M. Nestman v. Gold Key Country Cub, Inc. & Cincinnati Ins. Co. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Nestman, :
Petitioner :
:
v. :
:
Gold Key Country Club, Inc. and :
Cincinnati Insurance Company :
(Workers’ Compensation Appeal :
Board), : No. 1348 C.D. 2021
Respondents : Submitted: April 22, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 27, 2022
Michelle Nestman (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board). The Board affirmed the order of a
workers’ compensation judge (WCJ) dismissing a claim petition filed by Claimant
that sought specific loss benefits and granting a termination petition filed by Gold
Key Country Club, Inc. and Cincinnati Insurance Company (jointly, Employer).
Claimant asserts that the WCJ’s decision was based on incompetent testimony from
Employer’s medical expert. Upon review, we affirm the Board’s order.
I. Background
Claimant sustained a work injury to her right index finger in 2014,
which was accepted as a right index finger laceration. Reproduced Record (RR) at
5a & 241a.1 In 2018, a WCJ granted Claimant’s petition to amend her work injury
description to include neuralgia secondary to a crush injury to her right index finger.
Id. at 245a-46a. At that time, the WCJ credited the testimony of Claimant and the
opinion of her medical expert over that of Employer’s medical expert, Lawrence
Weiss, M.D. (Dr. Weiss), who testified after examining Claimant in 2016 that she
had fully recovered from her work injury, which he did not believe included
neuralgia. Id. at 243a-44a.
In 2019, Claimant filed a petition for specific loss benefits, alleging that
she had effectively lost the use of her right index finger. RR at 1a. Employer filed
a termination petition contending that Claimant had fully recovered from her work
injury. Id. at 8a. The petitions were consolidated for disposition.
Dr. Weiss reexamined Claimant in October 2019 and reviewed medical
records as well as the WCJ’s 2018 decision amending the description of Claimant’s
work injury. RR at 118a-20a. In forming his opinion following the October 2019
examination and records review, Dr. Weiss assumed that Claimant’s work injury
included neuralgia as described in the amendment granted in the 2018 WCJ opinion.
Id. at 130a. He then provided deposition testimony in which he opined that Claimant
had fully recovered from her work injury; specifically, he explained that he “found
1
Claimant failed to number the pages of the reproduced record in the format required by
the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2173 (directing that “the pages of
briefs, the reproduced record and any supplemental reproduced record shall be numbered
separately in Arabic figures and not in Roman numerals: thus 1, 2, 3, etc., followed in the
reproduced record by a small a, thus 1a, 2a, 3a, etc., . . . ”). Citations to pages of the reproduced
record herein follow the format required by Rule 2173.
2
no evidence of any neuralgia pattern,” posited that Claimant had recovered from her
laceration injury, and stated that Claimant needed no further medical treatment for
her work injury. Id. at 131a-37a.
The WCJ found Dr. Weiss’s testimony more credible than that of
Claimant and her medical expert. RR at 222a-23a. Accordingly, the WCJ dismissed
Claimant’s petition for specific loss benefits and granted Employer’s termination
petition. Id. at 224a.
Claimant appealed the WCJ’s order to the Board, arguing that Dr.
Weiss’s opinion was not competent because he had not properly acknowledged that
Claimant suffered from neuralgia as the WCJ concluded in his 2018 decision. RR
at 226a. In response, Employer asserted that Claimant’s notice of appeal was
insufficiently specific to preserve that issue. Id. at 263a-64a. On the merits,
Employer argued that Dr. Weiss had been specifically instructed during his
testimony to assume that Claimant’s work injuries included neuralgia as concluded
by the WCJ in 2018. Id. at 266a-67a.
The Board rejected Employer’s waiver argument, finding that although
Claimant did not refer to the specific numbers of the findings of fact and conclusions
of law she was challenging, she sufficiently set forth the nature of her appeal, i.e.,
that the WCJ’s decision lacked substantial supporting evidence, in that Dr. Weiss’s
opinion was not competent because he did not acknowledge neuralgia as part of
Claimant’s work injury. RR at 271a. On the merits, however, the Board squarely
rejected Claimant’s argument. The Board observed that Dr. Weiss “credibly
testified that he was willing to accept the work injury description found in the
[WCJ’s] 2018 Decision and Order, and that there was no sign of it when he examined
Claimant” in October 2019. Id. at 276a-77a. The Board concluded that this
3
constituted substantial evidence in support of the WCJ’s conclusion that Claimant
had fully recovered from her work injury. Id. at 277a. Therefore, the Board affirmed
the WCJ’s order. Id. at 278a.
Claimant then petitioned for review in this Court.
II. Issues
On review before this Court,2 Claimant raises the same issue as before
the Board. She contends that Dr. Weiss did not acknowledge Claimant’s neuralgia
as part of her work injury as found by the WCJ in 2018. Pet. for Rev. at 2. Therefore,
she argues that Dr. Weiss did not offer a competent opinion and that the WCJ could
not rely on Dr. Weiss’s testimony in granting the termination petition. Id.
In opposition, Employer reasserts that Claimant failed to preserve her
argument by raising it properly before the Board. Br. of Employer at 11-13.
Employer also repeats its contention that Dr. Weiss’s opinion was competent
because he did acknowledge neuralgia as an accepted part of Claimant’s work injury.
Id. at 9-11.
III. Discussion
A. Issue Preservation
Employer first contends that Claimant failed to preserve her argument
for appeal because she did not adequately raise it before the Board. Specifically,
Employer asserts that “Claimant failed to cite any findings of fact or conclusions of
2
Our scope of review in a workers’ compensation appeal is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Henderson v. WP Ventures, Inc.
(Workers’ Comp. Appeal Bd.), 269 A.3d 1272, 1275 n.2 (Pa. Cmwlth. 2022).
4
law at all, and did not detail which findings she was challenging in her appeal.
Claimant’s appeal clearly only made general assertions regarding the [WCJ’s]
Decision, without any specific issues she was appealing.” Br. of Employer at 13.
We discern no merit in this assertion.
Rule 1551(a) of the Pennsylvania Rules of Appellate Procedure
provides, in pertinent part: “Review of quasijudicial orders shall be conducted by
the court on the record made before the government unit. Only questions raised
before the government unit shall be heard or considered . . . .” Pa.R.A.P. 1551(a).
The applicable regulation governing practice and procedure before the Board
requires that an appeal form submitted to the Board must include, in pertinent part:
A statement of the particular grounds upon which the
appeal is based, including reference to the specific
findings of fact which are challenged and the errors of the
law which are alleged. General allegations which do not
specifically bring to the attention of the Board the issues
decided are insufficient.
34 Pa. Code § 111.11(a)(2); see also Williams v. Workmen’s Comp. Appeal Bd. (Green
Constr. Co.), 687 A.2d 428, 430 (Pa. Cmwlth. 1997).
Here, Claimant’s appeal form submitted to the Board averred, in
pertinent part:
[T]he Decision of the [WCJ] to grant the Termination
Petition was not supported by the substantial, competent
evidence of record. The Defendant/Employer failed to
meet its burden of proof on the Termination Petition. The
medical evidence upon which the [WCJ] based his
Decision to terminate was not competent. The defense
medical examiner relied upon an incorrect description of
the work injury a[t] issue. The defense medical examiner
did not provide an opinion that [] Claimant was recovered
from the recognized work injury.
5
RR at 226a. We agree with the Board that this averment went beyond a general
allegation and sufficiently apprised the Board of the grounds of Claimant’s appeal.
See RR at 271a; accord Morris v. Workers’ Comp. Appeal Bd. (Ball Corp.) (Pa.
Cmwlth., No. 1172 C.D. 2014, filed June 11, 2015),3 slip op. at 17 (concluding that
the employer sufficiently preserved issue for appeal by asserting on the Board appeal
form that the claimant “failed to meet his burden of proving he sustained a mental
injury”); cf. Jonathan Sheppard Stables v. Workers’ Comp. Appeal Bd. (Wyatt), 739
A.2d 1084, 1089 (Pa. Cmwlth. 1999) (concluding that the employer’s appeal to the
Board was insufficient to properly raise and preserve any issues because it listed
only the numbers of the findings of fact and conclusions of law it was challenging
and did not include any statement of alleged errors); Williams, 687 A.2d at 431(same, explaining further that none of the enumerated findings and conclusions listed
in the appeal form related to the issue argued by the claimant on appeal).
Accordingly, we conclude that Claimant adequately preserved the issue raised in her
appeal.
B. Competence of Dr. Weiss’s Expert Opinion
On the merits of her appeal, Claimant argues that Dr. Weiss’s opinion
was not competent because he did not accept and employ in formulating his opinion
the WCJ’s 2018 amended description of Claimant’s work injury and did not opine
that Claimant had fully recovered from the injury as described in the WCJ’s 2018
decision. We disagree.
3
Unreported opinions of this Court issued on or after January 15, 2008 may be cited for
their persuasive value pursuant to Section 414(a) of this Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a).
6
Claimant asserts that “[o]nce the description of injury is amended, to
succeed on a [t]ermination [p]etition, an employer must establish that an employee
has fully and completely recovered from those injuries as described.” Br. of
Claimant at 13 (citing GA & FC Wagman, Inc. v. Workers’ Comp. Appeal Bd.
(Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001)). In Wagman, for example, this Court
concluded that a medical expert’s opinion that the claimant had fully recovered could
not support granting a termination petition, where the expert failed to acknowledge
the claimant’s accepted work injury and opine that the claimant had recovered from
that injury. 785 A.2d at 1089 & 1092 (explaining that, because the employer’s
medical expert did not recognize that the claimant ever suffered from the accepted
injury of pseudoarthritis, and instead opined that the claimant suffered from sprained
muscle ligaments and that the accepted injury was “of no consequence,” it was
impossible for him to opine that the claimant had fully recovered from the accepted
injury).4
Claimant attempts to distinguish To v. Workers’ Compensation Appeal
Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003), on which the Board relied.
In To, the employer’s medical expert “credibly testified that he believed that there
was no connection between [the c]laimant’s current complaints and the event that
may or may not have occurred in the course of his employment with [the e]mployer.”
Id. at 1225. Like Claimant here, the claimant in To argued that because the
employer’s medical expert disagreed with the claimant’s accepted injury, the expert
4
Claimant also cites, to the same effect, this Court’s decisions in Westmoreland County v.
Workers’ Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008); Robinson v.
Workers’ Compensation Appeal Board (School District of Philadelphia) (Pa. Cmwlth., No. 2149
C.D. 2007, filed May 12, 2008); Elberson v. Workers’ Compensation Appeal Board (Elwyn, Inc.),
936 A.2d 1195 (Pa. Cmwlth. 2007); and Gillyard v. Workers’ Compensation Appeal Board
(Pennsylvania Liquor Control Board), 865 A.2d 991 (Pa. Cmwlth. 2005). Br. of Claimant at 13-
16.
7
could not give an opinion that the claimant had fully recovered from the accepted
injury. Id. at 1224. This Court distinguished Wagman because there, “the medical
expert did not recognize that the claimant ever suffered from the [accepted] injury”;
but in To, the employer’s expert opined that “since there was no evidence of medical
impairment, [the c]laimant had made a full and complete recovery from any injury
he may have sustained in the course of his employment.” Id. at 1225 (emphasis
added).
Here, Claimant acknowledges that the medical witness’s testimony in
To “was deemed competent to support a termination of [w]orkers’ [c]ompensation
benefits when a doctor testified that, assuming a work injury occurred, a claimant
was fully recovered at the time of his medical examination.” Br. of Claimant at 16
(citing and discussing To). Claimant suggests, however, that “[t]his is not consistent
with the type of testimony offered by [] Employer in this matter.” Id. We disagree.
Dr. Weiss testified that before preparing his report concerning his
October 2019 examination of Claimant, he reviewed the WCJ’s 2018 decision
amending the description of Claimant’s work injury to include neuralgia. RR at
119a & 142a-43a. Further, the transcript of Dr. Weiss’s deposition demonstrates
that Employer’s counsel expressly directed Dr. Weiss to assume, in giving his
medical opinion, that the WCJ’s 2018 decision concluded Claimant’s original work
injury in 2014 included “severe neuralgia of the right hand and index finger.” Id. at
130a. When asked on cross-examination why he did not specifically discuss the
WCJ’s 2018 decision in his 2019 written report, Dr. Weiss explained, “I provided a
medical report in order to try and provide an update with respect towards
[Claimant’s] status when I saw her on October 22nd, 2019 as opposed to peering
over or disputing or suggesting anything different than [sic] what the [WCJ] had
8
provided . . . .” Id. at 145a. The Board found that Dr. Weiss’s credible testimony,
by establishing his willingness to accept the WCJ’s 2018 description of Claimant’s
injury, constituted substantial evidence in support of the WCJ’s decision to grant
Employer’s termination petition. RR at 276a-77a. We agree. Accordingly, we also
agree with the Board’s conclusion that this case is governed by the analysis of To
rather than that of Wagman and other similar decisions. See id. For these reasons,
we conclude the Board did not err in affirming the WCJ’s order granting Employer’s
termination petition.
IV. Conclusion
Based on the foregoing discussion, the order of the Board is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Nestman, :
Petitioner :
:
v. :
:
Gold Key Country Club, Inc. and :
Cincinnati Insurance Company :
(Workers’ Compensation Appeal :
Board), : No. 1348 C.D. 2021
Respondents :
ORDER
AND NOW, this 27th day of May, 2022, the November 3, 2021 order
of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge