B.A. Tarawallie v. Magee Memorial Hospital for Convalescents (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Becky A. Tarawallie, :
Petitioner :
:
v. : No. 717 C.D. 2023
: Submitted: June 6, 2024
Magee Memorial Hospital for :
Convalescents (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: July 22, 2024
Becky A. Tarawallie (Claimant), pro se, petitions for review (Petition for
Review) of the June 15, 2023 order of the Workers’ Compensation Appeal Board
(Board) affirming the Workers’ Compensation Judge’s (WCJ) June 30, 2022
Decision and Order (WCJ Decision), which denied Claimant’s Claim Petition
(Claim Petition) and granted Magee Memorial Hospital for Convalescents’
(Employer) Petition to Terminate Compensation Benefits (Termination Petition).
After review, we affirm.
I. Factual and Procedural Background
Claimant worked as a Certified Nurse Assistant (CNA) for Employer. WCJ
Dec., 6/30/22, Findings of Fact (F.F.) ¶ 1. On November 4, 2020, Claimant slipped
and fell on blue cheese dressing that had spilled on the floor at her workplace. Id.
Claimant filed a Claim Petition under the Workers’ Compensation Act (Act)1
alleging she sustained a low back strain, disc herniations, and a right hip strain
because of her fall. Certified Record (C.R.) at 8.2 In her Claim Petition, Claimant
sought full disability benefits ongoing from the date of injury. Id. at 10.
Employer issued a Temporary Notice of Compensation Payable (NCP) and
then an Amended NCP acknowledging Claimant sustained a work injury in the form
of right upper arm and right hip contusions. Id. at 17, 237 In January 2021,
Employer issued a Notice of Workers’ Compensation Denial (Denial), a Notice
Stopping Temporary Compensation (NSTC), and a medical-only NCP. Id. at 283-
88. In late 2021, Employer filed a Termination Petition alleging Claimant was fully
recovered as of December 1, 2021. Id. at 23.
The WCJ held six hearings on Claimant’s and Employer’s petitions. The final
hearing was a virtual hearing, at which Claimant testified. Claimant and Employer
submitted deposition testimony, Claimant submitted a fee agreement, and Employer
submitted various documents and surveillance videos.3 Ultimately, in a Decision
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
The Certified Record is not paginated. We use the electronic page numbers for ease of reference.
3
The WCJ notes he considered “video of surveillance activity conducted on August 21, 2021[,]
and April 17, 2022.” WCJ Dec. ¶ 10. However, the certified record contains the video from April
17, 2022, only. It is well settled an appellate court cannot consider anything which is not contained
in the certified record. See, e.g., Kozicki v. Unemployment Comp. Bd. of Rev., 299 A.3d 1055 (Pa.
Cmwlth. 2023). We conclude despite the absence of the August 21, 2021 video, the record
contains substantial evidence to support the WCJ’s findings, as we explain herein.
2
and Order circulated June 30, 2022, the WCJ denied Claimant’s Claim Petition and
granted Employer’s Termination Petition. The WCJ concluded Claimant did not
meet her burden of proving entitlement to further indemnity benefits. The WCJ also
concluded Employer met its burden of proving Claimant had fully recovered from
the work injury. Claimant appealed to the Board, and the Board affirmed the WCJ
Decision. Claimant now appeals to this Court.
In her Petition for Review, Claimant raises several issues, all linked to
evidentiary arguments. Initially, she asserts her counsel failed to submit evidence,
particularly her doctor’s deposition and evidence of her medical procedures.
Claimant then claims the WCJ violated her constitutional right to a fair hearing by
rendering a decision without evidence, and her constitutional right to due process by
denying her the opportunity to submit evidence. Finally, Claimant challenges
Employer’s evidence in the form of a surveillance video.
II. Discussion
In a claim petition, a claimant has the burden of establishing a right to
compensation and must prove all the elements necessary to support an award of
benefits. Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595
(Pa. 1993). In a Termination Petition, the employer bears the burden of establishing
the work injury has fully ceased. Udvari v. Workmen’s Comp. Appeal Bd. (USAir,
Inc.), 705 A.2d 1290 (Pa. 1997). In a case where the claimant complains of
continued pain, an employer meets this burden when its medical expert
unequivocally testifies the claimant is fully recovered, the claimant can return to
work without restrictions, and there are no objective findings which either
substantiate the claims of pain or connect them to the work injury. Id.3
“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.” Frankiewicz v. Workers’ Comp. Appeal
Bd. (Kinder Morgan, Inc.), 177 A.3d 991, 995 n.2 (Pa. Cmwlth. 2017). Questions
of credibility, conflicting medical evidence, and evidentiary weight fall within the
WCJ’s authority, and the WCJ is free to accept the testimony of any witness,
including medical witnesses, in whole or in part. Ingrassia v. Workers’ Comp.
Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394, 399 n.5 (Pa. Cmwlth.
2015).
When considering her Claim Petition, the WCJ found “Claimant’s testimony
in this matter [was] not convincing.” WCJ Dec., F.F. ¶ 11. The WCJ noted Claimant
testified she was released to return to modified work in 2020, but she did not accept
a job Employer offered. Id. ¶ 7. The WCJ also noted Claimant testified that in 2021
she was discharged from care and advised she was fully recovered. Id. The WCJ
found Claimant was able to travel by airplane to West Africa for a funeral. Id. Based
on Claimant’s testimony, the WCJ found Claimant did not sustain her burden of
establishing a continuing injury entitling her to further indemnity benefits. Id.,
Conclusions of Law (C.L.) ¶ 2. We conclude there was substantial evidence to
support this finding.
Turning to Employer’s Termination Petition, Employer submitted the
deposition testimony of John Petolillo, D.O. (Dr. Petolillo), a board-certified
orthopedic surgeon, and the independent medical evaluation (IME) he performed of
Claimant. Dr. Petolillo testified that his opinion, within a reasonable degree of
medical certainty, was Claimant had fully recovered as of the date of the IME,
December 1, 2021. C.R. at 321-22. Dr. Petolillo opined Claimant could return to
4
work as a CNA without restrictions. Id. at 318. In support of his opinions, Dr.
Petolillo testified he reviewed magnetic resonance imaging (MRI) and Claimant’s
lumbar MRI showed “no abnormalities to suggest any nerve root compression at
all,” and an MRI of her hip revealed “no evidence of tendon tear whatsoever.” Id.
at 319- 20. Based on his “objectively normal physical examination” of Claimant,
Dr. Petolillo opined Claimant had fully recovered from her injury. Id. at 322. The
WCJ considered this evidence and found Dr. Petolillo “credible and convincing.”
WCJ Dec., F.F. ¶ 12. Therefore, the WCJ found Employer met its burden of proving
Claimant was fully recovered. WCJ Dec., C.L. ¶ 3.
Claimant generally challenges the video surveillance footage. She does not
argue it was inadmissible but argues the WCJ did not afford it the correct weight.
Determinations of evidentiary weight are within the WCJ’s authority. Furthermore,
because the record lacks the video surveillance of April 17, 2022, we are unable to
consider it. However, even without this evidence, there is substantial evidence in
the record to support the WCJ’s findings. The WCJ did not rely exclusively on video
evidence; rather, he found it supported the opinions of Dr. Petolillo. Dr. Petolillo did
not rely on the video either, but instead relied on his examination and observations.
Because the WCJ found Dr. Petolillo credible and convincing, substantial evidence
exists in the record that Claimant was fully recovered as of December 1, 2021.
Regarding Claimant’s constitutional challenges to the WCJ Decision,
Claimant had the opportunity to testify and present evidence at multiple hearings
before the WCJ. Claimant did not establish the WCJ precluded her from doing so.
Therefore, we conclude Claimant failed to establish her constitutional rights were
violated in any way.
5
Claimant also claims her previous counsel was ineffective because he failed
to introduce evidence. We note initially, the effective assistance of counsel is not
constitutionally mandated in the workers’ compensation context. Johnson v.
Workmen’s Comp. Appeal Bd., 321 A.2d 728, 730 (Pa. Cmwlth. 1974). However,
this does not mean proven incompetency may never constitute “cause shown” for a
rehearing under Section 426 of the Act, 77 P.S. § 871.4 Id. Section 426 of the Act
states, in relevant part, the Board may grant a rehearing of any petition it decided
“upon petition of any party and upon cause shown.” 77 P.S. § 871.
Here, however, Claimant failed to establish her counsel’s failure to submit
certain evidence created “manifest injustice,” deprived her of the only means to meet
her burden of proof, or otherwise rose to the level of “just cause” necessary to merit
a rehearing. See Bickel v. Workmen’s Comp. Appeal Bd. (Williamsport Sanitary
Auth.), 538 A.2d 661 (Pa. Cmwlth. 1988). Claimant testified “live” by
videoconference to the WCJ and by a submitted deposition. She testified about her
injury, pain, current abilities, and medical treatments. Ultimately, the WCJ did not
find Claimant credible and found Dr. Petolillo credible. The WCJ is the ultimate
arbiter of credibility and the WCJ’s findings were supported by substantial evidence
in the record.
III. Conclusion
For the foregoing reasons, we conclude the WCJ’s findings are supported by
substantial evidence, he committed no error of law or violation of Claimant’s
constitutional rights, and the Board properly affirmed the WCJ Decision.
4
Section 426 was added by Section 6 of the Act of June 26, 1919, P.L. 642.
6
Accordingly, we affirm the Board’s order.
______________________________
STACY WALLACE, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Becky A. Tarawallie, :
Petitioner :
:
v. : No. 717 C.D. 2023
:
Magee Memorial Hospital for :
Convalescents (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 22nd day of July 2024, the June 15, 2023 order of the
Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
STACY WALLACE, Judge