L. Banks v. WCAB (Albert Einstein Med. Ctr.) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lizette Banks, :
Petitioner :
:
v. : No. 1721 C.D. 2017
: Submitted: June 22, 2018
Workers’ Compensation Appeal :
Board (Albert Einstein Medical :
Center), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 18, 2018
Lizette Banks (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) decision to terminate compensation benefits because
Claimant had fully recovered from her work-related injury, as well as denying
Claimant’s penalty petition because she failed to prove a violation of the Workers’
Compensation Act (Act).1 For the reasons that follow, we affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
I.
Claimant began working for the Albert Einstein Medical Center
(Employer) as a licensed practical nurse (LPN) in 1989. Her job duties consisted
of full patient care, including lifting, gripping, blood draws, administering
medications and IVs, and writing. Apparently, due to repetitive use, on August 20,
2001, Claimant sustained a work-related injury to her right thumb as well as a
forearm strain. Employer subsequently issued a Notice of Compensation Payable
(NCP) acknowledging Claimant’s injury.
On February 4, 2002, by supplemental agreement, Claimant’s benefits
were suspended. Claimant underwent surgery on February 18, 2002, performed by
Stephanie Sweet, M.D. (Dr. Sweet) for work-related DeQuervain’s Syndrome.
Pursuant to a supplemental agreement, on February 26, 2002, her benefits were
reinstated. On June 3, 2002, Dr. Sweet released Claimant to return to full-duty
work. Rather than return to her LPN position, on June 12, 2002, Claimant returned
to work in a light-duty capacity in Employer’s laboratory filing papers and slides.
Employer then issued a Notification of Suspension effective June 12, 2002,
representing that Claimant returned to work at earnings equal to or greater than her
time-of-injury earnings. On November 16, 2002, Employer laid off Claimant for
economic reasons.
The parties entered into a stipulation adopted by WCJ A. Michael
Snyder (WCJ Snyder) by order dated October 18, 2007, expanding the description
of Claimant’s work injury to include right brachial plexopathy, painful neuroma of
the right superficial radial nerve, bilateral cubital tunnel syndrome, bilateral wrist
2
and left periscapular trigger points, right lateral epicondylitis, and bilateral
DeQuervain’s Syndrome. Pursuant to this stipulation, Claimant’s disability
benefits were reinstated from November 16, 2002. The stipulation also specifically
stated that Employer retained the right to pursue a termination petition.
Employer then filed a termination petition alleging that Claimant had
fully recovered from her work-related injury as of March 30, 2006, later amended
to July 10, 2008. Claimant filed a penalty petition alleging that Employer violated
the Act by filing its June 12, 2002 notification of suspension that inaccurately
claimed that she had returned to work at wages no less than those before her injury,
and seeking a 50% penalty on unpaid benefits for the period of June 12, 2002, to
March 7, 2007. Employer’s termination petition and Claimant’s penalty petition
were consolidated and initially assigned to WCJ Snyder for hearing and
disposition.
II.
In support of its termination petition, Employer offered the deposition
testimony of Stephen L. Cash, M.D. (Dr. Cash), a board-certified orthopedic
surgeon with additional accreditation in hand surgery. He testified that he
performed an independent medical examination (IME) of Claimant on March 30,
2006, at which time he obtained a history, reviewed medical records and conducted
a physical examination. Dr. Cash noted that while taking Claimant’s history, she
complained of pain in both arms and indicated that her pain resulted from lifting
and pulling patients during her job with Employer as an LPN, but there had been
no discrete injury or accident.
3
Dr. Cash testified that upon examination, there was no overt wasting,
discoloration or deformity of either arm, no trophic changes, and Claimant’s ranges
of motion were normal. He testified that neurological testing produced reports of
discomfort, but there was no definitive nerve damage. Claimant’s cervical spine
motions were normal, albeit done slowly and with complaints of pain. Dr. Cash
found no correlation between Claimant’s examination and her complaints and
concluded that her complaints were non-physiological. He found no evidence of
any problems with her arms because of her work injury and no objective
explanation for her diffuse complaints. Dr. Cash concluded, to a reasonable degree
of medical certainty, that Claimant was fully recovered, did not need any
additional medical treatment and could return to her pre-injury job without
restriction.
Dr. Cash performed another IME of Claimant on July 10, 2008. At
that time, Claimant informed Dr. Cash that Scott Jaeger, M.D. (Dr. Jaeger) had
performed a rotator cuff repair. Dr. Cash’s examination of Claimant again
produced diffuse complaints of pain with any maneuvers, yet Claimant exhibited
full range of motion with no weakness, no inflammation and no evidence of
difficulties with the carpal tunnels. Dr. Cash found no objective basis for
Claimant’s complaints and opined that there was nothing in the examination to
support her complaints. He again opined that Claimant had fully recovered from
her work injury and that her shoulder problems were not related to her original
work injury.
4
At a deposition conducted on July 9, 2004, Claimant testified that she
worked for Employer as an LPN beginning on May 8, 1989. In August 2001, she
began to experience pain in her right wrist and forearm, causing her to stay out of
work until February 2002. Claimant testified that her benefits were reinstated
when she had surgery on her right arm that same month, and she was then out of
work until June 2002. She testified that she returned to work in Employer’s
laboratory filing papers and slides, and she continued in this light-duty work until
she was laid off in November 2002.
Claimant testified that she began to treat with Dr. Sweet at the
Philadelphia Hand Center, and admitted that Dr. Sweet told her that she was able
to return to work in full-duty capacity as of June 3, 2002. Claimant testified that
she tried to return to full-duty work at that time but was told by Employer’s nurse
manager, Ms. Colin Anderson, that there was no full-duty position available.
Claimant admitted that she had not applied for a job anywhere else or sought
retraining.
At a hearing before WCJ Snyder on December 22, 2009, Claimant
stated that she continued to have pain and discomfort in her right elbow and her
fingers were sometimes blue and cold. Claimant rated her level of pain on a good
day as a three or four and on a bad day as a ten. She testified that she has difficulty
bathing and brushing her teeth, trouble lifting her arms at times, and relies on her
husband and children to perform the activities of daily life. She further testified
that she did not feel capable of returning to any type of work.
5
Dr. Jaeger, a board-certified orthopedic surgeon, also testified on
Claimant’s behalf. He testified that he began treating Claimant on March 16,
2005. At that time, he diagnosed her with brachial plexopathy, cubital tunnel
syndrome - right greater than left - and a neuroma of the dorsal sensory branch of
the radial nerve at the right wrist, and recommended therapy. Dr. Jaeger testified
that on October 14, 2005, he performed a right cubital tunnel release and a
resection of the right superficial radial nerve. He stated that he performed this
surgical procedure to correct a complication from Claimant’s first surgery
performed by Dr. Sweet. On May 29, 2008, Dr. Jaeger performed right shoulder
surgery on Claimant. Dr. Jaeger asserted that these two surgeries were connected
to Claimant’s physical therapy after the initial surgery that had caused a material
exacerbation of Claimant’s injuries. Dr. Jaeger further testified that DeQuervain’s
surgery is frequently complicated by radial nerve involvement and that Claimant’s
radial nerve injury caused changes that led to her cubital tunnel syndrome and
brachial plexopathy. He testified that an EMG conducted in August 2008 showed
residual cubital syndrome.
Dr. Jaeger concluded that Claimant was much better, that she had
recovered from her right shoulder condition with full range of motion, and that he
observed no signs of atrophy in either arm the last time he saw Claimant. He
testified that she could return to light-duty work and suggested sedentary,
nonrepetitive work in a temperature-controlled environment greater than 60
degrees, with Claimant lifting no more than five pounds. Dr. Jaeger agreed that
Claimant could return to work eight hours a day, five days a week with these
restrictions.
6
In January 2012, WCJ Snyder retired and the petitions were
reassigned to WCJ Joseph Hagan (WCJ Hagan) for decision. After reviewing all
of the evidence, WCJ Hagan, by decision and order dated July 30, 2012, granted
Employer’s termination petition and dismissed Claimant’s penalty petition. He
found that Claimant was not credible primarily because her testimony in both 2004
and 2009 that she could not work was contradicted by that of her medical expert,
Dr. Jaeger, who opined that she was able to return to light-duty work full time, that
her shoulder was better, and that she was doing very well. WCJ Hagan also noted
that except for Dr. Jaeger’s conclusions, his testimony could support a full
recovery.
WCJ Hagan further found Dr. Cash’s testimony to be more credible
than that of Dr. Jaeger because Dr. Cash relied almost exclusively on objective
measures of Claimant’s condition rather than her subjective complaints.
Moreover, these objective measures were not contradicted by Dr. Jaeger’s factual
testimony, which provided no objective reasons to support Claimant’s continued
complaints.
Based on all of the above, WCJ Hagan found that Employer met its
burden of proving that Claimant had fully recovered from her work injuries by the
date of Dr. Cash’s second IME, July 8, 2008, and that she was able to return to
work without restriction. WCJ Hagan further found that Claimant failed to prove
that Employer violated any portion of the Act given that she freely signed the
supplemental agreement which called for a suspension of benefits and her benefits
were later reinstated pursuant to the parties’ stipulation. Moreover, Employer
7
proved that it presented a reasonable contest in all of the petitions, given the fact
that it prevailed. Therefore, WCJ Hagan granted Employer’s termination petition
and dismissed Claimant’s penalty petition.2
III.
Claimant appealed3 to the Board arguing that Dr. Cash’s testimony
was incompetent and insufficient to support a termination of benefits. She further
argued that WCJ Hagan erred in denying her penalty petition because she
established that she did not return to work at wages equal to or greater than her
pre-injury wage and that Employer failed to reinstate her benefits.
The Board affirmed the WCJ’s decision that Employer had met its
burden because WCJ Hagan accepted Dr. Cash’s opinion that she had fully
recovered from her work-related injury. The Board noted that Dr. Cash recognized
Claimant’s diagnoses as rendered by her treating physician, Dr. Jaeger, and opined
that he could not find any objective evidence to support Claimant’s continued
subjective complaints. The Board further noted that Dr. Cash’s purported failure
2
WCJ Hagan also dismissed as moot two petitions for physical examination filed by
Employer. These petitions are not at issue on appeal and, therefore, will not be addressed.
3
In an opinion dated September 27, 2013, the Board did not reach the merits of the
petitions, but remanded the matter because Dr. Cash’s deposition was missing from the record.
On April 6, 2015, WCJ Hagan issued a decision indicating that Dr. Cash’s deposition had been
uploaded and the record was complete. However, the deposition was not properly uploaded and
the Board had not retained paper copies of the record. The matter remained in limbo until
August 9, 2017, when WCJ Hagan issued a second decision and order explaining what had
transpired, indicating that the deposition and full record had been properly transmitted to the
Board and the remand had now been complied with. Claimant then appealed from this decision.
8
to address certain studies or perform certain tests went not to the competency but
the weight to be afforded his testimony, a matter wholly entrusted to the WCJ.
As for the penalty petition, the Board affirmed the WCJ’s decision
that there was no violation of the Act because Claimant returned to work in June
2002 and she signed a supplemental agreement at that time agreeing to the
suspension of benefits. While Claimant was subsequently laid off in November
2002, her benefits were reinstated through the parties’ subsequent stipulation. This
appeal followed.4
IV.
A.
On appeal, Claimant argues that Employer did not meet its burden
because Dr. Cash’s testimony is not competent. It is well established that
[c]ompetency when applied to medical evidence[] is
merely a question of whether the witnesses’ [sic] opinion
is sufficiently definite and unequivocal to render it
admissible. We have often observed that medical
evidence is unequivocal as long as the medical expert,
after providing a foundation, testifies that in his
4
In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether errors of law were committed, whether constitutional rights were violated,
and whether necessary findings of fact are supported by substantial evidence. Roundtree v.
Workers’ Compensation Appeal Board (City of Philadelphia), 116 A.3d 140, 143 n.4 (Pa.
Cmwlth. 2015). Substantial evidence has been defined as “such relevant evidence as a
reasonable person might accept as adequate to support a conclusion. . . . In performing a
substantial evidence analysis, this [C]ourt must view the evidence in a light most favorable to the
party who prevailed before the factfinder.” Waldemeer Park, Inc. v. Workers’ Compensation
Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation omitted).
9
professional opinion he believes or thinks the facts exist.
Even if the witness admits to uncertainty, reservation,
doubt or lack of information with respect to scientific or
medical details, as long as the witness does not recant the
opinion first expressed, the evidence [is] unequivocal.
Cerro Metal Products Company v. Workers’ Compensation Appeal Board
(PLEWA), 855 A.2d 932, 937 (Pa. Cmwlth. 2004) (quotations and citations
omitted).
Claimant first contends that Dr. Cash’s testimony is incompetent
because he did not specifically state that she had fully recovered from her initially
accepted injury of a right thumb and forearm strain. Claimant appears to be
arguing that Dr. Cash rejected or did not accept the description of her work-related
injuries. Within the context of a termination petition:
An employer seeking to terminate a claimant’s benefits
must prove that the claimant’s disability has ceased or
that any existing injury is not a result of the work-related
injury. Jaskiewicz v. Workmen’s Compensation Appeal
Board (James D. Morrisey, Inc.), 651 A.2d 623 (Pa.
Cmwlth. 1994), petition for allowance of appeal denied,
[] 661 A.2d 875 (Pa. 1995). An employer may satisfy
this burden by presenting unequivocal and competent
medical evidence of a claimant’s full recovery from the
work-related injury. Koszowski v. Workmen’s
Compensation Appeal Board (Greyhound Lines, Inc.), []
595 A.2d 697 ([Pa. Cmwlth.] 1991).
To v. Workers’ Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222, 1224
(Pa. Cmwlth. 2003).
10
In his testimony, Dr. Cash did not reject or expressly refuse to
recognize Claimant’s accepted work-related injury. Instead, Dr. Cash testified that
his physical examination of Claimant suggested “gross symptom exaggeration and
nonphysiological complaints and findings that did not fit with her physical exam.”
(Reproduced Record (R.R.) at 101a.) He testified that he found “no convincing
evidence of any residual upper extremity problems as a result of the work injury in
question.” (Id.) Claimant’s right thumb and forearm strain would necessarily fall
within the definition of an upper extremity problem.
Moreover, the following exchange with Employer’s counsel took
place:
Q. Now, Doctor, based on your exam, did you arrive at
an opinion within a reasonable degree of medical
certainty as to whether [Claimant] was fully recovered
from the following diagnosis: The DeQuervain’s
[S]yndrome you mentioned as well as right brachial
plexopathy, bilateral cubital tunnel syndrome, left
neuroma of the dorsal sensory branch of the radial nerve
at the right wrist?
A. I couldn’t find anything on her exam to support those
findings.
Q. So she’s fully recovered from that set of problems?
A. Yes.
(R.R. at 101a-102a.) Dr. Cash did not testify that Claimant never had these work
injuries, but rather testified that she had fully recovered from them at the time of
her IME.
11
Next, Claimant contends that Dr. Cash’s testimony is not competent
because he did not know about Claimant’s additional accepted injuries as outlined
in the parties’ stipulation until the day of his deposition. In the deposition,
Employer’s counsel read to Dr. Cash the accepted description of Claimant’s work
injury verbatim. In response, Dr. Cash unequivocally testified that he believed that
she had fully recovered from all of the injuries and did not need any further
treatment. (R.R. at 109a.) He went on to testify that there were no objective
findings to support Claimant’s ongoing complaints and opined that there was no
connection between her current complaints and her work injury. While this
statement may go to the weight given to his testimony, it does not go to his
competency. See Marriott Corporation v. Workers’ Compensation Appeal Board
(Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003) (“the fact that a medical
expert does not have all of a claimant’s medical records goes to the weight given
the expert’s testimony, not its competency”) (citation omitted).
Finally, Claimant contends that Dr. Cash’s opinion is not competent
because he was unaware of an EMG/NCV [nerve conduction velocity] study
performed a month after his second examination of Claimant, which purportedly
demonstrated ongoing right carpal tunnel syndrome, right brachial plexopathy,
very borderline left brachial plexopathy, bilateral C6-7 radiculopathy, and mild
residual ulnar neuropathy at the cubital tunnel on the right. Claimant also contends
that Dr. Cash failed to perform a Finkelstein test, which is the test for
DeQuervain’s Syndrome, one of Claimant’s accepted injuries. Again, this goes to
the weight of the testimony, not its competency. Id.
12
As we have stated over and over again, “[t]he WCJ, as the ultimate
fact-finder in workers’ compensation cases, ‘has exclusive province over questions
of credibility and evidentiary weight.’” A & J Builders, Inc. v. Workers’
Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013)
(quoting Anderson v. Workers’ Compensation Appeal Board (Penn Center for
Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010)). That is so, even where the record
contains evidence to support findings other than those made by the WCJ; the
critical inquiry is whether there is evidence to support the findings actually made.
A & J Builders, Inc., 78 A.3d at 1238.
Dr. Cash testified that Claimant had fully recovered from her work-
related injuries, that she could return to her pre-injury job without restriction and
that he had no objective medical findings to substantiate her continued complaints
of pain. WCJ Hagan accepted the testimony and opinions of Dr. Cash as credible,
explaining that Dr. Cash’s opinions were based upon objective measures rather
than Claimant’s subjective complaints. There is ample evidence in the record to
support WCJ Hagan’s finding that Claimant had fully recovered from her work
injury, and we discern no error in the granting of Employer’s termination petition.5
5
Claimant cites to our Supreme Court’s decision in Lewis v. Workers’ Compensation
Appeal Board (Giles & Ransome, Inc.), 919 A.2d 922 (Pa. 2007), and argues that WCJ Hagan
erred in granting the termination petition because Employer failed to prove a change in
Claimant’s physical condition. Claimant argues that because the October 18, 2007 order
adopting the parties’ stipulation acknowledged an expanded definition of her work injuries,
Employer was required to prove a change in condition. However, Lewis is distinguishable as the
employer in that case was on its fourth petition to terminate benefits, and its medical expert
opined that the claimant’s knee injury was caused by a degenerative condition and was
completely non-work-related. Moreover, the parties here specifically agreed through their
stipulation that Employer would reinstate benefits without prejudice to Employer’s right to
continue to pursue a termination petition. (R.R. at 79a.)
13
B.
Claimant also argues that pursuant to Section 440 of the Act, added by
the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 996, she is entitled to
an award of counsel fees because Employer engaged in an unreasonable contest.
Curiously, she does not base this argument on the present litigation, but claims that
she is entitled to counsel fees because she was successful on her previous review
and reinstatement petitions and in defense of the first termination petition, as
evidenced by WCJ Snyder’s October 18, 2007 decision adopting the parties’
stipulation and retroactively reinstating her benefits. Claimant fails to appreciate
that this previous litigation and the prior decision are not presently before the Court
for review. As Employer presented a reasonable contest in the present matters, as
it was ultimately successful, Claimant is not entitled to counsel fees.
Claimant also argues that WCJ Hagan erred in denying her penalty
petition because Employer violated the Act by filing a materially inaccurate notice
of suspension in 2002. Again, any issues regarding Employer’s 2002 filing of the
notice of suspension were or should have been addressed through the previous
litigation and stipulation, pursuant to which Claimant received any outstanding
benefits she was due. Moreover, we note that Claimant agreed to the suspension as
she signed the supplemental agreement.
Accordingly, the order of the Board is affirmed.
___________________________________
DAN PELLEGRINI, Senior Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lizette Banks, :
Petitioner :
:
v. : No. 1721 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Albert Einstein Medical :
Center), :
Respondent :
ORDER
AND NOW, this 18th day of July, 2018, the order of the Workers’
Compensation Appeal Board dated October 23, 2017, at No. A12-1185, is hereby
affirmed.
___________________________________
DAN PELLEGRINI, Senior Judge