M. D. Senestant v. WCAB (IHS of PA at Broomall) (Majority Opinion)
Annotate this Case
Download PDF
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mona D. Senestant, Petitioner v. Workers Compensation Appeal Board (IHS of PA at Broomall), Respondent BEFORE: : : : : No. 1852 C.D. 2007 : Submitted: January 18, 2008 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: February 12, 2008 We had remanded this matter in a previous appeal to the Workers Compensation Judge (WCJ) for a determination, based on the evidence already adduced, only as to whether Mona D. Senestant s (Claimant) neck surgery was workrelated and to make new findings on whether IHS of PA at Broomall s (Employer) termination petition should be granted.1 In complying with our request, the WCJ 1 The remand order to the WCJ was as follows: AND NOW, this 26th day of January, 2006, the order of the Workers Compensation Appeal Board, dated July 13, 2005, at No. A04-2584, is remanded to the WCJ only to make the determination of whether the neck surgery was work-related and then to make new findings only as to whether Employer s termination petition should be granted. found that the surgery was not work-related and granted Employer s petition because it had established that Claimant was fully recovered from her work injury.2 Claimant now appeals from an order of the Workers Compensation Appeal Board (Board) affirming the WCJ s decision, arguing that the WCJ erred in granting the termination petition because Employer s medical expert s opinion of full recovery did not address all of her work injuries and was inconsistent because he stated that she could not return to her pre-injury job without restrictions. The expert medical testimony that Claimant contends was equivocal and inconsistent was that offered by Employer s medical witness, Richard H. Bennett, M.D. (Dr. Bennett), a board certified neurologist.3 Dr. Bennett testified that during his examinations, Claimant complained of ongoing neck and left arm pain that she attributed to the work injury. He reviewed diagnostic studies indicating the presence of significant pre-existing diffuse degenerative disc disease throughout Claimant s cervical spine, with variable EMG study results, which was not work-related. Dr. 2 Claimant was employed by Employer as a nursing assistant. In a separate proceeding, a WCJ found that on October 24, 1999, she sustained a work-related injury in the form of a traction injury to the left upper extremity, with left shoulder impingement, left-sided brachial plexopathy, contaminant C5-C6 radiculopathy, and exacerbation of carpal tunnel symptoms while lifting a patient and began receiving disability benefits in accordance with the Workers Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2626. For a review of the facts and procedural history of this case, see Senestant v. Workers Compensation Appeal Board (IHS of Pa. at Broomall), No. 1605 C.D. 2005, filed January 26, 2006. 3 Claimant presented the expert medical testimony of Frederick Lieberman, M.D. (Dr. Lieberman), who was board certified in orthopedic surgery. Although Dr. Lieberman conceded that Claimant had abnormal disc pathology at every level of her cervical spine, he opined that she had not recovered from her work-related injury. The WCJ found Dr. Bennett s testimony to be more credible. 2 Bennett testified that various tests that he ordered returned no findings indicating that she still suffered from her work injuries. Based on those tests and his examinations, Dr. Bennett opined that Claimant had fully recovered from any work injuries, including the traction injury to the cervical spine, brachial plexopathy, C5-C6 radiculopathy, and exacerbation of carpal tunnel syndrome, stating that she possessed no ongoing evidence of any of these conditions, but simply suffered from the underlying degenerative disc disease, which was not work-related. As to Claimant s neck surgery, Dr. Bennett noted that Claimant had undergone an unsuccessful decompressive laminectomy to her cervical spine in 1999, but it was performed to address diffuse arthritis, a condition present both before and after the surgery and was unrelated to her work injury. On cross-examination, however, he testified that Claimant should be restricted to full-time sedentary work due to residual discomfort from her neck surgery. Finding the testimony of Dr. Bennett to be credible and convincing, the WCJ found that Claimant s neck surgery was not necessitated by any traumatically induced condition related to her work injury. He reasoned that Dr. Bennett s explanation that the surgery was performed to address diffuse degenerative disc disease which existed before and after the procedure was supported by the findings of his physical examinations of Claimant. The WCJ also found that Claimant s degenerative disc disease was independent of any work injury as were her ongoing complaints and work restrictions. With regard to Employer s termination petition, the WCJ determined that Claimant had fully recovered from her work-related injury, citing Dr. Bennett s credible testimony that there were no objective medical findings 3 that could be attributed to the injury, and granted Employer s remanded termination petition. Claimant appealed to the Board, which affirmed, and this appeal followed.4 Claimant contends that the WCJ erred in relying upon Dr. Bennett s opinion that Claimant had fully recovered from her work-related injury because he acknowledged on cross-examination that in an affidavit of full recovery, his understanding of her work injuries was limited to only cervical injury and a left shoulder strain. Because she had other accepted injuries, including a traction injury to the cervical spine, brachial plexopathy, C5-C6 radiculopathy, and exacerbation of carpal tunnel syndrome, Claimant argues that this assumption made his testimony of full recovery equivocal.5 What this contention ignores is that Dr. Bennett testified that Claimant had fully recovered from all recognized work-related injuries. On direct examination, Dr. Bennett testified as follows: Q. And, Doctor, following your examination of [Claimant], were you able to reach an opinion to a reasonable degree of medical certainty as to whether she fully recovered from the 4 Our scope of review in a workers compensation appeal is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. City of Scranton v. Workers Compensation Appeal Board (Roche), 909 A.2d 485 (Pa. Cmwlth. 2006). 5 In order to succeed in a termination petition, an employer bears the burden of proving that a claimant s disability has ceased and/or that any current disability is unrelated to the claimant s work injury. Indian Creek Supply v. Workmen s Compensation Appeal Board (Anderson), 729 A.2d 157 (Pa. Cmwlth. 1999). To satisfy this burden, an employer must offer unequivocal medical evidence which establishes within a reasonable degree of medical certainty that the claimant has fully recovered and can return to work without restrictions. Schachter v. Workers Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa. Cmwlth. 2006). 4 injuries that she related to you as having occurred back in October of 1997 while lifting a patient? A. It was my opinion that she had recovered. Q. And what was the basis for your opinion in that regard, Doctor? A. Based upon my two examinations, based upon my review of extensive medical records, I found [Claimant] had recovered from any particular injuries that may have been associated with the October 24, 1997--. Q. Doctor, I want you to assume for the purposes of this question that [Claimant s] injuries sustained in that workrelated accident of October 24, 1997 involved a traction injury to the left shoulder with impingement, brachial plexopathy, a C5-6 radiculopathy and exacerbation of carpal tunnel syndrome. Assuming those were, in fact, the injuries she sustained at the time of that work injury, was it your opinion that she had fully recovered? *** A. Yes, I saw no evidence that there was evidence there was signs of a traction injury to the cervical spine, a brachial plexopathy, a C5-C6 radiculopathy or exacerbation of a carpal tunnel syndrome. (Deposition of Dr. Bennett, September 8, 2003, at 15-16.) The following colloquy, upon which Claimant relies as rendering Dr. Bennett s testimony equivocal, then took place between Claimant s counsel and Dr. Bennett on cross-examination: 5 Q. And, Doctor, I understand that as part of your examination you signed an affidavit of full recovery? A. Yes. *** Q. And what was your understanding in your report as to what injuries she recovered from? A. At that time she it was my understanding that the injury was a left shoulder strain and sprain. Q. And is it true, Doctor, your report mainly was focused on left shoulder injury? A. It was focused on what she was describing to me. I did not have any indication of other accepted injuries. Q. And at least as to [Employer s] counsel s question as to traction injury, brachial plexopathy, isn t it true, Doctor, you did not examine her toward that goal? A. I examined her and addressed the conditions as were presented to me by [Claimant] and that she had no evidence of brachial plexopathy, no evidence of carpal tunnel syndrome, no signs of cervical radiculopathy. (Deposition of Dr. Bennett, September 8, 2003, at 18-19.) While Dr. Bennett may have, when he made his affidavit of full recovery, initially understood that Claimant s work injuries consisted of only a cervical injury and a left shoulder strain, his testimony expressly addressed the more extensive injuries Claimant sustained, and he opined that she had fully recovered from them based on a lack of medical evidence which would substantiate their 6 existence, both on direct and cross-examination.6 Merely because Dr. Bennett originally believed Claimant to have sustained certain work injuries does not render his testimony equivocal, and it constitutes substantial evidence to support the WCJ s determination of full recovery. See To v. Workers Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003). Claimant also contends that Dr. Bennett s testimony did not constitute substantial evidence that she had fully recovered from her work-related injuries because he testified that she should be restricted to full-time sedentary work due to the residual discomfort in her neck resulting from her neck surgery. Even though he did testify that Claimant should be restricted to full-time sedentary work due to residual discomfort from her neck surgery, he testified that the surgery was not workrelated, but performed to address a pre-existing arthritic condition. Because the restriction of her employment was not caused by her work-related injury, and Dr. Bennett testified that Claimant had fully recovered from all her work-related injuries, his testimony constitutes substantial evidence that Claimant fully recovered,7 and the WCJ did not err in granting Employer s termination petition.8 6 Answers given during cross-examination do not destroy the effectiveness of a physician s previous opinion. Rather, such statements go to the weight and not the competency of the physician s opinion, and questions of the weight and credibility of medical testimony are within the exclusive province of the WCJ to resolve. Corcoran v. Workmen s Compensation Appeal Board (Capital Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999). 7 Claimant argues that Dr. Bennett s testimony was insufficient to meet Employer s burden of proof because Employer did not establish a change in physical condition since the last of her disability determinations. See Lewis v. Workers Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). On November 29, 1999, a WCJ in a different proceeding adjudged that Claimant suffered from a traction injury to the left upper extremity, with left shoulder impingement, left-sided brachial plexopathy, contaminant C5-C6 radiculopathy, and exacerbation (Footnote continued on next page ¦) 7 Accordingly, the order of the Board is affirmed. ____________________________ DAN PELLEGRINI, JUDGE (continued ¦) of carpal tunnel symptoms. Through Dr. Bennett s testimony, Employer has met the standard set forth in Lewis by demonstrating a change in Claimant s condition a full recovery. 8 Claimant also contends that the WCJ erred in exceeding the scope of the remand order by making no mention in his decision of the unappealed award of 30 weeks of disfigurement benefits for a scar produced by her neck surgery. Because the scar was determined to be work-related, she argues that the WCJ s decision was inconsistent with his opinion that the neck surgery was not work-related. What this argument ignores is that when we remanded Employer s termination petition, it was the only petition to be addressed on remand because the disfigurement benefits were never appealed. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mona D. Senestant, Petitioner v. Workers Compensation Appeal Board (IHS of PA at Broomall), Respondent : : : : No. 1852 C.D. 2007 : : : : ORDER AND NOW, this 12th day of February, 2008, the order of the Workers Compensation Appeal Board, No. A06-2451, is affirmed. ____________________________ DAN PELLEGRINI, JUDGE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
