S. Kiner v. WCAB (Ross Distribution) (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sarah Kiner, Petitioner v. Workers' Compensation Appeal Board (Ross Distribution), Respondent BEFORE: : : : : : : : : No. 2347 C.D. 2007 Submitted: May 2, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: June 16, 2008 Sarah Kiner (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming an order of the Workers' Compensation Judge (WCJ) which denied Claimant s claim petition. We affirm. Claimant was employed by Ross Distribution (Employer) as a merchandise processor from November 12, 2004, until December 10, 2004. Claimant formally resigned from her employment for health reasons on January 3, 2005. On or about October 13, 2005, Claimant filed a claim petition alleging that she suffered an injury in the course and scope of her employment with Employer on or about December 2, 2004. Claimant described her alleged workrelated injury as [p]osterior bulge of C3-4 disc; posterior bulges of C4-5, C5-6 disc bulge and protrusion; C6-7 disc bulge and protrusion/herniation; left posterolateral protrusion of C4-5 disc; and aggravation of posterior spurring/degenerative changes at C3-4 through C6-7 levels. Claimant sought total disability benefits beginning December 10, 2004, and counsel fees for an unreasonable contest. Employer filed an answer denying the material allegations contained in the claim petition. Hearings before the WCJ ensued. In support of the claim petition, Claimant testified on her own behalf and presented the deposition testimony of her treating physician, Robert Matsko, D.O., who is board certified in family practice, and the deposition testimony of her treating chiropractor, C. Christopher Turnpaugh, D.C., who has attained diplomat status in neurology. Claimant also submitted documentary evidence. In opposition to the claim petition, Employer presented the deposition testimony of Michael Mitrick, D.O., who is board certified in orthopedic surgery, and the testimony of three fact witnesses: (1) Jill Bowersox, Claimant s immediate supervisor while employed by Employer; (2) Gloria Rose, Employer s human resource specialist; and (3) Charles W. Merkle, Employer s loss prevention and safety manager. Employer also submitted documentary evidence. Based on the evidence presented, the WCJ determined that Claimant failed to meet her burden of proving that she sustained a work-related injury on December 2, 2004. Accordingly, the WCJ denied the claim petition. Claimant appealed the WCJ s decision and the Board affirmed. This appeal followed. Herein, Claimant raises the following issues: (1) whether the WCJ erred by relying, in whole or substantial part, on Claimant s alleged statements concerning the cause of her medical condition; (2) whether the WCJ erred as a matter of law in denying the claim petition while at the same time crediting the testimony of Employer s medical expert, Dr. Mitrick, without discussing at all Dr. 2. Mitrick s testimony regarding Claimant suffering an aggravation of a pre-existing condition while in Employer s employ; (3) whether the WCJ erred in failing to award Claimant attorney s fees for an unreasonable contest; and (4) whether the WCJ failed to issue a reasoned decision. Initially, we note that this Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11 (Pa. Cmwlth. 1988). Claimant first argues that the WCJ erred by relying on Claimant s alleged statements that her physical problems were not related to her employment. Claimant contends that the WCJ s findings that Claimant told Employer that her problems were not work-related are based upon the testimony of Employer s supervisory personnel, notwithstanding the fact that Employer s records demonstrate otherwise. Claimant argues that despite this inconsistency, it is well settled that in order to meet her burden of proof on the claim petition, she was required to present expert medical support of her theory that her job duties caused her condition. Claimant contends that she, as a lay person, is not qualified to offer any testimony as to whether her condition was work-related or not. Claimant argues further that the record clearly establishes that she consistently provided a medical history to all of her treating healthcare providers that her symptoms started while working for Employer and that all of the medical experts who actually 3. testified held the opinion that her injury was, in fact, causally related to her employment with Employer. Upon review of the record and the WCJ s findings, it is clear that the WCJ did not rely solely upon Claimant s statements to Employer s personnel that her problems were not work-related when the WCJ determined that Claimant failed to prove that she sustained a work-related injury on December 2, 2004. Herein, Claimant not only testified herself but she presented the testimony of her treating physician, Dr. Matsko, and the testimony of chiropractor, Dr. Turnpaugh. The WCJ not only found Claimant s testimony not credible, he also rejected the testimony of Dr. Matsko and Dr. Turnpaugh. Specifically, the WCJ rejected Dr. Matsko s testimony that Claimant told him that she injured herself at work. The WCJ found that Dr. Matsko could not find a single note that he wrote in which Claimant actually told him that she injured herself at work. As such, the WCJ found that there was absolutely no evidence in Dr. Matsko s record that Claimant ever told him that she suffered a work-related injury. Moreover, in rejecting Dr. Matsko s and Dr. Turnpaugh testimony as not credible, the WCJ rejected the doctors opinions that Claimant s injury was causally related to her employment with Employer.1 In addition, it was well within the province of the WCJ to reject Claimant s testimony and accept the testimony of Employer s fact witnesses on the 1 With respect to a claim petition, the claimant bears the burden of proving that his or her injury arose in the course of employment and was related thereto. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981). Generally, if there is no obvious relationship between the disability and the work-related cause, unequivocal medical testimony is required to meet this burden of proof. Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985). 4. issue of whether Claimant s injury actually occurred while at work.2 Claimant essentially testified that she never told Employer that her problems were not workrelated. Claimant testified that she told Employer that she did not know whether her problems were work-related.3 However, the WCJ rejected this testimony as not 2 The WCJ, as the ultimate fact finder in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). Determinations as to witness credibility and evidentiary weight are not subject to appellate review. Hayden v. Workmen's Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 479 A.2d 631 (Pa. Cmwlth. 1984). 3 Claimant testified that her position required repetitive use of her upper extremities requiring her to fill totes with merchandise and to stick them on conveyor lines. Claimant testified that while performing this work, she began experiencing a burning sensation in her right shoulder and elbow towards the end of November 2004. Claimant testified that continued working because she believed the pain was due to a sore muscle and that the pain would go away once she got used to the job. Claimant testified that in early December, after being off for three days, she returned to work and completed two shifts; however, the burning sensation worsened and she was forced to call off sick for the next two days. Claimant testified that she returned to work for her normal shift at 5:00 a.m. on December 10, 2004, but after working for a few hours, the burning sensation was just too bad and she could not continue working. Claimant testified that she reported her problems to Jill Bowersox, her direct supervisor, and another male manager on December 10th. Claimant testified that she completed an incident report and left work at 9:30 a.m. to obtain medical care. Claimant treated with her family physician, Dr. Matsko, a chiropractor, Dr. Turnpaugh, and several other doctors including two neurologists, and two neurosurgeons. Claimant was also prescribed several medications. Claimant testified further that she never experienced any problems with her right upper extremity prior to her employment with Employer. Claimant described her current symptoms as numbness down her right arm and difficulty turning her head from side to side and downwards and not be able to tilt her head upward. On cross-examination, Claimant testified that when she began her employment with Employer, she received one week of classroom training and another three days of hands on training on the warehouse floor. Claimant testified that the burning sensation appeared about a week after the training was completed. With regard to her conversations with Jill Bowersox and (Continued....) 5. credible. Instead, the WCJ accepted as credible the testimony of Employer s three fact witnesses that Claimant told each of them that her injuries did not occur or happen at work.4 Moreover, Employer s fact witnesses explained the process when Charles Merkle on December 10, 2004, Claimant testified that she was unsure if she attributed her problem to work but that she was certain that she did not say that her problem was unrelated to her work. Claimant testified further that she chose to treat with her own doctor rather than a panel physician because she was not sure if her problem was work-related. Claimant acknowledged that she signed a refusal of medical care form on December 10, 2004, but did so because she did not want to ride away from work in an ambulance. Claimant testified that she brought an MRI report into work and discussed with the Charles Merkle and Gloria Rose on January 3, 2005. Claimant testified that she signed a separation report resigning her employment due to health reasons. Claimant denied telling Employer on January 3, 2005, that her problems were not work-related. Claimant testified that she told Employer that she still did not know what was causing her problem. 4 Jill Bowersox testified that she was Claimant s supervisor. Ms. Bowersox testified that after Claimant completed her training, she began doing all aspects of the job by herself beginning November 29, 2004. Ms. Bowersox testified further that Claimant worked November 29th, November 30th, December 3rd, and December 4th, and that Claimant did not work again until December 10, 2004. Ms. Bowersox testified that she filled out an accident report even though Claimant did not specifically indicate that she was injured at work. Ms. Bowersox testified that Claimant never told her that Claimant had suffered a work-related injury, that Claimant never told her how it happened or how the injury occurred. Ms. Bowersox testified that Claimant only indicated that she was feeling numbness to her right hand that went up her arm. Ms. Bowersox testified that Claimant refused to go to panel physician and that there was no discussion of having Claimant removed from the premises via an ambulance. Finally, Ms. Bowersox testified that she never received a form from Claimant s treating physician taking Claimant off of work. Gloria Rose testified that she was employed by Employer as a human resource specialist. Ms. Rose testified that she met with Claimant on January 3, 2005, when Claimant appeared at her office unannounced. Ms. Rose testified that Claimant informed her that she was unable to perform her job due to personal reasons and, at that point, Ms. Rose asked Charles Merkle to join her as a witness. Ms. Rose testified that Claimant stated that her injuries did not occur at work and that it was a personal health condition. Ms. Rose testified that when Claimant was informed that she would be offered medical services if her injury occurred at work, Claimant again responded that it did not happen at work. Ms. Rose testified that Claimant never presented a note from Dr. Matsko taking Claimant off of work. Charles Merkle testified that he was employed by Employer as the loss prevention and safety manager and was responsible for workers compensation. Mr. Merkle testified that (Continued....) 6. an employee reports an injury which included filling out certain forms. Employer s fact witnesses credibly explained why the forms were used and that the same forms were used whether the injury was work-related or not. As such, we reject Claimant s contention that Employer s records also support a finding that Claimant suffered a work-related injury. Next, Claimant argues that the WCJ erred in denying the claim petition while at the same time crediting Employer s medical expert s testimony without at all discussing Dr. Mitrick s testimony regarding Claimant s aggravation of a pre-existing cervical spine condition. Claimant contends that Dr. Mitrick s testimony, as a whole, supports a finding that she suffered an aggravation of a preexisting condition while working for Employer. Claimant argues that Dr. Mitrick first testified that her symptoms were not caused by her employment and then testified that her employment temporarily aggravated her condition causing her to feel symptoms. Claimant contends that the WCJ completely disregarded the compensability of this aggravation of a pre-existing condition in crediting Dr. Mitrick s testimony but refusing to award any benefits. Claimant argues that this matter should be remanded for the WCJ to address all of Dr. Mitrick s testimony. his first meeting with Claimant was December 10, 2004, when he met with Claimant and her supervisor, Ms. Bowersox. Mr. Merkle testified that he immediately asked Claimant if she injured herself at work and Claimant indicated that she was not injured at work. Mr. Merkle testified that Claimant indicated that she did not need medical treatment with a panel physician because it was not a work-related condition. Mr. Merkle testified that at no point in time did he ever receive any medical notes regarding Claimant s condition or her ability or inability to work between December 10, 2004, and January 3, 2005. Mr. Merkle testified further that he did review the MRI that Claimant brought to Employer on January 3, 2005, and after reviewing it, asked Claimant whether or not she felt that the bulging disc was the result of her work for Employer and that Claimant told him that it was absolutely not, that she had a condition and had some problems. 7. We remind Claimant that she was the party with the burden of proof on the claim petition and that the WCJ rejected her testimony as well as the testimony of her medical experts, Dr. Matsko and Dr. Turnpaugh, as to the cause of her injury. Notwithstanding this fact, we will address Claimant s arguments with regard to Dr. Mitrick s testimony, Employer s medical expert. Dr. Mitrick testified that Claimant suffered from cervical discogenic disease which was severely advanced at almost every level of her cervical spine. Dr. Mitrick did not believe that Claimant s condition was in anyway related to the work that she performed for Employer. Dr. Mitrick further opined that there was no evidence of radiculopathy. The WCJ found Dr. Mitrick s testimony credible that Claimant was suffering from very advanced degenerative disc disease in the cervical spine and that all of her pain and disability were related to that degenerative disc disease. The WCJ found further that Claimant had a negative EMG study which showed absolutely no radiculopathy in the upper extremities and Dr. Mitrick indicated that Claimant had no spasm and had a normal neurological examination. As pointed out by Claimant, Dr. Mitrick also testified that Claimant may have sustained a temporary aggravation of her cervical discogenic disease. Specifically, Dr. Mitrick testified that anybody who has these kind of changes, cervical discogenic disease, you expect as you get active that your pain level is going to go up, you re going to have some irritation. It s not a permanent type situation. You know, get back to your baseline level and then the pain goes back down. R.R. at 318a. Dr. Mitrick testified further that his opinion regarding the fact that she may have sustained a temporary aggravation was based upon what Claimant told him she was doing at Employer and how long she performed that employment. Id. at 322a. However, as determined by the Board upon review on 8. appeal, Dr. Mitrick did not unequivocally testify that Claimant suffered a workrelated aggravation of her pre-existing condition. Dr. Mitrick merely testified that Claimant may have suffered a temporary aggravation and he offered no testimony that would suggest that such temporary aggravation lasted long enough to constitute an actual work injury or work-related disability. In other words, Dr. Mitrick s testimony in this regard simply would not support a finding that Claimant suffered a compensable aggravation of her underlying cervical discogenic disease. Moreover, it is well within the province of the WCJ to accept or reject the testimony of any witness, including a medical witness in whole or in part. General Electric. It is clear from the WCJ s decision that he set forth the portions of Dr. Mitrick s testimony that the WCJ deemed credible. This fact, coupled with the fact that Claimant was the party with the burden whose evidence the WCJ rejected, results in the conclusion that Claimant s arguments in this regard must fail. As the testimony found credible by the WCJ supports the WCJ s findings, we refuse to remand for further findings based on Dr. Mitrick s testimony. Next, Claimant argues that the WCJ erred by not awarding attorney s fees based on an unreasonable contest. We disagree. Section 440 of the Workers Compensation Act5 (Act) provides, in pertinent part, as follows: (a) In any contested case where the insurer has contested liability in whole or in part, . . . the employe . . . in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §996(a). 9. time to attend the proceedings: Provided, That costs for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. Emphasis added. Accordingly, pursuant to the plain language of Section 440 of the Act, Claimant is not entitled to an award of attorney s fees as she did not prevail on her claim petition. Finally, Claimant argues, in the alternative, that the WCJ failed to issue a reasoned decision as required by Section 422(a) of the Act, 77 P.S. §834. Section 422(a) of the Act provides, in pertinent part, that [a]ll parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached ¦ , and [t]he adjudication shall provide the basis for meaningful appellate review ¦ 77 P.S. §834. Herein, Claimant first argues that the WCJ s decision is not reasoned because the WCJ failed to make any findings of fact regarding the expert medical report of Stephen K. Powers, M.D., a neurosurgeon, which was sent to Dr. Turnpaugh. Claimant argues that this is a significant piece of evidence since Dr. Powers opinions support the deposition testimony of Claimant s medical experts, Dr. Matsko and Dr. Turnpaugh, and undermine the testimony of Employer s medical expert, Dr. Mitrick. However, as stated previously herein, the WCJ rejected the testimony of Dr. Matsko and Dr. Turnpaugh as not credible. In doing so, the WCJ clearly and adequately explained his reasons.6 As such, the WCJ s 6 In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, (Continued....) 10. decision is not rendered unreasonable because he failed to specifically address a medical report that was relied upon by these medical witnesses. Second, Claimant argues that the WCJ s decision is not reasoned because several of the numerous findings of fact contradict each other. Specifically, Claimant states that the WCJ found as fact that she was certain that she did not tell Employer s employees or her immediate supervisor that her problem was unrelated to work but then credited the testimony of Employer s fact witnesses that Claimant told them that her injury did not occur at work. Claimant s argument is misleading. The WCJ set forth a summarized recitation of Claimant s testimony, including her testimony that she was certain that she did not tell Employer that her problem was unrelated to work, as well as the testimony of the other fact witnesses. Thereafter, the WCJ made findings clearly rejecting Claimant s testimony as not credible where it conflicted with the other credible fact testimony. Specifically, the WCJ found as follows: 89. This Judge finds that Claimant sincerely attempted to testify accurately as to her recollection of events. However, this Judge finds the testimony of the Claimant to be not credible or persuasive, where it is contrary to the other fact testimony in this case which is credible. Three separate individuals for [Employer] independently verified that the Claimant never told anyone at [Employer] that she injured herself at work. Instead, she 77-78, 828 A.2d 1043, 1053 (2003), our Supreme Court held that in circumstances where a fact finder s credibility assessment was not determined as a result of seeing and hearing the witness testify before them such as in cases where deposition testimony is considered - some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a "reasoned" one which facilitates effective appellate review. 11. indicated to several individuals that her problems were non-work related. . . . . WCJ s Decision, Finding of Fact 89. Thus, contrary to Claimant s assertions, the WCJ did not make contradictory findings which rendered his decision unreasoned. Third, Claimant argues that the WCJ s decision is not reasoned because the WCJ s finding that Dr. Matsko never provided Claimant with a written note excusing her from work is directly at odds with the Claimant s testimony, Dr. Matsko s testimony and the evidentiary record as a whole. Claimant points out that she testified that Dr. Matsko s office gave her two slips taking her off work and that she hand-delivered these slips to Employer. Claimant points out further that Dr. Matsko authenticated the two work slips during his deposition and that these two slips were entered into the record. In rejecting Claimant s argument in this regard, we adopt the reasoning of the Board: The [WCJ] found that Dr. Matsko never supplied the Claimant with a written note to take to her employer taking her off work. (Finding of Fact 93). However, after careful review of the record, it appears that the [WCJ] was referring to the testimony of Dr. Matsko, where he indicates that he never specifically authored a note taking Claimant out of work, and that he was never specifically asked to give Claimant an excuse to be off work. (Findings of Fact 56, 57). The [WCJ s] findings are not inconsistent with the testimony of Dr. Matsko as he testified that the notes were furnished by his son. (Matsko, pp. 63-64) [R.R. at 289a-90a] Furthermore, the [WCJ] did not base his denial of Claimant s Claim Petition on this issue. . . . . 12. Board s Opinion at 9 (footnote omitted). Accordingly, we reject Claimant s assertion that the WCJ s decision is not reasoned because the WCJ s findings with regard to the work slips are not supported by the record. The Board s order is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge 13. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sarah Kiner, Petitioner v. Workers' Compensation Appeal Board (Ross Distribution), Respondent : : : : : : : : No. 2347 C.D. 2007 ORDER AND NOW, this 16th day of June, 2008, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed. _________________________________ JAMES R. KELLEY, Senior 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.