Amazon.com Svcs. LLC v. E.L. Then Roman (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amazon.com Services LLC, :
American Zurich Insurance Company :
and Sedgwick Claims Management :
Services, :
Petitioners :
:
v. :
:
Engel L. Then Roman (Workers’ :
Compensation Appeal Board), : No. 185 C.D. 2022
Respondent : Submitted: August 5, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 1, 2022
Amazon.com Services LLC, American Zurich Insurance Company, and
Sedgwick Claims Management Services (collectively, Employer) petition this Court
for review of the Workers’ Compensation (WC) Appeal Board’s (Board) February
8, 2022 order affirming WC Judge Brian Hemak’s (WCJ Hemak) decision that
denied Employer’s Petition to Terminate Compensation Benefits (Termination
Petition), granted Engel L. Then Roman’s (Claimant) Petition to Review
Compensation Benefits (Review Petition), and directed Employer to pay Claimant’s
counsel fees. Employer presents four issues for this Court’s review: (1) whether
WCJ Hemak erred by relying on the equivocal and legally incompetent testimony of
Claimant’s medical expert; (2) whether WCJ Hemak capriciously disregarded
substantial competent evidence in finding that Claimant met her burden of proof to
establish a change to the work-injury description; (3) whether WCJ Hemak failed to
render a reasoned decision; and (4) whether WCJ Hemak erred by denying
Employer’s Termination Petition.1 After review, this Court affirms.
On August 22, 2019, Claimant sustained an injury to her right leg
during the course and scope of her employment with Employer. On October 3, 2019,
Employer issued a Notice of Temporary Compensation Payable (NTCP)
acknowledging Claimant’s injury, which was described as “work[-]related right leg
pain.” Certified Record (C.R.) Item 10 at 3. Thereafter, the NTCP converted to a
Notice of Compensation Payable (NCP). On September 29, 2020, Employer filed
the Termination Petition, alleging therein that Claimant had fully recovered from her
injury as of September 8, 2020. On October 14, 2020, Claimant filed the Review
Petition alleging that the injury description was incorrect and that her condition had
worsened.
On October 19, 2020, WCJ Joseph Grady conducted a hearing. The
matter was subsequently reassigned to WCJ Hemak who held hearings on January
22 and February 25, 2021. On June 3, 2021, WCJ Hemak denied Employer’s
Termination Petition and granted Claimant’s Review Petition, thereby amending
Claimant’s work-related injury description to include lumbar radiculitis and disc
herniations at L4-5 and L5-S1. Employer appealed to the Board. On February 8,
2022, the Board affirmed WCJ Hemak’s decision. Employer appealed to this Court.2
1
The order of Employer’s issues is consistent with the order Employer argued them in its
brief, as opposed to the order Employer set forth in its Statement of the Questions Involved.
2
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d
1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
2
Initially,
[w]hen, as here, a claimant is seeking to amend an NCP
pursuant to [S]ection 413(a) of the [WC] Act [(Act)],[3]
[s]he has the burden to prove that h[er] disability has
increased and that the original work-related injury caused
the amending disability. Accordingly, Claimant has the
burden of establishing the causal relationship between
h[er] work-related [] injury and h[er] [additional injuries]
by unequivocal medical testimony.
Huddy v. Workers’ Comp. Appeal Bd. (U.S. Air), 905 A.2d 589, 592-93 (Pa. Cmwlth.
2006) (footnote and citation omitted).
Employer first argues that WCJ Hemak erred by relying on the
equivocal and legally incompetent testimony of Claimant’s medical expert, who
could only testify to possible causation for the erroneous findings of disc herniations
and lumbar radiculitis, or aggravation thereto, without full medical testing, and
review of medical records and diagnostic studies which could not rule out, inter alia,
underlying systemic causes for Claimant’s complaints. Specifically, Employer
contends that Claimant’s treating physician Joseph Chun, D.O.’s (Dr. Chun)4
testimony was equivocal and incompetent because Dr. Chun did not have a complete
understanding of Claimant’s underlying systemic condition and diabetes, which he
never ruled out. Employer further asserts that Dr. Chun only testified to possible
causes for the disc bulges or herniations.
Claimant rejoins that Dr. Chun testified that it was his opinion, within
a reasonable degree of medical certainty, that Claimant sustained an aggravation of
her preexisting disc degeneration and disc bulges, and that it was also possible that
the small disc herniations of the bottom two discs L4-5 and L5-S1 were the result of
the August 22, 2019 trauma and work injury. Claimant further retorts that Dr. Chun
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
4
Dr. Chun is board-certified in pain management and physical medicine and rehabilitation.
3
related that it was his opinion, within a reasonable degree of medical certainty, that
Claimant’s August 22, 2019 work injury caused the lumbosacral pain with the
radiating lower extremity pain, i.e., lumbar radiculitis.
Medical testimony will be found unequivocal if the
medical expert, after providing a foundation, testifies that
in his professional opinion that he believes a certain fact
or condition exists. Medical testimony is equivocal if,
after a review of a medical expert’s entire testimony, it is
found to be merely based on possibilities. Medical
testimony will be deemed incompetent if it is equivocal.
Whether medical testimony is equivocal is a question of
law subject to plenary review.
PetSmart, Inc. Through Indem. Ins. Co. of N. Am. v. Workers’ Comp. Appeal Bd.
(Sauter), 219 A.3d 703, 706 (Pa. Cmwlth. 2019) (quoting Campbell v. Workers’
Comp. Appeal Bd. (Pittsburgh Post Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008)
(citations omitted)).
Here, Dr. Chun testified on direct examination:
Q. Did you come to any and conclusion or diagnosis
that - - - assuming that the history that she gave you, that
she incurred an injury on August 22nd, 2019, and also that
there was no report or history of any minor back problems
before, were you able - - - were you able to come to a
medical conclusion or a diagnosis or a tentative diagnosis
at that point in time as to what her condition was?
A. Yes. My impression was she had a work injury on
August 22nd, 2019, which caused the lumbosacral pain
with the radiating lower extremity pain. And my diagnosis
was lumbar radiculitis related to stenosis, disc bulges[,]
and disc protrusions. And as I mentioned before, she did
not report any prior history of low back pain or radiating
lower extremity pain or any imaging studies that would
show any of the abnormalities that were discussed before.
Reproduced Record (R.R.) at 39a-40a.
4
Dr. Chun further related:
Q. So what effect did that injury, in your opinion, have on
that - - - well, let me ask you this. What you saw on the
[magnetic resonance imaging (]MRI[)] scan, and maybe
I’m getting ahead because I understand there was a
subsequent MRI, but what did the MRI scan show you as
far as any pre[]existing pathology and how the work injury
- - - as to the diagnosis, how she has symptoms?
A. Yes. She had underlying mild degenerative changes,
so at - - - mild disc degeneration at L3-4 level, L4-5 level,
L5-S1 level, with some middle disc bulges. That was her
preexisting MRI, as well as maybe the small disc
herniations at the bottom two disc levels. There were
small central and right - - - there was a small central right
paracentral disc herniation at the L4-5 level and small
central disc herniation at the L5-S1 level. So at the very
least, this was an aggravation of her preexisting disc
degeneration and disc bulges.
And it’s also possible that at the disc herniations, the
small disc herniations of the bottom two discs were the
result of this trauma and work injury and her symptoms
caused - - - her symptoms are consistent with this.
Q. Is this opinion within a reasonable degree of medical
certainty?
A. Yes.
R.R. at 40a-42a (emphasis added). Based on Dr. Chun’s testimony, WCJ Hemak
opined: “This [WCJ] also specifically finds that Claimant’s work[-]related injury
should be amended to include lumbar radiculitis and disc herniations at L4-5 and
L5-S1.” R.R. at 172a.
On cross-examination, Dr. Chun acknowledged:
Q. Now, you had reviewed the same MRI from January 8,
2020. Is that correct?
A. I reviewed the report of that - - -
Q. Okay.
5
A. - - - particular MRI.
Q. Okay.
And you would agree the MRI showed degenerative
changes in the lumbar spine[?] Correct?
A. Yes.
Q. And the small focal herniations, those could be
degenerative-type herniations. Correct?
A. Yes. It could be degenerative or part of it could also
be traumatic.
Q. And there’s - - - there’s no way for you to tell. Is that
correct?
A. That is correct, without a prior MRI.
R.R. at 57a-58a (emphasis added).
Dr. Chun also recognized:
Q. [Dr. Samuel Valenti (Dr. Valenti)5] [] states or
recommends, and I’m quoting this, I would potentially
consider checking [thyroid stimulating hormone (]TSH[)],
[creatine phosphokinase (]CPK[)] and perhaps checking
lab values that would be consistent with potential
systematic flammatory process as the symptomology
appears to be significantly diffuse, involving the lower
extremities more than the upper extremities. She is not
exhibiting any issues with core weakness. She got up from
her chair and table without any difficulty. No history of
falls or significant weakness. Is that correct?
