I. Robinson v. WCAB (The School District of Phila) (Complete Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ivara Robinson, : Petitioner : : v. : : Workers Compensation Appeal Board : (The School District of Philadelphia), : Respondent : BEFORE: No. 2149 C.D. 2007 Submitted: February 22, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: May 12, 2008 Ivara Robinson (Claimant) petitions for review from an Order of the Workers Compensation Appeal Board (Board) that affirmed the decision of Workers Compensation Judge (WCJ) Joseph Hagan that denied her Petition for Review of Utilization Review Determination (UR Petition) and granted a Termination Petition filed by the School District of Philadelphia (Employer). We affirm in part and reverse in part for the reasons stated below.1 Claimant sustained an injury in the course and scope of her employment on December 4, 2000. She received benefits pursuant to a decision dated April 30, 2003 authored by WCJ Ollie Arrington that defined her injuries as 1 Because there is an even number of commissioned judges due to a vacancy on this Court, the vote of the commissioned judges was a tie vote. This opinion is filed as circulated pursuant to Section 256(b) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa. Code § 67.29(b). a cervical strain and sprain, right C7-8 radiculopathy, a brachial plexus tear and an aggravation of a prior back injury. (R.R. at 4a). On February 24, 2004, Employer filed a Utilization Review Request seeking review of the reasonableness and necessity of treatment provided by Maurice Singer, D.O., from September 24, 2003 and ongoing. A Utilization Review Organization assigned the matter to Andrew Badulak D.O., who concluded the treatment under review was neither reasonable, nor necessary. Claimant filed a UR Petition on May 19, 2004, seeking review of the reasonableness and necessity of Dr. Singer s treatment. On March 30, 2005, Employer filed a Termination Petition alleging Claimant was fully recovered from her work-related injuries as of February 22, 2005. By a decision circulated October 4, 2006, WCJ Hagan denied Claimant s UR Petition concluding Employer satisfied its burden of proof establishing that the treatment under review was not reasonable or necessary. The WCJ further found Employer established that Claimant was fully recovered from her work-related injuries based on the credible testimony of its medical expert. As such, he granted Employer s Termination Petition. The Board affirmed WCJ Hagan s Decision in an Order dated October 31, 2007. This appeal followed.2 Claimant argues on appeal that the WCJ erred in granting Employer s Termination Petition because its medical expert failed to address all of her judicially accepted work-related injuries. We agree. 2 Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. DeGraw v. Workers Compensation Appeal Board (Redner's Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). 2 In a termination proceeding, the burden of proof is on the employer to establish that the claimant s work-related injury has ceased. Udvari v. Workmen s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). The employer meets this burden when its medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Id. at 327, 705 A.2d at 1293. If a claimant was previously determined to have sustained multiple work-related injuries, the employer must present proof of full recovery from each respective injury in order to obtain a termination of benefits. Central Park Lodge v. Workers Compensation Appeal Board (Robinson), 718 A.2d 368 (Pa. Cmwlth. 1998). An opinion that does not recognize the work-relatedness of an injury previously determined to be work-related is insufficient to support a termination of benefits. GA & FC Wagman, Inc. v. Workers Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001). See also Gillyard v. Workers Compensation Appeal Board (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth. 2005)(holding that the employer s medical expert cannot ignore the fact that the claimant sustained other previously accepted work-related injuries when offering an opinion of full recovery). Moreover, an employer may not relitigate the work-relatedness of a claimant s injuries and an expert s opinion that is based upon assumptions which are contrary to the established facts is worthless. 3 Noverati v. Workmen s Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455 (Pa. Cmwlth. 1996). Notwithstanding a medical expert s disbelief that a claimant sustained a particular injury at work previously found to be work-related, however, the expert s testimony can nonetheless support a termination of benefits based on an opinion that the claimant fully recovered from such injury if it, in fact, occurred. Jackson v. Workers Compensation Appeal Board (Res. for Human Dev.), 877 A.2d 498 (Pa. Cmwlth. 2005); To v. Workers Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003). In evaluating whether an employer s medical expert s opinion is sufficient as a whole to terminate benefits, we have concluded that [a]t a bare minimum, the expert must know what the accepted work-related injury was to be competent to testify that a claimant has fully recovered from a work-related injury. Elberson v. Workers Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth. 2007). If the expert does not recognize the nature of the work injur(ies), an employer cannot obtain a termination of benefits despite the fact that its medical expert testified that upon examination, there was no evidence of any abnormality. Id. Employer presented the testimony of Richard Mandel, M.D., board certified orthopedic surgeon, who examined Claimant on February 22, 2005. Claimant provided a history of her work-related injury. She noted her complaints at that time were of right-sided neck pain that radiated into her right shoulder and forearm. Upon review of Claimant s medical records and after conducting a physical examination, Dr. Mandel opined that there were no objective findings to support Claimant s complaints. Without specifying any of her work-related 4 injuries, Dr. Mandel concluded that Claimant was fully recovered and did not require additional medical care. On cross-examination, Dr. Mandel was asked what he believed Claimant s work-related injuries were exactly. He responded: A. ¦ And I would say that she did have an aggravation of (sic) lumbar strain and sprain and also a mild cervical sprain and strain. Those two are the ones that I would include. (R.R. at 30a). Dr. Mandel was further questioned regarding Claimant s brachial plexus injury as follows: Q. What I m asking you basically is, where there s a torque-type accident that was the type of incident that would cause a brachial plexus condition; isn t it? A. I don t know if torque is the right word. It s normally a hyperabduction injury where the arm is pulled to the side and the body goes the other way in a sort of hyperabduction of the shoulder and arm that takes place. And that stretches the nerves of the brachial plexus. So, if that s what happened, then, yes, she could have sustained a brachial plexus injury. But that s a stretch in my opinion from the way she described it to me. (R.R. 34a-35a). Dr. Mandel touched upon the issue of radiculopathy on direct examination when he stated: A. ...There was an MRI of the cervical spine from March of 2001 that revealed no traumatic findings. The only thing that was seen was some minor degenerative disc disease at C5-C6. So I think that study in and of itself is very important. That was inconsistent with the EMG 5 study that was performed by Dr. Sheik in April of 2001. And that reported a right C7, C8 radiculopathy. In this case the MRI would be the gold standard. The fact that there were no abnormalities at C7-C8 or T1 in the MRI would suggest that the EMG results were questionable. Also of note in the EMG at that time was that there was no brachial plexus injury. I think those things are very important. (R.R. at 26a-27a). Dr. Mandel further testified: A. Yes. Her chief complaint was of neck pain with radiation into the upper trapezial area on the right. She wasn t really complaining of pain in the brachial plexus area, but she was complaining of some radiation into the right shoulder and then into the forearm. Q. And the brachial plexus, that s where a bundle of nerves come into your shoulder blade or below your shoulder blade into the chest area. Is that where that is? A. Well, sort of underneath the clavicle and then running between the neck and the arm. Q. And that would not show up on MRI if there was a brachial plexus injury, it s really a nerve root problem; is that correct, it s a nerve problem? A. It s a nerve problem. Q. It would come up on the EMG studies? A. It would tend to, yes. (R.R. at 32a). The WCJ credited Dr. Mandel s testimony and granted Employer s Termination Petition. The WCJ is the final arbiter of witness credibility and may 6 accept or reject the testimony of any witness in whole or in part. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). Upon review, we believe the WCJ erred in granting Employer s Termination Petition. Employer had the burden in this proceeding to establish that Claimant was fully recovered from her December 4, 2000 work injury. Specifically, because Claimant was previously awarded benefits for a cervical strain and sprain, right C7-8 radiculopathy, a brachial plexus tear, and an aggravation of a prior back injury, Employer had to present evidence of recovery from each of these injuries. Central Park. Dr. Mandel explained that he believed Claimant s work injuries were limited to a cervical sprain and strain and an aggravation of a prior injury to her lower back. (R.R. at 30a). He unequivocally opined that Claimant was fully recovered. Dr. Mandel, however, did not believe Claimant sustained a work-related brachial plexus tear stating that based on Claimant s history of the work incident that it would be a stretch that such an injury occurred. Moreover, he dismissed the results of the 2001 EMG showing C7-8 radiculopathy as the same findings were not present on the 2001 MRI despite admitting that a brachial plexus injury being a nerve problem, would come up on an EMG but not on an MRI. (R.R. at 32a). Because Dr. Mandel did not acknowledge that Claimant sustained a work-related brachial plexus tear and C7-8 radiculopathy as judicially determined in WCJ Arrington s April 30, 2003 Decision, his opinion cannot support a termination of benefits.3 Aucker; Gillyard; Noverati. This is so regardless of the fact that the WCJ credited his testimony. 3 Employer disputes that WCJ Arrington found Claimant sustained a cervical strain and sprain, right C7-8 radiculopathy, a brachial plexus tear, and an aggravation of a prior back injury (Footnote continued on next page ¦) 7 The Board affirmed the WCJ s Decision relying on To. The claimant, in To, sustained an injury in the course and scope of his employment on April 23, 1999. The issue in that case was whether the WCJ properly granted the employer s termination petition based upon the testimony of its medical expert, Dr. Mauthe, who did not believe that the injury acknowledged in the NCP ever occurred.4 Upon review, we affirmed noting that regardless of Dr. Mauthe s disbelief that an injury occurred, he suggested that even if the injury did occur as described the claimant was fully recovered. In support of Dr. Mauthe s opinion, he referenced the claimant s normal physiologic examination, his review of the medical records, and his belief that the claimant was a malingerer. To was relied upon by this Court in the Jackson case. In Jackson, the claimant sustained injuries to her knees, back, and arms. The WCJ granted the employer s termination petition based on the credible testimony of the employer s medical expert, Dr. Meller. Dr. Meller s testimony, to the extent pertinent to this matter, was that if there was an injury [to the claimant s knee], it resolved. Jackson, 877 A.2d at 501. We affirmed the WCJ s grant of the employer s (continued ¦) as a result of her work injury as stated. Instead, Employer contends that WCJ Arrington, in his finding of fact No. 9, defined Claimant s injuries as injuries to her neck, shoulders, and back. Claimant s medical expert, Dr. Peacock, testified in the original claim proceeding regarding Claimant s specific injuries as indicated in the WCJ s finding of fact No. 5. Dr. Peacock s testimony was credited by the WCJ and based on his testimony Claimant s Claim Petition was granted. (R.R. at 4a). The WCJ s use of the generalized terminology in a subsequent finding of fact does not detract from Dr. Peacock s diagnosis or his credible opinion that, inter alia, the brachial plexus tear and the C7-8 radiculopathy were work-related. 4 Although the parties in To agreed an NCP was issued, no NCP was ever submitted into evidence. 8 termination petition noting that even if Dr. Meller did not believe the claimant sustained a knee injury as a result of the work incident, he assumed that if such an injury had occurred, the claimant was nonetheless recovered from it. We believe the present matter is distinguishable from both To and Jackson. Unlike the employers medical experts in those cases, Dr. Mandel never assumed that despite his disbelief that Claimant sustained C7-8 radiculopathy and a brachial plexus tear as a result of her December 4, 2000 work injury, that such injuries may have occurred. In turn, he did not opine that Claimant was fully recovered from the C7-8 radiculopathy and the brachial plexus tear if indeed they were sustained. Ultimately, this matter is much like the scenario presented in Elberson. While Dr. Mandel suggested that he observed no objective findings to support Claimant s complaints, his failure to at least consider all injuries as if they were work-related renders his opinion incompetent to support a termination of benefits. Thus, we must agree with Claimant that the WCJ erred in granting Employer s Termination Petition and that the Board erred in affirming the same.5 ___________________________ JIM FLAHERTY, Senior Judge 5 In light of our determination, we need not address Claimant s argument that WCJ Hagan erred in granting Employer s Termination Petition because Employer failed to establish a change in condition since WCJ Arrington granted Claimant s Claim Petition in April of 2003. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ivara Robinson, : Petitioner : : v. : : Workers Compensation Appeal Board : (The School District of Philadelphia), : Respondent : No. 2149 C.D. 2007 ORDER AND NOW, this 12th day of May, 2008, the Order of the Workers Compensation Appeal Board is reversed to the extent it affirmed the Workers Compensation Judge s granting of the Termination Petition filed by the School District of Philadelphia. The Board s Order is affirmed in all other respects. _____________________________ JIM FLAHERTY, Senior Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ivara Robinson, : Petitioner : : v. : : Workers Compensation Appeal Board : (The School District of Philadelphia), : Respondent : BEFORE: No. 2149 C.D. 2007 Submitted: February 22, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SIMPSON FILED: May 12, 2008 I respectfully dissent. For the following reason, I would affirm both the workers compensation judge and the Workers Compensation Appeal Board in their grant of termination. The employer bears the burden of proof in a termination proceeding to establish that the work injury ceased. Where the claimant complains of continued pain, this burden is met where an employer s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari v. Workmen s Comp. Appeal Bd. (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). Here, Employer s medical expert testified that, after hearing Claimant s complaints, he conducted a full examination, including the body parts of which complaints were made. Reproduced Record (R.R.) at 14a-23a. He also reviewed Claimant s medical records. He opined that there were no real objective abnormalities on my examination, that she was fully recovered, and that he did not find any objective findings to support [Claimant s] complaints. R.R. at 27a28a. The fact-finder accepted this testimony. The testimony is certain and not equivocal. Because it meets the requirements of law, there is no basis to disturb the determinations of the compensation authorities. The majority finds fault with statements made by the medical expert on cross-examination. However, because he never recanted his testimony of full recovery and no objective findings, it is improper to reweigh the witness testimony. Minicozzi v. Workers Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005) (it is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made). Therefore, I would affirm. ROBERT SIMPSON, Judge RES - 12

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