R. Amic v. WCAB (Industrial Construction Co.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Amic, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Industrial Construction Co.), : No. 1431 C.D. 2015
Respondent : Submitted: January 22, 2016
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: February 8, 2016
Robert Amic (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) denial of his petition to review compensation
benefits (review petition) in which he sought to amend the description of his work-
related injury to include complex regional pain syndrome (CRPS). In this appeal,
Claimant does not contend that he satisfied his burden of proving that he suffered
CRPS. Rather, he claims that the uncontroverted medical evidence presented by
Industrial Construction Company (Employer) established that he suffered other
injuries to which the description of his injury should have been expanded. For the
reasons that follow, we affirm.
I.
A.
By way of background, on June 17, 2010, while working as an
ironworker for Employer, Claimant sustained a work-related injury in the form of a
right thumb fracture, which Employer accepted. In March 2012, Claimant filed a
review petition seeking to expand the definition of his work-related injury to
include CRPS.1
Before the WCJ, Claimant testified that as an ironworker, he erected
superstructures for buildings using steel and also sheeted, tied rebar, welded,
burned, fabricated and connected steel. On the date of his injury, he was working
on a 35-foot high man-lift, “connecting a beam to an existing beam, and the beam
that was connected to the crane came down and crushed [his] thumb.” (Certified
Record [C.R.], 3/13/12 Hearing, at 12.) Another worker signaled to the crane
operator, who then lifted the beam off of Claimant’s right thumb. He was taken to
Butler Hospital’s Emergency Room, where he was advised that his thumb was
crushed, provided pain medication, and instructed to follow up with an orthopedic
specialist.
Shortly thereafter, Claimant testified that he underwent thumb surgery
with the installation of hardware performed by Dr. Spiess and then received
physical therapy until January 2012, with massage, heat treatment, strengthening
1
Employer simultaneously filed a petition to modify benefits, which the WCJ denied.
Because that determination has not been appealed, we will not set forth at length the testimony
pertaining to that issue.
2
exercises, electrostimulation and ultrasound stimulation. In August 2010, Dr.
Spiess performed a second thumb surgery to remove the hardware, after which
Claimant returned to physical therapy.
Because he continued to experience constant pain in his right thumb
that extended into his arm and caused shaking, and because he still had no
movement in his thumb, Claimant testified that he underwent a third surgery in
February 2011, this time performed by Glenn A. Buterbaugh, M.D. (Dr.
Buterbaugh), an orthopedic surgeon specializing in surgery of the upper extremity,
shoulder, elbow, hand and wrist. He testified that in August of 2011, Dr.
Buterbaugh performed an IP joint fusion for purposes of pain relief. Although the
fusion provided temporary pain relief, Claimant testified that he continued to
experience “pain stemming up from [his] thumb, up into [his] arm, neck, and
shoulder,” with a “tingling feeling throughout [his] arm, shooting pains.” (Id. at
21.) Eventually, he testified that Dr. Buterbaugh referred Claimant to David A.
Provenzano, M.D. (Dr. Provenzano), a pain management specialist, and scheduled
him for a functional capacity evaluation (FCE) with Mr. Irwin, a licensed
occupational therapist and certified hand therapist.
He testified that Dr. Provenzano performed a stellate ganglion block
and prescribed Neurontin, a nerve medication, and Vicodin, as needed for the pain.
Dr. Provenzano also prescribed a TENS Unit, an H-Wave unit, a paraffin wax unit
to prevent the cold from affecting Claimant’s hand,2 and continued therapy.
2
Claimant explained that as his hand gets colder, it turns purple, including “[m]ost of the
thumb and the top two fingers, [his] pointer and index finger, across the back of [his] hand and
(Footnote continued on next page…)
3
Claimant testified that he is still able to use his thumb for extremely
light-duty tasks, such as picking up pens, pencils and smaller items. He uses it to
write and button buttons but cannot lift anything heavier than one pound.
At a later hearing before the WCJ, Claimant testified that he continues
to treat with Dr. Buterbaugh and Dr. Provenzano, along with his primary care
physician and takes Lyrica, Cymbalta and Baclophen. He stated that Dr.
Provenzano also treats the hyper-sensitivity in Claimant’s upper-right extremity
between his index finger and right thumb, in the web space. With regard to overall
progress, he reported that despite receiving three years’ worth of treatment, he
continues to suffer the pain previously described.
B.
Claimant also submitted Dr. Buterbaugh’s deposition in which he
stated that he began treating Claimant for the injuries to his thumb on January 5,
2011. Although he referred Claimant to Dr. Provenzano for pain management and
treatment of Claimant’s CRPS, and although Dr. Buterbaugh did not personally
diagnose Claimant with CRPS, he stated that this diagnosis was consistent with the
symptoms Claimant exhibited upon physical examination.
(continued…)
into the palm.” (C.R., 3/13/12 Hearing, at 32.) When this occurs, Claimant experiences
numbness and achiness, with his hand physically locking to the point that he cannot move it until
he warms it up with the paraffin unit.
4
Claimant also presented the deposition testimony of Dr. Provenzano, a
board-certified anesthesiologist and pain medicine provider. Dr. Provenzano
testified that he initially diagnosed Claimant as suffering from a right upper
extremity neuropathic pain with a sympathetic component. At the time of his first
diagnosis, Dr. Provenzano testified that he did not believe that Claimant satisfied
the physical examination criteria for a CRPS diagnosis because he did not exhibit
differences in hair or nail growth, increased sweating or temperatures, or
significant swelling.
During his monthly appointments with Claimant, Dr. Provenzano
managed his neuropathic pain with medications and performed five stellate
ganglion blocks, whereby the sympathetic nervous system to the arm was blocked
and successfully reduced Claimant’s pain. Dr. Provenzano testified that this
success indicates that Claimant suffered an abnormality in his sympathetic nervous
system because he responded to blocking. Moreover, during his October 8, 2012
appointment, Claimant exhibited signs and symptoms consistent with CRPS in that
his hand was darker in color, his sweating increased, and he reported faster nail
growth. Again, during Claimant’s July 22, 2013 follow up, Dr. Provenzano
testified that Claimant’s thumb was redder and that he exhibited significantly more
sweating.
Regarding Claimant’s diagnosis, Dr. Provenzano testified within a
reasonable degree of medical certainty that Claimant suffered CRPS. Dr.
5
Provenzano explained that Claimant satisfied the Budapest criteria3 and, therefore,
was appropriately diagnosed with CRPS because he suffers continuing
disproportionate pain, has reported symptoms regarding his senses, temperature,
asymmetry of skin color, nail growth changes, decreased range of motion, and Dr.
Provenzano observed his sensory changes, his increased response to painful
stimuli, and his increased response to non-painful stimuli. He explained that no
single test exists for conclusively determining whether an individual suffers CRPS;
rather, the diagnosis is governed by a neuropathic component.
On cross-examination, Dr. Provenzano conceded that on occasion,
Claimant presented with sufficient signs to qualify as having CRPS, while on other
occasions, he did not. He admitted that his first examination of Claimant occurred
more than a year after his work injury, and that he did not diagnosis Claimant with
CRPS until January 2012, about one-and-one-half years after his injury. In
reviewing an office note, Dr. Provenzano was unable to explain why the increased
sweating, a symptom qualifying Claimant for the CRPS diagnosis, presented in
both hands but did state that CRPS can progress to the other arm, although he
denied that Claimant suffers from CRPS in his left hand.
3
Dr. Provenzano explained that pursuant to the “Budapest test,” a patient must satisfy the
following criteria to receive a clinical diagnosis of CRPS: the patient experiences continuing
pain that is disproportioned to an exciting event; the patient reports at least one symptom in three
of the following categories: sensory, vasomotor, sudomotor or edema, motor, and atrophic
changes; the patient exhibits at least one time during evaluation symptoms in two or more of the
categories above; and a diagnosis which better explains the symptoms does not exist.
6
C.
In opposition to Claimant’s review petition, Employer presented the
testimony of Steven E. Kann, M.D. (Dr. Kann), a board-certified orthopedic
surgeon with further certification in the subspecialty of hand, upper extremity and
microsurgery, who performed an Independent Medical Examination (IME) on
Claimant after examining him in January and June 2012. Upon physical
examination, Dr. Kann observed no clinical evidence of CRPS and opined that
Claimant did not suffer CRPS in his right upper extremity:
[b]ecause there was no either subjective
complaints consistent with it or objective test findings
either on physical exam or plain x-rays. In other words,
there was no evidence of vasomotor abnormalities. He
had no abnormalities in color, temperature, hair
characteristics, nail characteristics, sweat pattern or
allodynia or hyperpathia.
On exam, he had no findings of chronic RSD [or
CRPS] which would include abnormal hair growth,
abnormal nail growth, skin that is very thin and shiny.
He didn’t have any of those findings. And on x-ray,
people that have chronic RSD or CRPS will have diffuse
osteopenia which means that the bones are very thin and
not very calcified, and that was not the case.
(10/17/12 Deposition Transcript of Steven E. Kann, M.D., at 1112.)
Dr. Kann examined Claimant again on June 19, 2012, when he
performed another physical evaluation showing no evidence of vasomotor
abnormalities or CRPS. Additional x-rays ordered at that time revealed no
evidence of diffuse osteopenia, which, when present, is indicative of CRPS, and
7
showed that the fusion ultimately succeeded. Dr. Kann concluded that Claimant
exhibited no evidence of CRPS and, in fact, did not have CRPS.
II.
Based upon the evidence presented, the WCJ denied Claimant’s
review petition, determining that Claimant failed to satisfy his burden of
establishing that the description of his work-related injury should be expanded to
include CRPS. Specifically, the WCJ determined:
With respect to the question of whether [C]laimant
has complex regional pain syndrome, I accept the
opinions of Dr. Kann as credible over those of Dr.
Buterbaugh and Dr. Provenzano. I note that Dr.
Buterbaugh did not really treat [C]laimant for this
condition or examine him to any great extent for this
condition. I found Dr. Provenzano’s testimony to [sic]
very unconvincing in that he did not seem to be able to
point to any specific place in his records where he had
found sufficient signs consistent with CRPS such that he
can make that diagnosis with any certainty.
(6/26/14 WCJ Opinion, at 9.)
Claimant appealed to the Board, which affirmed the WCJ’s decision,
determining that Claimant did not satisfy his burden of proving a causal
relationship between his work injury and alleged CRPS by unequivocal medical
evidence because the WCJ rejected his experts’ testimonies that he suffers from
CRPS. Further, the Board rejected Claimant’s argument that the WCJ failed to
take proper notice of the diagnostic criteria for CRPS, noting that a judge is not
qualified to render expert medical opinions but rather, must make findings based
8
upon competent medical opinions, which, in this case, the WCJ deemed to be the
opinion of Dr. Kann. Finally, the Board disagreed with Claimant’s contention that
the WCJ erred by failing to expand the definition of the work injury to include
radial sensory nerve neuropathy of the right thumb, a diagnosis rendered by Dr.
Kann, reasoning that under Continental Insurance Group v. Workers’
Compensation Board (Gerbino), the Workers’ Compensation Act (Act)4 does not
impose upon a WCJ the burden of looking beyond the relief requested in the
pleadings. 638 A.2d 419 (Pa. Cmwlth. 1994). This appeal followed.
III.
On appeal,5 Claimant does not contend that the WCJ erred in finding
that the description of his injury should not be amended to include CRPS. Instead,
he contends that the uncontroverted evidence offered by Dr. Kann and adopted by
the WCJ establishes that Claimant suffered multiple injuries that were not included
in the definition of his work injury and that the WCJ erred by failing to address any
diagnosis other than CRPS. Specifically, Claimant argues that the WCJ rejected
the following diagnoses rendered by Dr. Kann without proceeding to determine
whether they should be included in the description of injury:
 Residual pain involving the radial sensory nerve of
the right thumb;
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1—1041.4, 2501—2708.
5
We review Board decisions to determine whether errors of law were made, whether
constitutional rights were violated, and whether necessary findings of fact are supported by
substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966
A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009).
9
 Residual scar sensitivity on the volar aspect of the
right thumb;
 Sensory nerve neuropathy of the right thumb
(meaning Claimant had irritation and pain involving the
dorsal aspect of his thumb because of the injury to the
radial sensory nerve);
 Scar sensitivity on the volar aspect of the thumb in
the A-1 pulley region; and
 Slowing of the nerve function of the right thumb.
Section 413 of the Act provides in pertinent part:
[a] workers’ compensation judge designated by the
department may, at any time, modify, reinstate, suspend,
or terminate a notice of compensation payable, an
original or supplemental agreement or an award of the
department or its workers’ compensation judge, upon
petition filed by either party with the department….
77 P.S. §772 (emphasis added). In this case, Claimant petitioned to expand the
description of his work injury to include CRPS; he did not petition, either in
writing or orally, to include the other diagnoses set forth above. Further, although
a WCJ is free, sua sponte, “to take appropriate action as indicated by the evidence
upon the filing of any petition referenced therein by either party,” Section 413 of
the Act “does not impose upon the [WCJ] the burden of looking beyond the relief
requested in the pleadings” because he “is required only to consider matters
properly raised” by a party. Continental Insurance Group, 638 A.2d at 421.
10
Nonetheless, Claimant argues that Continental Insurance Group is
inapposite to the instant case. In that case, an employer filed a petition to terminate
a claimant’s benefits on the basis that the claimant fully recovered. During the
proceedings before the WCJ, the employer submitted evidence which ostensibly
would have supported a petition to modify the claimant’s benefits, a petition the
employer did not file. Subsequently, the WCJ determined that the employer did
not satisfy its burden of proof with regard to the termination petition. The
employer appealed, contending that the WCJ erred in failing, sua sponte, to grant a
modification of the claimant’s benefits based upon the evidence of record.
Ultimately, this Court affirmed the WCJ’s decision, finding that although a WCJ is
authorized under Section 413 of the Act, 77 P.S. §772, to grant relief other than
that specifically requested, the WCJ was under no obligation to do so.
Claimant asserts that Continental Insurance Group is distinguishable
because, in that case, the employer filed a termination petition and sought the WCJ
to order sua sponte relief in the form of a modification, whereas here, Claimant
seeks relief with regard to the same type of petition as he filed—that is, a review
petition—based upon evidence already presented. However, the fact that the
evidence on which Claimant relies is already part of the record is of no import. In
Continental Insurance Group, we explicitly described the issue before us as
“whether the referee erred in failing to grant a modification of Claimant’s benefits
where evidence allegedly existed in the record to support such relief, but where the
only petition filed by Employer was one for termination.” 638 A.2d at 421
(emphasis added).
11
Moreover, Continental Insurance Group’s rationale that a WCJ
cannot be compelled to look beyond the specific relief requested by a party or to
consider matters other than those properly raised by a party applies with equal
force here. Carried to its logical end, the position Claimant advances would allow
a claimant to file any type of petition seeking resolution of only one issue and
would require the WCJ to identify each and every other issue conceivably raised
by the evidence before him. Such a process essentially reassigns counsel’s duties
to the WCJ and does not promote the fair and efficient administration of justice, as
it does not ensure that the opposing party “has notice of the relief sought” and “a
full and fair opportunity” to litigate the issues presented. Id. (explaining that even
with regard to sua sponte relief, a WCJ may grant relief beyond that specifically
requested only where these requirements are satisfied).
Accordingly, we affirm the Board’s order upholding the WCJ’s denial
of Claimant’s review petition.
DAN PELLEGRINI, Senior Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Amic, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Industrial Construction Co.), :
Respondent : No. 1431 C.D. 2015
ORDER
AND NOW, this 8th day of February, 2016, the order of the Workers’
Compensation Appeal Board dated July 10, 2015, in the above-captioned case is
affirmed.
DAN PELLEGRINI, Senior Judge