K. Canfield v. WCAB (Western Power Sports, Inc.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Canfield, :
Petitioner :
:
v. : No. 664 C.D. 2019
: Submitted: September 13, 2019
Workers’ Compensation Appeal :
Board (Western Power Sports, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 13, 2020
Kimberly Canfield (Claimant) petitions for review of the Order of the
Workers’ Compensation Appeal Board (Board) that affirmed the Decision of a
Workers’ Compensation Judge (WCJ) denying Claimant’s Claim Petition. On
appeal, Claimant argues the WCJ’s Decision was not supported by substantial
evidence and that, at a minimum, the Claim Petition should have been granted for a
work-related head contusion, which she asserts Western Power Sports, Inc.’s
(Employer) medical expert acknowledged. Upon review, we affirm.
I. Background
A. Claim Petition
On December 21, 2017, Claimant filed the Claim Petition alleging that, on
November 2, 2017, she sustained a work-related injury in the nature of
“concussion/post-concussion syndrome” as a result of striking “her head on an
exposed bolt after picking something up off the ground.” (WCJ Decision, Finding
of Fact (FOF) ¶ 1; see Claim Petition, Reproduced Record (R.R.) at 2a.) Claimant
sought partial disability benefits from November 2, 2017, through November 8,
2017, total disability benefits from November 9, 2017, and ongoing, and medical
benefits. Employer filed an answer denying the Claim Petition’s material
allegations.
The matter was assigned to a WCJ, who held hearings at which the parties
presented testimonial and documentary evidence. Claimant testified live before the
WCJ and offered the deposition testimony of her medical expert, Edward J.
Purzycki, Ph.D., a board-certified psychologist (Claimant’s Psychologist).
Employer presented the deposition testimony of Richard H. Bennett, M.D., a board-
certified neurologist (Employer’s Neurologist).
B. Claimant’s Evidence
In support of her Claim Petition, Claimant testified as follows.1 She worked
for Employer for over three years, most recently as a packer. On November 2, 2017,
Claimant hit the left side of the crown of her head on an exposed bolt on a shelf at
work. Claimant did not strike her head with “extra force” and did not lose
consciousness, but did experience pain. (FOF ¶ 2c.) She did not leave to seek
medical treatment but finished her shift. Claimant contacted Employer the following
day, on November 3, 2017, and informed her Supervisor that she had a severe
headache, pain, and nausea, and was going to seek medical treatment. Supervisor
sent Claimant to WorkNet, which placed Claimant on work restrictions that were
1
Claimant’s testimony is summarized in Finding of Fact 2, and the transcript of that
testimony is found at pages 24a-37a of the reproduced record.
2
communicated to Employer. Although Claimant was to return to WorkNet the
following Friday, Employer instructed her to go sooner. Claimant did so, and the
WorkNet provider released her to full-duty work, indicating that she was “100
percent.” (R.R. at 32a.) However, Claimant indicated that she then sought treatment
from her family physician because she was still in incredible pain, and that this
physician removed her from work initially for three days, and then completely.
Claimant continued to experience head pain, nausea, tiredness, weakness, and lack
of interest and energy, which she related to the November 2, 2017 work incident. In
addition to treating with her family physician, Claimant is treated by Claimant’s
Psychologist. Claimant acknowledged that she had a history of suffering from
migraines for as long as she could remember, but believed her present condition was
different. For example, her migraines would occur on the right side of her head and
would be resolved by her taking Excedrin and laying down, but her current
symptoms are left-sided, do not go away, and require her to lay down and rest in
bed.
Claimant’s Psychologist testified by deposition as follows.2 He first saw
Claimant on December 11, 2017, at which time she complained of mild nausea,
feeling that she was swaying when she was in motion, visual impairments, feeling
mentally foggy with words coming out differently than they used to, not sleeping
well, drowsiness, and sensitivity to light and noise when she had headaches.
Claimant’s Psychologist took a history from Claimant regarding the work incident,
including that she did not lose consciousness but did feel sick. He performed a
physical examination of Claimant, which included a check for symptoms of a
concussion and a cognitive assessment. Claimant’s cognitive assessment was
2
Claimant’s Psychologist’s deposition testimony is summarized in Finding of Fact 3, and
the transcript of that deposition testimony is found at pages 56a-88a of the reproduced record.
3
normal, but based upon the results of the physical examination and Claimant’s
reported symptoms, Claimant’s Psychologist diagnosed Claimant with “post-
concussion syndrome and adjustment reaction with anxiety and insomnia.” (FOF
¶ 3d.) He acknowledged Claimant’s history of migraines, but explained that these
were under control and managed. Claimant’s Psychologist further explained that
concussions can affect someone with preexisting migraine headaches, and “can
result in protracted or prolonged recovery and this is how he is ‘conceptualizing’
what is happening in [Claimant’s] case.” (Id. ¶ 3e (quoting Claimant’s
Psychologist’s Dep. at 9-10, R.R. at 61a-62a) (emphasis in original).) However, he
also indicated “that many of the symptoms of post-concussion syndrome are similar,
if not identical, to symptoms of migraine.” (Id.) Claimant’s Psychologist did not
release Claimant to work on December 11, 2017.
He saw Claimant again on January 18, 2018, at which time Claimant stated
she had good days and bad days, she had been discharged from her position, and her
family physician had recommended she not drive due to her symptoms. Claimant
again reported having headaches, some nausea, “fatigue[,] and other symptoms
‘typically associated with migraines and/or concussion.’” (Id. ¶ 3g (quoting
Claimant’s Psychologist’s Dep. at 11, R.R. at 63a).) Claimant’s Psychologist
maintained the same diagnosis and recommended that Claimant seek treatment from
a specialist in headache management and possibly a prescription for medication that
was known to help with headaches. Claimant’s Psychologist subsequently saw
Claimant on February 9, 2018, March 9, 2018, and April 19, 2018, at which time
Claimant continued to complain of sleep issues and depression or anxiety. She
sometimes complained of headaches and nausea. He explained that depression can
be consistent with post-concussion syndrome, but that there are also environmental
4
factors that can cause it as well. Here, Claimant’s Psychologist noted that
Claimant’s father passed away at the end of March 2018 and she was experiencing
stressors related to her finances, which he observed could have been environmental
factors that caused her depression. Claimant’s Psychologist did not release Claimant
to work following the April 19, 2018 visit, which occurred the day before his
deposition. When asked whether Claimant still suffered from post-concussion
syndrome, Claimant’s Psychologist answered:
It’s difficult to tell, because of the migraines and the
impact that’s having on her, whether these are still related
to the concussion or are just a continuance of her
migraines.
That being said, it seems clear to me that the injury at work
was the trauma that kind of unleashed the migraine
propensity with her and regardless – and from a clinical
perspective, we have to treat the symptoms.
Right now, the dominant symptoms are these excruciating
migraines. And whether we consider that as related to that
event or just her migraine history, from our perspective it’s
not that critical that we understand that. We just have to
treat the pain and the associated symptoms.
(Id. ¶ 3m (quoting Claimant’s Psychologist’s Dep. at 17-18, R.R. at 69a-70a).)
Claimant’s Psychologist acknowledged that Claimant’s initial treatment
records indicated Claimant did not lose consciousness and there was no bruise to her
head, but he believed those records may have indicated a laceration. He further
agreed that Claimant’s symptoms were entirely subjective and that his initial
assessment reflected that Claimant’s speech and cognitive assessment were normal,
Claimant could relate information, and her thought process was coherent. According
to Claimant’s Psychologist, “with the trauma to the brain, there are ‘metabolic
5
changes that occur’ and that with a period of rest those metabolic changes can return
to normal and then, with gradual increase in activity, a person is back to baseline.”
(Id. ¶ 3o (quoting Claimant’s Psychologist’s Dep. at 25, R.R. at 77a).) He
acknowledged, however, that despite Claimant having rested since November 2,
2017, including days in bed, her symptoms continue to wax and wane.
C. Employer’s Evidence
Employer’s Neurologist examined Claimant on March 13, 2018, and testified
by deposition as follows.3 Upon questioning, Claimant reported no loss of
consciousness or laceration of the skin following the November 2, 2017 incident,
but she indicated she developed increasing nausea and headache on that day.
Claimant advised she had a history of migraine headaches, for which she took
various medications, but which were different than the headaches she experienced
after November 2, 2017. Claimant’s physical examination was normal and revealed,
among other things, no appearance of acute distress, she was alert and oriented to
person, place, and time, she spoke clearly and fluently, she had no obvious cognitive
impairments or deficits, and no difficulty with her coordination, balance, or walking.
Thus, there were no objective abnormalities found. Similarly, Employer’s
Neurologist “found no neurological findings of concussion/post-concussion
syndrome” and “Claimant’s pattern of complaints did not support any concussion”
because “concussions improve over time.” (Id. ¶ 4c.) Further, the history of the
November 2, 2017 incident “was not consistent with a severe enough brain injury to
cause a concussion, and concussion symptoms tend to be worse almost immediately
after the incident and are not delayed or become worse or more intense later.” (Id.)
3
Employer’s Neurologist’s deposition testimony is summarized in Finding of Fact 4, and
the transcript of that deposition testimony is found at pages 139a-79a of the reproduced record.
6
Employer’s Neurologist’s review of Claimant’s medical records, including
the WorkNet records, revealed no indication that Claimant’s condition at that time
suggested she had a concussion or post-concussion syndrome. Based on his
examination of Claimant and of her medical records, Employer’s Neurologist found
no objective evidence that Claimant suffered neurological impairment, a concussion,
or post-concussion symptoms. If Claimant sustained any injury, it would have been
a minor head contusion with no residual symptomology from which she had
recovered. He explained “there was absolutely no evidence to support the diagnosis
of concussion or post-concussion syndrome,” (R.R. at 149a-50a), and no further
neurological medical treatment or work restrictions were needed. Employer’s
Neurologist disagreed with Claimant’s Psychologist’s opinion, indicating there is no
scientific evidence supporting the proposition that a person with migraine headaches
was more susceptible to a head injury or had a longer recovery from such injury.
When asked on cross-examination to define “concussion,” he explained that
it meant a “transient loss or alteration of consciousness following a closed injury,
which lasts about twenty minutes and that this is a loss or lapse of awareness or being
confused/disoriented.” (FOF ¶ 4h (citation omitted).) Post-concussion syndrome
symptoms, Employer’s Neurologist explained, are generally subjective, but are more
intense after a concussion and constitute headaches, blurred vision, difficulty with
concentrating and short-term memory, and balance issues. He explained that the
phrase “closed head injury” used in Claimant’s WorkNet records was a non-specific
term used whenever a person hits his or her head and did not necessarily mean that
a concussion occurred, merely that a person hit his or her head. Employer’s
Neurologist noted that Claimant reported to WorkNet that the impact to her head
was “very minimal” and he agreed with WorkNet’s notes, which reflected no
7
positive neurological findings that would be consistent with a concussion, that such
impact was unlikely to have caused a concussion. (Id. ¶ 4i.) He further explained
that the medication prescribed for Claimant was not used for concussion symptoms,
but for tension headaches or depression.
At the January 31, 2018 hearing before the WCJ, there was a suggestion that
Employer had issued a Medical-Only Notice of Temporary Compensation Payable
(NTCP) that acknowledged a non-disabling, work-related injury in the nature of a
head contusion. Claimant’s counsel stated he “underst[ood] that the claim was being
picked up under a medical-only NTCP,” and Employer’s counsel indicated
Employer did not “dispute notice and that there was a head contusion.” (R.R. at 22a-
23a.)
D. WCJ Decision
The WCJ reviewed the evidence and, based on that review, made credibility
determinations. (FOF ¶ 5.) As to Claimant, the WCJ found her testimony regarding
the events of November 2, 2017, including that she did not lose consciousness, and
her subsequent treatment with WorkNet generally credible, and accepted that
testimony as fact. (Id. ¶ 5a.) However, the WCJ found Claimant’s testimony relating
her ongoing condition to the November 2, 2017 incident not to be dispositive
because of the WCJ’s reliance on the medical expert evidence to ascertain whether
that condition is causally related to that event and whether Claimant was disabled as
a result.
As to Claimant’s Psychologist, the WCJ found him “to be competent, but less
than credible and persuasive in this dispute” due to, among other reasons, the lack
of details regarding his examinations of Claimant and the results thereof that would
support his diagnoses. (Id. ¶ 5b.) Rather, the results of the cognitive assessment of
8
Claimant he did discuss, the WCJ noted, were normal, as were Claimant’s speech,
eye contact, alertness, and thought processes. These findings, according to the WCJ,
undermined Claimant’s Psychologist’s diagnoses, Claimant’s reports to Claimant’s
Psychologist that she was mentally foggy and had problems speaking, and
Claimant’s Psychologist’s credibility and persuasiveness. Last, the WCJ pointed out
that when asked whether Claimant still suffered from post-concussion syndrome as
of April 19, 2018, Claimant’s Psychologist’s response did not support the conclusion
that she did, particularly where he testified that many of the symptoms of post-
concussion syndrome are similar, if not identical, to migraine symptoms.
As to Employer’s Neurologist, the WCJ found his testimony to be competent,
credible, and persuasive, as it was straightforward, detailed, and was not shaken on
cross-examination. The WCJ noted that Employer’s Neurologist’s testimony
reflected a more extensive examination of Claimant than testified to by Claimant’s
Psychologist. Further, the WCJ observed that the lack of objective evidence
supported Employer’s Neurologist’s opinions. The WCJ also explained that
Employer’s Neurologist gave a specific definition of concussion, which Claimant’s
Psychologist did not provide. Accordingly, to the extent the two experts’ opinions
differed, the WCJ credited Employer’s evidence over Claimant’s evidence. Thus,
the WCJ accepted, as fact, the credited testimony of Employer’s Neurologist that
Claimant did not suffer a concussion or post-concussion syndrome as a result of the
November 2, 2017 work incident.
Based on his credibility determinations and factual findings, the WCJ
concluded Claimant had not met her burden of proving a causal connection between
the November 2, 2017 work incident, the alleged concussion or post-concussion
syndrome, or her alleged disability, i.e., loss of earning power. (WCJ Decision,
9
Conclusion of Law ¶ 3.) Therefore, the WCJ denied and dismissed the Claim
Petition. Claimant appealed to the Board.
E. Board Opinion
In her appeal, Claimant argued the WCJ’s Decision was not supported by
substantial evidence, challenging the WCJ’s acceptance of Employer’s
Neurologist’s testimony over that of Claimant’s Psychologist and the reasons given
for doing so. The Board concluded there was no error in the WCJ holding that
Claimant did not meet her burden of proof on her Claim Petition because the WCJ
did not credit her evidence that she sustained a disabling work injury in the nature
of a concussion or post-concussion syndrome. According to the Board, the WCJ
explained the reasons for rejecting Claimant’s Psychologist’s testimony as not
credible and explained why he accepted Employer’s Neurologist’s contrary
testimony, and this credibility determination was not subject to the Board’s review.
The Board held that because the WCJ accepted the latter’s testimony that, at most,
Claimant sustained a non-disabling mild head contusion and had recovered
therefrom, Claimant could not meet her burden of proof on her claimed injury and
disability. Claimant now petitions this Court for review.4
4
This Court’s “review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are
supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).
10
II. Claimant’s Appeal to this Court
A. Parties’ Arguments
Claimant argues5 the Board erred in affirming the denial of the Claim Petition
because the WCJ’s reasons for crediting Employer’s Neurologist over Claimant’s
Psychologist are not supported by substantial evidence. Claimant contends that,
contrary to the WCJ’s finding that Employer’s Neurologist gave a very specific
definition of concussion, he actually gave conflicting definitions of that term.
According to Claimant, Employer’s Neurologist defined concussion as “[] [a]
transient loss or alteration of consciousness, [] [f]ollowing a closed head injury,
[w]hich lasts about twenty minutes, [] [a]nd that this is a loss or lapse of awareness
or being confused/disoriented,” but he also defined it as “trauma to the skull or to
the brain.” (Claimant’s Brief (Br.) at 24-25 (quoting R.R. at 156a-57a).) Because
Employer’s Neurologist did not give a very specific definition of concussion, the
basis for the WCJ’s crediting that opinion over Claimant’s Psychologist’s opinions
is invalid.
Claimant also argues the Board erred in affirming the denial of the Claim
Petition in its entirety because Employer’s Neurologist opined that she sustained a
head contusion as a result of the November 2, 2017 work incident. This error,
Claimant contends, is perhaps due to the mistaken belief that Employer issued an
NTCP acknowledging that a head contusion had occurred, and no such NTCP was
ever issued. Notwithstanding that she did not raise this injury in her Claim Petition,
Claimant asserts the WCJ should have granted the Claim Petition and ordered
Employer to pay her medical bills, wage loss benefits, and litigation expenses
because there was evidence to support the existence and work-relatedness of a head
5
We have rearranged Claimant’s arguments.
11
contusion. According to Claimant, the Board acknowledged the WCJ’s acceptance
of Employer’s Neurologist’s opinion that she “sustained a non-disabling mild
head contusion from which she had fully recovered,” but nonetheless affirmed
because Claimant “was unable to meet her burden of proving that [s]he sustained a
disabling work-related injury in the nature of a concussion or post-concussion
syndrome.” (Claimant’s Br. at 21 (quoting Board Op. at 7).) Claimant objects to
the Board’s use of the term “non-disabling” because a work “injury” is not required
to be disabling, as is reflected by the use of medical-only Notices of Compensation
Payable. (Id.)
Employer responds that there was no error because Claimant did not meet her
burden of proof where the WCJ rejected all of her evidence in support of the Claim
Petition. According to Employer, Claimant’s Psychologist’s testimony was
equivocal and could not support an award of benefits, even if credited, because he
could not specifically relate Claimant’s symptoms and disability to the alleged
concussion or post-concussion syndrome, rather than her migraine headaches
because he did not believe it was “critical that we understand that.” (Employer’s Br.
at 22 (quoting R.R. at 69a-70a).) Employer argues the WCJ gave multiple reasons
for rejecting Claimant’s Psychologist’s testimony and accepting Employer’s
Neurologist’s testimony, each supported by the record, and that this determination
should not be second guessed by the Court on appeal. Claimant’s challenge to
Employer’s Neurologist’s definition of “concussion,” Employer asserts, is without
merit because it is apparent from reading the transcript as a whole that the definition
given by its expert was clear and concise and not conflicting. As for Claimant’s
contention that Employer’s Neurologist’s testimony supports the grant of the Claim
Petition for a head contusion, Employer maintains that his testimony was first, that
12
no injury had occurred and second, if any injury had occurred, it was a only a mild
scalp or head contusion from which she had fully recovered.
After setting forth the relevant standards for reviewing claim petition
proceedings and a substantial evidence challenge, we will address these arguments
in turn.
B. Discussion
In a claim petition proceeding, the claimant bears the burden of establishing
all of the elements necessary to support an award of workers’ compensation benefits,
including the existence of an injury and disability, and a causal relationship between
the injury and the work incident. Giant Eagle, Inc. v. Workers’ Comp. Appeal Bd.
(Thomas), 725 A.2d 873, 876 (Pa. Cmwlth. 1999). Disability is the loss of earnings
or earning power that is caused by the work-related injury. School Dist. of Phila. v.
Workers’ Comp. Appeal Bd. (Lanier), 727 A.2d 1171, 1172 (Pa. Cmwlth. 1999).
Where the causal relationship between the work incident and the injury is not
obvious, unequivocal medical evidence is necessary to establish that relationship.
Roundtree v. Workers’ Comp. Appeal Bd. (City of Philadelphia), 116 A.3d 140, 145
(Pa. Cmwlth. 2015). When unequivocal medical evidence is necessary, “the medical
witness must testify, not that the injury or condition might have or possibly came
from the assigned cause, but that in [the witness’s] professional opinion the result in
question did come from the assigned cause.” Berks Cty. Intermediate Unit v.
Workmen’s Comp. Appeal Bd. (Rucker), 631 A.2d 801, 804 (Pa. Cmwlth. 1993).
Medical evidence that is less than positive or is based on possibilities is equivocal
and is not legally competent evidence that establishes the necessary causal
relationship. Potere v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684, 690
13
(Pa. Cmwlth. 2011). “Whether an expert’s opinion is competent is a question of law
subject to plenary review.” City of Philadelphia v. Workers’ Comp. Appeal Bd.
(Kriebel), 29 A.3d 762, 769 (Pa. 2011).
In reviewing a substantial evidence6 challenge, we “consider the evidence as
a whole, view the evidence in the light most favorable to the party who prevailed
before the WCJ, and draw all reasonable inferences which are deducible from the
evidence in” that party’s favor. Frog, Switch & Mfg. v. Workers’ Comp. Appeal Bd.
(Johnson), 106 A.3d 202, 206 (Pa. Cmwlth. 2014) (quotation omitted). Where both
parties present evidence, it does not matter if there is evidence that supports a
contrary finding; the only question is whether there is evidence that supports the
findings that were made. McCabe v. Workers’ Comp. Appeal Bd. (Dep’t of
Revenue), 806 A.2d 512, 515 (Pa. Cmwlth. 2002). “The WCJ is the ultimate fact
finder and has complete authority for making all credibility” and evidentiary weight
determinations. Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d
750, 755 (Pa. Cmwlth. 2002). It is well-settled that a “WCJ may reject the testimony
of any witness in whole or in part, even if that testimony is uncontradicted.”
Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prod., Inc.), 721 A.2d 1152, 1156
(Pa. Cmwlth. 1998). Where the WCJ is required to assess the credibility of
deposition testimony, the WCJ must articulate objective bases for crediting one
witness’s deposition testimony over another witness’s deposition testimony.
Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1053-54
(Pa. 2003). In the rare instances where we review a credibility determination, “[w]e
must view the reasoning as a whole and overturn the credibility determination only
if it is arbitrary and capricious or so fundamentally dependent on a misapprehension
6
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Kriebel, 29 A.3d at 769.
14
of material facts, or so otherwise flawed, as to render it irrational.” Casne v.
Workers’ Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth.
2008).
Here, in order to prevail on her Claim Petition, Claimant had to present
evidence that established she sustained a work-related injury that resulted in a
disability or loss of earnings. Claimant’s evidence sought to establish a very specific
injury, that she sustained a concussion and/or post-concussion syndrome as a result
of her striking her head on November 2, 2017, while at work. Although the WCJ
credited Claimant’s testimony regarding how she struck her head and her treatment
that immediately followed that incident, the WCJ did not credit either her testimony
or that of Claimant’s Psychologist regarding her having a disabling, work-related
concussion and/or post-concussion syndrome. The WCJ gave multiple objective
reasons for those credibility determinations, as well as for why he credited
Employer’s Neurologist’s testimony, (see FOF ¶ 5), only one of which Claimant
challenges in this appeal – that Employer’s Neurologist gave “a very specific
definition of concussion, which was absent from the testimony of [Claimant’s
Psychologist],” (id. ¶ 5c). Claimant contends that Employer’s Neurologist’s
testimony should not have been credited because the definitions he gave were
conflicting and, therefore, do not constitute substantial evidence that supports the
WCJ’s credibility determination.
Notwithstanding that the WCJ gave no fewer than three other reasons for
crediting Employer’s Neurologist’s testimony and no fewer than four other reasons
for rejecting Claimant’s Psychologist’s testimony, which are independently
supported by the record, we consider Claimant’s contention that the alleged
conflicting definitions of “concussion” proffered by Employer’s Neurologist
15
rendered the WCJ’s credibility determination not supported by substantial evidence.
The following exchange occurred on cross-examination:
Q. [Employer’s Neurologist], what are concussion symptoms?
A. Well, concussion symptoms are transient loss or alteration of
consciousness following a closed [head] injury, it lasts about twenty
minutes. In truth, that’s a concussion. The symptoms that linger on for
a period of time, we call those post[-]concussive symptoms.
Q. Okay. So, a concussion is being unconscious for twenty minutes?
A. No, its loss or a lapse of awareness, a loss of consciousness, or
just being confused, disoriented, having some lapse or impact on
awareness following a closed head injury.
Q. And what’s your definition of a closed head injury?
A. Has to be a blow to the brain or skull that causes a disturbance
of brain function without any clear signs of structural damage.
Q. What are post[-]concussive symptoms?
A. Well, they tend to be very subjective. They typically are most
intense following a - - they are most intense following a concussion
based, and they often times are subjective, in nature. But they are,
consistent with headaches at times, blurring of vision, difficulty with
concentration, short-term memory. Sometimes blurring of vision, gait
and balance issues can occur. But they typically are most intense in the
period almost immediately following the actual event, itself. And over
time, they will resolve.
....
Q. Did you review the WorkNet notes?
A. I saw WorkNet notes.
Q. Did you see in those WorkNet notes, that on three different
occasions that [Claimant] was diagnosed with a closed head injury,
following the November 2nd, 2017 work event?
16
A. That’s very nonspecific. Anytime you get hit in the head, we call
it a closed head injury, it doesn’t necessary mean it’s a concussion.
It’s a very general nonspecific term. All it implies is something
happened, you got hit in the head.
Q. Well, I thought you said earlier on, that a closed head injury
was defined as having a trauma to the skull or to the brain?
A. No, that’s concussion. I didn’t say closed head injury. Closed head
injury, you can bump your head on an overhanging shelf, it doesn’t
mean you’re going to get a concussion. It means you could get a bruise,
and it can be a head contusion, facial contusion. But it doesn’t mean
it’s a concussion.
(R.R. at 152a-53a, 156a-57a (emphasis added).) Employer’s Neurologist then went
on to opine that, based on his examination of Claimant, a review of Claimant’s
medical records, the insignificant nature of the event, and the lack of evidence of a
concussion or post-concussion syndrome, Claimant did not suffer from these alleged
injuries. (Id. at 160a-62a.)
Reviewing Employer’s Neurologist’s testimony as a whole and in the light
most favorable to Employer as the party that prevailed before the WCJ, we conclude
that a reasonable mind would accept Employer’s Neurologist’s expert testimony as
adequate to support the finding that he provided a specific definition of the term
concussion where Claimant’s Psychologist did not. Thus, such testimony constitutes
substantial evidence to support the WCJ’s finding. Kriebel, 29 A.3d at 769. Reading
that testimony as a whole, we disagree with Claimant that it is conflicting or is
otherwise legally incompetent. See Casne, 962 A.2d at 16 (“A medical expert’s
opinion is not rendered incompetent unless it is solely based on inaccurate or false
information.”). From Employer’s Neurologist’s testimony as a whole, we discern
that a closed head injury is a more generic term to describe a blow to the head and
17
is different from a concussion, which occurs following a closed head injury but also
involves, among other symptoms, a loss of consciousness or lapse of awareness,
confusion, or disorientation. To the extent there may have been some confusion
regarding what a closed head injury was, Employer’s Neurologist sufficiently
clarified his explanations. Having concluded the WCJ’s explanation for his
credibility determination in this regard is supported by substantial evidence,
Claimant’s challenge to the rejection of her expert’s testimony and the WCJ’s
conclusion that she did not establish that she sustained a work-related
concussion/post-concussion syndrome fails.
As to the second issue, whether there is substantial evidence in the record to
support the grant of the Claim Petition for a head contusion, an examination of the
record reveals that this claim also fails. A review of Claimant’s evidence reveals
that, even if credited, it would not establish the existence of a contusion. Claimant
did not indicate that she suffered a contusion on November 2, 2017, as this was not
one of the symptoms she alleged to have had following the incident. (See R.R. at
32a.) Claimant’s Psychologist did not testify as to any such injury and
acknowledged that he did not see a bruise on Claimant’s head when he first
examined her about a month after the work incident. (Id. at 71a.) And, while
Employer’s Neurologist did refer to a head contusion, he did so as only a possible
injury from the November 2, 2017 incident. He did not state that, in his professional
opinion, Claimant sustained a contusion as a result of the November 2, 2017 work
incident or that any such injury would have resulted in a loss of earnings. Rather,
Employer’s Neurologist explained that “if she had had any injury, it would have
been most consistent with a mild scalp or head contusion. A very minimal injury,”
from which she was fully recovered with “no residuals.” (Id. at 149a (emphasis
18
added).) He further testified that “[t]o the extent [she had an injury], the injury was
quite minimal, at most she would have had a head contusion.” (Id. at 156a
(emphasis added).) In fact, per Employer’s Neurologist’s review of the WorkNet
records, Claimant’s “physical examination was entirely normal. There was -- she
said there was abrasions of the scalp, but there was nothing that one could see.” (Id.
at 166a.) Thus, Employer’s Neurologist’s testimony, based only on possibilities,
would not be unequivocal evidence that would support a finding. Moreover, even if
there was evidence that she sustained a head or scalp contusion or that an NTCP
accepting that injury existed, Claimant presented no evidence that she was disabled
by that injury or that her medical treatment was for that injury. All of Claimant’s
assertions of disability and medical treatment were related to the symptoms she
claimed were due to a concussion or post-concussion syndrome she allegedly
suffered on November 2, 2017. Under these circumstances, we cannot say the Board
erred in upholding the denial of the Claim Petition in its entirety.
III. Conclusion
For the foregoing reasons, there was no error in the Board upholding the
WCJ’s determination that Claimant did not meet her burden of proof on the Claim
Petition. Accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Canfield, :
Petitioner :
:
v. : No. 664 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Western Power Sports, Inc.), :
Respondent :
ORDER
NOW, January 13, 2020, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge