A. Robinson v. WCAB (Abramson Center for Jewish Life) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alicia Robinson, :
Petitioner :
:
v. : No. 1569 C.D. 2017
: Submitted: April 6, 2018
Workers’ Compensation Appeal :
Board (Madlyn and Leonard :
Abramson Center for Jewish Life), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: August 28, 2018
Alicia Robinson (Claimant) petitions for review of the Order of the Workers’
Compensation Appeal Board (Board) that affirmed the Decision of the Workers’
Compensation Judge (WCJ) granting in part and denying in part her Claim Petition
and denying her Penalty Petition. Claimant argues on appeal that the WCJ did not
issue a reasoned decision based on the substantial, competent evidence of record, as
required by Section 422(a) of the Workers’ Compensation Act1 (Act), and that the
WCJ should have awarded her unreasonable contest attorney fees. After review, we
affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
I. Factual and Procedural Background
A. Petitions
On May 21, 2015, Claimant, while in the course and scope of her employment
as a field nurse supervisor with Madlyn and Leonard Abramson Center for Jewish
Life (Employer), was involved in a motor vehicle accident. Immediately following
the accident, Claimant sought medical treatment with Employer’s panel provider,
Patient First Urgent Care, complaining of head, neck, and lower back pain.
Employer issued a “medical only” Notice of Temporary Compensation Payable
(NTCP) on June 5, 2015, describing the injury as “[c]ervical [s]prain.” (Reproduced
Record (R.R.) at 390a.) On July 8, 2015, Employer issued a Notice Stopping
Temporary Compensation terminating the NTCP on the basis that Claimant did not
suffer a work-related injury. Also, on July 8, 2015, Employer issued a Notice of
Workers’ Compensation Denial on the basis that Claimant did not suffer a work-
related injury. On July 29, 2015, Claimant filed the Claim Petition, claiming a partial
disability from May 21, 2015, to July 6, 2015, and an ongoing total disability
beginning on July 7, 2015, due to injuries to the cervical and lumbar regions of her
spine from the work-related car accident. Claimant also filed the Penalty Petition
claiming that Employer violated the Act by refusing to pay indemnity and medical
benefits, despite Employer lacking any reasonable basis for refusing to pay such
benefits, and, therefore, Claimant was entitled to a 50 percent penalty.
B. Proceedings Before the WCJ
Claimant testified via deposition and before the WCJ as follows. The day
after the accident, Claimant returned to Urgent Care because she “was still having a
lot of pain.” (Claimant’s Deposition (Dep.) Notes of Testimony (N.T.) at 12,
2
November 20, 2015, R.R. at 14a.) Urgent Care referred Claimant to an orthopedic
specialist, Dr. Richard Levenberg, with whom Claimant was still treating every two
or three months at the time of her deposition. Urgent Care also gave Claimant a note
indicating that she should not return to work, which she provided to Employer.
However, on May 28, 2015, Claimant, at Employer’s request, began working from
home, which she did until about July 3, 2015, when Claimant’s doctor, Dr.
Venkatesh Sundararajan, determined that her injury prevented her from continuing
to work.
As proof that Dr. Sundararajan had determined that Claimant should not
continue working, Claimant forwarded to Employer, on July 7, 2015, a note
electronically signed by him. (Claimant’s Dep. N.T. at 19-20, R.R. at 21a-22a; Note,
R.R. at 95a-96a.) The note indicated that Dr. Sundararajan had seen Claimant in his
office on July 1, 2015, and that she “is not fit for their [sic] employment duties at
this time.” (Note, R.R. at 96a.) Dr. Sundararajan stated in the note that Claimant
was scheduled for an “interventional pain procedure within [two] weeks.” (Id.)
On cross-examination, Claimant indicated that she had been in three motor
vehicle accidents in the past five years. She denied any prior neck or lower back
injury. When asked if she was injured in any of the three prior motor vehicle
accidents, Claimant responded, “I had -- not this type of injury, no.” (Claimant’s
Dep. N.T. at 57, R.R. at 59a (emphasis added); WCJ Decision Finding of Fact (FOF)
¶ 6(g).) On redirect, Claimant explained that her injury from one of those prior
accidents was “just . . . muscle soreness.” (Claimant’s Dep. N.T. at 72, R.R. at 74a.)
Claimant testified that she underwent “electric stim” for “a soft tissue injury or
something” but did “not remember everything,” such as whether she underwent
diagnostic testing. (Claimant’s WCJ N.T. at 31, R.R. at 136a.)
3
At the time of Claimant’s appearance before the WCJ, she was still receiving
medical treatment for her injuries. Claimant had not returned to her time-of-injury
job because of the pain in her neck, shoulders, back, and legs, which made lifting of
“[p]retty much any kind of weight . . . a problem” and prevented her from sitting for
long periods in a car. (Id. at 127a; FOF ¶ 10(d).) However, as of February 8, 2016,
Claimant had begun working for Axiom Healthcare as a field nurse supervisor,
which entailed working on a computer from home and did not require her to see
patients as she had with Employer.
Claimant also offered the deposition testimony of Dr. Levenberg, a board-
certified orthopedic surgeon. Dr. Levenberg first saw Claimant on June 1, 2015,
who chiefly complained to him of pain in her neck that radiated into her arms and
“pain in her back that radiated down her left leg.” (Levenberg’s Dep. at 12, R.R. at
156a-57a; FOF ¶ 7(b).) Dr. Levenberg conducted a physical exam, finding spasms
in the cervical and lumbar regions of Claimant’s spine and reduced ranges of motion
with pain in both those regions. Dr. Levenberg diagnosed Claimant with “[c]ervical
disc herniation, cervical radiculopathy, cervical sprain and strain, [and] cervical
stenosis,” all related to Claimant’s May 21, 2015 work-related car accident. (R.R. at
160a; FOF ¶ 7(c).) Claimant had recovered from the cervical sprain and strain, Dr.
Levenberg concluded, but the disc herniation, stenosis, and radiculopathy were all
permanent.
Dr. Levenberg testified that his diagnosis of the cervical spine injury was
confirmed by the three cervical spine MRI studies he reviewed. An April 2012 MRI
showed “[m]ild to moderate spinal stenosis C5-C6 with left paracentral disc
herniation.” (R.R. at 161a; Record (R.) Item 16, Ex. 2.) A September 2014 MRI
showed “[m]ulti-level degenerative changes including a left paracentral foraminal
4
disc herniation at C4-5.” (R.R. at 161a.) A June 9, 2015 MRI showed, in addition
to the herniations at C4-5 and C5-6, disc herniations at C2-3 and C3-4, along with a
protrusion at C6-7.2 Dr. Levenberg noted that these were new findings that had not
been present in the 2012 and 2014 MRIs.
Dr. Levenberg referred Claimant to Dr. Joseph Lubek for a neurological
examination, including EMG studies. According to a June 12, 2015
electromyography (EMG) and Dr. Lubek’s consultation, Dr. Levenberg testified,
Claimant had a “cervical sprain and strain” and “cervical radiculopathy.” (R.R. at
164a-65a.) Dr. Levenberg stated that the car accident caused the cervical
radiculopathy, specifically “an irritation of the nerve roots in the cervical spine.”
(Id. at 165a.) However, on cross-examination, Dr. Levenberg acknowledged that
the 2015 EMG did not show any evidence of an acute cervical radiculopathy, and
that Dr. Lubek’s impression was only of a possible cervical radiculopathy. (Id. at
185a-86a, 189a.) Nevertheless, Dr. Levenberg believed the cervical radiculopathy
was not possible but definite based on Claimant’s subjective complaints of pain
radiating into her arms, which correlated with the other objective findings, such as
the 2015 MRI, “showing nerve root compression and herniated disc along with
ongoing spasm[s] and limited range of motion.” (R.R. at 190a.)
Regarding the lumbar spine, Dr. Levenberg diagnosed a disc protrusion at L4-
5. Dr. Levenberg’s diagnosis was based on a June 8, 2015 MRI, which showed a
disc protrusion at L4-5. The disc protrusion along with arthritic changes in the
thoracic and lumbar portions of Claimant’s spine, shown on the June 8, 2015 MRI,
caused “foraminal stenosis at L4-5[,] bilaterally left greater than right.” (R.R. at
2
Although not testified to by Dr. Levenberg, this MRI showed that the disc herniations at
C2-3, C3-4, C4-5, and C5-6, were, respectively, 2 millimeters, 2 millimeters, 6.5 millimeters, and
4.5 millimeters.
5
168a.) Dr. Levenberg noted that a foramen means “hole” in Latin, (id.), and that this
is where the nerve root exits the spine and travels down the leg. He stated the
foraminal stenosis correlated with Claimant’s complaints of pain radiating down her
left leg. The disc protrusion, Dr. Levenberg opined, was related to the accident
because there was no evidence of any complaints or injuries to Claimant’s lumbar
spine prior to the car accident. Further, Dr. Levenberg stated, the accident would
have aggravated the preexisting injuries, such as the disc degeneration and foraminal
narrowing, so as to irritate the nerve root and cause further foraminal narrowing.
Dr. Levenberg concluded that: Claimant would require permanent work
restrictions and would be unable to return to her pre-injury job; Claimant would no
longer be able to lift the human body, as required by Employer, and would be
restricted to working in a sedentary position; and Claimant had reached maximum
medical improvement in both the cervical and lumbar regions of her spine.
Therefore, Dr. Levenberg’s recommendation was that she continue with pain
management using quarterly injections and medication but surgery was not
indicated.
On cross-examination, Dr. Levenberg acknowledged that Claimant had not
told him about being in a car accident in 2012, although he learned about it at some
point. (Id. at 180a-81a; FOF ¶ 7(i).) He also acknowledged that in the medical
records of Drs. Lubek and Sundararajan, there was no mention of Claimant having
been in a prior car accident. (R.R. at 181a-82a.)
Employer presented the deposition testimony of Dr. Menachem Meller, a
board-certified orthopedic surgeon who conducted an independent medical
examination (IME) of Claimant on January 12, 2016. In preparation for the IME,
Dr. Meller reviewed Claimant’s medical records, including the June 2015 MRIs of
6
Claimant’s cervical and lumbar spine. Dr. Meller testified that the injuries identified
in those MRIs were degenerative and not the result of trauma, such as a car accident.
When Dr. Meller took Claimant’s history from her, she indicated she had been in a
car accident in 2012, but that it caused only muscle soreness. She denied any prior
injury to her neck or back or having had a prior MRI. Based on the records Dr.
Meller reviewed, the history Claimant provided, and his physical examination of her,
he concluded that, as a result of the work accident, Claimant sustained a whiplash
injury, such as a mild sprain and strain to the cervical and lumbar regions of her
spine. Further, Dr. Meller concluded, Claimant had fully recovered from the work-
related whiplash injury, could return to her time-of-injury position with Employer,
and did not require any additional medical treatment for the work-related injury. Dr.
Meller explained that multiple medical providers near the time of the work accident
had diagnosed Claimant with a sprain and strain, she was released to light-duty work
the day after the accident, and she had multiple previous injuries and identical
diagnostic studies before this accident. Dr. Meller noted that fibromyalgia, with
which Claimant was previously diagnosed, would support his conclusion, because
Claimant could have pain without any injury. On cross-examination, Dr. Meller
acknowledged that his opinion that Claimant had fully recovered from her injuries
was limited to the day of the IME.
Employer also presented the deposition testimony of Ailee Strausser, who was
the human resources manager at the time of Claimant’s work accident. Strausser’s
position required her to manage all of Employer’s benefit programs including
workers’ compensation. On May 27, 2015, Strausser emailed Claimant a recall to
work letter indicating that Employer had a light-duty position available that allowed
her to work from home. Claimant agreed to work from home. Included with the
7
paperwork Strausser e-mailed Claimant was a notice of workers’ compensation
rights and duties and medical release form, but Claimant declined to sign those
forms. (R.R. at 315a-17a; FOF ¶ 9(e).) On July 2, 2015, Strausser learned from
Claimant’s supervisor that Claimant had been taken out of work completely.
Strausser left voicemail and e-mail messages for Claimant requesting a note from
her doctor. On July 7, 2015, Claimant responded in an e-mail that, according to
Strausser, “she did not get anything in writing from the doctor, just that he agrees
with the pain management doctor and will see her again in four months.” (R.R. at
319a; FOF ¶ 9(f).) The following day, Strausser received a fax from Claimant’s
attorney containing the note from Dr. Sundararajan. (R.R. at 319a; FOF ¶ 9(g).)
Strausser testified that Dr. Sundararajan did not explain in the note why Claimant
was unable to perform sedentary work from home as she had been doing up until
that point. (Id.) Strausser also testified that, at that point, Employer still did not
know Claimant’s actual physical limitations. Employer’s workers’ compensation
insurer notified Strausser that it was going to deny Claimant’s claim effective July
8, 2015. Employer provided Claimant, as a courtesy, a six-week leave of absence.
C. The WCJ’s Decision
The WCJ granted the Claim Petition in part, ordering Employer to pay
Claimant’s medical expenses for reasonable and necessary treatment related to the
car accident for the period between May 21, 2015, and January 11, 2016. (WCJ
Order.) The WCJ ordered Claimant’s medical benefits terminated as of January 12,
2016. (Id.) The WCJ otherwise denied and dismissed the Claim Petition. (Id.) The
WCJ also denied and dismissed the Penalty Petition. (Id.)
8
In reaching that resolution, the WCJ largely discredited Claimant’s testimony.
The WCJ credited Claimant’s testimony that she was in a car accident on May 21,
2015, and sustained “mild cervical and lumbar sprains/strains.” (FOF ¶ 11.)
However, the WCJ found Claimant’s testimony that she sustained a more severe
injury not credible. (Id.) The WCJ explained that his credibility determination was
based on Claimant’s “demeanor and comportment” when she testified before him.
(Id. ¶ 11(b).) In addition, the WCJ continued, “Claimant was disingenuous on
multiple occasions regarding her history of prior neck and back injuries and
symptoms.” (Id. ¶ 11(c).) The WCJ highlighted that Claimant’s medical records
detailed that Claimant was in two car accidents in April 2012, which left her
“complain[ing] of severe headaches, neck pain, low back pain[,] and radiating pain
in her left arm.” (Id; see also Medical Record of Robert Sing, D.O., R.R. at 294a.)
Both the 2012 and 2014 MRIs, the WCJ noted, showed that Claimant had neck pain
and bilateral radiculopathy. (FOF ¶ 11(c).) Thus, Claimant had the same symptoms
now as she had less than a year before the work accident, the WCJ stated. (Id.) Her
claim to the contrary was “clearly false.” (Id.) In addition, the WCJ stated, it seemed
“highly unlikely” and “not credible” for Claimant to be unable to recall the details
of her prior car accidents, as she testified at one point. (Id.) The WCJ found that
Claimant did not give an accurate history to Drs. Levenberg and Meller and her other
treating physicians. (Id.) “It [wa]s not plausible” for Claimant to claim that she was
unable to remember her history especially given that she is a registered nurse, the
WCJ concluded. (Id.) The WCJ stated that “[t]he only conclusion” he could “draw
[wa]s that [Claimant] intentionally attempted to mislead people regarding her
history. This lack of veracity taints her entire testimony.” (Id.)
9
Addressing the issue of Claimant’s disability, the WCJ found it “curious.”
(Id. ¶ 11(d).) The WCJ noted that Claimant worked “light duty” from home for
about six weeks, up until July 7, 2015, and she did not claim that she lost any wages
during this time period. (Id.) Instead, Claimant sought full wages beginning on July
8, 2015, but any evidence as to why she stopped working was “oddly lacking.” (Id.)
The WCJ highlighted that Claimant did not specify in her testimony any difficulty
she had working from home, such as that she was physically unable to do so, only
that Dr. Sundararajan took her out of work. (Id.) But, the WCJ found, Dr.
Sundararajan taking Claimant out of work was worth “very little evidentiary
weight.” (Id.) Dr. Sundararajan only stated that she was “not fit for their [sic]
employment duties.” (Id.) He did not explain why Claimant was unfit to work from
home, he did not indicate that he was aware that Claimant was working light duty
from home, and he did not testify. (Id.) In addition, given that the note from Dr.
Sundararajan was electronically signed, the WCJ “wonder[ed] whether it was
actually authored by, or reviewed by, the doctor, as opposed to one of his office
staff.” (Id.)
Similarly, the testimony of Dr. Levenberg did not address why Claimant was
unable to continue working from home. (Id. ¶ 11(e).) Dr. Levenberg, the WCJ
noted, saw Claimant the day before Dr. Sundararajan wrote the note excusing her
from work, but Dr. Levenberg did not recite in his testimony what Claimant’s
complaints were or what his examination that day entailed. (Id.) Dr. Levenberg also
did not testify as to Claimant’s ability to continue working from home. (Id.) In fact,
the WCJ continued, there was no evidence that Dr. Levenberg knew Claimant had
been working from home for six weeks.
10
Based on the foregoing, the WCJ discredited Dr. Levenberg’s testimony. The
WCJ found Dr. Levenberg not credible on the nature of Claimant’s injury because
he did not “specify” the level of cervical radiculopathy or cervical disc herniation
that Claimant suffered. (Id. ¶ 12(b).) The evidence clearly showed, the WCJ
concluded, that the more significant injuries were to C4-5 and C5-6 of Claimant’s
spine, but those injuries were preexisting. (Id.) While, the WCJ noted, Dr.
Levenberg stated, at counsel’s prompting, that there were herniations at C2-3 and
C3-4 that did not appear on the pre-accident MRIs, Dr. Levenberg did not state that
the car accident caused those injuries, nor that they “were the source of the purported
radiculopathy.” (Id.) Dr. Levenberg, the WCJ stated, also misrepresented the
opinion of Dr. Lubek, testifying that Dr. Lubek found that Claimant had cervical
radiculopathy. (Id. ¶ 12(c), citing R.R. at 164a.) However, in fact, the EMG Dr.
Lubek conducted showed “no evidence of acute cervical radiculopathy.” (Id.
(emphasis omitted).) Dr. Levenberg never explained how the EMG could be
negative for cervical radiculopathy if there was one ongoing. (Id.)
In contrast to Dr. Levenberg’s testimony, the WCJ found Dr. Meller’s
testimony that Claimant’s injuries preexisted the work accident “plausible and
credible.” (FOF ¶ 12(d).) Dr. Meller’s testimony on that point was credible, the
WCJ found, because it was consistent with Claimant’s history of prior injuries and
complaints. (Id.) In addition, Dr. Meller’s testimony that new herniations in C2-3
and C3-4 of Claimant’s spine were not clinically significant was “logical and
credible” because it was consistent with the EMG finding of no cervical
radiculopathy and the MRI report describing those “discs as small, central, and
without foraminal encroachment.” (Id. ¶ 12(e).)
11
Given the foregoing, the WCJ concluded that Claimant suffered mild cervical
and lumbar sprains/strains as a result of the work-related accident, that those injuries
did not disable her for more than seven consecutive days as she started working from
home just seven days after the accident, and that Claimant failed to prove that she
was unable to continue working from home. (Id. ¶ 14(a), (c).) As of January 12,
2016, Claimant had fully recovered from her work injuries. (Id. ¶ 14(d).)
Regarding the reasonableness of Employer’s contest, although Employer
denied the claim based on no work-related injury having occurred when Employer
should have denied it based on there being no disability, Employer’s contest, the
WCJ concluded, was still reasonable. (Id. ¶ 14(h).) In doing so, the WCJ highlighted
that: Claimant did not provide Employer with a reason, either from herself or a
medical professional, why she was unable to continue working from home; Claimant
refused to sign a notice of workers’ compensation rights and duties and medical
release form; Dr. Levenberg did not testify that Claimant was unable to work from
home; and Dr. Meller testified that Claimant had suffered only mild strains/sprains.
(Id.) While, the WCJ concluded, Employer should have denied the claim based on
no disability, “the extent of this litigation, and the results, would have been the
same.” (Id.)
D. Claimant’s Appeal to the Board
Claimant then appealed to the Board, arguing that the WCJ did not issue a
reasoned decision. The Board rejected Claimant’s argument and affirmed the WCJ’s
Decision. The Board concluded that the credible evidence of record, including the
WCJ’s rejection of Claimant’s testimony based on her demeanor, which the Board
could not overturn, supported the WCJ’s Decision that Claimant suffered only mild
12
cervical and lumbar sprains/strains. While Claimant argued that the WCJ should
have granted her at least a limited period of disability benefits because the WCJ
granted her a limited period of medical benefits, the WCJ concluded that Claimant
did not carry her burden of establishing a disability. The WCJ’s conclusion was
supported by the WCJ’s rejection of Claimant’s testimony, Dr. Levenberg’s expert
opinion, and Dr. Sundararajan’s note, as not credible. Finally, the Board concluded,
the WCJ did not err in finding that Employer’s contest was reasonable. Claimant
did not provide Employer with a medical report indicating why she could not
continue working from home, and “there was a real dispute as to the nature and
extent of Claimant’s injuries and disability.” (Board Opinion at 10.) Given this, the
Board concluded, the WCJ did not err in concluding that Employer’s contest was
reasonable.
II. Discussion
A. Reasoned Decision/Substantial Evidence
On appeal,3 Claimant argues that the Board erred in affirming the WCJ’s
Decision because the WCJ did not issue a reasoned decision based on the substantial,
competent evidence of record. Claimant offers the following reasons in support of
her argument. The WCJ erred in discrediting Claimant because she did not sign a
workers’ compensation rights and duties form and general medical release form as
Employer requested. The Act does not require a claimant to sign such forms and,
thus, Claimant’s failure to sign such forms cannot form a basis for discrediting her.
3
Our standard of review is limited to determining whether the WCJ’s findings of fact are
supported by substantial evidence, whether the WCJ committed an error of law, or whether
Claimant’s constitutional rights were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd.
(Shoap), 81 A.3d 830, 838 (Pa. 2013).
13
It was unreasoned for the WCJ to discredit Claimant based on the WCJ’s
mischaracterization of her testimony. Claimant asserts that she testified that she had
been in prior car accidents and that she suffered injuries as a result of those accidents,
but that her current injuries from the work-related car accident were more severe and
of longer duration. Claimant contends the WCJ’s Decision is unreasoned because
he found that Claimant did not challenge Strausser’s testimony. However, there was
no basis for Claimant to challenge her testimony and, in fact, Strausser’s testimony
corroborated Claimant’s testimony, both of which established notice, disability,
need for medical treatment and restrictions. The WCJ’s Decision is not reasoned
because the WCJ discredited Dr. Sundararajan’s note based on it containing a
stamped signature and lacking a specific reason for removing Claimant from work.
However, Claimant argues, there is no requirement under the law that a treating
physician must use his original signature. Further, the information contained in the
note was sufficient to establish that Claimant was disabled as a result of the car
accident, and Employer never requested additional information. Claimant asserts
the WCJ’s Decision is unreasoned because the WCJ found that Claimant was entitled
to a limited period of medical benefits, but not disability benefits for that same
limited period. A reasoned decision would have included an award for both benefits
because all of Claimant’s treating physicians agreed that she was disabled due to the
work accident, and the only physician that did not agree, Dr. Meller, did not examine
Claimant until January 12, 2016. As such, Claimant argues, she was disabled from
the date of the accident, on May 21, 2015, until at least January 12, 2016.
Claimant contends the WCJ’s determinations on the credibility of Drs.
Levenberg and Meller are unreasoned. The WCJ mischaracterized Dr. Levenberg’s
testimony and rendered inaccurate findings on it. Dr. Levenberg, Claimant asserts,
14
credibly concluded that, as a result of the work accident, Claimant’s preexisting
injuries were aggravated and she sustained a cervical radiculopathy, disc herniations,
and stenosis, which conclusion Dr. Levenberg reached after reviewing various
diagnostic studies and his physical examination of Claimant. In contrast, Claimant
argues, Dr. Meller’s opinions were equivocal and contradictory. In support,
Claimant claims that Dr. Meller testified that none of Claimant’s cervical injuries
were related to the work accident, but, if there was an aggravation of a preexisting
injury, it was temporary and self-limiting. Dr. Meller, Claimant continues, testified
that there was no objective worsening of the degenerative injuries to Claimant’s
spine, but Dr. Meller never explained what he meant by objective worsening. Dr.
Meller contradicted himself in testifying about whether the car accident caused
Claimant’s diabetes and hypertension. Claimant argues that Dr. Meller tried to
attribute Claimant’s injuries to fibromyalgia, but Claimant was not being treated for
fibromyalgia, had not been diagnosed with it, and no medical provider attributed it
to the car accident. Based on the foregoing, Claimant asserts that the Board’s
Opinion affirming the WCJ’s Decision should be reversed, and her Claim and
Penalty Petitions granted in their entirety.
Employer responds that substantial evidence demonstrates that the WCJ
issued a reasoned decision, and that his credibility determinations were neither
arbitrary nor capricious. Therefore, Employer argues, this Court should affirm the
Board’s Order partially denying the Claim Petition and entirely denying the Penalty
Petition. We agree.
Section 422(a) of the Act sets forth the “reasoned decision” requirement as
follows:
All parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based upon
15
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. The workers’ compensation judge shall
specify the evidence upon which the workers’ compensation judge
relies and state the reasons for accepting it in conformity with this
section. When faced with conflicting evidence, the workers’
compensation judge must adequately explain the reasons for rejecting
or discrediting competent evidence. Uncontroverted evidence may not
be rejected for no reason or for an irrational reason; the workers’
compensation judge must identify that evidence and explain adequately
the reasons for its rejection. The adjudication shall provide the basis
for meaningful appellate review.
77 P.S. § 834. Our Supreme Court has explained
a decision is “reasoned” for purposes of Section 422(a) if it allows for
adequate review by the [Board] without further elucidation and if it
allows for adequate review by the appellate court under applicable
review standards . . . . [T]he Act requires that, in rendering a reasoned
decision in a case with conflicting evidence, the WCJ “must adequately
explain the reasons for rejecting or discrediting competent evidence.”
. . . The point is that, absent the circumstance where a credibility
assessment may be said to have been tied to the inherently subjective
circumstance of witness demeanor, 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.
Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052-53
(Pa. 2003) (citing 77 P.S. § 834). Since Daniels, we have emphasized that the
reasoned decision requirement does not require us to “review each and every
component of the WCJ’s reasoning for substantial evidence and reverse and remand
if we can find any flaw[.]” Casne v. Workers’ Comp. Appeal Bd. (Stat Couriers,
Inc.), 962 A.2d 14, 18 (Pa. Cmwlth. 2008). The WCJ need only “make the findings
necessary to resolve the issues raised by the evidence and relevant to the decision.”
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 194
16
n.4 (Pa. Cmwlth. 2006). “It is sufficient that the decision contains findings of fact
and conclusions of law, based upon all of the evidence, which clearly and concisely
state and explain the rationale for the WCJ’s decision.” CPV Mfg., Inc. v. Workers’
Comp. Appeal Bd. (McGovern), 805 A.2d 653, 657 (Pa. Cmwlth. 2002).
Here, the WCJ did just that. The rationale for the WCJ’s Decision was that
Claimant did not carry her burden of proving that she sustained a disability, that is,
a loss of earnings or earning power, as a result of the work-related accident. The
WCJ’s rationale was based on his credibility determinations, which, contrary to
Claimant’s contention, are supported by objective bases.
The WCJ discredited Claimant’s testimony based on his observation of her
demeanor when she appeared before him and testified that she did “not remember
everything,” including whether she underwent diagnostic testing following her car
accidents in 2012. (R.R. at 136a.) The WCJ’s observation of Claimant’s demeanor
“alone is sufficient to satisfy the reasoned decision requirement.” Amandeo v.
Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 77 (Pa. Cmwlth. 2012)
(citing Daniels, 828 A.2d at 1052-53). Nevertheless, the WCJ also provided
objective bases for discrediting Claimant, such as the contradiction between
Claimant’s testimony that she did not previously sustain this type of injury and her
2012 and 2014 MRIs that indicated to the contrary, her failure to provide an accurate
history of her car accidents and prior injuries to Drs. Levenberg, Meller, Lubek, and
Sundararajan, and her failure to testify why, after working six weeks in the light-
duty position, she could no longer do so. See Daniels, 828 A.2d at 1053 (noting that
objective factors for discrediting a witness include inconsistencies or contradictions
in testimony).
17
Similarly, the WCJ provided objective bases for discrediting Dr. Levenberg
and crediting Dr. Meller. Specifically, Claimant did not provide Dr. Levenberg with
an accurate medical history, Dr. Levenberg did not quantify the extent of Claimant’s
injuries, and he misrepresented Dr. Lubek’s findings in the EMG. In contrast, the
WCJ credited Dr. Meller because his diagnosis was consistent with Claimant’s long-
standing complaints prior to the work injury and with the diagnostic testing. These
objective bases for discrediting Dr. Levenberg and crediting Dr. Meller facilitate
effective appellate review and, therefore, the WCJ’s Decision is a reasoned one.
Daniels, 828 A.2d at 1053.
The fact that Claimant has invoked Section 422(a) does not give us license to
“second-guess the WCJ’s reasons for credibility determinations.” Dorsey, 893 A.2d
at 195. It remains within “the WCJ’s prerogative to determine the credibility of
witnesses and the weight to be accorded evidence.” Casne, 962 A.2d at 19 (citation
omitted). We will not disturb the WCJ’s credibility determinations unless, when the
WCJ’s reasoning is considered as a whole, those determinations are “arbitrary and
capricious or so fundamentally dependent on a misapprehension of material facts, or
so otherwise flawed, as to render it irrational.” Id. Thus, we do not “review each
and every component of the WCJ’s reasoning for substantial evidence and reverse
or remand if we can find any flaw.” Id. at 18.
However, this is what Claimant asks us to do with her myriad of challenges
to the WCJ’s credibility findings. Claimant argues that we should overturn the
WCJ’s determination discrediting her testimony that she sustained a disabling injury,
claiming that the WCJ discredited her based on: 1) her not having signed a workers’
compensation rights and duties form and general medical release form; and 2) a
mischaracterization of her testimony as to the extent of her injuries from the prior
18
car accidents. However, the WCJ’s credibility determination went well beyond
these points, finding that Claimant had “intentionally attempted to mislead” the
doctors who examined her about her prior injuries. (FOF ¶ 11(c)); see Casne, 962
A.2d at 19 (“Credibility determinations are more than a series of individual
findings.”).) Moreover, Claimant mischaracterizes the WCJ’s findings. The WCJ
did not find, as Claimant argues, that she was not credible because she refused to
sign these forms. (FOF ¶ 14(h).) Nor did the WCJ find that Claimant testified that
she had never been injured in a car accident prior to the work-related accident.
(Claimant’s Brief (Br.) at 33-34.) The WCJ found that Claimant testified “that she
never previously had the types of symptoms she now complains of.” (FOF ¶ 11(c)
(emphasis added).) Substantial evidence,4 including the medical record authored by
Dr. Sing recounting Claimant’s complaints of neck and back pain following an April
2012 car accident, supports the WCJ’s finding that Claimant was inaccurate in this
regard. (R.R. at 294a.) In summary, considering the WCJ’s reasoning as a whole,
as we must, his determination discrediting Claimant’s testimony that she sustained
a disabling injury is neither arbitrary nor capricious. Claimant never explained, as
it was her burden to do, why, after working six weeks in a light-duty position that
paid her the same as her time-of-injury job, she could no longer work the light-duty
position. Sch. Dist. of Phila. v. Workers’ Comp. Appeal Bd. (Lanier), 727 A.2d
1171, 1172 (Pa. Cmwlth. 1999) (stating that in a claim petition the claimant bears
the burden of proving, inter alia, that she suffered a work-related injury that caused
a disability, which is a loss of earnings or earning power).
4
“Substantial evidence is such relevant evidence as a reasonable person might accept as
adequate to support a conclusion.” Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.),
721 A.2d 1152, 1155 (Pa. Cmwlth. 1998).
19
Next, as to Claimant’s challenge to the WCJ’s findings regarding Strausser’s
testimony, the fact that Strausser’s testimony was, as the WCJ found and neither
party disagrees, “largely undisputed” does not render the WCJ’s Decision denying
her claim for disability benefits unreasoned. (FOF ¶ 13.) Claimant overstates the
significance of Strausser’s testimony, claiming that it established disability.
(Claimant’s Br. at 27.) On the critical issue of disability, however, Strausser testified
that Claimant sent her a copy of Dr. Sundararajan’s note, but that Dr. Sundararajan
did not explain in the note why Claimant was unable to perform the light-duty
position as she had been doing up until that point. Thus, contrary to Claimant’s
contention, the fact that Strausser’s testimony was largely undisputed does not lead
to the conclusion that Claimant sustained her burden of proof, and the WCJ did not
render an unreasoned decision in this regard.
Nor was the WCJ’s Decision unreasoned because the WCJ rejected Dr.
Sundararajan’s note. Claimant’s contention that she presented legally sufficient
evidence, because the note was electronically signed and stated that Claimant was
being taken out of work, presupposes that the evidence itself was persuasive. The
WCJ examined Dr. Sundararajan’s note, saw that it was electronically signed,
contained a grammatical error and only a conclusory statement without any
explanation why Claimant could no longer work from home after having done so for
six weeks. The WCJ could reasonably conclude that Dr. Sundararajan may not have
authored the note or even seen it. Further, as the WCJ noted, Dr. Sundararajan never
testified so as to confirm that the note contained his medical opinion. While
Claimant argues that Employer did not present any evidence contradicting Dr.
Sundararajan’s note, it was not unreasoned for the WCJ still to give the note “very
little evidentiary weight” (FOF ¶ 11(d)), for a WCJ is free to reject even
20
uncontradicted evidence. Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods.,
Inc.), 721 A.2d 1152, 1156 (Pa. Cmwlth. 1998).
The WCJ also did not render an unreasoned decision because he discredited
Dr. Levenberg and credited Dr. Meller on the issue of disability. As we have set
forth, the WCJ discredited Dr. Levenberg because Claimant did not provide Dr.
Levenberg with an accurate medical history, neglecting to tell him about her prior
car accidents. (R.R. at 180a-81a). Dr. Levenberg did not quantify the extent of
Claimant’s injuries (Id. at 160a), even though the June 9, 2015 MRI showed that
some of the herniations were “small.” (R. Item 16, Ex. 4.) Dr. Levenberg did not
accurately represent Dr. Lubek’s findings in the EMG, stating that the EMG and
consultation showed a “cervical radiculopathy” (R.R. at 164a-65a), when, in fact,
Dr. Lubek stated that there was “no evidence of acute cervical radiculopathy,” as
Dr. Levenberg acknowledged during cross-examination (Id. at 185a-86a, 189a; June
12, 2015 EMG, R. Item 16, Ex. 6.) (emphasis added). All of these findings, as
exhibited by our citations to the record, are supported by substantial evidence, and
the WCJ discrediting Dr. Levenberg based on these findings is neither arbitrary nor
capricious. See Daniels, 828 A.2d at 1053 (noting that erroneous factual
assumptions and impeachment with inconsistencies or contradictions are valid bases
for discrediting a witness). In contrast, the WCJ credited Dr. Meller because his
diagnosis was consistent with Claimant’s long-standing complaints prior to the work
injury of neck and back pain, as Dr. Sing noted back in April 2012 (R.R. at 294a),
and with the diagnostic testing, particularly MRIs from 2012 and 2014 showing disc
herniations at C4-5 and C5-6. (R. Item 16, Ex. 2, 3.) These findings are also
supported by substantial evidence, as demonstrated by our citations to the record,
and crediting Dr. Meller based on these findings is neither arbitrary nor capricious.
21
(R.R. at 219a-20a, 235a.) While Claimant contends that the WCJ’s crediting of Dr.
Meller was unreasoned because he tried to attribute her injuries to fibromyalgia,
when she was never treated for fibromyalgia, had not been diagnosed with it, and no
medical provider attributed fibromyalgia to her work accident, Claimant’s
contention is based on mischaracterizations of the testimony. Claimant herself
testified that she was diagnosed with fibromyalgia in 2003. (R.R. at 62a-63a.) Dr.
Meller never attributed Claimant’s fibromyalgia to her work accident. (R.R. at
253a.) Rather, Dr. Meller explained that Claimant’s fibromyalgia would support his
diagnosis because, in his opinion, Claimant was continuing to complain of pain in
her neck and back when “underlying findings to explain . . . [those] complaints”
were lacking. (R.R. at 291a.)
Finally, Claimant argues that the WCJ’s Decision is unreasoned because the
WCJ found that Claimant was entitled to a limited period of medical benefits, but
not disability benefits for that same limited period. However, since the WCJ
discredited the evidence Claimant presented to show she sustained a disability, but
credited her evidence that showed she sustained a work-related injury that caused
her to incur medical expenses, it was rational for the WCJ to award Claimant medical
expenses up until her work-related injury was resolved, on January 12, 2016, and
not to award her any disability benefits. The Act itself contemplates that a work-
related injury may occur that results in work-related medical expenses without
causing a loss in earnings or earning power. Section 306(f.1)(1) of the Act, as
amended, 77 P.S. § 531(1). Indeed, Claimant did not suffer a loss in earnings when
she returned to work in the light-duty position seven days after her work accident,
and she never persuasively explained why she could not continue to work in that
position, as she had been doing for six weeks, when she stopped working. Thus,
22
because Claimant sustained a work-related injury that required medical treatment
without suffering a loss of earnings or earning power, that is, a disability, “the denial
of disability benefits [wa]s not inconsistent with [the] award for medical expenses
incurred for treatment of [the] work-related injury.” Odd Fellow’s Home of Pa. v.
Workmen’s Comp. Appeal Bd. (Cook), 601 A.2d 465, 471 (Pa. Cmwlth. 1991).
Therefore, because the WCJ provided objective bases for his credibility
determinations, and the WCJ’s credibility determinations are supported by
substantial evidence and are neither arbitrary nor capricious, the WCJ rendered a
reasoned decision.
B. Unreasoned Decision Based on Bias
Claimant also argues that the WCJ rendered an unreasoned decision because
he “interjected himself into the case as an advocate” rather than acting as a neutral
arbiter of credibility. (Claimant’s Br. at 49.) In support, Claimant points to the
WCJ’s rejection of Dr. Sundararajan’s note on the bases that it contained a stamped
signature and lacked a specific reason for removing Claimant from work, which
bases the WCJ raised sua sponte and without any evidence to contradict Dr.
Sundararajan’s note. In fact, Claimant asserts, Employer relied on Dr.
Sundararajan’s note.5
An unreasoned decision includes one that is “founded on prejudice or
preference rather than on reason or fact.” Casne, 962 A.2d at 19 n.5 (quoting Black’s
Law Dictionary 112 (8th ed. 2004)). However, an adverse ruling, without more,
does not demonstrate bias, especially when that ruling is legally proper. Cellucci v.
5
Employer does not specifically respond to Claimant’s contention that the WCJ was
biased, but Employer has argued that the WCJ’s rejection of Dr. Sundararajan’s note was rational.
23
Laurel Homeowners Ass’n, 142 A.3d 1032, 1045 (Pa. Cmwlth. 2016); Slappo v. J’s
Dev. Assocs., Inc., 791 A.2d 409, 416 (Pa. Super. 2002).
As we have discussed, the WCJ provided rational reasons for rejecting Dr.
Sundararajan’s note, which substantial evidence supports. The fact the WCJ
questioned, sua sponte, whether Dr. Sundararajan had written or even seen the note,
for the reasons the WCJ outlined, did not evidence bias. Rather, the WCJ was free
to reject even uncontradicted evidence as not credible. Serrano v. Workers’ Comp.
Appeal Bd. (Chain Bike Corp.), 718 A.2d 885, 889 (Pa. Cmwlth. 1998). Therefore,
Claimant has failed to establish that the WCJ’s Decision was unreasoned because it
was infected by bias.
C. Reasonable Contest
Claimant argues that the WCJ erred in finding that Employer engaged in a
reasonable contest. Claimant asserts that at the time Employer issued the Notice of
Worker’s Compensation Denial terminating the NTCP, Employer did not have any
evidence to contradict Claimant’s proof that she was in a work-related accident that
resulted in her injuries and disability.
Employer responds that its contest was reasonable because there was a
disputed issue as to whether Claimant was disabled. Employer notes that Claimant
did not explain why she could no longer work in the light-duty position and refused
to sign a medical authorization so that Employer could investigate the claim. As
such, Employer contends, it had a reasonable basis for the contest.
24
Section 440(a) of the Act, 77 P.S. § 996(a),6 authorizes an award of attorney
fees to a claimant who prevails in whole or in part. Section 440(a) provides, in
relevant part, as follows:
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 time to attend the proceedings:
Provided, That cost for attorney fees may be excluded when a
reasonable basis for the contest has been established by the
employer or the insurer.
77 P.S. § 996(a) (emphasis added). “Whether an employer had a reasonable basis
for contesting a claimant’s award of benefits depends upon both the facts and the
legal issues involved in each case.” The Pa. State Univ. v. Workers’ Comp. Appeal
Bd. (Sox), 83 A.3d 1081, 1089 (Pa. Cmwlth. 2013). An employer’s contest is
reasonable if it was prompted “to resolve a genuinely disputed issue” and not merely
to harass the claimant. Id. (citation omitted). “The employer bears the burden of
proving the reasonableness of its contest”; however, the employer, in order to meet
its burden, need not prove that its evidence is legally sufficient, only that the
evidence is conflicting or subject to contrary inferences. Id.
Here, Claimant did not prevail on the issue of whether she sustained a
disability as a result of the work accident and, thus, cannot recover for litigation costs
associated therewith. Jones v. Workers’ Comp. Appeal Bd. (Steris Corp.), 874 A.2d
717, 721-22 (Pa. Cmwlth. 2005) (“a claimant must prevail on the contested issue in
order to be awarded litigation costs.”). While Claimant did prevail on whether she
6
Added by the Act of February 8, 1972, P.L. 25, as amended.
25
sustained a work-related injury, which entitled her to medical benefits for a closed
period, the WCJ concluded that “the extent of this litigation . . . would have been the
same,” pointing to, inter alia, the following facts in support: Employer did not
receive a medical report indicating why Claimant was unable to continue working
in the light-duty position; Claimant herself did not explain why she could not
continue to work in the light-duty position; and Claimant refused to sign a medical
release form; (FOF ¶ 14(h).) In other words, the WCJ concluded that the attorney
fees Claimant incurred were the result of litigating the issue of disability, and
Claimant has not shown otherwise either before the Board or now on appeal to this
Court. Since Claimant has not shown that she incurred any attorney fees from
contesting the issue of whether she sustained a work-related injury, she is not entitled
to an award of unreasonable contest attorney fees. Church v. Workers’ Comp.
Appeal Bd. (Cook), 135 A.3d 1153, 1163 (Pa. Cmwlth. 2016) (stating that “where a
claimant is only partially successful, before costs are awarded, a determination must
be made as to whether the costs were incurred on the winning issue or the losing
issue,” and there, although the claimant prevailed on the termination petition, the
litigation expenses related to the reinstatement petition, on which claimant did not
prevail). Therefore, the WCJ did not err in denying Claimant’s request for
unreasonable contest attorney fees.
26
III. Conclusion
For the foregoing reasons, we conclude that the WCJ issued a reasoned
decision based on substantial, competent evidence of record, and did not err when
he denied Claimant’s request for unreasonable contest attorney fees. Accordingly,
we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alicia Robinson, :
Petitioner :
:
v. : No. 1569 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Madlyn and Leonard :
Abramson Center for Jewish Life), :
Respondent :
ORDER
NOW, August 28, 2018, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is hereby AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge