D. Scavello v. WCAB (Wal-Mart Associates, Inc.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Scavello, :
Petitioner :
:
v. : No. 742 C.D. 2019
: Submitted: September 27, 2019
Workers’ Compensation Appeal :
Board (Wal-Mart Associates, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: January 17, 2020
Petitioner David Scavello (Claimant), pro se, petitions for review of an
order of the Workers’ Compensation Appeal Board (Board), dated May 23, 2019.
The Board reversed, in part, and affirmed, in part, an order of a Workers’
Compensation Judge (WCJ), denying the termination petition (Termination Petition)
filed by Wal-Mart Associates, Inc. (Employer) and the review petition (Review
Petition) filed by Claimant. We now affirm.1
1
We note that on September 27, 2019, Claimant filed with this Court a printed excerpt
from an unknown website concerning workplace safety, with no letter or application attached. The
excerpt is not part of the certified record in this matter, and, therefore, we did not consider this
filing in the disposition of this appeal. See Umedman v. Unemployment Comp. Bd. of Review,
52 A.3d 558, 564 (Pa. Cmwlth. 2012) (“[T]his Court may not consider any evidence that is not
On March 16, 2016, Claimant, while working for Employer, sustained
a work-related injury to his right hand/wrist in the nature of a contusion. (Certified
Record (C.R.), Item No. 14 at 3.) Employer accepted liability for Claimant’s
work-related injury by issuing a medical-only notice of compensation payable,
which described the accepted work-related injury as a right-hand contusion. (C.R.,
Item No. 29 at 1.) On August 18, 2016, Employer filed its Termination Petition,
alleging that Claimant had fully recovered from his work-related injury as of
July 12, 2016. (C.R., Item No. 2.) Thereafter, on September 8, 2016, Claimant filed
his Review Petition, seeking to amend the description of his work-related injury to
include a “crush injury of the hand and wrist[,] including, but not limited to,
[complex regional pain syndrome] [(]CRPS[)].”2 (C.R., Item No. 5 at 1.)
Claimant testified before the WCJ at a hearing held on
December 9, 2016. (C.R., Item No. 20.) At that time, Claimant testified that he
injured his right hand/wrist on March 16, 2016, when a shelf that weighed twenty
pounds fell onto his right hand/wrist while he was doing inventory for Employer.
(Id. at 8-9.) Claimant stated that the shelf struck him on his wrist, just below his
thumb. (Id. at 13.) After sustaining the injury, Claimant missed two days of work
but thereafter returned to work as a greeter—a position that did not require lifting.
(Id. at 9.) Claimant testified that the pain he began to experience in his right
hand/wrist following the March 16, 2016 work-related incident has yet to subside.
(Id.) Claimant described the condition of his right hand as discolored, swollen,
part of the certified record on appeal.” (quoting Pa. Tpk. Comm’n v. Unemployment Comp. Bd. of
Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009))).
2
On March 2, 2017, Claimant filed another petition for review and a claim petition related
to partial disability and the calculation of his average weekly wage in connection with concurrent
employment. As Claimant withdrew his March 2, 2017 claim and review petitions, we do not
discuss either petition in this opinion.
2
painful, and numb, with a “pins and needles” sensation. (Id. at 10.) Claimant
testified that he began to treat with Gene V. Levinstein, M.D., on his attorney’s
advice, and that he typically visits Dr. Levinstein once per month. (Id. at 14, 21.)
Claimant also testified that he takes Motrin and Advil for pain relief, and that Dr.
Levinstein administers an injection to his neck on some occasions that takes away
the burning sensation in his hand/wrist. (Id. at 14, 18, 24.) Claimant indicated that
he did not, however, believe that he was getting better. (Id. at 25.)
Claimant also presented the deposition testimony of Dr. Levinstein,
who is board certified in physical medicine, rehabilitation, and pain management.
(C.R., Item No. 23 at 9.) Dr. Levinstein testified that he first examined Claimant
concerning Claimant’s March 16, 2016 work-related injury on September 9, 2016.
(Id. at 12.) Dr. Levinstein indicated that prior to that date, Claimant reported that he
had been examined by Richard Battista, M.D., a hand surgeon, who diagnosed
Claimant with a crush injury of the right wrist and hand and Reflex Sympathetic
Dystrophy Syndrome (RSD) or CRPS.3 (Id. at 13-14.) Dr. Levinstein performed a
physical exam, which revealed no evidence of discoloration in the right hand/wrist,
full range of motion, no changes in the nail or hair pattern, and a negative
Finkelstein’s test, but some weakness of the right grip. (Id. at 14.) Dr. Levinstein
testified that his initial diagnosis was mostly consistent with that of Dr. Battista—
i.e., Claimant suffered from a crush injury of the right hand, right wrist sequelae, and
a sprain of the right wrist—but that he did not initially diagnose Claimant with RSD.
(Id.) Two weeks after Dr. Levinstein’s initial treatment of Claimant, Claimant
returned to Dr. Levinstein for a follow-up appointment and, since that time, he has
3
Dr. Battista later discharged Claimant from his care due to his inability to find objective
evidence of actionable pathology. (See C.R., Item No. 23 at 24-25.)
3
continued to treat with Dr. Levinstein on a monthly basis. (Id. at 15.) On
November 15, 2016, after referring Claimant to an orthopedic surgeon for a second
opinion, Dr. Levinstein administered an injection, which he described as a stellate
ganglion block, to Claimant’s neck. (Id. at 15, 17.) According to Dr. Levinstein,
Claimant responded well to the injection and reported that his pain levels subsided
overall and the burning sensation ceased following the injection. (Id.)
Dr. Levinstein testified further that he later added an additional
diagnosis for Claimant’s March 16, 2016 work-related injury—i.e., causology over
the right upper limb or CRPS, which is synonymous with RSD of the right hand and
wrist. (Id. at 18.) Dr. Levinstein explained that the physical evidence of the crush
injury, sprain/strain, and contusion had resolved, but the RSD remained, which is
why he diagnosed Claimant with sequelae. (Id.) When asked if Claimant’s
condition had improved under his care, Dr. Levinstein answered affirmatively, but
he opined that Claimant’s prognosis is mixed because Claimant’s condition is
chronic, and, as such, Claimant requires work restrictions and some assistance at
home. (Id. at 20-21.) While Dr. Levinstein agreed with Amir Fayyazi, M.D.’s
(Employer’s independent medical examination doctor) opinion that Claimant had
fully recovered from his right hand/wrist contusion, he opined that Claimant
continues to suffer from RSD. (Id. at 22-23.)
On cross examination, Dr. Levinstein explained that he did not take the
temperature of Claimant’s right hand or wrist to determine if there was a disparity
in the temperature between Claimant’s two wrists—which is sometimes a symptom
of CRPS—because his physical examination revealed no significant deviation in the
temperature between both wrists. (Id. at 27.) Dr. Levinstein also testified that he
conducted a bone scan on Claimant’s right hand/wrist, which came back normal (or
4
negative), but explained that this result did not rule out a diagnosis of CRPS or RSD.
(Id. at 30-31.) By way of further explanation, Dr. Levinstein testified that
Claimant’s positive response to the stellate ganglion block can be indicative of
CRPS. (Id.)
Employer presented the deposition testimony of Dr. Fayyazi, who is
board certified in orthopedic surgery but practices mainly in spine surgery. (C.R.,
Item No. 27 at 9.) Dr. Fayyazi performed an independent medical examination of
Claimant with respect to his work-related injury on July 12, 2016. (Id. at 18-19.) At
that time, Claimant complained of burning and tightness in his wrist and hand,
difficulty sleeping, and a pain severity level from 5 out of 10 to 10 out of 10, for
which he did not take pain medication. (Id. at 22-23.) Dr. Fayyazi performed a
physical examination of Claimant’s right hand and wrist. (Id. at 25-26.) Dr. Fayyazi
observed that Claimant’s active range of motion was suboptimal. (Id. at 27.)
Dr. Fayyazi also performed numerous tests on Claimant’s right hand/wrist—i.e., a
Finkelstein maneuver, Phalen’s test, a Tinel sign, and a grind test—all of which
revealed normal results. (Id.) Dr. Fayyazi also observed that Claimant’s right
hand/wrist suffered no swelling, no bruising, no edema, and no skin changes.
(Id. at 28.) Dr. Fayyazi further criticized Claimant’s use of a sling and brace for his
right arm. (Id. at 31-32.) Specifically, Dr. Fayyazi opined that, if Claimant was in
fact suffering from CRPS, he should have been experiencing such hyper-sensitivity
of the skin that even touching the arm—much less having a brace and sling on the
arm—would cause pain. (Id.) Overall, Dr. Fayyazi observed that while Claimant
complained of significant pain, his physical examination results were normal and
none of the complained-of symptoms could be recreated. (Id. at 37.) Accordingly,
Dr. Fayyazi believed that Claimant exaggerated his level of pain. (Id. at 33.)
5
Based on his independent medical examination, Dr. Fayyazi concluded
that Claimant had fully recovered from a contusion injury to the right hand/wrist.
(Id. at 43.) Dr. Fayyazi also stated that he would not place any restrictions on
Claimant’s right hand/wrist and that Claimant is able to return to his pre-injury
employment. (Id. at 55.) With respect to Dr. Levinstein’s CRPS diagnosis,
Dr. Fayyazi opined that a positive reaction to the stellate ganglion injection is not
enough to diagnose a patient with CRPS, especially in light of the absence of any
physical symptoms that usually accompany a diagnosis of CRPS. (Id. at 57-59.)
Dr. Fayyazi clarified that Claimant had suffered from a contusion to his right
hand/wrist but opined that, because the injury was minor, it would have healed in
approximately four to six weeks. (Id. at 64.) Dr. Fayyazi further opined that
Claimant required no further treatment for his right hand or wrist. (Id. at 62.)
By decision and order issued January 9, 2018, the WCJ denied
Employer’s Termination Petition and Claimant’s Review Petition. In so doing, the
WCJ summarized the witnesses’ testimony and made the following credibility
determinations:
10. This Judge has considered the opinions of
Drs. Levinstein and Fayyazi. Both of these doctors are
credible in part and not credible in part. This Judge rejects
Dr. Levinstein’s opinion that the Claimant is suffering
from RSD or CRPS. It is noted by this Judge and admitted
by Dr. Levinstein that the Claimant does not have most of
the symptoms that are associated with this condition. For
this reason, Dr. Levinstein’s opinion that the Claimant
suffers from RSD is rejected. The opinion of Dr. Fayyazi
that the Claimant does not have this condition is accepted.
The opinion that Dr. Fayyazi expresses that the Claimant
is exaggerating his pain is found to be credible because it
is consistent with this Judge’s personal observation of the
Claimant. However, this Judge does not accept
Dr. Fayyazi’s opinion that the Claimant is fully recovered
from his right wrist sprain. It is noted by this Judge that
6
Dr. Fayyazi saw the Claimant on July 12, 2016 which is
only four (4) months after Claimant’s work-injury. This
Judge finds that if the Claimant had sustained a severe
contusion to his right-hand he could still be symptomatic
as of that date. For this reason, Dr. Fayyazi’s opinion that
the Claimant was asymptomatic is rejected. In rejecting
the opinions of Dr. Levinstein, it is noted that
Dr. Levinstein did not see the Claimant until after the
Termination Petition was filed and after the Claimant was
discharged by Dr. Battista, who is a hand surgeon.
(WCJ Decision at 6-7.) Based on these credibility determinations, the WCJ
concluded: (1) with respect to the Termination Petition, Employer failed to prove
that Claimant had fully recovered from his March 16, 2016 work-related injury as
of July 12, 2016; and (2) with respect to the Review Petition, Claimant failed to
prove that he suffers from work-related CRPS. Employer appealed the WCJ’s
decision to the Board. The Board reversed the WCJ’s decision to the extent that it
denied Employer’s Termination Petition and affirmed the WCJ’s decision in all
other respects. In reversing the WCJ’s denial of Employer’s Termination Petition,
the Board noted that the credible medical evidence supported a finding that Claimant
had fully recovery from his right hand contusion as of September 9, 2016.
On appeal,4 Claimant argues that the Board erred in concluding that
substantial evidence did not exist to support the WCJ’s finding that Claimant had
not fully recovered from his work-related injury.5 Claimant also argues that, because
4
Our review is limited to determining whether the agency committed an error of law,
whether necessary findings of fact are supported by substantial evidence, or whether constitutional
rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
5
Claimant appears to suggest that the WCJ erred by denying his Review Petition.
Claimant, however, did not appeal the WCJ’s denial of his Review Petition to the Board. Given
that Employer’s Termination Petition was the sole petition before the Board, our review is limited
to the Board’s disposition of that appeal.
7
he had not fully recovered from his work-related injury, the Board erred in reversing
the WCJ’s denial of Employer’s Termination Petition.
At the outset, we note that it is well settled that the WCJ is the sole
arbiter of credibility and evidentiary weight. Womack v. Workers’ Comp. Appeal
Bd. (Sch. Dist. of Phila.), 83 A.3d 1139, 1154 (Pa. Cmwlth.), appeal denied,
94 A.3d 1011 (Pa. 2014). In determining whether the WCJ’s findings are supported
by substantial evidence, we may not reweigh the evidence or the credibility of the
witnesses but must simply determine whether the WCJ’s findings have the requisite
measure of support in the record as a whole. Elk Mountain Ski Resort, Inc. v.
Workers’ Comp. Appeal Bd. (Tietz, deceased), 114 A.3d 27, 32 n.5
(Pa. Cmwlth. 2015). It is irrelevant whether there is evidence to support a contrary
finding; if substantial evidence supports the WCJ’s necessary findings, we may not
disturb those findings on appeal. Williams v. Workers’ Comp. Appeal Bd. (USX
Corp.-Fairless Works), 862 A.2d 137, 143-44 (Pa. Cmwlth. 2004).
Here, Claimant contends that the Board erred in concluding that
substantial evidence did not exist to support the WCJ’s finding that Claimant had
not fully recovered from his work-related injury. Claimant’s argument, however,
fails to appreciate that this Court is not considering whether Claimant had fully
recovered from his alleged CRPS. As indicated previously, Claimant did not appeal
the WCJ’s denial of his Review Petition—i.e., Claimant’s attempt to amend his
injury description to include work-related CRPS—to the Board. As a result, this
Court is solely considering whether the WCJ’s finding that Claimant had not fully
recovered from the accepted work-related injury—i.e., the right hand/wrist
contusion—is supported by substantial evidence of record. On this issue, the
uncontradicted medical evidence of record establishes that Claimant had fully
8
recovered from his work-related injury. Dr. Fayyazi testified that Claimant had fully
recovered from his right hand/wrist contusion as of July 12, 2016, and Dr. Levinstein
agreed with Dr. Fayyazi’s conclusion. The WCJ rejected Dr. Fayyazi’s testimony,
noting that “Dr. Fayyazi saw the Claimant . . . only four [] months after Claimant’s
work-[related] injury. . . . [I]f the Claimant had sustained a severe contusion to his
right hand he could still be symptomatic as of that date.” (WCJ’s Decision at 7.)
The WCJ’s stated reasons for rejecting Dr. Fayyazi’s testimony, however, appear to
be based on his own beliefs regarding Claimant’s condition that are unsupported by
the evidentiary record. In addition, the WCJ did not reject Dr. Levinstein’s
testimony with respect to the accepted work-related right hand/wrist contusion. For
these reasons, the Board properly concluded that the WCJ’s finding that Claimant
had not fully recovered from his work-related injury was not supported by
substantial evidence of record. Accordingly, the Board did not err in reversing the
WCJ’s denial of Employer’s Termination Petition.
Based on our discussion above, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Scavello, :
Petitioner :
:
v. : No. 742 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Wal-Mart Associates, Inc.), :
Respondent :
ORDER
AND NOW, this 17th day of January, 2020, the order of the Workers’
Compensation Appeal Board dated May 23, 2019, is hereby AFFIRMED.
P. KEVIN BROBSON, Judge