L.A. Carpenter v. Family Dollar Stores of PA, LLC (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lori A. Carpenter, :
:
Petitioner :
:
v. : No. 379 C.D. 2021
: Submitted: July 23, 2021
Family Dollar Stores of :
Pennsylvania, LLC :
(Workers’ Compensation :
Appeal Board), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge2
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 14, 2022
Lori Carpenter (Claimant) petitions this Court for review of the March
10, 2021 order of the Workers’ Compensation Appeal Board (Board), which
affirmed the January 31, 2020 decision and order of the Workers’ Compensation
Judge (WCJ), which granted the termination petition of Family Dollar Stores of
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
2
The Court reached the decision in this case prior to the conclusion of Judge Crompton's
service on the Commonwealth Court.
Pennsylvania, LLC (Employer), and denied Claimant’s review and penalty petitions.
After careful review, we affirm.
The relevant facts as found by the WCJ are as follows.3 On February
18, 2017, Claimant sustained a work-related injury during the course of her
employment with Employer, when she was loading gallon water bottles on a shelf,
the top of the shelf broke, the display fell, and it knocked Claimant to the ground.
C.R. at 33. Employer issued a notice of temporary compensation payable, which
converted to a notice of compensation payable (NCP),4 accepting the injuries as
“multiple body parts; contusion to the face; right chest wall; and lower back injury.”
Id. Claimant received full indemnity and medical benefits, and she has not returned
to work. On November 20, 2018, Employer filed a termination petition alleging that
Claimant had fully recovered from her work injuries and was able to return to work
as of November 2, 2018, based on the independent medical examination (IME) and
opinions of Dr. Richard Bennett, who is board certified in neurology and
electromyography. Id. Claimant denied the allegations in Employer’s termination
petition. Id. On February 1, 2019, Claimant filed a penalty petition and a review
petition, alleging that certain medical bills were unpaid, and seeking to amend the
nature and description of her injury to include “traumatic brain injury; cervical
injury; psychological injury stemming from physical injury; and chronic pain
stemming from physical injury.” Id. Employer denied the allegations in Claimant’s
petitions, all the petitions were consolidated, and hearings were held before the WCJ.
3
The January 31, 2020 decision and order of the WCJ appears in the Certified Record
(C.R.) at 30-54.
4
Although Employer issued an amended, temporary NCP for medical expenses only,
counsel agreed before the WCJ that Claimant was receiving both medical and indemnity benefits
for the injuries as described.
2
With respect to its termination petition, Employer presented deposition
testimony of Dr. Bennett. With respect to her review and penalty petitions, Claimant
presented her own testimony, as well as deposition testimony from three of her
treating physicians: Dr. Paul Horchos, who treated Claimant for concussion
symptoms; Dr. Kenneth Zahl, who treated Claimant for various pain symptoms; and,
Dr. Marifel Estrada-Currie, a clinical psychologist who conducted a psychological
evaluation for purposes of evaluating Claimant’s suitability for a spinal cord
stimulator, and then continued to counsel her after the evaluation. In response to
Claimant’s review petition, Employer presented Dr. Bennett’s testimony and
deposition testimony of Dr. Gladys Fenichel, who is board certified in psychiatry
and neurology. Dr. Fenichel performed an IME of Claimant on June 25, 2019, in
light of Dr. Bennett being unable to comment on Claimant’s alleged psychological
injuries. C.R. at 38.
The WCJ summarized at length and in detail the testimony of all
witnesses and made the following relevant findings. Claimant testified that she had
not recovered from her work injuries; that she experienced memory and speech
difficulties, pain and tingling in her head, neck, back, left side of her body, and
“shocking” pain in her legs; that she has daily pain described as an “eight to a ten”
(out of a 10-point scale); and that she was only taking vitamins, and occasionally
medical marijuana to treat for her pain. C.R. at 34. The WCJ found Claimant’s
testimony “not persuasive and place[d] more weight on the medical evidence,” based
on his observation of Claimant’s “bearing and demeanor at the time of her
testimony.” Id. at 48. The WCJ found Dr. Bennett’s testimony more credible than
the testimony of Dr. Zahl and Dr. Horchos as to whether Claimant had fully
recovered from her accepted work injuries. Id. The WCJ’s detailed finding of fact
3
67 regarding Dr. Bennett’s testimony is at the heart of Claimant’s arguments against
Employer’s termination petition, and states as follows:
This Judge finds the testimony of Dr. Bennett more
credible than the testimony of Dr. Zahl and Dr. Horchos.
In that regard, Dr. Bennett opined that Claimant fully
recovered from her accepted injuries of a facial contusion,
chest wall contusion, and lumbar strain, as well as a closed
head injury and a possible cervical contusion based upon
his examination of the Claimant and his review of the
medical records. Dr. Bennett reviewed his examination
findings and the lack of objective findings. Dr. Bennett
noted that a CT scan [computed tomography (CT) scan] of
the lower spine dated March 7, 2017 as well as a March
21, 2017 MRI [magnetic resonance imaging (MRI) scan]
of Claimant’s cervical spine revealed nothing. Moreover,
Dr. Bennett testified that he reviewed a February 2017
MRI which indicated Claimant had a broad-based disc
protrusion at L2-L3 but Dr. Bennett clarified that it was a
degenerative age-related change and these were non-
trauma findings and nothing to do with Claimant’s work
injury. Conversely, Dr. Zahl opined Claimant had
spondylolisthesis of L4-S1 and also a herniation at L5-S1
which was hitting the L5 and S1 nerve roots. However,
Dr. Bennett opined there were several EMGs
[electromyography (EMG)] done of Claimant’s upper and
lower extremities and both studies were normal and there
was no evidence of any neuropathy or radiculopathy. In
fact, although Dr. Horchos acknowledged he was not
treating Claimant’s cervical and back complaints, Dr.
Horchos acknowledged that Claimant’s EMG nerve
conduction studies did not appear to show a pinched nerve.
Despite opining Claimant had a herniation at L5-S1 “that
was hitting the L5 and S1 nerves,” Dr. Zahl admitted that
the EMG/[n]erve [c]onduction studies of both the upper
and lower extremities failed to find evidence of
radiculopathy. Interestingly, Claimant reported to Dr.
Zahl she had tingling throughout the whole entire left arm
and left leg into the left fourth and fifth fingers as well as
to the left fourth and fifth toes but the EMG findings
revealed nothing. Dr. Zahl was not even aware that Dr.
4
Horchos found Claimant’s straight leg raising test was
negative throughout his examination of Claimant. This
Judge does not find the opinions of Dr. Zahl credible that
the MRI revealed a herniation hitting the L5 and S1 nerve
roots. In further support of Dr. Bennett’s testimony, on
April 19, 2017[,] Dr. Horchos documented his
examination findings noting that Claimant’s cervical
range of motion was good, bilateral upper extremity
strength was good, bilateral lower extremity strength was
good, and straight leg raising and femoral nerve stretch
testing were both negative. Following a July 2017
examination, Dr. Horchos did not see Claimant again until
January 2, 2018 and again Claimant’s bilateral extremities
strength was good and Claimant’s bilateral lower
extremities strength was also good. Claimant’s straight
leg raising and femoral stretch nerve testing were both
negative. After February 2018, Claimant did not return to
Dr. Horchos until May 2019 and again Dr. Horchos noted
Claimant’s cervical range of motion was good to forward
bending, extension, side bending, and rotation. Upper and
lower bilateral extremities were good. Claimant’s straight
leg raising and femoral nerve stretch testing were both
negative.
C.R. at 48-49.
As to Claimant’s review petition, in which she sought to amend her
work injuries to include traumatic brain injury, cervical injury, psychological injury
stemming from physical injury, and chronic pain stemming from physical injury,
Claimant presented the testimony of her treating physicians Dr. Zahl, Dr. Horchos,
and Dr. Estrada-Currie. Dr. Zahl opined that Claimant suffered from a traumatic
brain injury and post-concussion syndrome, as well as complex regional pain
syndrome (CRPS), as a result of the work injuries. Dr. Horchos opined that Claimant
suffered a cerebral concussion as a result of the work injuries. Dr. Estrada-Currie
opined that Claimant suffered from major depressive disorder and generalized
anxiety disorder as a result of the physical work injuries. C.R. at 42-43, 44, and 46.
The WCJ found Dr. Bennett’s opinion that Claimant did not sustain a traumatic brain
5
injury aside from a closed head injury more credible than Dr. Zahl’s diagnosis of
post-concussion syndrome, and Dr. Horchos’ diagnosis of cerebral concussion. Dr.
Bennett’s review of Claimant’s medical records revealed that Claimant denied loss
of consciousness, nausea, or vomiting when she was seen in the Pocono Medical
Center’s emergency department on the same day as the work incident, and that she
refused analgesics and could walk “without difficulty” down the hall when she was
seen at the St. Luke’s Hospital emergency room the next day. When Claimant
visited the Lehigh Valley Hospital emergency room in August 2017, the results of
various diagnostic testing “revealed nothing,” and the results of her neurological
exam were normal. The WCJ found “it significant that the contemporaneous
medical records indicate that Claimant did not lose consciousness and supports Dr.
Bennett’s opinions that Claimant suffered a closed head injury but was recovered by
the time of his examination on November 2, 2018.” C.R. at 49-50. The WCJ noted
that Dr. Horchos admitted “the medical records document that Claimant has a past
history of migraines and an ataxic gait.” Id. at 50. The WCJ also noted that Claimant
had a treatment gap with Dr. Horchos from February 2018 until May 2019, and that
his opinion that Claimant could not walk as a result of her work injury was not
consistent with contemporaneous medical records documenting that Claimant could
walk without difficulty. Id.
The WCJ further found Dr. Bennett credible when he opined that “he
found no evidence of [CRPS] or complex sympathetic dystrophy, as it relates to the
work injury.” C.R. at 50. Dr. Bennett testified that Claimant “does not have findings
consistent with the Budapest criteria,” which are based in part on subjective
complaints of pain used to diagnose CRPS. Id. at 50-51. Dr. Bennett also testified
that he found no objective indicators of CRPS when he examined Claimant, such as
6
changes in skin tone or color, changes in skin temperature, or changes in nails. Id.
The WCJ found it significant that “Claimant reports complaints with her back and
neck which are not supported by the MRI and EMG studies.” Id. at 51. The WCJ
also noted that Dr. Zahl testified that he did not treat Claimant from November 26,
2018, until April 17, 2019, even though he believed Claimant was suffering from
CRPS. The WCJ further noted that Dr. Zahl testified he could not recall Claimant
wearing fitted pants or socks to her appointments, but when she appeared before the
WCJ, Claimant was wearing fitted pants (not loose sweat pants) and socks. Thus,
the WCJ rejected the opinions of Dr. Zahl as “not credible when inconsistent with
the opinions of Dr. Bennett.” Id.
As to the psychological conditions stemming from her work injury, Dr.
Estrada-Currie opined that Claimant’s major depressive disorder, generalized
anxiety disorder, and cognitive deficits were related to her work injury. Dr. Estrada-
Currie also admitted that Claimant had multiple challenges in her life not related to
her work injury that could impact her psychological health, including trauma from
an automobile accident in 2008, stress over her younger autistic son, stress over her
older son dealing with legal and court issues, and a stressful relationship with her
partner. C.R. at 46-48.
In response, Employer presented the deposition testimony of Dr.
Fenichel, who performed an IME on June 25, 2019, during which she examined and
interviewed Claimant, and reviewed medical records. During the examination and
interview, Dr. Fenichel observed that Claimant described suffering from chronic and
severe pain in her head, neck, back and extremities, in what she described as
“shocking pain,” and that “even breathing (exhaling and inhaling) makes her feel
like her spine will break.” Id. at 38-39. During the IME, Dr. Fenichel gave Claimant
7
a mental status examination, on which Claimant scored 29 out of 30, meaning
Claimant had no cognitive problems based on the tests. Id. at 39. Based on her
examination and review of medical records, Dr. Fenichel opined that Claimant did
not suffer a psychiatric disorder or cognitive disorder as a result of the work injuries,
and did not currently suffer from major depressive disorder or generalized anxiety
disorder as a result of the work injuries. Id. at 39-41.
The WCJ found Dr. Fenichel’s testimony more credible than Dr.
Estrada-Currie’s testimony, based on Dr. Fenichel’s qualifications, her review of
Claimant’s medical records, her review of testimony from Claimant’s treating
physicians, and her review of Claimant’s testimony. C.R. at 51. The WCJ found
Dr. Fenichel’s testimony more credible because Dr. Fenichel is a medical doctor and
Dr. Estrada-Currie is a psychologist. Dr. Fenichel’s review of Claimant’s medical
records revealed that Claimant presented her symptoms differently to Dr. Fenichel
than she did to her treating physicians, and that Claimant displayed no signs of
anxiety or depression within three months of her work injury. Dr. Fenichel observed
that Claimant had “dramatic displays of pain,” during the IME, but did not
demonstrate problems as to concentration. Id. Dr. Fenichel further opined that
neither major depression nor generalized anxiety develop in response to a particular
life event such as the work injuries, and instead could be caused by the other stresses
admittedly present and ongoing in Claimant’s life. Id. Thus, the WCJ rejected Dr.
Estrada-Currie’s testimony to the extent her testimony was inconsistent with Dr.
Fenichel’s, and he found Dr. Fenichel’s testimony on this issue as more credible than
Dr. Estrada-Currie’s, finding it significant “that Dr. Fenichel performed testing and
reviewed the medical records.” Id. at 52.
8
Based on his findings, the WCJ concluded that Employer met its burden
to terminate Claimant’s benefits as of November 2, 2018, the date of Dr. Bennett’s
IME. The WCJ also concluded that Claimant failed to meet her burden of proof to
amend her work injuries to include traumatic brain injury, cervical injury,
psychological injury stemming from physical injury, and chronic pain stemming
from physical injury. Finally, on the issue of Claimant’s penalty petition, in which
she alleged that Employer failed to pay certain medical bills, the WCJ found that
Claimant failed to meet her burden of proof to show which bills had been paid or not
paid, and that Claimant failed to prove that certain bills for Dr. Zahl’s treatment
relating to her CRPS were related to her accepted work injuries. The WCJ also found
that Employer engaged in a reasonable contest. Id. at 52-53.
Claimant then appealed the WCJ’s order granting Employer’s
termination petition, and dismissing her review and penalty petitions to the Board,
which affirmed the WCJ.5 On appeal to the Board, Claimant questioned the WCJ’s
findings, especially regarding Dr. Bennett’s testimony. Claimant argued that Dr.
Bennett’s testimony ignored a January 2018 report from Dr. Peter Feinstein, who
performed an earlier IME, which found that Claimant could be suffering from CRPS
based on the history Claimant provided, but that she does not have skin mottling,
skin temperature changes, or other physical signs that could go along with CRPS.6
The Board stated that, on cross-examination, Dr. Bennett testified that as part of his
medical records review, he reviewed Dr. Feinstein’s report before he prepared his
5
The March 10, 2021 decision and order of the Board appears in the Certified Record at
78-97.
6
Neither Employer nor Claimant asked Dr. Feinstein to testify, and Dr. Feinstein did not
testify, before the WCJ. Dr. Feinstein’s report was discussed as part of Dr. Bennett’s review of
Claimant’s medical records for his IME. Reproduced Record (R.R.) at 176a-84a.
9
own report, but that he did not review it before conducting his examination of
Claimant. However, Dr. Bennett testified that “it would have made and makes no
difference in his opinion.” C.R. at 89. The Board stated that although “Claimant
makes much of Dr. Bennett’s focus on neurological testing and his neurological
point of view,” Dr. Bennett indicated several times that “based on his review of
[Claimant’s] records and his physical examination of Claimant, which revealed no
objective findings to suggest any ongoing work-related conditions, that she fully
recovered from her work injuries.” Id. at 93. The Board considered Claimant’s
various arguments and concluded that Dr. Bennett’s testimony was competent and
did not leave doubt. Id. at 93-94. The Board rejected Claimant’s argument that
Employer concealed the first IME report of Dr. Feinstein from the second IME
doctor, Dr. Bennett, and that Employer unilaterally stopped paying Claimant’s work-
related medical bills, concluding that Employer presented a reasonable contest.
Because Claimant was not successful on her review or penalty petitions, the Board
concluded that Claimant did not meet her burden to prove that Employer violated
Section 440 of the Workers’ Compensation Act (Act),7 and affirmed the WCJ’s
7
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L.
25, 77 P.S. §996. Section 440 states in relevant part that where an insurer has contested liability,
including petitions to terminate or modify awards, and where claimant prevails in whole or in part,
claimant shall be awarded a reasonable sum for costs incurred, except that the cost for attorney’s
fees may be excluded when a “reasonable basis” for the contest has been established by the
employer or insurer.
10
denial of Claimant’s penalty petition.8 Claimant then petitioned our Court for
review.9
Claimant presents seven questions for our review, with the first six
relating to the WCJ’s findings regarding Dr. Bennett’s testimony, and the final
question relating to the WCJ’s finding that Employer presented a reasonable contest.
Claimant argues that Dr. Bennett’s testimony failed in several ways to provide
substantial evidence to support the WCJ’s findings, and that the WCJ committed
several errors of law in interpreting Dr. Bennett’s testimony. As we review the
issues presented by Claimant, we are mindful that in workers’ compensation cases,
the “WCJ is the ultimate fact-finder who must determine credibility and evidentiary
weight. In this role, the WCJ freely evaluates the evidence offered and can accept
or reject any [witnesses’] testimony, in whole or in part, including that of medical
witnesses.” Davis v. Workers’ Compensation Appeal Board (City of Philadelphia),
753 A.2d 905, 909 (Pa. Cmwlth. 2000). As this Court further stated, “[w]hile this
Court can and should consider the competency and sufficiency of evidence presented
before a WCJ, the WCJ’s assessment of witness credibility is not subject to our
review on appeal.” Id.
8Claimant’s petition to this Court seeks review of the WCJ’s order granting Employer’s
termination petition, and his denial of Claimant’s review petition only. Claimant did not seek
review of the substance of the WCJ’s denial of her penalty petition, so we will not address the
penalty petition further.
9
Our scope of review in a workers’ compensation appeal is limited to determining whether
an error of law was committed, whether constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal
Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1318 n.4 (Pa. Cmwlth. 1996). Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612
A.2d 434, 436 (Pa. 1992).
11
To prevail on a termination petition, “an employer bears the burden of
proving by substantial evidence that a claimant’s disability ceased, or any remaining
conditions are unrelated to the work injury.” Westmoreland County v. Workers’
Compensation Appeal Bord (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008)
(internal citations omitted). An employer may satisfy its burden by presenting
“unequivocal and competent medical evidence of the claimant’s full recovery from
her work related injuries.” Id. As to Claimant’s review petition in which she sought
to modify the accepted injuries to include additional ones, the burden of proof rests
with Claimant to establish the existence of additional compensable injuries. Cinram
Manufacturing, Inc. v. Workers’ Compensation Appeal Board (Hill), 975 A.2d 577,
582 (Pa. 2009). If the connection between the alleged disability and the work
accident is not obvious, a claimant must provide unequivocal medical testimony to
establish that the additional compensable injuries were caused by the work accident.
Fotta v. Workmen’s Compensation Appeal Board (U.S. Steel/USX Corporation
Maple Creek Mine), 626 A.2d 1144, 1146 (Pa. 1993).
Claimant first argues that the WCJ erred in finding that Employer met
its burden in the termination petition because Dr. Bennett testified that he could
opine on Claimant’s ability to return to work “from a neurological standpoint,” thus
failing to prove that Claimant was fully healed from all of her physical work-related
injuries. R.R. at 153a, 154a. Claimant argues that because Dr. Bennett limited his
opinion to Claimant’s recovery from a neurological point of view, that his opinion
failed to provide substantial evidence that Claimant was fully recovered from her
physical injuries, which were described as injuries to multiple body parts, contusion
to the face, right chest wall, and lower back injury.
12
Employer responds that Dr. Bennett’s testimony, when viewed as a
whole, provided substantial evidence that Claimant had recovered from all her
accepted work injuries and was able to return to work. Further, Employer argues
that Claimant’s attempt to take Dr. Bennett’s isolated comment out of context should
fail, when it was elicited on cross-examination in response to a hypothetical
question. Employer responds that Dr. Bennett did not testify that he would have to
refer Claimant to an orthopedist to assess whether she had recovered from her
physical injuries, but rather, answered a broadly worded hypothetical question on
cross-examination, as follows:
Q: Now, neurologically somebody could be, not have a
neurological issue, but could still have issues with her
back pain, correct?
A: Correct.
Q: So the fact that neurologically you didn’t find anything
wrong with her back, doesn’t mean that she didn’t have a
back condition that kept her from working?
A: If there is a significant problem, I refer that to an
orthopedic assessor.
R.R. at 154a. Employer further responds that in Dr. Bennett’s report and testimony,
and in his completion of a physician’s affidavit of recovery, Dr. Bennett opined
numerous times that Claimant had fully recovered from the accepted work injuries
of facial contusion, right chest wall contusion, and lower back injury, as well as from
a closed head injury. Id. at 140a, 172a-74a. Employer further responds that Dr.
Bennett did not admit that he could not evaluate any orthopedic injuries, such as the
Claimant’s rib contusion, but in fact testified that he could, because “[i]t’s a medical
issue. She had no complaints and no findings of a wrist [sic/rib] contusion.” Id. at
154a. Employer further notes that Dr. Bennett testified that he found no objective
13
evidence of Claimant’s work injuries during his examination or from his medical
records review, including lumbar strain, in support of his opinion of Claimant’s full
recovery. Id. at 136a-38a, 139a, 154a. Employer further responds that this Court
has previously held that although Dr. Bennett is a neurologist, he is also a medical
physician who is qualified to render opinions on medical conditions such as knee
pain, orthopedic injuries, and shoulder and back strains. See, e.g., Baumann v.
Workers’ Compensation Appeal Board (Kellogg Company), 147 A.3d 1283 (Pa.
Cmwlth. 2016); Senestant v. Workers’ Compensation Appeal Board (HIS of PA at
Broomall) (Pa. Cmwlth., No. 1852 C.D. 2007, filed February 12, 2008); 10 Rondolone
v. Workers’ Compensation Appeal Board (SEPTA) (Pa. Cmwlth., No. 1021 C.D.
2013, filed November 1, 2013); Barr v. Workers’ Compensation Appeal Board
(GMRI Inc. and LM Insurance Corporation) (Pa. Cmwlth., No. 741 C.D. 2020, filed
April 16, 2021). Employer further responds that it was not required to present
testimony from an orthopedist, such as Dr. Feinstein, to sustain its burden of proof
on the termination petition. Employer objects to Claimant’s mischaracterization of
Dr. Bennett’s testimony, which did not explicitly or implicitly concede that Dr.
Feinstein, as an orthopedist, was in a better position to opine on Claimant’s physical
injuries, but rather, acknowledged Dr. Feinstein’s earlier report and stated his
disagreement with it. R.R. at 147a, 159a.
As to Claimant’s first issue, we discern no error in the WCJ’s finding
that Employer met its burden to terminate benefits, as supported by Dr. Bennett’s
report and testimony. We are not persuaded that Dr. Bennett’s testimony on cross-
examination in response to a hypothetical question, limited his opinion of Claimant’s
10
See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”)
14
recovery from her physical injuries and her ability to return to work to “a
neurological standpoint” only. 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. Corcoran v.
Workers’ Compensation Appeal Board (Capital Cities/Times Leader), 725 A.2d
868, 872 (Pa. Cmwlth. 1999). Here, substantial evidence from Dr. Bennett’s entire
testimony supports the WCJ’s finding that Claimant fully recovered from her
accepted work injuries and was able to return to work. The “WCJ is the ultimate
fact-finder, who must determine the credibility and weight of [witnesses’] testimony,
in which the WCJ is free to accept or reject witness’ testimony, in whole or in part,
including that of medical witnesses.” Davis, 753 A.2d at 909. “Although this Court
can and should assess the competency and sufficiency of witness testimony, it may
not review on appeal a WCJ’s assessment of witness credibility.” Id.Claimant argues in her second issue that the WCJ erred as a matter of
law when he misallocated the burden of proof on the termination petition to
Claimant, rather than on Employer. Claimant argues that, as part of the termination
petition, the WCJ erred by requiring Claimant to prove that she suffered from CRPS
despite the fact that Dr. Feinstein opined earlier that Claimant could be suffering
from CRPS. Claimant argues that Dr. Feinstein’s earlier IME should be treated as
Employer’s admission that Claimant suffers from CRPS, and that CRPS is related
to her accepted work injuries. Claimant relies on Murphy v. Workers’ Compensation
Appeal Board (Mercy Catholic Medical Center), 721 A.2d 1167 (Pa. Cmwlth. 1998),
to support this argument.
In Murphy, our Court was asked to evaluate whether substantial
evidence supported the employer’s termination petition, when the employer’s
15
psychiatrist testified that he diagnosed the claimant with depressant disorder over
one year before the termination petition was filed, and then recanted that diagnosis
after viewing a surveillance video that showed the claimant engaging in activities
that purportedly revealed no signs of the claimant’s physical or psychological
injuries. Murphy, 721 A.2d at 1170. The employer’s psychiatrist recanted his earlier
diagnosis without re-examining the claimant based solely on the video evidence. Id.After reviewing the evidence as a whole, this Court reversed and remanded, stating
that “[t]his [C]ourt is not convinced that a medical expert can render a legally
competent opinion on a claimant’s medical condition after merely viewing selected
activities shown in two days of surveillance videotape,” thus, holding that the WCJ
erred in finding substantial evidence supported the claimant’s full recovery and
granting the employer’s termination petition. Id. at 1171. Here, Claimant argues
that the WCJ erred in crediting Dr. Bennett’s opinion of Claimant’s full recovery
when Dr. Feinstein’s prior IME concluded that Claimant could be suffering from
CRPS, urging our Court to view Dr. Bennett’s opinion as a recantation of Dr.
Feinstein’s prior IME.
Employer responds that CRPS was never an accepted work injury, and,
therefore, Employer was not required to show that Claimant had recovered from
CRPS. Employer responds that Dr. Bennett’s acknowledgement of, and
disagreement with, Dr. Feinstein’s earlier IME did not equate to Employer’s
acceptance of CRPS as a work-related injury. Employer argues that Murphy is
distinguishable, when, here, Dr. Feinstein did not testify before the WCJ, where
there was no video surveillance evidence present, and where Claimant’s CRPS was
not accepted as work-related through an amended NCP or as a finding by the WCJ
during any proceedings. Employer argues that Dr. Bennett was not barred from
16
rendering a different opinion than Dr. Feinstein, when Dr. Bennett’s opinion was
based on his independent examination and review 11 months after Dr. Feinstein’s
report.
As to Claimant’s second issue, we discern no error in the WCJ’s
allocation of the burden of proof on Employer’s termination petition as it relates to
Claimant’s diagnosis of CRPS as a work-related injury. The WCJ allocated the
burden on Employer in the termination petition, and on Claimant in the review and
penalty petitions. C.R. at 53. We disagree with Claimant that our Court’s holding
in Murphy compels a different result, because, unlike the employer’s expert in
Murphy, Dr. Feinstein did not testify in these proceedings, Claimant’s diagnosis of
CRPS was never accepted as a work injury, and Dr. Bennett’s opinion did not serve
as a recantation of a prior opinion accepting CRPS as a work-related injury.
Claimant argues in her third issue that the WCJ erred as a matter of law
when he credited Dr. Bennett’s testimony where Dr. Bennett did not recognize that
Claimant suffered from her accepted work injuries. Claimant argues that the
following testimony on cross-examination demonstrates that Dr. Bennett failed to
accept Claimant’s accepted work injuries, and, thus, renders incompetent his opinion
that Claimant fully recovered from them.
Q: Do you agree that the records clearly show that
[Claimant] suffered disabling injuries on February 18,
2017?
A: No.
Q: Not even in February of ‘17? She wasn’t disabled then
either?
A: I didn’t see her then. I’m not agreeing with anything.
All I can agree with is what I saw, November 2nd, 2018.
17
Q: I ask what the records show.
A: The records—
Q: (Employer’s counsel): They speak for themselves.
Q: (Claimant’s counsel): But those records are part of
what you formed your opinion on?
A: My records or my opinion is based upon my physical
examination, review of records and review of diagnostic—
Q: Exactly, so I get to ask about the records you reviewed
in forming your opinions.
A: I do not have any opinion of what her status was on
January 1st, 2018. All I can say is what is my opinion. My
opinion is based on my examination of November 2 nd,
2018.
R.R. at 160a.
Claimant argues that this Court has held that an employer cannot meet
its burden to terminate benefits where its own expert does not recognize that
Claimant was disabled by the accepted work injuries in the first place. Claimant
cites GA & FC Wagman, Inc. v. Workers’ Compensation Appeal Board (Aucker),
785 A.2d 1087 (Pa. Cmwlth. 2001), and Elberson v. Workers’ Compensation Appeal
Board (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007), in support. In Wagman,
our Court held that the employer’s medical expert’s testimony could not support the
finding that the claimant fully recovered from his work injuries, when the
employer’s medical expert testified that he did not believe that the injury accepted
in the NCP ever occurred. Wagman, 785 A.2d at 1092. In Elberson, our Court held
that the employer’s medical expert’s testimony could not support the finding that the
claimant fully recovered from her work injuries when the employer’s medical expert
testified that he did not know what her work injuries were. Elberson, 936 A.2d at
18
1200. Claimant also argues that Dr. Bennett’s testimony is insufficient to support a
termination of benefits because Dr. Bennett failed to accept Dr. Feinstein’s prior
IME report that Claimant could be suffering from CRPS.
Employer responds that Dr. Bennett did not disagree that Claimant had
suffered from the accepted work injuries, and that Claimant mischaracterized Dr.
Bennett’s testimony on this issue. Employer responds that the above-quoted
testimony was elicited during cross-examination in response to a compound
question, and is being taken out of context. Employer characterizes Dr. Bennett’s
testimony as simply his affirmation that he formed his opinion based on his
November 2, 2018 IME, and not by relying on other medical reports. Employer
argues that whether a medical expert’s testimony is competent is a question of law,
citing Namani v. Workers’ Compensation Appeal Board (A. Duie Pyle), 32 A.3d
850, 854 (Pa. Cmwlth. 2011). Employer further responds that even if an expert
expresses skepticism as to the accepted work injury, when the expert’s opinion,
examined as a whole, is that the claimant recovered from the accepted work injuries,
such opinion is competent and can support a termination, citing O’Neill v. Workers’
Compensation Appeal Board (News Corporation Ltd.), 29 A.3d 50 (Pa. Cmwlth.
2011). In O’Neill, our Court held that although the employer’s medical expert
testified that he was skeptical that the claimant suffered any particular injury when
working for the employer, his testimony, when viewed as a whole, revealed that he
“did not reject, or expressly refuse to recognize” the claimant’s accepted work
injury. O’Neill, 29 A.3d at 55. Therefore, the Court held that the medical expert’s
testimony was competent and legally sufficient to support termination. Id.As to Claimant’s third issue, we discern no error in the WCJ’s finding
that Employer met its burden to terminate benefits, as supported by Dr. Bennett’s
19
report and testimony. We are not persuaded that Dr. Bennett’s testimony on cross-
examination in response to a compound question rendered his opinion incompetent.
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. Corcoran, 725 A.2d at 872. Here, Dr.
Bennett’s entire testimony, including his affidavit of full recovery, in which he
acknowledged Claimant’s accepted work injuries and opined that she fully recovered
from all of them, is competent to support termination. R.R. at 140a, 172a-74a. As
previously discussed, Davis requires that the WCJ be the ultimate fact-finder who
must determine the credibility and weight of witness testimony; this Court may not
review a WCJ’s assessment of witness credibility on appeal. Davis, 753 A.2d at
909. “Although this Court can and should assess the competency and sufficiency of
witness testimony, it may not review on appeal a WCJ’s assessment of witness
credibility.” Id. Further, based on our analysis of Claimant’s second issue, we do
not agree that the WCJ erred in crediting Dr. Bennett’s testimony in support of
termination, even though Dr. Bennett did not accept CRPS as a work-related injury,
because CRPS was not an accepted injury.
Claimant argues in her fourth issue that the WCJ erred as a matter of
law when he credited Dr. Bennett’s opinion of Claimant’s full recovery from her
accepted injuries, when Dr. Bennett’s opinion was equivocal. Claimant argues that
Dr. Bennett’s opinion was equivocal because he could not offer an opinion on
Claimant’s ability to return to work from a physical standpoint, only from a
neurological standpoint. R.R. at 154a. Claimant also argues that Dr. Bennett’s
opinion was equivocal because although he did not agree with Dr. Feinstein’s
opinion regarding Claimant’s diagnosis of CRPS, Dr. Bennett did not disagree with
20
Dr. Feinstein’s observations that Claimant suffered from physical work injuries that
limited her motion and caused pain. Id. at 159a. Claimant argues that to meet its
burden for termination of benefits, an employer’s medical evidence must be
unequivocal, citing Westmoreland County, 942 A.2d at 217. Claimant further argues
that unequivocal testimony is capable of being understood in only one way, and must
leave no room for doubt, citing Miller v. Workers’ Compensation Appeal Board
(Peoplease Corporation, Arch Insurance Company and Gallagher Bassett Services),
29 A.3d 869, 871 (Pa. Cmwlth. 2011).
Employer responds that Dr. Bennett’s testimony, when viewed as a
whole, expresses no doubt as to Claimant’s recovery from the accepted work
injuries, and that Claimant mischaracterized Dr. Bennett’s testimony on this issue.
Employer argues that Dr. Bennett clearly testified that Claimant recovered from all
her physical, work-related injuries, and that he clearly testified that he disagreed with
Dr. Feinstein’s conclusions. Employer further argues that Dr. Bennett’s testimony
is not self-contradictory, but even if it was, the appearance of inconsistencies in a
medical expert’s testimony does not render that testimony equivocal, citing Somerset
Welding and Steel v. Workmen’s Compensation Appeal Board (Lee), 650 A.2d 114,
119 (Pa. Cmwlth. 1994).
As to Claimant’s fourth issue, we agree that Employer must present
unequivocal testimony to support termination. Westmoreland County, 942 A.2d at
217. However, we discern no error in the WCJ’s finding that Employer met its
burden to terminate benefits, as supported by Dr. Bennett’s report and testimony.
We are not persuaded that the portions of Dr. Bennett’s testimony pointed out by
Claimant render his testimony equivocal. Here, when viewing Dr. Bennett’s entire
testimony, as we are required to do, we find no error in the WCJ’s crediting of Dr.
21
Bennett’s testimony in support of termination. R.R. at 140a, 172a-74a. Our Court
has explained that “an employer’s expert need not say ‘magic words’ in providing
his opinion that claimant’s work injury is fully resolved such that he can return to
work.” Miller, 29 A.3d at 871. Our Court has further explained that “[h]owever,
medical testimony is equivocal if it is vague, leaves doubt, is less than positive or is
based upon possibilities.” Id. In Miller, we held that medical expert testimony was
equivocal when the expert testified that “it was hard to say” whether the claimant
sustained permanent damage from spinal surgery necessitated by a work injury, and
when he opined that the claimant’s pain was “nearly completely resolved for the
most part.” Id. at 872. Unlike the expert in Miller, here, we find no such vague or
less than positive statements, or expressions of possibility in Dr. Bennett’s
testimony. Dr. Bennett’s testimony when viewed as a whole is free from doubt, and
provides substantial evidence to support termination of benefits.
In her fifth issue, Claimant argues that the WCJ erred in relying on Dr.
Bennett’s opinion that Claimant did not suffer from CRPS because she did not
display certain objective criteria of the condition. Claimant argues that because Dr.
Feinstein and Claimant’s treating physician Dr. Zahl observed such objective criteria
at different times, Dr. Bennett’s opinion is incompetent because it is based on an
assumption contrary to facts established in the record. Claimant correctly argues
that a medical expert’s opinion is incompetent if it is based on an assumption that is
contrary to the established facts of record. Taylor v. Workers’ Compensation Appeal
Board (Servistar Corp.), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). Claimant argues
that because Dr. Bennett assumed Claimant did not display objective symptoms of
CRPS, his opinion that she does not suffer from CRPS is legally incompetent.
22
Employer responds that the WCJ’s findings on Claimant’s CRPS,
which were made in connection with Claimant’s review petition, were competent
and supported by substantial evidence. Employer argues that Dr. Bennett’s opinion
was not contrary to established facts of record, but was based on his examination of
Claimant where he observed no such objective symptoms of CRPS on November 2,
2018. Employer argues that although Dr. Feinstein or Dr. Zahl observed some
objective signs of CRPS at different times, those observations are not established
facts of record, and they do not render Dr. Bennett’s opinion incompetent because
he failed to agree with them.
As to Claimant’s fifth issue, we observe again that although Employer
has the burden of proof on a termination petition, on Claimant’s review petition in
which she seeks to modify the accepted injuries to include additional ones, the
burden rests with Claimant to establish the existence of additional compensable
injuries. Cinram, 975 A.2d at 582. If the connection between the alleged disability
and the work accident is not obvious, a claimant must provide unequivocal medical
testimony to establish that the additional compensable injuries were caused by the
work accident. Fotta, 626 A.2d at 1146. As previously discussed, Davis requires
that the WCJ be the ultimate fact-finder who must determine the credibility and
weight of witness testimony; this Court may not review a WCJ’s assessment of
witness credibility on appeal. Davis, 753 A.2d at 909. Here, we discern no error in
the WCJ’s finding crediting Dr. Bennett’s testimony over Dr. Zahl’s testimony on
the issue of whether Claimant suffered from CRPS, or in the WCJ’s finding that
Claimant failed to meet her burden to amend her work-related injuries through the
review petition. We agree with Employer that Dr. Bennett’s opinion that Claimant
did not suffer from CRPS because she did not display objective signs is not
23
incompetent because he disagreed with Dr. Feinstein or Dr. Zahl, both of whom
observed objective signs at other times. The WCJ found Dr. Bennett’s testimony
more credible than Dr. Zahl’s testimony on this issue, which we may not disturb on
appeal.
In her sixth issue, Claimant argues that the WCJ’s serial errors that
pervade his findings and conclusions undermine his adjudication that Employer met
its burden to terminate Claimant’s benefits, and, in the aggregate, constitute an error
of law. Claimant argues that Employer’s burden in a termination petition is
considerable, because disability is presumed to continue until demonstrated
otherwise, citing Giant Eagle, Inc. v. Workmen’s Compensation Appeal Board
(Chambers), 635 A.2d 1123, 1127 (Pa. Cmwlth. 1993). Employer responds that
based on the WCJ’s findings as to Claimant’s first four issues presented, which relate
to the termination petition, Claimant cannot prevail by attempting to recap her
arguments in this issue.
As to Claimant’s sixth issue, based on our analysis of Claimant’s first
four issues presented, which relate to the termination petition, we discern no error in
the WCJ’s findings, or in his conclusion that Employer met its burden to terminate
benefits. We have already determined that the WCJ did not err in finding Dr.
Bennett’s opinion and testimony credible as to Claimant’s recovery from her
accepted work injuries, that the WCJ did not err in assigning the burden of proof for
the termination petition, and that the WCJ did not err in finding Dr. Bennett’s
testimony competent and unequivocal.
In her seventh issue, Claimant argues that if this Court reverses the WCJ
for any of the errors asserted by Claimant, then it should also reverse the WCJ’s
finding that Employer met its burden of demonstrating a reasonable contest.
24
Claimant argues that if she is wholly or partly successful in litigating her claims,
then reasonable costs must be awarded, which may include witness costs and
stenographic costs, among others, citing Section 440 of the Act, and various cases
interpreting the Act. Claimant further argues that, if successful here, she also should
be awarded attorney’s fees unless the Employer demonstrates that it presented a
reasonable contest, again citing Section 440 of the Act. Claimant argues that
Employer did not present a reasonable contest because it hid Dr. Feinstein’s earlier
IME report from Dr. Bennett, and engaged in opinion shopping until it found an
evaluation that supported a termination of benefits. Employer responds by denying
that it concealed Dr. Feinstein’s report from Dr. Bennett, or otherwise shopped for
another expert opinion. Employer responds that it did not hide any reports from Dr.
Bennett, who testified that he did not review Dr. Feinstein’s report before he
evaluated Claimant, but that he reviewed Dr. Feinstein’s report before he prepared
his own, and that Dr. Feinstein’s report “would have made and makes no difference
in his opinion.” C.R. at 89. Employer further responds that, under the plain language
of Section 440 of the Act, Claimant may not recover costs or attorney’s fees because
Claimant did not prevail in whole or in part on her claims.
As to Claimant’s seventh issue, we discern no error in the WCJ’s
finding that Claimant is not entitled to costs or attorney’s fees under Section 440 of
the Act, because she did not prevail in whole or in part on any of her claims. We
also find no error in the WCJ’s finding that Employer presented a reasonable contest.
For all the foregoing reasons, we affirm the Board’s March 10, 2021
order, which affirmed the WCJ’s January 31, 2020 decision and order granting
25
Employer’s termination petition and denying Claimant’s review and penalty
petitions.
MICHAEL H. WOJCIK, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lori A. Carpenter, :
:
Petitioner :
:
v. : No. 379 C.D. 2021
:
Family Dollar Stores of :
Pennsylvania, LLC :
(Workers’ Compensation :
Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 14th day of January, 2022, the order of the Workers’
Compensation Appeal Board dated March 10, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge