R.A. Callender v. David Elliot Poultry Farm Inc. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ricko A. Callender, :
Petitioner :
:
v. : No. 323 C.D. 2021
: SUBMITTED: October 15, 2021
David Elliot Poultry Farm Inc. :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 24, 2022
Claimant, Ricko A. Callender, pro se, petitions for review of an order
of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of
a Workers’ Compensation Judge (WCJ) denying his claim petition. We affirm.
Claimant worked for David Elliot Poultry Farm, Inc. (Employer), as a
truck driver, which entailed loading, unloading, and delivering boxes of chicken
weighing between 80 to 90 pounds. WCJ’s February 7, 2020, Decision, Findings of
Fact (F.F.) Nos. 1 and 4(a). On March 19, 2018, Claimant filed a claim petition
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
under the Workers’ Compensation Act2 alleging he sustained an L5-S1 disc
herniation, lumbar sprain/strain on November 30, 2017, while making a delivery for
Employer. F.F. No. 1. In its answer, Employer denied the pertinent allegations of
the claim petition and raised certain defenses along with a request for all available
offsets and credits. Id.
At a hearing before the WCJ, Claimant testified that he worked for
Employer as a truck driver,3 delivering boxes of chicken weighing between 80 and
90 pounds. F.F. No. 4(a). He alleged that an injury occurred when he was moving
boxes to another pallet and felt a sharp pain in his back. F.F. No. 4(b). Claimant
completed his job duties and stated that he did not report the injury to Employer at
the time because it was his last scheduled day of work. F.F. No. 4(b) and (c). On
December 1, 2017, Claimant returned home to Florida. F.F. No. 4(c). Since that
date, he has not been back to Pennsylvania. Id. He claimed to have informed
Employer of his injury via a text message in February of 2018. F.F. No. 4(f).4
In support of his claim petition, Claimant presented the deposition
testimony of Donald Sachs, M.D., who is a board-certified neurosurgeon. F.F. No.
3. Claimant began treating with Dr. Sachs on March 26, 2018. F.F. No. 5(a).
Claimant reported that his back pain began in November 2017 and has continued to
worsen. Id. Diagnostic testing revealed that Claimant had cervical disc
displacement; multiple disc herniations, bulging, and narrowing of the thoracic
spine; and disc herniations and bulging of the lumbar spine. F.F. No. 5(b). Dr. Sachs
recommended that Claimant undergo surgery and, on September 20, 2018,
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041, 2501-2710.
3
Claimant was a temporary replacement driver. (WCJ Decision, F.F. No. 4(d) n.1.)
4
Employer submitted two text messages received from Claimant from February of 2018.
Neither text mentions any work injury. (WCJ Decision, F.F. No. 4(f) n.2.)
2
performed a “[t]wo[-]level cervical discectomy and disc arthroplasty.” F.F. No. 5(f).
Following the surgery, Claimant continued to complain of back pain; however, his
physical examination showed no significant findings. F.F. No. 5(g).
On cross-examination, Dr. Sachs acknowledged that he had not
reviewed any of Claimant’s prior medical records. F.F. No. 5(h). When Claimant
first treated with him, Claimant did not report any prior history of automobile
accidents, back injuries, or numbness/tingling in his lower extremities.5 F.F. No.
5(j). Claimant also did not complain of neck pain at the initial visit. Dr. Sachs stated
that Claimant’s neurologic findings had “potentially non-traumatic causes” and that
his pain symptoms were “out of proportion” to his medical issues. F.F. No. 5(k) and
(l).
Employer presented the deposition testimony of board-certified
orthopedic surgeon Michael Broom, M.D. Dr. Broom reviewed Claimant’s medical
history, noting that following a 2012 tractor-trailer accident, Claimant suffered from
chronic low back pain. F.F. No. 6(b). Claimant also had a prior history of numbness
and tingling in his fingers. Id. On September 13, 2018, Dr. Broom examined
Claimant and diagnosed him with cervical degeneration and stenosis unrelated to
any work injury or work event. F.F. No. 6(h).
Employer also offered the deposition testimony of Shlomo Fink,
Employer’s chief financial officer, and Yehudah Fink, a team manager. F.F. Nos. 7,
11. Shlomo contacted Claimant by text message on February 27, 2018, to inquire
about whether Claimant remained available as a replacement driver, to which
Claimant responded that he remained available and did not mention his work injury.
F.F. No. 8. Then, in March of 2018, Claimant sent Shlomo a text message stating
5
On August 22, 2018, Claimant did report that he was in an automobile accident prior to the
alleged work injury. WCJ Decision, F.F. No. 5(e).
3
that Claimant was no longer available to drive because he was having back problems.
Id. Yehudah testified that Claimant sent him an email on March 5, 2018, stating that
he suffered a back injury at work on November 30, 2017, and would be filing a
workers’ compensation claim. F.F. No. 11. Yehudah forwarded the email to
Shlomo, who reported the claim to Employer’s workers’ compensation carrier. F.F.
Nos. 7, 11.
The WCJ rejected the testimony of Claimant as inconsistent and found
the testimony of Dr. Broom to be more credible and more persuasive than the
testimony of Dr. Sachs. F.F. Nos. 16, 19. The WCJ also found the testimony of
both Shlomo and Yehudah Fink to be credible and persuasive. F.F. No. 17. The
WCJ concluded that even if Claimant experienced back pain on November 30, 2017,
there was no credible, unequivocal evidence of record connecting that event to his
subsequent medical treatment. Accordingly, the WCJ denied the claim petition. The
Board affirmed6 and Claimant’s petition for review to this Court followed.
Before this Court, Claimant raises essentially two issues for our review:
(1) whether the Board committed “reversible error by refusing to consider
[Claimant’s] Social Security Disability Decision[,]” and (2) whether the Board erred
by refusing to accept that the facts of this case establish the existence of a work
injury. Claimant’s position is without merit.
In response to Claimant’s first argument, an appellate court cannot
consider evidence that was not part of the record before the administrative agency.
Anam v. Workmen’s Comp. Appeal Bd. (Hahnemann), 537 A.2d 932, 934 (Pa.
Cmwlth. 1988). Claimant argues he has been declared disabled by the Social
Security Administration (SSA), but the SSA’s October 24, 2019 decision declaring
6
Claimant was represented by counsel before the WCJ but appealed to the Board pro se.
4
him disabled was never made a part of the administrative agency record in this
matter. Because the SSA’s decision declaring Claimant disabled was not made part
of the certified record before the WCJ, this Court cannot now consider it.
Regardless, however, a determination of disability by the SSA is not
relevant to prove whether a claimant’s disability resulted from an alleged work-
related injury. Monaci v. Workmen’s Comp. Appeal Bd. (Ward Trucking), 541 A.2d
60, 62 (Pa. Cmwlth. 1988). The SSA determines whether a claimant is mentally or
physically disabled, not whether a claimant’s disability resulted from a work-related
injury. Id. Thus, Claimant’s SSA disability status is irrelevant in this proceeding.
Turning to the merits, it is the claimant who bears the burden of
establishing his right to compensation and all of the elements necessary to support
an award of benefits, including proof that he sustained a compensable injury in the
course and scope of employment and that he is disabled as a result of that
injury. Milner v. Workers’ Comp. Appeal Bd. (Main Line Endoscopy Ctr.), 995
A.2d 492, 496 (Pa. Cmwlth. 2010). Where there is no obvious causal connection
between an alleged injury and a work-related cause, unequivocal medical testimony
is necessary to establish that connection. Cromie v. Workmen’s Comp. Appeal Bd.
(Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991).
Here, the WCJ concluded that Claimant failed to meet his burden of
proving a work injury occurred at all, finding Claimant to be a “poor historian” and
that his “testimony was inconsistent both internally and with the medical records
submitted in conjunction with the transcripts of the deposition testimony of the
medical experts.” F.F. No. 16. The WCJ also found that Claimant failed to mention
his injury in numerous communications that he had with Employer over the course
of several months and that Claimant, when he did communicate his alleged injury
5
with Employer, admitted to having had back pain for years. Id. Because of
Claimant’s inconsistent testimony, the WCJ did not find Claimant to be credible.
Claimant, therefore, failed to establish proof that he sustained a compensable work
injury in the first place.
Moreover, the WCJ found no unequivocal medical testimony that
Claimant’s medical impairments resulted from his work. The WCJ deemed the
testimony of Dr. Sachs credible but not persuasive in light of his reliance upon the
inconsistent history provided by Claimant. F.F. No. 18. The WCJ also observed
that Dr. Sachs had not reviewed Claimant’s medical records from several other
doctors with whom Claimant had treated. F.F. No. 5(h).
The WCJ deemed the testimony of Dr. Broom credible and more
persuasive than the testimony of Dr. Sachs, finding that Dr. Broom’s opinions were
“supported by the results of objective diagnostic studies and . . . documented medical
history admitted to by Claimant as well as the descriptions provided to [Claimant’s
other doctors] reporting the onset of [Claimant’s] symptoms as gradual and
worsening over a period of years with no acute trauma, injury, or specific
precipitating event noted.” F.F. No. 19. For these reasons, the WCJ concluded that
“[e]ven assuming Claimant experienced back pain on November 30, 2017, there is
simply no credible, unequivocal evidence in the record to establish a link between
any such event and Claimant’s subsequent treatment, including surgery performed
by Dr. Sachs.” WCJ Decision, at p.11.
Claimant’s arguments reflect that he is urging this Court to reweigh the
testimony and disturb the WCJ’s credibility determinations. It is well established
that a WCJ, as the ultimate fact finder, is free to accept or reject the testimony of any
witness, including a medical witness, in whole or in part. Milner, 995 A.2d at 496.
6
Determinations of credibility and evidentiary weight are within the WCJ’s exclusive
province. Ward v. Workers’ Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159,
1164 (Pa. Cmwlth. 2009).
Moreover, it is well established that “the fact that one party to a
proceeding may view testimony differently is not grounds for reversal if substantial
evidence supports the lower tribunal’s findings.” Second Breath v. Workers’ Comp.
Appeal Bd. (Gurski), 799 A.2d 892, 899 (Pa. Cmwlth. 2002). Although the present
case is one in which the grounds for Claimant’s appeal primarily consist of requests
to reweigh the evidence and disturb credibility determinations, we nonetheless find
substantial evidence to support the WCJ’s factual findings.7
Accordingly, we affirm.8
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
7
Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812
A.2d 750, 754 (Pa. Cmwlth. 2002).
8
In April 2022, Claimant belatedly filed a Motion to Transfer and Stay requesting that we
transfer the appeal to an unspecified venue in New York state. We decline to consider his vague
and untimely request. The motion is dismissed as moot.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ricko A. Callender, :
Petitioner :
:
v. : No. 323 C.D. 2021
:
David Elliot Poultry Farm Inc. :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 24th day of May, 2022, the February 5, 2021 order of
the Workers’ Compensation Appeal Board is hereby AFFIRMED. Further,
Claimant’s Motion to Transfer and Stay is DISMISSED as moot.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita