L.M. Kozlowski v. WCAB (Lehigh Valley Imaging MRI) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Liza M. Kozlowski, :
Petitioner :
:
v. : No. 1355 C.D. 2017
: Submitted: February 9, 2018
Workers’ Compensation Appeal :
Board (Lehigh Valley Imaging MRI), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 12, 2018
Liza M. Kozlowski (Claimant), pro se, petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) that denied her
claim for workers’ compensation benefits. In doing so, the Board affirmed the
decision of the Workers’ Compensation Judge (WCJ) that Claimant failed to prove
that she sustained a work-related injury. For the following reasons, we affirm.
Claimant worked as a medical secretary for Lehigh Valley Imaging
MRI (Employer). Her job included scheduling and checking in patients, answering
phone calls, filing, and faxing. On May 26, 2015, Claimant filed a claim petition
under the Workers’ Compensation Act (Act)1 alleging that on March 10, 2015, while
she was sitting in her chair scheduling patients, she had a sudden onset of pain. The
claim petition described the injury as “lower left back pain/sprain, thigh pain, left
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
leg and foot numbness/tingling.” Certified Record (C.R.), Item 2, at 1. Employer
filed an answer denying the averments of the petition.
The WCJ held a hearing, and Claimant testified in person. Claimant
stated that she worked for Employer for 16 years, beginning in 1999. She worked
five days a week and spent eight hours a day sitting in a chair, except when she took
her lunch break. Claimant testified that on March 10, 2015, she was sitting in her
chair scheduling patients over the phone, when she felt a “sudden onset” of low back
pain that went down her leg and into her toes. Notes of Testimony (N.T. __),
10/21/2015, at 12. Claimant reported the incident to the office manager, who
directed her to Health Works, where Dr. Richard Goy recommended exercises and
physical therapy. Claimant did not do the exercises because they were “too painful”
and she was too busy. Id. at 13. Claimant did not undertake the physical therapy
because it was not covered by workers’ compensation.
Claimant then saw Dr. Jeffrey Brown, her family doctor, who ordered
x-rays and magnetic resonance imaging (MRI). He offered her prescription
medication for pain, which Claimant declined to take, opting instead for Advil. Dr.
Brown referred Claimant to Dr. Charles Norelli, an orthopedist, who recommended
physical therapy, which she could not afford. Claimant testified that currently she
“ha[s] nothing in treatment” and takes over-the-counter pain medications
“occasionally.” Id. at 16.
Claimant testified that since March 10, 2015, she has continued to
perform her regular job; nevertheless, her symptoms tend to worsen at the end of the
week and subside when she is at home. Her symptoms return when she returns to
work. Claimant testified that she asked for a new chair at work, but the office
manager rejected her request.
2
Claimant acknowledged that she injured her low back in 2011, although
she could not recall how that injury occurred. She remembered that the pain lasted
“for a while”; she saw Dr. Brown, who ordered an x-ray; and the pain subsided
within a month and a half. Id. at 18. Claimant testified that the symptoms were
“across the back” in 2011, and she does not have similar symptoms now. Id. at 19.
Claimant testified that she experienced no other symptoms between 2012 and March
10, 2015.
Claimant submitted Dr. Brown’s medical notes of May 28, 2015,
stating that Claimant had lumbar radicular pain that lasted about 8 to 10 weeks with
radiation down her left leg. The MRI result showed “[v]ery mild degenerative
changes at L4-5 and L5-S1.” C.R., Item 13, at 2.
Claimant also submitted medical records from Dr. Goy, which stated
that
[Claimant] attributes the pain to her work environment. She says
her chair is very uncomfortable and is the cause of her pain. She
spends most of [her] time sitting with occasional getting up an[d]
moving around.
C.R., Item 15, at 6. Dr. Goy noted that there is “[n]o pertinent past medical history”
and, thus, he based his opinion that the injury was work-related upon Claimant’s
statements and his physical examination of her. Id.
Finally, Claimant submitted medical records from Dr. Norelli, who
examined her on June 29, 2015, and noted, inter alia, as follows:
[Claimant] describes the pain as aching. Associated symptoms
include numbness and tingling in left leg. This condition is
related to repetitive activity. The injury was reported to take
place at work. Prolonged Sitting. Relieving Factors include
standing. Aggravating factors include sitting…. [Claimant] is
also having increased pain on her L side in the area of her
Piriformis muscle from prolonged sitting at work.
3
C.R., Item 14, at 2. Dr. Norelli reviewed Claimant’s lumbar spine x-rays and an
MRI performed on May 28, 2015, and diagnosed Claimant with lumbago, lumbar
radiculopathy, and lumbar facet disease. He opined that “[Claimant’s] Piriformis
symptoms are aggravated by prolonged sitting.” Id. at 4. Dr. Norelli’s records also
observed that there was “no pertinent past medical history.” Id. at 1.
Employer presented the testimony of Kimberly Seidel, its office
manager. Seidel testified that Claimant’s job duties change from time to time, and
“she’s not always in scheduling.” N.T., 2/25/2016, at 11. Claimant has a 30-minute
lunch break and opportunities to “get out of her chair during a shift.” Id. at 12. The
chairs in the scheduling office are adjustable and have footrests. Seidel
acknowledged telling Claimant that Employer did not intend to purchase new chairs
because the existing ones are expensive and fully adjustable to conform with an
employee’s desired height, depth, tilt and lumbar settings.
Employer also submitted the report of its independent medical
examiner, Dr. Scott Naftulin, who examined Claimant on October 18, 2015. Dr.
Naftulin diagnosed Claimant with non-work-related, non-specific left low back pain
with leg pain and numbness, and preexisting symptomatic mild lumbar disc
degeneration. He opined that:
Based upon the information provided, there is no precipitating
event, trauma, or repetitive activity to suggest [Claimant]
suffered a work-related lumbar spinal injury. Her clinical
evaluation is unremarkable other than subjective tenderness. Her
symptom distribution is not consistent with radiculopathy.
Imaging findings, including those pre-dating the work injury by
four years reveal mild degenerative change. There was no
evidence of a more significant injury being sustained on recent
MRI.
4
C.R., Item 18, at 4. Dr. Naftulin noted that his opinion was based upon his review
of Claimant’s lumbar spine x-rays dated October 3, 2011, and the MRI dated May
28, 2015.
The WCJ concluded that Claimant did not sustain a work-related injury.
In doing so, she found Claimant’s testimony “possibly credible” but “insufficient to
carry her burden of proof with regard to causation, as that is a medical opinion.”
WCJ Decision, 9/15/2016, at 5; Finding of Fact No. 6. The WCJ credited the opinion
of Employer’s independent medical examination (IME) physician, Dr. Naftulin, and
rejected the opinions of Drs. Goy and Norelli because they were unaware of
Claimant’s prior back injury in 2011. The WCJ noted that although Dr. Brown was
aware of the 2011 injury, he did not consider it in his diagnosis. The WCJ further
found “the condition is not as severe as Claimant reports” because she has not taken
the recommended medication or performed the recommended exercises. Id. at 5;
Finding of Fact No. 8.
Claimant appealed to the Board, arguing, inter alia, that the WCJ erred
by considering her previous back injury, which has no relevance in this case. The
Board affirmed, explaining that because the injuries alleged in her claim petition
were not obviously work-related, Claimant had to present unequivocal medical
evidence on causation. The Board held that Claimant failed to satisfy that burden.
Claimant petitioned for this Court’s review.2
On appeal, Claimant argues that the WCJ erred by evaluating the expert
medical opinions based on awareness of her 2011 back injury. Claimant maintains
2
This Court’s review of an order of the Board is to determine whether the necessary findings of
fact are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. Cytemp Specialty
Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth.
2012).
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that her previous injury “had resolved itself” and, therefore, is irrelevant to this case.
Claimant Brief at 4. Claimant contends that the WCJ and the Board should have
considered the opinions of Drs. Goy and Norelli that her present injury was work-
related. Claimant requests this Court to “reevaluate” the physicians’ opinions. Id.
at 3.
To establish eligibility for compensation under the Act, a claimant has
the burden of proving that her injury occurred in the course of employment and was
related to that employment. Miller v. Workmen’s Compensation Appeal Board
(Pocono Hospital), 539 A.2d 18, 20 (Pa. Cmwlth. 1988). What is required to
establish a causal connection between a claimant’s injuries and employment depends
on whether the injury is obviously work-related. Kensington Manufacturing Co. v.
Workers’ Compensation Appeal Board (Walker), 780 A.2d 820, 822 (Pa. Cmwlth.
2001). This Court has explained:
[A]n obvious work-related injury is one that immediately
manifests itself while a claimant is in the act of performing work,
the nature of which can cause the injury. A classic example
would be the laborer who grabs his back in pain after lifting his
shovel full of wet concrete. In such a case, the causal connection
is so clear that a lay person can see the connection. Under such
circumstances, the claimant’s testimony is sufficient to connect
the injury to the claimant’s employment, and additional medical
testimony is not required.
Id. (quoting Giant Eagle, Inc. v. Workers’ Compensation Appeal Board (Thomas),
725 A.2d 873, 876 (Pa. Cmwlth. 1998)). See also Northwest Medical Center v.
Workers’ Compensation Appeal Board (Cornmesser), 880 A.2d 753, 755 (Pa.
Cmwlth. 2005) (“A causal connection is obvious where an individual is doing an act
that requires force or strain and pain is immediately experienced at the point of force
or strain.”).
6
Where the causal connection between an injury and the alleged work-
related cause is not obvious, the connection must be established by unequivocal
medical evidence. Miller, 539 A.2d at 20. “Evidence is unequivocal if it establishes,
to a reasonable degree of medical certainty, that the injury was, in fact, work
related.” Berrian v. Workers’ Compensation Appeal Board (Pennsylvania State
Police), 829 A.2d 724, 728 (Pa. Cmwlth. 2003).
Here, Claimant testified that on March 10, 2015, while she was sitting
in her chair scheduling patients, she felt a sudden onset of low back pain that went
down her leg and into her toes. N.T., 10/21/2015, at 12. She attributed her injury to
prolonged sitting and the chair itself. We agree with the Board that the causal
connection between Claimant’s low back pain and her employment was not obvious
because Claimant was not “doing an act that requires force or strain.” Northwest
Medical Center, 880 A.2d at 755. Further, Claimant’s medical history included a
prior back injury in 2011. Claimant had to present unequivocal medical evidence to
connect the current injury to her employment.
Dr. Goy opined that the injury was work-related because
[Claimant] attributes the pain to her work environment. She says
her chair is very uncomfortable and is the cause of her pain. She
spends most of [her] time sitting with occasional getting up an[d]
moving around.
C.R., Item 15, at 6. In other words, Dr. Goy’s opinion was based upon Claimant’s
complaints. He was unaware of Claimant’s prior back injury, and he did not review
her x-ray or MRI results. Likewise, Dr. Norelli’s opinion was based upon
Claimant’s complaints and his review of her lumbar spine x-rays and MRI taken in
2015 following the current injury. He did not review Claimant’s 2011 x-rays.
Because Drs. Goy and Norelli did not consider Claimant’s past medical history in
7
forming their opinions, they did not establish, “to a reasonable degree of medical
certainty,” that the injury was work-related. Berrian, 829 A.2d at 728.
By contrast, Dr. Naftulin reviewed Claimant’s 2011 lumbar spine x-ray
films and the 2015 MRI report. According to Dr. Naftulin, these imaging reports
revealed mild degenerative changes that predated the alleged work injury, and
“[t]here was no evidence of a more significant injury being sustained on [the] recent
MRI.” C.R., Item 18, at 4. The WCJ found Dr. Naftulin’s opinion more credible
than the opinions of Drs. Goy and Norelli, which was within his province. It is well
established that a WCJ, as a fact finder, has “exclusive province over questions of
credibility and evidentiary weight, and the [WCJ]’s findings will not be disturbed
when they are supported by substantial, competent evidence.” Greenwich Collieries
v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth.
1995). It is irrelevant that the record contains evidence which supports a finding
contrary to that made by the WCJ; the pertinent inquiry is whether evidence exists
that supports the WCJ’s findings. Hoffmaster v. Workers’ Compensation Appeal
Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). Because
Dr. Naftulin’s report constituted substantial evidence that Claimant’s current injury
was not work-related, the WCJ did not err in denying her claim petition.
For all of the foregoing reasons, we affirm the Board’s order.
______________________________________
MARY HANNAH LEAVITT, President Judge
Judge Fizzano Cannon did not participate in the decision in this case.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Liza M. Kozlowski, :
Petitioner :
:
v. : No. 1355 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Lehigh Valley Imaging MRI), :
Respondent :
ORDER
AND NOW, this 12th day of June, 2018, the order of the Workers’
Compensation Appeal Board dated August 16, 2017, in the above-captioned matter
is hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge