E. Rophail v. WCAB (HEI Hospitality, LLC) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ereny Rophail, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (HEI Hospitality, LLC), : No. 1256 C.D. 2018
Respondent : Submitted: February 22, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 7, 2019
Ereny Rophail (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) August 15, 2018 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s petition for
review (Review Petition), granting HEI Hospitality, LLC’s (Employer) Termination
Petition, dismissing Employer’s Suspension Petition as moot, and granting and
denying in part Claimant’s and Employer’s Petitions to Review the Utilization
Review (UR Review) Determination (UR Determination). Claimant presents one
issue for this Court’s review: whether Employer’s expert’s testimony is incompetent
because Steven Valentino, D.O. (Dr. Valentino) stated Claimant’s wrong age. After
review, we affirm.
On February 15, 2016, Claimant sustained an injury in the course of her
employment as a restaurant server for Employer. On March 10, 2016, Employer
issued a Notice of Compensation Payable (NCP) accepting her lumbar spine sprain
injury. On May 12, 2016, Claimant filed the Review Petition seeking to expand her
injury description to include a “[s]mall disc bulge with superimposed central
protrusion[-]type disc herniation which narrows both lateral recesses. Disc material
may contact the traversing right and left L5 nerve roots. . . . [sic] at the L4-5 level and
a small disc bulge with posterior annular fissure at the L5-S1 level.” Review Petition
at 1. Employer timely filed an answer to the Review Petition denying all material
averments.
On July 14, 2016, Employer filed the Termination Petition based upon
Dr. Valentino’s June 28, 2016 independent medical examination (IME), and Dr.
Valentino’s medical opinion that Claimant was fully recovered from her February 15,
2016 work injury. Also on July 14, 2016, based upon Claimant’s IME, Employer
issued a Notice of Ability to Return to Work. On August 2, 2016, Employer filed the
Suspension Petition seeking to suspend Claimant’s WC benefits due to her failure to
return to work in good faith pursuant to Employer’s job offer letter. On November
14, 2016, Claimant filed a UR Review of the UR Determination regarding her
treatment by chiropractor John Seward, D.C. (Dr. Seward), including all treatment
rendered by Dr. Seward and his practice, from June 3, 2016 and ongoing. On
November 22, 2016, Employer filed a UR Review of the UR Determination.
On June 19, 2017, the WCJ granted Employer’s Termination Petition,
therein ruling that Claimant fully recovered from her February 15, 2016 work injury
as of June 28, 2016. The WCJ granted Employer’s UR Review, in part, concluding
that Dr. Seward’s chiropractic treatment was only reasonable from June 3, 2016 to
June 28, 2016, and was unreasonable thereafter. The WCJ also found that Claimant
failed to sustain her burden relative to the Review Petition of proving that she
sustained a work injury other than that documented in the NCP. The WCJ further
determined Employer’s contest to be reasonable. Claimant appealed to the Board.
2
On August 15, 2018, the Board affirmed the WCJ’s decision. Claimant appealed to
this Court.1
Claimant argues that, because Dr. Valentino stated in his testimony and
his report that Claimant was 62 years old when, in fact, she was 36 years old, his
testimony was incompetent and the WCJ erred by granting the Termination Petition
based thereon.
Initially,
[a] medical expert’s opinion is not rendered incompetent
unless it is solely based on inaccurate or false information.
Newcomer v. Workmen’s Comp[.] Appeal [Bd.] (Ward
Trucking Corp.), . . . 692 A.2d 1062 ([Pa.] 1997).
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. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391,
396 (Pa. Cmwlth. 2001).
Here, when accepting Dr. Valentino’s testimony as “more credible and
persuasive than any contrary testimony of Dr. Rowe[,2]” the WCJ explained:
a) The testimony of Dr. Valentino is based on his expertise
as a practicing board[-]certified orthopedic surgeon and
fellowship[-]trained spine surgeon[,] in addition to the
[IME] performed and his review of the records and his
subsequent review of the surveillance.
b) This [WCJ] notes that Dr. Valentino erroneously
understands that Claimant is 62 years of age and is of the
opinion that the findings on the MRI are age appropriate for
1
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
2
Dr. Jeffrey Rowe, M.D. is Claimant’s treating physician and testified as Claimant’s
medical expert.
3
a 62[-]year[-]old woman. This [WCJ] finds this error
harmless[,] as Dr. Valentino noted that degeneration starts
in the 30[]s and 40[]s and progresses and the findings were
consistent with Claimant’s body habitus: She is 5’4”[3] and
weighs 245 pounds. There is no evidence of record
establishing that the findings are not age appropriate for a
36[-]year[-]old woman with Claimant’s body habitus.
c) The medical analysis of Dr. Valentino is clear, logical
and well supported.
d) The examinations of Dr. Rowe, Dr. Valentino, the
doctors at Rothman and WorkNet all documented normal
neurological examinations.
e) Dr. Rowe did not review the surveillance. The
surveillance does not support Dr. Rowe’s examination
findings but does support Dr. Valentino’s examination
findings. Per Dr. Valentino’s uncontradicted testimony,
Claimant’s activities as depicted on the surveillance were
not consistent with L5 radiculopathy or any back injury.
f) This [WCJ] has rejected Claimant’s testimony of ongoing
work[-]related complaints.
WCJ Dec. at 12 (emphasis added).
Significantly, Employer offered and the WCJ accepted into evidence
without objection, two surveillance CD-ROMs. “The first CD[-]ROM has dates of
surveillance of April 30, 2016, May 6, 2016, and May 16, 2016. It’s 23 minutes.”
Reproduced Record (R.R.) at 56a.
JUDGE KELLEY:
Yes, 23 minutes and what does it show me? . . . .
ATTORNEY RUBINICH:
Sure, Your Honor. You’re going to see [Claimant] on all
the days performing activities of daily living including
driving, walking, shopping, carrying bags of groceries,
going into various merchants, shopping throughout the day.
3
Dr. Valentino testified that Claimant was “5’3”.” Reproduced Record at 188a.
4
....
JUDGE KELLEY:
And the next covers what date?
ATTORNEY RUBINICH:
The second CD[-]ROM is a surveillance on June 8th. And,
again, this also shows ---. It’s 20 minutes in length. It
shows [Claimant] driving, walking, standing, shopping at
several stores, carrying merchandise, carrying bags and
packages, et cetera.
R.R. at 56a-57a. The WCJ summarized the surveillance videos as follows:
The [WCJ] has carefully reviewed the surveillance for dates
of 4/30/16, 5/6/16, 5/16/16 and 6/8/16. Claimant is seen on
multiple occasions easily getting in and out of her SUV,
easily lifting up and pulling down the back gate of her SUV,
driving her SUV, easily leaning over while sitting, sitting in
her SUV in no apparent distress, walking with ease, pushing
shopping carts with ease and not using them as assistive
devices, bending with ease, carrying multiple bags, a broom
and her purse all at once and hold all items while loading
them into her SUV, walking with ease, walking with ease in
the pouring rain and reaching with ease. Claimant moved
fluidly and at will.
WCJ Dec. at 11.
Dr. Valentino testified relative to the surveillance videos:
Q. Doctor, can you tell us what did you observe on the
various dates of surveillance?
A. What I observed is that she was videotaped doing
shopping, lifting, bending, reaching, walking, driving,
getting in and out of her car, pushing a cart. She’s carrying
bags. She’s carrying a broom or something of that sort and
at no time did I see any painful movements, any limping
or any visible signs of impairment or disability.
Q. Doctor, surveillance was conducted on April 30th, May
6th, May 16th, June 28th all of 2016 and those were all
subsequent [sic] to your examination?
5
A. Yes.
Q. How does your review of the surveillance activity
observed thereon impact, if at all, your opinion you
rendered in your report?
A. I reviewed the videotape surveillance films as well as the
report confirms [sic] the opinions and validates the opinions
that I rendered in my IME.
Q. When you reviewed this surveillance, did you observe
[Claimant] having any physical difficulties performing
those activities of daily living?
A. No.
R.R. at 197a-198a (emphasis added).
Finally, Dr. Valentino opined:
BY MR. RUBINICH:
Q. Doctor, let me ask you this; Counsel for [Claimant] has
filed a [Review] Petition seeking to expand the description
of injury from a lumbar sprain to include disc herniations
and lumbar radiculopathy.
Can you comment on the causal relationship of whether or
not those conditions are related to the incident which
occurred on February 15, 2016?
A. Yes, I can. I do not find they’re related given her normal
neurologic exam, the MRI findings, the chronic
longstanding degenerative changes, normal range of motion
and of course the videotape surveillance which is
inconsistent with asymptomatic 4, 5 disc herniation or a left
L5 radiculopathy.
R.R. at 205a-206a. Because Dr. Valentino’s opinion was not “solely based on
inaccurate or false information[,]” his testimony was competent. Hurley, 789 A.2d at
396. Accordingly, the WCJ properly granted the Termination Petition based thereon.
6
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ereny Rophail, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (HEI Hospitality, LLC), : No. 1256 C.D. 2018
Respondent :
ORDER
AND NOW, this 7th day of May, 2019, the Workers’ Compensation
Appeal Board’s August 15, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge