C. Bertovic v. WCAB (Apex Rehab Solutions, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Celina Bertovic, :
Petitioner :
:
v. : No. 1716 C.D. 2014
: Submitted: January 29, 2016
Workers’ Compensation Appeal :
Board (Apex Rehab Solutions, Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: February 18, 2016
Celina Bertovic (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) decision granting Apex Rehab Solutions, Inc.’s
(Employer) termination petition and denying Claimant’s review and penalty petitions.
For the reasons that follow, we affirm.
I.
On July 28, 2009, Claimant, a physical therapist assistant working full-
time for Employer, was helping a 6’3” 300-pound patient walk down a hallway when
the patient’s knees suddenly buckled. In response, Claimant caught the patient and
held him upright until a wheelchair could be retrieved. As a result, Claimant
sustained injuries to her lower back, groin area, thigh and the lower extremities on her
right side. Employer issued a Notice of Temporary Compensation Payable (NTCP)
under the Workers’ Compensation Act (Act)1 classifying the injury as a “thoracic
strain” and indicating that payments began as of August 26, 2009, and would end
after a 90-day period on November 23, 2009.2 On December 1, 2009, the NTCP
converted to a Notice of Compensation Payable (NCP).3
Claimant continued working for Employer in a sedentary to light-duty
capacity until May 24, 2011, when she was informed that a light-duty position was no
longer available. Employer filed a petition to terminate compensation benefits based
on Dr. Dennis W. Ivill’s (Dr. Ivill) independent medical examination (IME) finding
full recovery from her work injury as of April 26, 2011.4 Claimant filed a petition to
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2708.
2
The NTCP indicated that the payments would be made from August 26, 2009, and would
end after a 90-day period on November 23, 2009, where Claimant was to receive weekly
compensation benefits in the amount of $655.43 based on an average weekly wage of $983.15.
3
In January 2011, Claimant filed a penalty petition alleging that Employer violated the Act
by failing to pay benefits when due. In April 2011, the parties entered into a supplemental
agreement according to which Claimant returned to modified-duty work with a wage loss on
November 12, 2010, and the parties agreed that Claimant was entitled to temporary partial disability
benefits for the period of November 14, 2010, through March 20, 2011.
4
Section 413 of the Act provides that a claimant’s benefits may be suspended, modified or
terminated based on a change in his or her disability:
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
(Footnote continued on next page…)
2
review medical treatment and/or billing, seeking to add a low back injury and femoral
nerve injury to the defined work injury.5
II.
Before the WCJ, Claimant testified that while working for Employer,
she mainly worked with rehabilitation-to-home patients, patients with hip fractures,
stroke patients, and patients needing short-term rehabilitation after pneumonia. Her
main duties included lifting and transferring patients and helping them re-learn
ambulation and other lost skills due to their medical conditions.
Claimant testified that immediately after sustaining her injury, Concentra
physicians placed her on restrictive duty, gave her anti-inflammatories, and directed
her to physical therapy which was ineffective. She also testified that she eventually
began treating with Dr. Steven Morganstein (Dr. Morganstein), a physiatrist and pain
management doctor, who referred her to another doctor for epidural injections which
(continued…)
petition filed by either party with the department, upon proof that the
disability of an injured employe has increased, decreased, recurred, or
has temporarily or finally ceased, or that the status of any dependent
has changed....
77 P.S. § 772.
5
In July 2011, Claimant filed a penalty petition alleging that Employer violated the Act by
failing to reinstate Claimant’s temporary total disability benefits and by failing to pay for
Claimant’s medical treatment relating to her work injury. Claimant filed a third penalty petition in
March 2012, alleging that Employer failed to pay attorney’s fees as ordered by the WCJ in an
interlocutory order.
3
did not offer relief. She stated that she underwent other physical therapy which
provided temporary relief, as well as treatment from a chiropractor and an
acupuncturist.
Claimant also offered the deposition testimony of Dr. Morganstein, a
board-certified physician specializing in physical medicine and rehabilitation. Dr.
Morganstein testified that when he first saw Claimant in October 2009, Claimant was
on light-duty restrictions, and when an attempt was made to increase Claimant’s work
activities, she began to exhibit more symptoms.
Dr. Morganstein also testified that he performed an EMG of Claimant in
December 2009, the results of which were normal. He testified that Claimant had an
MRI of the lumbar spine performed in May 2011, and the findings were similar to the
prior MRI study. Dr. Morganstein stated that the results of an EMG performed in
October 2011 showed a mild right femoral motor neuropathy across the inguinal area.
He opined that as a result of her work-related accident, Claimant incurred a chronic
sacroiliac joint dysfunction and a mild femoral nerve injury. He recognized that
Claimant did not have any atrophy or any condition that would indicate that the
femoral nerve injury was causing any loss of function, and that other than mild EMG
findings, there were no other signs of the femoral nerve injury. Dr. Morganstein
opined that due to her work injury, Claimant experienced lumbar myofascial pain,
described as chronic pain.
However, Dr. Morganstein admitted that the basis for Claimant’s work
restrictions were Claimant’s own complaints and reports of increased symptoms
4
when attempting to do more activity. He stated that Claimant’s femoral nerve
problem was his only concern with regard to her returning to regular-duty work
because of her need to be on her feet or to squat in certain positions.
Based on his last evaluation of Claimant in December 2011, Dr.
Morganstein stated that Claimant was neurologically intact and had no muscle
atrophy. He testified that Claimant had only moderately limited active extension of
her spine, but full range of motion of her legs, and that reports of Claimant’s range of
motion depended on Claimant’s subjective reports of pain complaints. Dr.
Morganstein also testified that Claimant had no palpable muscle spasms. He stated
that Claimant’s soft tissue injuries would be resolved within weeks, if not months, of
the actual incident. Dr. Morganstein concluded that as of February 2012, Claimant’s
condition showed some improvement due to her treatment but that she continued to
complain of pain.
Claimant also presented the testimony of Colleen Wurz, a physical
therapist who has known Claimant since 1992 when they met at work. Ms. Wurz
testified that Claimant requested that she accompany her to her IME with Dr. Ivill.
In observing Dr. Ivill’s examination of Claimant, she noted discrepancies between
her observations and Dr. Ivill’s report. Ms. Wurz stated that Dr. Ivill reported that
Claimant did not complain of pain with strength testing when, in fact, she did
complain. She testified that Dr. Ivill reported normal reflexes after patellar tendon
reflex testing, but in reality, after four attempts of testing on each side, Claimant did
not respond to the testing on the right and responded once to the testing on the left.
She further pointed out that Dr. Ivill reported negative results for Faber’s and
5
Patrick’s tests, but that Claimant complained of pain, and he reported negative results
for Thomas’s and Ober’s tests but did not perform either. Finally, Ms. Wurz testified
that Dr. Ivill reported Claimant’s straight-leg raise as 90 degrees but that she
observed it to be 40 degrees.
In support of its position, Employer offered the deposition of Dr. Ivill, a
board-certified physician specializing in physical medicine and rehabilitation.6 Dr.
Ivill examined Claimant in April 2011 and in conjunction with his examination, he
took Claimant’s medical history and reviewed Claimant’s medical records. Dr. Ivill
testified regarding the diagnostic studies conducted during the course of Claimant’s
treatment, concluding that the findings were normal and that they were “pre-existing
degenerative changes.” (Reproduced Record [R.R.] at 75a.)
Dr. Ivill further testified that the findings from his physical examination
of Claimant were essentially normal, explaining that:
Her low back exam revealed no abnormalities on
inspection. She had no palpable spasm or trigger points.
She had no pain with palpation over the spinous processes.
Her range of motion was normal in her lumbar spine, except
that she limited it actively. But when distracted and not
being formally observed, she was able to range through the
entire full range of motion and flexion/extension and lateral
flexion.
6
Dr. Ivill treats non-surgical musculoskeletal pain of all types but primarily the spine, which
includes the neck, back and all four extremities. His work is 100 percent clinical and he sees
approximately 25 to 30 patients every day, 20 days per month. Dr. Ivill also performs one to two
IMEs per month.
6
All joints of her lower extremities were normal with normal
strength, reflexes and sensation. She had no signs of
radiculopathy. Her EHL strength, or toe strength, was
normal. She did complain of some right hip pain with
flexion of the right hip.
Measurements of her legs revealed she had no atrophy.
Temperature testing of the legs revealed that the
temperature was the same, and she had no signs of chronic
regional pain syndrome.
(Id. at 75a-76a.)
Based on his examination and review of all records, diagnostic studies
and Claimant’s medical history, he opined that Claimant’s work-related lumbosacral
sprain/strain was resolved. Moreover, he did not find any evidence of a femoral
nerve injury because Claimant had normal strength, normal reflexes and normal
sensation, and she had undergone a normal EMG in December 2009. Further, if she
had a femoral neuropathy after the EMG, it could not be causally related to her work
injury. Dr. Ivill explained that Claimant’s EMG nerve conduction studies did not
show any evidence of a femoral nerve injury. He also testified that unlike Dr.
Morganstein, he did not find any evidence of a right sacroiliac joint dysfunction.
Finally, he opined that as of the date of his IME, Claimant had fully recovered from
her work injury, Claimant did not need any additional treatment as a result of her
work injury, and there were no restrictions on her ability to return to work.
Finding that Dr. Ivill’s testimony that Claimant had fully recovered from
her work-related injury the most credible, the WCJ granted Employer’s termination
petition, determining:
7
This Judge finds that Dr. Ivill conducted a thorough
physical examination of [Claimant] and was afforded the
opportunity to review [Claimant’s] medical records. Based
upon the credible testimony of Dr. Ivill, this Judge finds as
fact that [Claimant] had fully recovered from the July 28,
2009 work injury as of April 26, 2011. Based upon Dr.
Ivill’s credible testimony, this Judge also finds that the July
28, 2009 work injury did not result in any additional
condition, particularly a femoral nerve injury or a sacroiliac
joint dysfunction. Dr. Ivill credibly testified that he found
no evidence of either injury upon examination of
[Claimant].
With regard to Claimant’s review petition, the WCJ reasoned that
Claimant failed to offer any credible unequivocal medical evidence to indicate that
the work injury should be expanded to include any other conditions.7
III
A.
On appeal,8 Claimant contends that the WCJ’s findings of fact are
erroneous and unsupported by substantial evidence and cannot support the WCJ’s
decision. Claimant points to four of the WCJ’s findings of fact, specifically Findings
7
The WCJ also denied Claimant’s penalty petition, reasoning that Claimant failed to
establish that Employer violated the Act with respect to the payment of either indemnity or medical
benefits or that the contest was unreasonable. Claimant appealed to the Board, which affirmed.
8
Our review of a decision of the Board is limited to determining whether errors of law were
made, whether constitutional rights were violated, or 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. 2009), appeal denied, 982 A.2d 1229 (Pa.
2009).
8
of Fact Nos. 30, 31, 32 and 38, alleging that the findings are flawed, unsupported or
altogether erroneous.
Finding of Fact No. 30 states, in pertinent part: “Dr. Morganstein opined
that, as a result of the July 28, 2009 work injury, [Claimant] experienced lumbar
myofascial pain, which would not be described as chronic pain.” (R.R. at 110a)
(emphasis added). Claimant points out, however, that Dr. Morganstein actually
testified that, “I believe that she experienced myofascial pain which would now be
considered chronic pain….” (Id. at 178a) (emphasis added.)
Finding of Fact No. 31 provides:
On cross-examination, Dr. Morganstein agreed that
[Claimant] has undergone two MRI studies, and both of
these studies were basically normal. The doctor agreed that
[Claimant] did not have any structural problems with her
spine that was causing her problems. Dr. Morganstein also
agreed that [Claimant’s] two EMG studies did not show any
evidence of radiculopathy or any problems emanating from
the spine. Claimant agreed that [Claimant’s] injuries were
soft tissue injuries.
(Id.) (emphasis added). Claimant concedes that it is possible that the WCJ meant
“Dr. Morganstein agreed that Claimant’s injuries were soft tissue injuries” instead of
“Claimant agreed…” but then goes on to argue that Dr. Morganstein’s testimony was
that “Claimant sustained a combination of soft tissue and non-soft tissue injuries,
rendering Finding No. 31 erroneous.” (Petitioner’s Brief at 13) (emphasis in
original.)
9
Finding of Fact No. 32 states, in relevant part: “Dr. Morganstein agreed
that [Claimant] did not have any atrophy or anything that would indicate that the
femoral nerve injury was causing any loss of function.” (R.R. at 110a) (emphasis
added.) Claimant argues that the first sentence is contrary to Dr. Morganstein’s
actual testimony regarding the femoral nerve diagnosis:
Q. In layman’s terms what is [mild right femoral
neuropathy across the inguinal area], and does it cause pain,
and where would the pain be?
A. The femoral nerve comes across the front part of the
groin area. The inguinal area is the area in the groin, and
the nerve goes underneath a ligament there, and it’s
responsible to work on primarily the thigh region as far as
muscle strength and sensation. And the results of the
testing here showed that there was slowing of the
conduction of that nerve through the neural ligament which
then could affect the function of the muscles and nerve
tissues in the thigh area.
Q. Would that cause pain at all?
A. Yes, it would result in pain along the course of that
nerve.
Q. And again where would that pain be in a layman’s
perspective?
A. It would be across the anterior thigh to the level of
the knee, and there may be some numbness sometimes
along the inner part of the upper thigh region.
(Id. at 176a.)
10
Finding of Fact No. 38 states: “Dr. Ivill testified that he works 100%
clinically full-time. Dr. Ivill estimated that he performs only one to two IMEs per
month.” (Id. at 112a.) Claimant contends that although this finding is accurate, these
two sentences render Dr. Ivill’s testimony incredible because it is impossible for Dr.
Ivill to practice clinically 100 percent of the time and also perform one to two IMEs
per month.
While Claimant highlights certain inaccuracies in the WCJ’s findings in
Findings of Fact Nos. 30 and 31, the inaccuracies are minor and may be the result of
typing errors. With regard to Finding of Fact No. 32, although Dr. Morganstein
indicates that Claimant’s mild femoral neuropathy would cause her pain, his
testimony does not suggest that it would cause her a loss of function which is what
the WCJ found. Finally, with regard to Finding of Fact No. 38, Dr. Ivill’s testimony
that his work is 100 percent clinical but also that he performs one to two IMEs per
month is unrelated to his steadfast opinion as to Claimant’s medical condition. In any
event, any of the errors are not substantial given that the WCJ accepted Dr. Ivill’s
testimony over that of Dr. Morganstein to terminate benefits.
B.
Claimant next argues that in denying her review petition, the WCJ
capriciously disregarded objective medical evidence that supports the addition of low
back injury and femoral nerve injury to the description of her work injury by
disregarding certain portions of Dr. Morganstein’s testimony.
11
Dr. Ivill credibly opined that after his physical examination and review
of Claimant’s medical records, he found no evidence of a femoral nerve injury. He
explained that Claimant’s December 2009 EMG was normal and that Claimant had
normal strength, reflexes and sensation. He further stated that if Claimant had a
femoral neuropathy after the December 2009 EMG, it could not be causally related to
her work injury because it would have shown up in that EMG. Dr. Ivill concluded
that Claimant had fully recovered from her work-related injuries.
A claimant has the burden of establishing that a condition is work-
related and thus merits addition to the description of his or her work injury. City of
Philadelphia v. Workers’ Compensation Appeal Board (Fluek), 898 A.2d 15, 17 (Pa.
Cmwlth.), appeal denied, 911 A.2d 937 (Pa. 2006). Given that the WCJ credited Dr.
Ivill’s testimony over that of Dr. Morganstein, as is his prerogative, Claimant did not
satisfy her burden, but rather, Employer established that Claimant is no longer
disabled. As such, the WCJ properly denied Claimant’s review petition and granted
Employer’s termination petition.
Accordingly, the order of the Board is affirmed.
_________________________________
DAN PELLEGRINI, Senior Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Celina Bertovic, :
Petitioner :
:
v. : No. 1716 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Apex Rehab Solutions, Inc.), :
Respondent :
ORDER
AND NOW, this 18th day of February, 2016, the order of the Workers’
Compensation Appeal Board dated August 26, 2014, at No. A13-0556, is affirmed.
_________________________________
DAN PELLEGRINI, Senior Judge