A. Yes.
Q. Was there any checking of her TSH, CPK or the lab
values for a systemic inflammatory process?
A. I do not know. In my opinion, I do not think it’s a
systemic process.
Q. Has that been ruled out?
5
Dr. Valenti referred Claimant to Dr. Chun. See R.R. at 34a.
6
A. I do not know.
R.R. at 62a-63a (emphasis added). “These selections from the testimony of Dr.
[Chun] in no measure render, as a matter of law, his testimony incompetent.” Am.
Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391,
396 (Pa. Cmwlth. 2001).
In Liveringhouse v. Workers’ Compensation Appeal Board (Adecco),
970 A.2d 508 (Pa. Cmwlth. 2009), this Court addressed whether a claimant’s
doctor’s (Doctor) testimony was equivocal and incompetent based on his testimony
that the claimant’s work duties caused or aggravated the claimant’s injury. Therein,
this Court explained:
[The Doctor’s] testimony viewed as a whole
unequivocally indicates that [the c]laimant’s carpal tunnel
syndrome was caused by her job duties. He testified that
when he belatedly received the actual [electromyography
or] EMG numbers from [another doctor], the result was
conclusive for severe carpal tunnel on the right and
moderate to severe carpal tunnel on the left. The WCJ
chose to emphasize [the Doctor’s] opinion that [the
c]laimant’s job duties would “likely” cause carpal
tunnel, but he also opined that even if she had some
pre[]existing condition that was not symptomatic[,] her
job duties would aggravate it to the extent that it would
become symptomatic. A doctor’s testimony should be
considered as a whole, and a determination of whether
it is unequivocal should not rest upon a few words
taken out of context.
Id. at 515 (emphasis added). “In essence, [this Court’s] decision in Liveringhouse
strongly suggests that an expert’s opinion will not be deemed incompetent simply
because an expert testifies that a claimant’s work [injury] either caused an injury or
aggravated a preexisting injury.” Exec. Offs. v. Workers’ Comp. Appeal Bd.
7
(Rothwell) (Pa. Cmwlth. No. 546 C.D. 2020, filed Apr. 21, 2021), slip op. at 15
(emphasis added).6
Further, in rejecting a claimant’s argument that an employer’s doctor
did not have a full understanding of her medical history, this Court held:
[A] medical expert’s opinion is not rendered incompetent
unless it is based solely on inaccurate information. Am.
Contracting Enters., Inc. . . . . “[T]he fact that a medical
expert does not have all of a claimant’s medical records
goes to the weight given the expert’s testimony, not its
competency.” Marriott Corp. v. Workers’ Comp. Appeal
Bd. (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth.
2003).
Pryor v. Workers’ Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1203 (Pa.
Cmwlth. 2006). “Moreover, it is well established that the opinion of a medical expert
must be viewed as a whole, and that inaccurate information will not defeat that
opinion unless it is dependent on those inaccuracies.” Am. Contracting Enters., Inc.,
789 A.2d at 396.
Based on its thorough review, this Court concludes that Dr. Chun’s
testimony was competent as a matter of law. First, Dr. Chun’s opinion was
“sufficiently definite and unequivocal to render it admissible.” Cerro Metal Prods.
Co. v. Workers’ Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004)
(quoting Cramer v. Workmen’s Comp. Appeal Bd. (Uni-Marts), 627 A.2d 231, 233
(Pa. Cmwlth. 1993)). Dr. Chun testified that Claimant’s work injury caused
Claimant’s aggravated disc herniations and lumbar radiculitis, or aggravation
thereto, and that Claimant did not report any prior history of low back pain or
6
This Court’s unreported memorandum opinions may be cited “for [their] persuasive
value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a). Executive Offices is cited for its persuasive
value.
8
radiating lower extremity pain or any imaging studies that would show any of the
abnormalities that were discussed. See R.R. at 39a-40a. On cross-examination, Dr.
Chun did not waiver in his opinion that the work injury caused Claimant’s most
recent issues with her lower back and legs. Accordingly, Dr. Chun’s testimony was
sufficiently unequivocal.
Employer next argues that WCJ Hemak capriciously disregarded
substantial competent evidence in finding that Claimant met her burden of proving,
relative to the Review Petition, a change to her work injury that included lumbar disc
herniations and lumbar radiculitis, or aggravation thereto, when the substantial
competent evidence established Claimant’s issues were preexisting and related to
underlying systemic conditions unrelated to the work injury. Specifically, Employer
contends that the substantial, competent record evidence established that Claimant’s
complaints could be due to underlying systemic issues, namely, diabetes, which the
referring doctor suspected before referring Claimant to Dr. Chun. Employer further
asserts that the substantial, competent record evidence established that Claimant’s
disc bulges or herniations were preexisting and part of the underlying degenerative
condition in Claimant’s low back, rather than acute, based on Dr. Chun’s
concessions. Employer submits that Claimant’s complaints changed with respect to
her lower extremities, which were clearly affected by the diabetes for which she was
prescribed a boot and a cane.7 Claimant rejoins that, given the accepted testimony
and the WCJ’s credibility determinations, which were neither arbitrarily nor
capriciously made, the substantial, competent evidence did support the WCJ
granting Claimant’s Review Petition.
7
Claimant testified: “Q. Who prescribed the cane and the boot? Do you know the name
of the doctor? A. Dr. Rashid, Seleena Rashid [Claimant’s family doctor], in Geisinger.” R.R. at
155a. However, there was no testimony that diabetes was the reason for said prescription.
9
A capricious disregard only occurs when the WCJ
deliberately ignores relevant, competent evidence.
Capasso v. Workers’ Comp. Appeal Bd. (RACS Assocs.,
Inc.), 851 A.2d 997, 999 (Pa. Cmwlth. 2004). Capricious
disregard of evidence “is a deliberate and baseless
disregard of apparently trustworthy evidence.” Williams
v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless
Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004).
Nonetheless, “where there is substantial evidence to
support [a WCJ’s] factual findings, and those findings in
turn support the conclusions, it should remain a rare
instance in which an appellate court would disturb an
adjudication based upon capricious disregard.” Leon E.
Wintermyer, Inc. v. Workers’ Comp. Appeal Bd.
(Marlowe), . . . 812 A.2d 478, 487 n.14 ([Pa.] 2002).
Dep’t of Corr. SCI-Chester v. Faison (Workers’ Comp. Appeal Bd.), 266 A.3d 714,
736 (Pa. Cmwlth. 2021).
As this Court has often opined, the primary role of the
WCJ is well settled:
The WCJ is the fact finder, and it is solely for the
WCJ . . . to assess credibility and to resolve
conflicts in the evidence.
Neither the Board nor this Court may reweigh the
evidence or the WCJ’s credibility determinations.
In addition, it is solely for the WCJ, as the
fact[]finder, to determine what weight to give to
any evidence. . . . As such, the WCJ may reject
the testimony of any witness in whole or in part,
even if that testimony is uncontradicted.
Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s
Quality Roofing Servs. & Uninsured Emp. Guar. Fund),
159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal citations,
quotations, and brackets omitted).
W. Penn Allegheny Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour),
251 A.3d 467, 475 (Pa. Cmwlth. 2021) (emphasis added).
Moreover, “substantial evidence” is such relevant
evidence as a reasonable person might accept as adequate
10
to support a conclusion. In performing a substantial
evidence analysis, the evidence must be viewed in a light
most favorable to the party that prevailed before the WCJ.
In a substantial evidence analysis where both parties
present evidence, it is immaterial that there is evidence
in the record supporting a factual finding contrary to
that made by the WCJ; rather, the pertinent inquiry is
whether there is any evidence which supports the WCJ’s
factual finding.
Id. (emphasis added; citations omitted).
Here, WCJ Hemak considered and compared the expert medical
testimony of Employer’s expert, Thomas DiBenedetto, M.D. (Dr. DiBenedetto), and
Dr. Chun at length and found the testimony of Dr. Chun to be more credible and
persuasive than the testimony of Dr. DiBenedetto. See R.R. at 172a. WCJ Hemak
further determined that, to the extent Dr. DiBenedetto’s testimony conflicted with
Dr. Chun’s testimony, Dr. Chun’s testimony was accepted and Dr. DiBenedetto’s
testimony was rejected. See id. WCJ Hemak also specifically accepted Claimant’s
testimony, as it was supported by Dr. Chun’s testimony. See id. Because WCJ
Hemak accepted Dr. Chun’s and Claimant’s testimony, and rejected Dr.
DiBenedetto’s testimony, which was within his province to do, WCJ Hemak did not
capriciously disregard substantial, competent evidence in finding that Claimant met
her burden of proof under the Review Petition.
Employer next argues that the WCJ failed to render a reasoned decision
based on substantial, competent record evidence by giving a cursory review of the
evidence and failing to reconcile clearly contradictory evidence that Claimant
suffered from preexisting low back issues and underlying systemic
conditions/disease.
[A] WCJ’s decision must satisfy the reasoned decision
requirements of Section 422(a) of the Act, 77 P.S. § 834.
Section 422(a) [of the Act] provides, in relevant part, that
11
[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.
77 P.S. § 834. To satisfy the reasoned decision
requirements, a WCJ must set forth the rationale for the
decision by specifying the evidence relied upon and
reasons for accepting it. Daniels [v. Workers’ Comp.
Appeal Bd. (Tristate Transp.)], 828 A.2d [1043,] 1047
[(Pa. 2003)]; Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191, 194 (Pa. Cmwlth.
2006). In the face of conflicting evidence, the WCJ “must
adequately explain the reasons for rejecting or discrediting
competent evidence.” 77 P.S. § 834. “Section 422(a) [of
the Act] does not require the WCJ to discuss all of the
evidence presented[]” but only “to make the findings
necessary to resolve the issues raised by the evidence and
relevant to the decision.” Dorsey, 893 A.2d at 194 n.4.
“[T]he purpose of a reasoned decision is to spare the
reviewing court from having to imagine why the WCJ
believed one witness over another[]” and to “permit
adequate appellate review.” Id. at 194, 196.
Dep’t of Corr. SCI-Chester, 266 A.3d at 736-37.
Here, WCJ Hemak described Claimant’s, see R.R. at 170a-171a, Dr.
Chun’s, see R.R. at 171a-172a, and Dr. DiBenedetto’s, see R.R. at 171a, testimony
in detail. Thereafter, WCJ Hemak explained:
This [WCJ] has considered and compared the expert
medical testimony of Dr. DiBenedetto and Dr. Chun at
length and finds the testimony of Dr. Chun to be more
credible and persuasive than the testimony of Dr.
DiBenedetto. Dr. Chun demonstrated that he was more
familiar with Claimant and Claimant’s condition, having
benefited from examining Claimant on numerous
occasions over the course of a year, whereas Dr.
DiBenedetto examined Claimant on one isolated occasion.
Furthermore, the testimony of Claimant and Dr. Chun
were quite consistent and supportive of each other.
12
Although Dr. DiBenedetto felt Claimant had recovered
from her work-related injury and related her complaints to
non-work-related problems, the record establishes that
Claimant did not have any such complaints or difficulties
until she sustained her work-related injury and has been
consistently symptomatic since that time. On the other
hand, Dr. Chun correlated Claimant’s complaints to his
physical examination and the results of the MRI studies.
To the extent Dr. DiBenedetto’s testimony conflicts with
Dr. Chun’s testimony, Dr. Chun’s testimony is accepted
and Dr. DiBenedetto’s testimony is rejected. Furthermore,
Claimant’s testimony is also specifically accepted, as it
was supported by Dr. Chun’s testimony.
R.R. at 172a.
WCJ Hemak’s credibility determinations complied with the reasoned
decision requirement because they contained more than just a conclusory statement
regarding the experts’ credibility. WCJ Hemak explained that Dr. Chun’s testimony
was more credible and persuasive than that of Dr. DiBenedetto because it was
consistent with Claimant’s credible testimony, and because, as Claimant’s treating
physician, Dr. Chun was more familiar with Claimant’s experiences and symptoms.
WCJ Hemak explained that he rejected Dr. DiBenedetto’s testimony because Dr.
DiBenedetto examined Claimant on a single occasion. Thus, WCJ Hemak
articulated an objective basis for the determination. Accordingly, WCJ Hemak
rendered a reasoned decision.8
8
Employer also argues that WCJ Hemak erred by denying Employer’s Termination
Petition. Specifically, Employer contends that if this Court finds that the work injury description
should have remained right leg pain, then the Termination Petition should have been granted based
on Dr. DiBenedetto’s unequivocal testimony. Because this Court rules that Claimant met her
burden of proving the amended work injury description, this issue is moot.
13
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amazon.com Services LLC, :
American Zurich Insurance Company :
and Sedgwick Claims Management :
Services, :
Petitioners :
:
v. :
:
Engel L. Then Roman (Workers’ :
Compensation Appeal Board), : No. 185 C.D. 2022
Respondent :
ORDER
AND NOW, this 1st day of December, 2022, the Workers’
Compensation Appeal Board’s February 8, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge