L.F. Fierro v. WCAB (Allied Services Healthcare Services)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laura F. Fierro, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Allied Services Healthcare Services), : No. 391 C.D. 2019
Respondent : Submitted: July 12, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: September 5, 2019
Laura F. Fierro (Claimant) petitions for review of the March 12, 2019
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of Workers’ Compensation Judge Howard Spizer (WCJ) that: (1) granted
the Petition to Terminate Compensation Benefits (Termination Petition) filed by
Allied Services Healthcare Services (Employer) against Claimant pursuant to the
Workers’ Compensation Act (Act),1 and (2) denied a Petition to Review (Review
Petition) filed by Claimant pursuant to the Act. We affirm.
On April 29, 2016, while working as an occupational therapist for
Employer, Claimant suffered an injury to her right ankle when she tripped and
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
stumbled over a wheelchair leg rest while attending to a patient. See WCJ Decision
dated February 28, 2018, Certified Record Item No. 11 (WCJ Decision), Findings
of Fact (F.F.) 1, 7 & 18. Employer initially issued a medical-only Notice of
Compensation Payable (NCP). See F.F. 1. Thereafter, on July 13, 2016, Employer
issued a second NCP that accepted the injury as a right ankle sprain and foot
contusion and provided for payment of workers’ compensation benefits in addition
to the previously provided medical benefits. See F.F. 2.
On December 14, 2016, Employer filed the Termination Petition,2
which alleged that Claimant had fully recovered from her work injury, had been
offered a specific job, and was able to return to unrestricted work as of October 5,
2016.3 See F.F. 3; see also Termination Petition dated December 14, 2016, Certified
Record Item No. 2. On January 19, 2017, Claimant filed the Review Petition,4 which
sought to amend the NCP’s injury description to include Lower Extremity Complex
Regional Pain Syndrome (CRPS). See F.F. 5; see also Review Petition, Certified
Record Item No. 7.
After consolidating the petitions and conducting hearings on the matter,
the WCJ decided the Termination and Review Petitions by decision issued on
February 28, 2018. See WCJ Decision. The WCJ found: (1) Employer met its
burden of proving that Claimant had fully recovered from the work-related injury as
2
The WCJ Decision lists the Termination Petition’s filing date as December 15, 2016. See
F.F. 3.
3
On December 22, 2016, Claimant answered the Termination Petition in three separate
filings. See Answer to Modify Petition filed December 22, 2016, Certified Record Item No. 4;
Answer to Suspend Petition filed December 22, 2016, Certified Record Item No. 5; Answer to
Termination Petition filed December 22, 2016, Certified Record Item No. 6.
4
The WCJ Decision lists the Review Petition’s filing date as January 19, 2017. See F.F.
5.
2
of October 5, 2016; and (2) Claimant failed to meet her burden of proving that she
suffers from CRPS as a result of the April 29, 2016 work injury. See WCJ Decision
at 11. Accordingly, the WCJ: (1) granted the Termination Petition, terminating
Claimant’s benefits as of October 5, 2016; and (2) dismissed and denied the Review
Petition. See WCJ Decision at 12. Claimant appealed and the Board affirmed the
WCJ Decision by opinion dated March 12, 2019 (Board Opinion). See generally
Board Opinion; see also On-Line Appeal dated March 5, 2018, Certified Record
Item No. 12. Claimant timely petitioned this Court for review.5
Claimant makes two claims on appeal. First, Claimant alleges that the
Board erred in affirming the WCJ’s grant of the Termination Petition6 and denial of
5
In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workmen’s Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).
Substantial evidence is such relevant evidence a reasonable person might
find sufficient to support the WCJ’s findings. In determining whether a finding of
fact is supported by substantial evidence, this Court must consider the evidence as
a whole, view the evidence in a light most favorable to the party who prevailed
before the WCJ, and draw all reasonable inferences which are deducible from the
evidence in favor of the prevailing party.
Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).
6
We acknowledge that the Board stated that Claimant did not challenge the WCJ’s
Termination Petition on appeal, and thus, the Board neither considered nor discussed the
Termination Petition on review. See Board Opinion at 2 n.1. After reviewing Claimant’s appeal
of the WCJ’s Decision, however, we find that Claimant did challenge the WCJ’s second
conclusion of law and the order, both of which concerned the Termination Petition. See On-Line
Appeal dated March 5, 2018, Certified Record Item No. 12. Thus, we find that Claimant did not
waive this claim and, in the interest of judicial economy, we will address the same in this opinion
as part of our evaluation of whether substantial evidence supports the WCJ’s findings of fact. See
Sheridan v. Workers’ Comp. Appeal Bd. (Anzon, Inc.), 713 A.2d 182, 184 (Pa. Cmwlth. 1998)
(noting that “even where a lower tribunal does not address an issue, an appellate court may do so
3
the Review Petition because the WCJ erroneously shifted the burden of proof from
Employer’s obligation to illustrate a complete recovery from the work injury, and
instead required Claimant to prove a continuing foot injury. See Claimant’s Brief at
17-22. Additionally, Claimant argues that the WCJ failed to make specific findings
of fact or conclusions of law regarding Claimant’s accepted foot injury in addition
to her ankle sprain. See Claimant’s Brief at 22-24.
Initially, as this Court has explained:
In a termination proceeding, the employer bears the
burden of proving that a work-related disability has
ceased. This burden can be met by presenting unequivocal
and competent medical evidence of a claimant’s full
recovery from a work-related injury.[7] A determination of
whether medical testimony is equivocal is a conclusion of
law fully reviewable by this Court. Credibility of
witnesses, however, is for the [WCJ] to evaluate and he or
she may accept the testimony of one witness over that of
another.
Koszowski v. Workmen’s Comp. Appeal Bd. (Greyhound Lines, Inc.), 595 A.2d 697,
699 (Pa. Cmwlth. 1991) (internal citations omitted). Additionally, “[t]he [Notice of
Compensation Payable] establishes the description of the work injury and the
employer must establish full recovery from the injury or injuries listed there.”
Harrison v. Workers’ Comp. Appeal Bd. (Auto Truck Transp. Corp.), 78 A.3d 699,
703 (Pa. Cmwlth. 2013); see also Serrano v. Workers’ Comp. Appeal Bd. (Ametek,
Inc.), 154 A.3d 445, 453 (Pa. Cmwlth. 2017) (“[W]hen an employer seeks to
where all of the facts necessary to the appellate court’s decision have been found by the
factfinder”).
7
“Medical evidence is considered unequivocal if the medical expert, after providing a
foundation, testifies that in his medical opinion, he thinks the facts exist.” Craftsmen v. Workers’
Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 439 (Pa. Cmwlth. 2002).
4
terminate benefits, it must show the claimant has recovered from each of the separate
work-related injuries for which the employer’s liability has been established.”).
Additionally, regarding review petitions, amendments to descriptions
of accepted work-related injuries in NCPs come in two forms. See Cinram Mfg.,
Inc. v. Workers’ Comp. Appeal Bd. (Hill), 975 A.2d 577, 580–81 (Pa. 2009). First,
an amendment to correct an inaccuracy in the identification/description of the
existing injury that is recorded in an NCP at the time the NCP issues is known as a
“corrective amendment.” Id. The second type of possible amendment involves
changing an NCP to account for an increase in a claimant’s disability known as a
“consequential condition.”8 Id. at 581 n.4. While these two types of possible NCP
amendments have differing procedural requirements under the Act to achieve the
specific amendment sought,9 in either case, the burden to establish the existence of
additional compensable injuries rests with the claimant seeking the amendment. Id.
at 582.
Here, in support of the Termination Petition and to contest the Review
Petition, Employer presented the testimony and medical reports of Barry A. Ruht,10
M.D., a board-certified orthopedic surgeon who conducted an Independent Medical
Evaluation (IME) of Claimant on October 5, 2016. See WCJ Decision at 3-6; F.F.
7-10. In the WCJ Decision, the WCJ provided an extensive and detailed summary
of Dr. Ruht’s testimony. Id. Notably, the WCJ stated that Dr. Ruht testified that he
8
In addition to amendments based on increases in disabilities, Section 413(a) of the Act,
77 P.S. § 772, also controls amendments pertaining to decreases, recurrences, or cessation of
disabilities. See Cinram, 975 A.2d at 581.
9
See Sections 413 and 413(a) of the Act, 77 P.S. §§ 771 & 772.
10
The WCJ Decision incorrectly spells Dr. Ruht’s name as “Rhut.” See WCJ Decision at
3 & 10-11.
5
discussed the April 29, 2016 incident and Claimant’s medical and work history with
Claimant, observed and examined Claimant, and reviewed Claimant’s medical
records, which records included: (1) a May 25, 2016 MRI of Claimant’s right foot;
(2) a separate May 25, 2016 MRI of Claimant’s right ankle; (3) a March 31, 2016 x-
ray of Claimant’s right foot; (4) a June 27, 2016 x-ray of Claimant’s right foot; (5)
a July 1, 2016 MRI of Claimant’s lumbar spine; (6) a June 3, 2016 EMG study; (7)
treatment Notes of Samuel Valenti, M.D., Northeastern Rehabilitation Associates,
P.C., from April 29, 2016 through July 15, 2016, and Letter of Medical Necessity
dated August 2, 2016; (8) treatment Notes from Scranton Orthopedic Specialists,
P.C., from May 26, 2016 through June 27, 2016; and (9) Geisinger Community
Medical Center, Emergency Department, treatment notes from June 28, 2016. See
F.F. 7-8; see also Report of Barry A. Ruht, M.D., dated October 5, 2016 (IME
Report), Certified Record Item No. 37. Dr. Ruht testified that his examination
revealed Claimant had a normal gait, normal skin texture, normal hair growth,
normal temperature bilaterally, and no signs of CRPS. F.F. 8. Dr. Ruht explained
that he found no abnormal clinical findings and normal motor strength and sensation
in Claimant’s lower extremities. Id. Dr. Ruht further explained that the MRI
depicting Claimant’s right ankle was completely normal. Likewise, Dr. Ruht
testified that, despite positive findings on the MRI that depicted Claimant’s right
foot, including some soft tissue swelling and bone marrow edema, that MRI showed
no evidence of any acute abnormality in Claimant’s right foot. Id. Ultimately, Dr.
Ruht opined that Claimant fully recovered from the sprains and contusions of the
right foot and ankle listed as the accepted injury on the NCP. Id. Further, Dr. Ruht
testified that, as of his examination, Claimant showed no evidence of CRPS, and
none of her complaints suggested any indicators for CRPS. Id. Based on the above,
6
the WCJ noted that Dr. Ruht opined Claimant was capable of returning to her pre-
injury job without restriction or additional treatment. Id.
In opposition to the Termination Petition and in support of the Review
Petition, Claimant presented the testimony of Sheryl Oleski, M.D., a physician
board-certified in physical medicine and rehabilitation, who first saw Claimant on
July 6, 2016. See WCJ Decision at 6-8; F.F. 11-16. Dr. Oleski testified that
Claimant presented with pain turning her foot and ankle as a result of injuring her
ankle and foot on April 29, 2016, when she became entangled in a wheelchair leg
rest while attending to a patient. F.F. 11. Dr. Oleski testified Claimant had originally
been diagnosed with plantar fasciitis and ankle sprain, and that she never reported
any significant ankle swelling, although she did experience some swelling around
the toe and had complaints of tingling and numbness in the quadriceps muscles and
some muscle spasms. Id. Upon physical examination, Dr. Oleski discovered
Claimant suffered a bone bruise on the first digit of her right foot and a right ankle
injury that had resolved at the time of the examination. Id. Upon reviewing the May
25, 2016 MRI report, Dr. Oleski noted some evidence of bone marrow edema on the
head of the right first digit consistent with a bruise. Id. Dr. Oleski recommended
Claimant undergo an MRI on her lower back to check for a disc herniation or
something else that could be contributing to her leg pain. Id. She also recommended
that Claimant continue working with restrictions, start physical therapy, and avoid
high impact activity. Id. Dr. Oleski also testified that, during the July 6, 2016
examination, the existence of Claimant’s neuropathic symptoms in the injured area,
in the absence of supporting studies that revealed any acute abnormalities, alerted
her to the possibility that Claimant may have been suffering from CRPS. Id.
7
Dr. Oleski explained that she saw Claimant again on August 19, 2016.
F.F. 11. Dr. Oleski testified that, at that time, Claimant complained of aching
discomfort in the right anterolateral thigh and pain into the lateral aspect of the right
knee and ankle with cramping of the right toe. Id. Claimant reported to Dr. Oleski
that she would experience coldness in her right foot, but had not noticed any
significant color change of the foot or right leg. Id. At that time, Claimant reported
to Dr. Oleski that pain limited Claimant to standing and walking for 5 to 10 minutes,
that she was able to sit for 30 minutes, and that her pain interfered with her ability
to sleep. Id. Dr. Oleski testified, however, that an MRI performed was normal. Id.
Dr. Oleski explained that she diagnosed Claimant with “ongoing right foot and ankle
pain due to late effects of sprain, bone contusion affecting the right first digit of the
foot, and possible perineal neuritis.” Id.
Dr. Oleski also testified that she recommended that Claimant see a foot
and ankle specialist, which Claimant accordingly did. F.F. 11. Thereafter, Dr.
Oleski again re-examined Claimant on October 24, 2016, at which time Claimant
complained of a tingling, pins-and-needles sensation extending from her lateral thigh
through the dorsum of her right foot with an occasional burning sensation. Id. At
that time, Claimant also claimed to be developing swelling through the right big toe
and a deep aching feeling in that area of the foot, although Claimant denied swelling
in the leg. Id. Dr. Oleski testified that her examination of Claimant on October 24,
2016 revealed a mildly antalgic gait pattern on the right side, hypertrophy of the
right great toe joint that was more “ruddy” in color than the left side, and normal
reflexes. Id. Dr. Oleski did not note any swelling during the examination, although
she noted that Claimant’s right foot was more pale in comparison to her left foot. Id.
8
Relying partly on the opinion of the foot and ankle specialist11 and her
examination that revealed allodynia,12 pain, and some skin coloration changes, all of
which Dr. Oleski indicated suggested CRPS, Dr. Oleski diagnosed Claimant with
CRPS affecting the right leg. F.F. 12 & 14. Effectively, Dr. Oleski diagnosed CRPS
as a diagnosis of exclusion when her physical examination of Claimant revealed no
other soft tissue injury that would explain Claimant’s subjective complaints of pain.
F.F. 12. Dr. Oleski noted that the effectiveness of the lumbar sympathetic block
injection13 Claimant underwent supported the CRPS diagnosis, as did her reported
difficulty wearing shoes.14 F.F. 13-14. In discussing the CRPS diagnosis, Dr. Oleski
explained that Claimant’s right great toe contusion and right ankle sprain and strain
had fully resolved. F.F. 14.
Claimant testified on her own behalf before the WCJ in opposition to
the Termination Petition and in support of the Review Petition. See WCJ Decision
at 8-10; F.F. 18-19. Claimant testified that she worked for Employer as an
occupational therapist treating patients to increase their independence with the
activities of daily living. F.F. 18. She described her work duties at the time of her
injury as well as her non-work activity level prior to the incident. Id. Claimant
explained that, on April 29, 2016, while greeting a patient, she tripped and stumbled
11
Dr. Oleski explained that the foot and ankle specialist’s report indicated an impression
of right foot and ankle dysarthia, “most likely RSD/CRPS.” F.F. 12.
12
“Allodynia” refers to pain resulting from a stimulus that would not ordinarily provoke
pain, such as a light touch of the skin. See F.F. 12.
13
A sympathetic block injection is a diagnostic and therapeutic tool used to help improve
a patient’s pain and reset the nervous system. F.F. 13.
14
Dr. Oleski also recommended Claimant undergo a bone scan to further confirm the CRPS
diagnosis. F.F. 12. Claimant underwent the scan, but it did not prove helpful in confirming the
CRPS diagnosis. Id.
9
over a leg rest left on the floor. Id. Claimant testified that her ankle rolled and both
her feet became entangled with the leg rest, but that she was able to catch and brace
herself on an activity table to prevent herself from falling. Id. Claimant testified
that she felt swelling and pain in her right foot at the time of the incident. Id.
Claimant explained that, prior to the April 29, 2016 incident, she had a
bone spur in her right big toe joint, which had been successfully treated with a
cortisone injection. F.F. 18. Claimant testified that, following the April 29, 2016
incident, she received treatment from one of Employer’s physicians, who prescribed
prednisone and physical therapy. Id. She continued to work, but her condition
worsened and she was taken out of work on May 19, 2016. Id. Claimant testified
that a second doctor ordered and reviewed a foot x-ray, upon which the doctor
diagnosed neuropraxia. Id. The second doctor referred Claimant to Dr. Oleski, to
whom Claimant reported that she believed she had injured her ankle in addition to
her foot because of the swelling, pain, and numbness and tingling traveling up
Claimant’s legs to her calf. Id. Claimant explained that she attempted to return to
work for a few weeks in June 2016, before she left work and reported to an
emergency room to treat her continuing symptoms. Id. One of Employer’s
physicians again took Claimant out of work on June 28, 2016. Id. Thereafter,
Claimant reported to Dr. Oleski and the foot and ankle specialist for further
treatment. Id.
Claimant further reported that she had burning pain in her quadriceps
muscle, numbness and tingling in her calf, and changes in her foot through
September of 2016. F.F. 18. She explained that she began to notice skin color
changes and changes in hair growth on her foot and lower leg. Id. She explained
that initially, in July 2016, the changes had been limited to the top of her right foot
10
near her big toe, with the color changes occurring primarily on the top of her foot
and her ankle. Id. She explained that she knew something was wrong; she could
see the color differences by comparing her feet, and that her right foot would turn
alternately very pale at times and very red at other times. Id. Claimant testified that
by September and October 2016, the pain in her foot never fully went away. Id. She
testified that her right big toe would spasm and push down toward the base of her
foot. Id. She explained that she was unable to wear any footwear except orthotic
sandals. Id. She had tenderness in her ankle and, at times, in her calf as well. Id.
Claimant testified that, during the IME, Dr. Ruht did not acknowledge
her complaints of pain sensitivity when she attempted to explain them to him. F.F.
18. She explained that, when she went to the IME, she was walking differently and
her entire leg was spasming. Id. She also explained that she was experiencing
numbness and tingling in her ankle and foot at the time of the IME. Id.
Claimant also testified that she has stopped driving because the tingling
and numbness in her ankle and foot has caused difficulty driving. F.F. 18. She
explained that the sympathetic block injection she underwent helped her symptoms
and decreased her burning pain and sensitivity, but that the pain never fully went
away in her foot and ankle as a result of the injection. F.F. 18 & 19. Ultimately,
however, she does not feel capable of returning to any type of work and has been
restricted in her non-work activities. F.F. 18. Claimant admitted that her symptoms
have decreased, but that she still experiences some ankle pain, numbness, and
tingling. F.F. 19.
Claimant also presented the testimony of her husband, Anthony Fierro,
before the WCJ. See WCJ Decision at 10; F.F. 20. Mr. Fierro testified that, with
the exception of the bone spur in her big right toe, Claimant did not suffer from any
11
problems prior to her April 29, 2016 work injury. F.F. 20. Mr. Fierro explained that
since April 2016 he has observed Claimant’s foot change color and spasm. Id. He
further explained that Claimant does not now drive or wear any shoes that cover the
top of her foot or ankle. Id.
Based on the testimony and evidence presented, the WCJ made the
following relevant determinations:
23. After reviewing the evidence presented by both
parties, this WCJ, having spent considerable time and
effort reviewing and re-reading the deposition testimonies
of these doctors, has determined the testimony and opinion
of Dr. Rhut [sic] to be more credible, persuasive, and
convincing than that of Dr. Oleski. While this WCJ notes
that there are certain criteria with regard to diagnosis of
CRPS, Dr. Rhut [sic] explained in more detail the findings
pursuant to what is known as the Budapest standard with
regard to skin color changes, temperature changes, hair
changes, and other criteria he listed, and found that
Claimant did not meet the criteria for that diagnosis. He
specifically listed those on pages thirty-three (33) and
thirty-four (34) of his deposition, which are sensory,
temperature, color, sweating/swelling, and trophic
changes, none of which the Claimant had on the date of
his examination. He further advised that none of those
signs or symptoms are present in the records he reviewed
for his IME. It is his opinion that Claimant is capable of
performing her previous occupation without restrictions.
24. With regard to the testimony of Dr. Oleski, it appears
on page thirty-four (34) of her deposition that she bases
her opinion of Claimant’s change in pain syndrome on the
lumbar sympathetic block. On cross-examination, the
witness admitted there was no swelling, and was unable to
refute the Budapest criteria referenced by Dr. Rhut [sic].
12
25. While the testimony of Claimant and her husband are
found to be credible to the extent that Claimant does, in
fact, suffer from some type of pain in her right ankle and
foot, and while there has been some indication [of] some
color change, [the testimony of Claimant and her husband]
is not medical testimony to substantiate a diagnosis of
CRPS based upon the criteria elaborated by Dr. Rhut [sic].
It appears that none of the testing ordered by Dr[]. Oleski
and [the foot and ankle specialist], such as the triple phase
bone scan, were able to corroborate any diagnosis of
CRPS, and therefore the sole diagnosis for this condition
was Dr. Oleski’s testimony based on her physical
observations.
26. This WCJ therefore finds the testimony of Dr. Rhut
[sic] to be more credible, persuasive, and convincing than
the evidence offered on behalf of the Claimant with regard
to the diagnosis of CRPS and any disabling condition.
F.F. 23-26. Of course, the WCJ determines credibility and weight of evidence, and
neither the Board nor this Court may overturn those determinations on appeal.
Koszowski, 595 A.2d at 699; see also Hawbaker v. Workers’ Comp. Appeal Bd.
(Kriner’s Quality Roofing Servs. & Uninsured Employer Guar. Fund), 159 A.3d 61,
69 (Pa. Cmwlth.), reargument denied (Apr. 3), appeal denied, 173 A.3d 252 (Pa.
2017) (“Neither the Board nor this Court may reweigh the evidence or the WCJ’s
credibility determinations.”).
As a result of the WCJ’s credibility determinations, which we must
accept, as did the Board,15 we find that substantial record evidence supports the
WCJ’s findings of fact. Specifically, Dr. Ruht’s credible testimony supports the
finding that Claimant had fully recovered from all aspects of her April 29, 2016
work-related injury as of October 5, 2016, and that Claimant failed to establish that
15
See Board Opinion at 5-6.
13
she suffers from CRPS as a result of the April 29, 2016 work injury. See F.F. 7-10
& 26. Therefore, the WCJ properly terminated Claimant’s compensation benefits
from October 5, 2016 onward, and properly denied the Review Petition. See WCJ
Decision at 11 & Order. We find no error in the Board’s affirmance of the WCJ’s
decision.16
Further, despite Claimant’s argument to the contrary, the Board found
that the WCJ did not improperly shift the burden of proof to her to prove the CRPS
was caused by her work injury. See Board Opinion at 6-7. In the Review Petition,
Claimant sought recognition of her alleged CRPS as a consequential condition
arising from the original April 29, 2016 work injury. As explained supra, in such a
review petition, the burden properly rests with claimants to establish the existence
of additional compensable injuries. Cinram, 975 A.2d at 582. Additionally, with
regard to the Termination Petition, we note that the WCJ properly placed the burden
of proving that Claimant no longer suffers from any injury as a result of the April
29, 2016 work injury on Employer, and ultimately concluded that Employer met this
burden. See WCJ Decision at 11. Therefore, we find no error in the Board’s
rejection of Claimant’s burden-shifting argument.
For the reasons stated above, the Board’s order is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
16
We acknowledge that the basis of our affirmance of the Termination Petition differs from
that of the Board, which determined that Claimant waived any challenge to the Termination
Petition by failing to raise the same. See Board Opinion at 2 n.1; see also Note 6, supra. We note,
however, that this Court may affirm the Board’s decision affirming the Termination Petition on
different grounds. See Stalworth v. Workers’ Comp. Appeal Bd. (Cty. of Del.), 815 A.2d 23, 30
(Pa. Cmwlth. 2002) (holding that this Court may affirm the result reached below if it “is correct
without regard to the grounds relied upon by that court”).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laura F. Fierro, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Allied Services Healthcare Services), : No. 391 C.D. 2019
Respondent :
ORDER
AND NOW, this 5th day of September, 2019, the March 12, 2019 order
of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge