C. English v. WCAB (Gateway Ticketing) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christina English, :
Petitioner :
: No. 145 C.D. 2015
v. :
: Submitted: July 2, 2015
Workers’ Compensation Appeal :
Board (Gateway Ticketing), :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 14, 2015
Christina English (Claimant) petitions for review of the January 30, 2015
order of the Workers’ Compensation Appeal Board (Board), which affirmed the order
of a workers’ compensation judge (WCJ) denying her claim and review petitions and
granting the termination petition filed by Gateway Ticketing (Employer). We affirm.
Claimant worked as a marketing research analyst and a marketing
communications specialist for Employer until the date of her termination on August
10, 2011. (Reproduced Record (R.R.) at 19a, 173a-74a, 180a-81a.) Employer issued
a notice of compensation denial; however, Employer acknowledged, for medical
purposes only, that on October 11, 2010, Claimant suffered a work-related injury in
the nature of a cervical, thoracic, and left shoulder sprain and strain. (WCJ’s Finding
of Fact No. 1; R.R. at 1a.)
On December 1, 2011, Claimant filed a claim petition alleging total
disability as of November 2, 2011,1 due to the October 11, 2010 work injury. On
January 20, 2012, Claimant filed a review petition seeking to include a thoracic spine
strain, occipital neuralgia, myofascial strain, and left rhomboid strain to the
description of her injury. Employer subsequently filed a termination petition,
alleging that Claimant was fully recovered from her work injury as of February 29,
2012. (Board’s op. at 1; R.R. at 15a-16a.) The petitions were assigned to a WCJ,
who held multiple hearings.
Claimant testified that, on October 11, 2010, she began having persistent
pain in her left shoulder and back that would give her intense headaches, as well as
muscle spasms, while she was sitting at her work desk. Claimant testified that she
initially sought medical treatment from Anthony M. Odell, D.C. (Dr. Odell), and then
was treated by a Dr. Dreazen,2 Employer’s workers’ compensation doctor, who
examined Claimant, took x-rays, and set up a treatment plan that included physical
therapy and medication. Claimant testified that she continued to work during this
time and had difficulty attending treatment sessions. (R.R. at 21a-23a.)
Claimant stated that Dr. Dreazen referred her to Harold Joseph Einsig,
M.D. (Dr. Einsig), who continues to treat her. Claimant explained that Dr. Einsig
gave her multiple trigger point injections into her neck, head, shoulder, and back, as
well as an injection in the back of her head to prevent headaches that worked for a
period of time. Claimant stated that she informed Employer she needed a
1
Claimant originally alleged full disability as of June 30, 2011, in her claim petition. (R.R.
at 2a-3a.) However, Claimant amended her petition to allege full disability as of November 2,
2011, at the WCJ’s January 19, 2012 hearing. (R.R. at 15a-16a.)
2
Dr. Dreazen’s full name is not evident in the record.
2
reconfigured work station in order to relieve her pain, and Employer accommodated
her request. Claimant acknowledged that Employer also allowed her to work two
days a week from home. (R.R. at 23a-24a, 36a-38a.)
Claimant testified that, although she was in physical pain and was also
dealing with anxiety and depression issues, she continued to work until March 31,
2011, when her psychiatrist, Lisa Foster, Psy.D. (Dr. Foster), restricted her from
working. Claimant treated with both Dr. Foster and Dr. Einsig while she was out
from work. Claimant stated that Dr. Foster released her to return to work on June 15,
2011, and she resumed working that day. Claimant testified that when she returned to
work, she had a new sedentary position and Employer provided her with
accommodations, such as allowing her to start work at 10:00 a.m. instead of 9:30 a.m.
and to work from home two days per week, as well as other physical adjustments to
her work station. Claimant said that she worked for approximately one week until
Dr. Foster again advised her to stop working. Claimant stated that she had not
returned to work since June 2011 and that she continued to receive treatment from
Dr. Einsig and Dr. Odell. (R.R. at 24a-26a, 45a-47a, 53a.)
Claimant testified that she is not physically capable of performing her
regular job duties because she cannot sit at her desk for more than twenty minutes at a
time. Claimant said that she continues to experience intense pain and muscle spasms
in her shoulder area, pain in her left arm and back of her neck, and headaches.
Claimant added that, if she places her arm behind her, she receives an electrical shock
that runs down her arm to her fingers. (R.R. at 27a-29a.)
Dr. Einsig, who is board certified in physical medicine and
rehabilitation, electrodiagnostic medicine, and athletic training, testified by way of
deposition on March 26, 2012. Dr. Einsig testified that he saw Claimant on January
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26, February 14, March 21, July 27, and December 22, 2011, and February 7 and
March 6, 2012; he received a history of the work injury from Claimant, performed
physical examinations, and provided treatment. (R.R. at 68a-69a, 73a-74a, 76a-78a,
90a, 92a-96a.)
Dr. Einsig stated that the results of his examinations were as follows:
Claimant had tenderness in her spine and neck area; trigger points in the left pectoral
muscle, with pain radiating through the shoulder and arms, the left levator scapulae
muscle, the trapezius muscle, with pain radiating into her fingertips, and the left
rhomboid muscle; intermittent numbness and tingling in her fingers; and occipital
nuchal crest tenderness with muscle tension around the occipital nerve that caused
irritation, inflammation, and occipital nerve headaches. He noted that the x-rays and
MRIs taken of Claimant’s cervical spine showed nothing significant. (R.R. at 69a-
71a, 73a-74a, 77a, 92a-95a.)
Dr. Einsig said that he administered occipital nerve blocks and trigger
point injections into Claimant’s left pectoralis, trapezius levator scapular complex,
and left rhomboid muscles. Dr. Einsig stated that he also recommended ice,
stretching, muscle relaxers, and physical therapy. He noted that the occipital nerve
blocks had worked well. (R.R. at 71a-74a, 77a-78a, 90a, 96a.) He testified that
Claimant skipped her April 2011 appointment because she said that she was “feeling
good.” (R.R. at 76a.) Dr. Einsig added that he performed an October 25, 2011 EMG
study, which showed irritated nerves and muscle twitching in Claimant’s left
rhomboid muscle. Dr. Einsig stated that he restricted Claimant from lifting over fifty
pounds and working overhead continuously with her left arm. (R.R. at 83a-86a, 88a-
89a.)
4
Dr. Einsig testified that he agreed with the description of the accepted
work injury, but he would expand it to include repetitive muscle guarding due to the
trigger points. He opined that Claimant developed a posterior left upper quarter
dystonia, which is an ongoing repeated contraction state of the muscles responsive to
pain, and that the work injury is the result of an improper work station. Dr. Einsig
noted that he disagreed with the independent medical examination report of Richard
G. Schmidt, M.D. (Dr. Schmidt), who concluded that Claimant was fully recovered
from her work injury as of February 10, 2012. Dr. Einsig acknowledged that, if
Employer had addressed all ergonomic issues at Claimant’s work station, he would
like to see Claimant attempt to do her job again. He stated that he never found
Claimant fully disabled and disagreed with Claimant that she is fully disabled as of
November 2, 2011. (R.R. at 98a-100a, 112a, 120a.)
Claimant also presented the May 2, 2012 deposition testimony of Dr.
Odell, who testified that he first saw Claimant on October 7, 2010. Dr. Odell stated
that Claimant gave a history of having neck and left shoulder pain after carrying
objects around and sitting at her desk for eight hours per day. Dr. Odell testified that
he examined Claimant and found that she was suffering from a sprain/strain of the
neck with some radicular symptoms going into the left shoulder. He stated that
Claimant had hypoesthesia on the left C7-T1 nerve distribution and some spasm and
tenderness within the “bilateral traps, rhomboids, et cetera.” (R.R. at 147a.)
Dr. Odell testified that he performed chiropractic manipulative therapy,
muscle stimulation, cervical mechanical treatment, and an ultrasound on Claimant on
October 11, 13, and 14, 2010. He stated that he saw Claimant again on November 3,
2011, at which time Claimant had similar complaints and headaches. Dr. Odell said
that Claimant’s symptoms were slightly worse than at the previous examination, and
5
he suggested that Claimant have chiropractic manipulative therapy, muscle
stimulation, massage, cervical traction, and ultrasound. Dr. Odell noted that he has
continued to treat Claimant sporadically since that visit. (R.R. at 147a-49a.)
Dr. Odell testified that Claimant had a follow-up evaluation on March
12, 2012, and Claimant had the same complaints. He said that the only differences
between his November 3, 2011 and March 12, 2012 examinations were that Claimant
no longer had radiculopathy but had severe headaches. Dr. Odell opined that, as of
November 3, 2011, he would place restrictions on Claimant that include: no repetitive
head or neck motions; no lifting overhead greater than twenty-five pounds; and be
able to sit, stand, and lie down as needed. Dr. Odell acknowledged that he never
documented any work restrictions and that Claimant could perform a majority of her
job duties if she was able to be in a comfortable position and could take a break or
change positions every fifteen or twenty minutes. (R.R. at 149a, 152a-53a.)
Dr. Odell testified that his diagnosis was cervical joint dysfunction;
thoracic joint dysfunction; cervical radiating symptoms, which had severely
decreased; and headaches. He acknowledged that Claimant was not fully disabled as
a result of her work injury, but he disagreed with Dr. Schmidt’s opinion that Claimant
had fully recovered from her work injury as of February 10, 2012. (R.R. at 149a-50a,
156a.)
Ashley Witman (Witman), Employer’s former Human Resources
Generalist, testified that Claimant first reported her injury on October 11, 2010. She
said that Employer provided Claimant with an ergonomic chair that was specifically
postured and a podium so that Claimant could stand when needed. Witman stated
that Employer also ordered a document holder, foot stool, keyboard tray, mouse tray,
and headset for Claimant to make her work station more comfortable. Witman added
6
that Employer had Jonathan Sakowski (Sakowski), a physical therapist, perform an
ergonomic evaluation of Claimant’s work station on March 3, 2011, and that
Sakowski only made minimal changes beyond Employer’s adjustments to the work
station. (R.R. at 167a-68a, 188a.)
Witman testified that Claimant stopped working for non-work-injury
reasons on April 1, 2011, and returned to work on June 15, 2011. Witman stated that
Claimant left work for a second time on June 22, 2011, because of work restrictions
imposed by her psychiatrist. Witman testified that Claimant informed Employer via
e-mail that her psychiatrist released her to resume working as of August 10, 2011.
She said that Claimant did not show up for work on August 10, 2011. Witman added
that Employer sent Claimant a letter notifying her of her termination if she did not
show up for work for three consecutive days, and, when Claimant responded by
informing Employer that she could not return to work indefinitely per her
psychiatrist’s recommendation, Employer discharged Claimant so that it could
continue business as usual. Witman stated that Employer terminated Claimant’s
employment because Claimant was unable to return to work due to psychiatric issues.
(R.R. at 171a-73a, 175a, 177a, 180a-81a.)
Dr. Schmidt, who is board certified in orthopedic surgery, testified by
way of July 18, 2012 deposition. Dr. Schmidt stated that he performed an
independent medical examination of Claimant on February 10, 2012, and Claimant
provided a history of her work injury. He added that he reviewed Dr. Einsig’s, Dr.
Odell’s, and Dr. Foster’s medical records of Claimant, as well as the transcripts of Dr.
Einsig’s and Dr. Odell’s depositions. (R.R. at 209a-10a.)
Dr. Schmidt testified that Claimant’s only complaint was of discomfort
in her left shoulder and that Claimant denied having any additional problems. Dr.
7
Schmidt further testified that Claimant had tenderness to palpation in her left mid-
trapezial area; her neck, shoulders, and back were all normal; and he did not see any
other evidence of an ongoing injury. Dr. Schmidt opined that, within a reasonable
degree of medical certainty, Claimant had fully recovered and could return to work
with no restrictions. In refuting Dr. Einsig’s opinions, Dr. Schmidt added that: an
EMG would not be used to find a trigger point, Claimant had no evidence of
dystonia, Claimant never complained of headaches, and occipital neuralgia cannot be
connected to a rhomboid strain. (R.R. at 211a-13a, 215a-23a.)
By decision and order dated February 25, 2013, the WCJ found the
testimony of Claimant and Witman credible. The WCJ also found Dr. Schmidt’s
testimony that Claimant had fully recovered from her work injury to be credible,
because his physical findings were consistent with those of Dr. Einsig and Dr. Odell.
The WCJ noted that there was a lack of objective findings during Dr. Schmidt’s, Dr.
Einsig’s, and Dr. Odell’s examinations.
However, the WCJ rejected Dr. Einsig’s opinion regarding the expansion
of Claimant’s work injury description and disability. The WCJ stated that while Dr.
Einsig’s opinions were based on his understanding that Claimant works at an
ergonomically incorrect work station, he never testified that he had any knowledge of
Claimant’s original work station. The WCJ also noted that Dr. Einsig was aware of
the changes made to Claimant’s work station and never stated that Claimant was
unable to return to her sedentary position after the changes had been made. The WCJ
rejected Dr. Odell’s testimony because he offered no understanding of the mechanics
of Claimant’s injury and did not explain any causal connection between the alleged
injury and Claimant’s alleged inability to perform her job duties.
8
Based on the credibility determinations, the WCJ concluded that
Claimant failed to meet her burden of proving that she sustained additional injuries
on October 11, 2010, or that her work injuries caused her to be totally disabled. The
WCJ also concluded that Employer met its burden of proving that Claimant had fully
recovered from her October 11, 2010 work injury as of February 10, 2012.
Accordingly, the WCJ denied Claimant’s claim and review petitions and granted
Employer’s termination petition. Claimant appealed to the Board.
By decision and order dated January 30, 2015, the Board determined that
the WCJ did not err in denying Claimant’s claim petition, because Claimant
presented no credible medical evidence or testimony that her work injury prevented
her from performing her sedentary job duties. The Board stated that neither Dr.
Dreazen nor Dr. Einsig restricted Claimant’s job duties and Claimant only stopped
working for psychiatric reasons. The Board further determined that the WCJ did not
err in denying Claimant’s review petition, because, as the ultimate arbiter of
credibility, the WCJ rejected Dr. Einsig’s testimony while accepting Dr. Schmidt’s
testimony that Claimant had fully recovered from her work injury.
The Board also determined that the WCJ did not err in granting
Employer’s termination petition, because Dr. Schmidt’s credible testimony that
Claimant had fully recovered from her work injury constituted substantial evidence to
support the WCJ’s finding that Claimant had made a full recovery. The Board also
concluded that the WCJ issued a reasoned decision, because the WCJ set forth
concise findings of fact and explained the basis of his findings and credibility
determinations. Accordingly, the Board affirmed the WCJ’s order.
9
On appeal to this Court,3 Claimant argues that the WCJ erred in denying
Claimant’s claim and review petitions and granting Employer’s termination petition,
because the WCJ’s decision was inconsistent and not supported by substantial,
competent evidence.
In a claim petition, the claimant bears the burden of proving all of the
elements necessary to support an award, including the burden to establish the
duration and extent of disability. Innovative Spaces v. Workmen’s Compensation
Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994), appeal denied, 663
A.2d 696 (Pa. 1995); see also Inglis House v. Workmen’s Compensation Appeal
Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). To establish an entitlement to wage
loss benefits, the claimant must prove by unequivocal medical evidence that the work
injury resulted in a disability, which is a loss of earning power. School District of
Philadelphia v. Workers’ Compensation Appeal Board (Lanier), 727 A.2d 1171,
1172-74 (Pa. Cmwlth. 1999). A claimant must establish that an injury occurred in the
course of employment and is related thereto. CPV Manufacturing Inc. v. Workers’
Compensation Appeal Board (McGovern), 805 A.2d 653, 658 (Pa. Cmwlth. 2002).
A review petition is appropriate when a claimant seeks to amend a notice
of compensation payable to reflect additional injuries, and it functions as a claim
petition for that purpose. Westinghouse Electric Corporation/CBS v. Workers’
Compensation Appeal Board (Korach), 883 A.2d 579, 592 (Pa. 2005). “When, as
here, a claimant is seeking to amend [a notice of compensation payable] pursuant to
3
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
10
section 413(a) of the Workers’ Compensation Act (Act),4 [the claimant] has the
burden to prove that [her] disability has increased and that the original work-related
injury caused the amending disability.” Huddy v. Workers’ Compensation Appeal
Board (U.S. Air), 905 A.2d 589, 592 (Pa. Cmwlth. 2006).
An employer seeking to terminate workers’ compensation benefits bears
the burden of proving either that the employee’s disability has ceased or that any
current disability arises from a cause unrelated to the employee’s work injury.
Campbell v. Workers’ Compensation Appeal Board (Antietam Valley Animal
Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998). An employer may satisfy this
burden by presenting unequivocal and competent medical evidence of the claimant’s
full recovery from his work injuries. Koszowski v. Workers’ Compensation Appeal
Board (Greyhound Lines, Inc.), 595 A.2d 697, 699 (Pa. Cmwlth. 1991). “The
question of whether expert medical testimony is unequivocal, and, thus, competent
evidence to support factual determinations is a question of law subject to our review.”
Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 80
(Pa. Cmwlth. 2012).
In making such a determination, this Court must review the medical
expert’s testimony as a whole. Id. “In a case where the claimant complains of
continued pain, [the employer’s] burden is met when [its] medical expert
unequivocally testifies that it is his opinion, within a reasonable degree of medical
certainty, that the claimant is fully recovered, can return to work without restrictions
and that there are no objective medical findings which either substantiate the claims
of pain or connect them to the work injury.” Udvari v. Workmen’s Compensation
Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997). Where the employer
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
11
establishes that all disability related to the work injury has ceased, the employer is not
required to establish work availability. Laird v. Workers’ Compensation Appeal
Board (Michael Curran & Associates), 585 A.2d 602, 603 (Pa. Cmwlth. 1991).
In this case, Claimant essentially seeks to relitigate the facts. However,
it is a fundamental principle of workers’ compensation law that the WCJ is the final
arbiter of witness credibility and evidentiary weight. Hoang v. Workers’
Compensation Appeal Board (Howmet Aluminum Casting, Inc.), 51 A.3d 905, 907
n.7 (Pa. Cmwlth. 2012). The WCJ may accept or reject, in whole or in part, the
testimony of any witness. Vols v. Workmen’s Compensation Appeal Board (Alperin,
Inc.), 637 A.2d 711, 714 (Pa. Cmwlth. 1994). A WCJ’s credibility and evidentiary
determinations are binding on appeal unless made arbitrarily and capriciously. Casne
v. Workers’ Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa.
Cmwlth. 2008).
The evidence, and the reasonable inferences deducible therefrom, must
be viewed in the light most favorable to the prevailing party below. Glass v.
Workers’ Compensation Appeal Board (City of Philadelphia), 61 A.3d 318, 325 n.4
(Pa. Cmwlth. 2013). For purposes of appellate review, it is irrelevant whether there is
evidence to support contrary findings; if substantial evidence supports the WCJ’s
necessary findings, those findings will not be disturbed on appeal. Williams v.
Workers’ Compensation Appeal Board (USX Corporation-Fairless Works), 862 A.2d
137, 143 (Pa. Cmwlth. 2004).
Here, the WCJ accepted Dr. Schmidt’s testimony that Claimant had fully
recovered from her work injury as of February 10, 2012, and specifically rejected the
testimony of Dr. Einsig and Dr. Odell that Claimant had not fully recovered from her
work injury or that Claimant’s injury description should be expanded. Although
12
Claimant credibly testified regarding her complaints, as the WCJ found, she did not
present any credible, unequivocal medical testimony that she further suffered from a
thoracic spine strain, occipital neuralgia, myofascial strain, and left rhomboid strain
as a result of her working conditions or that her work injury caused her to be fully
disabled. Korach; Lanier.
Nevertheless, Claimant insists that the testimony of Dr. Einsig and Dr.
Odell, as well as their findings during their examinations of Claimant, support
Claimant’s claim and review petitions. Notably, both Dr. Einsig and Dr. Odell
disagreed with Claimant and testified that Claimant was not fully disabled as a result
of her work injury. More important, the WCJ has already determined that their
testimony was not credible, and these credibility determinations will not be disturbed
on appeal. Casne.
Contrary to Claimant’s assertions, Dr. Schmidt credibly and
unequivocally testified that Claimant had fully recovered from her work injury as of
February 10, 2012. Dr. Schmidt received a history of the work injury from Claimant;
reviewed records from Dr. Einsig, Dr. Odell, and Dr. Foster; and performed a
physical evaluation of Claimant. Dr. Schmidt stated that, within a reasonable degree
of medical certainty, Claimant had fully recovered from her work injury. After
reviewing Dr. Schmidt’s testimony as a whole, we conclude it is competent.
Because the WCJ’s decision is supported by substantial evidence, we
conclude that the WCJ did not err in denying Claimant’s claim and review petitions
and granting Employer’s termination petition.
13
Accordingly, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Cohn Jubelirer did not participate in the decision in this case.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christina English, :
Petitioner :
: No. 145 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Gateway Ticketing), :
Respondent :
ORDER
AND NOW, this 14th day of August, 2015, the January 30, 2015 order
of the Workers’ Compensation Appeal Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge