deeming the medical report of Dr.
McHugh more credible than the deposition testimony of Dr. Ivill, and failed to
summarize and weigh all of the medical evidence offered by Employer, namely the
medical reports of Dr. Broyer, which Claimant contends corroborated the medical
opinions offered by Dr. Ivill.3
Because the Board did not address the reasoned decision claim, we find
it necessary to vacate the Board’s order and remand this matter to the Board for
consideration of this issue. See Serrano v. Workers’ Compensation Appeal Board
(Ametek, Inc.), 154 A.3d 445, 453 (Pa. Cmwlth. 2017).
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
2
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).
3
We note that Employer did not address the reasoned decision issue in its appellate brief,
focusing its arguments on whether substantial evidence supported the WCJ’s findings.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Maryam Muhammad, :
:
Petitioner :
:
v. : No. 964 C.D. 2022
:
Kelly Services Global LLC :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
ORDER
AND NOW, this 22nd day of September, 2023, the order of the
Workers’ Compensation Appeal Board (Board), dated August 12, 2022, is
VACATED, and this matter is REMANDED to the Board for proceedings in
accordance with the foregoing memorandum opinion.
Jurisdiction is relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge