P. Purnell v. Catholic Health Services LLC d/b/a Catholic Health Group (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Porscha Purnell, :
Petitioner :
:
v. :
:
Catholic Health Services LLC :
d/b/a Catholic Health Group :
(Workers’ Compensation :
Appeal Board), : No. 508 C.D. 2021
Respondent : Submitted: December 17, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 21, 2022
Porscha Purnell (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) April 22, 2021 order
affirming the WC Judge’s (WCJ) decision that granted Claimant’s Claim Petition
for WC benefits (Claim Petition) for the closed period from November 9, 2018
through February 11, 2019. Claimant presents one issue for this Court’s review:
whether the Board erred by affirming the WCJ’s determination that Claimant fully
recovered from her work-related injury as of February 12, 2019. After review, this
Court affirms.
Claimant was employed as a certified nursing assistant (CNA) for
Catholic Health Services LLC d/b/a Catholic Health Group (Employer). On
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
November 9, 2018, Claimant experienced a sharp pain in her right elbow, right bicep,
right shoulder, and right hand while transferring a resident from a bed to a
wheelchair. She reported the incident to Employer, sought treatment with
Employer’s panel physician at Concentra, and was placed on light-duty work -
giving residents water, distributing basins and urinals, accompanying residents to
and from activities, feeding residents, and shredding papers.
On November 16, 2018, Employer issued a medical-only Notice of
Temporary Compensation Payable (NTCP), which indicated that Claimant sustained
a right upper arm strain or tear on November 9, 2018. On January 24, 2019,
Employer issued an amended medical-only NTCP, reflecting that Claimant
sustained a right elbow strain or tear and noting that the injury was to her right upper
arm. Claimant performed the light-duty work from November 9, 2018 to February
1, 2019, when her doctors at the Maria De Los Santos Health Center declared that
Claimant was disabled from all employment.
On February 6, 2019, Employer filed a Notice Stopping Temporary
Compensation and a Notice of WC Denial, reflecting that Employer declined to pay
Claimant WC benefits because “[Claimant] did not suffer a work-related injury.”
Reproduced Record (R.R.) at 48a.
On April 10, 2019, Claimant filed the Claim Petition alleging that she
sustained a right shoulder sprain/strain, right elbow sprain/strain, and right wrist
sprain/strain at work on November 9, 2018. Therein, Claimant sought partial
disability benefits from November 9, 2018 to February 1, 2019, and total disability
benefits from February 2, 2019 onward. Employer opposed the Claim Petition.
The WCJ held hearings on May 8, 2019 and March 11, 2020. On July
29, 2020, the WCJ granted the Claim Petition in part, ordering Employer to pay
Claimant’s medical bills related to her November 9, 2018 work injury through
February 11, 2019, but terminated her WC benefits as of February 12, 2019. The
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WCJ also awarded Claimant litigation costs. Both parties appealed to the Board.
On April 22, 2021, the Board affirmed the WCJ’s decision. Claimant appealed to
this Court.2
Claimant argues that the Board erred by affirming the WCJ’s decision
that Claimant fully recovered from her work injury as of February 12, 2019, despite
medically unrebutted testimony that her right upper extremity injury worsened as of
March 18, 2019.
“Generally, ‘in a claim proceeding, the employee bears the burden of
establishing a right to compensation and of proving all necessary elements to support
an award, including the burden to establish the duration and extent of disability.’”
Kreschollek v. Workers’ Comp. Appeal Bd. (Commodore Maint. Corp.), 201 A.3d
916, 919 (Pa. Cmwlth. 2019) (quoting Pa. Uninsured Emps. Guar. Fund v. Workers’
Comp. Appeal Bd. (Bonner & Fitzgerald), 85 A.3d 1109, 1114-15 (Pa. Cmwlth.
2014)). Further, the law is well established that
[t]he WCJ is the fact[-]finder, and it is solely for the
WCJ . . . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations. In
addition, it is solely for the WCJ, as the fact[-]finder, to
determine what weight to give to any evidence. . . . As
such, the WCJ may reject the testimony of any witness in
whole or in part, even if that testimony is uncontradicted.
W. Penn Allegheny Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour), 251
A.3d 467, 475 (Pa. Cmwlth. 2021) (quoting Hawbaker v. Workers’ Comp. Appeal
2
“[This Court’s] review determines whether there has been a violation of constitutional
rights, whether errors of law have been committed, whether board procedures were violated, or
whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019).
3
Bd. (Kriner’s Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 159 A.3d 61,
69 (Pa. Cmwlth. 2017) (internal citations, quotations, and brackets omitted)).
In addition,
“[f]or purposes of appellate review, it is irrelevant whether
there is evidence to support contrary findings; if
substantial evidence supports the [fact-finder]’s necessary
findings, those findings will not be disturbed on appeal.”[3]
Verizon [Pa.] Inc. v. Workers’ Comp[.] Appeal [Bd.]
(Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). When
“performing a substantial evidence analysis, this Court
must view the evidence in a light most favorable to the
party who prevailed before the fact-finder.” WAWA v.
Workers’ Comp[.] Appeal [Bd.] (Seltzer), 951 A.2d 405,
408 (Pa. Cmwlth. 2008). Further, when determining
whether substantial evidence exists to support a finding of
fact, this Court must give to the party in whose favor the
appealed decision was decided “the benefit of all
inferences that can logically and reasonably be drawn
from the evidence.” B.J.K. v. Dep[’t] of Pub[.] Welfare,
773 A.2d 1271, 1276 (Pa. Cmwlth. 2001).
Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa. Cmwlth. 2018).
At the hearing in the instant matter, Claimant testified that she reported
her work injury to Employer, sought treatment, and worked light duty until her
family physician took her out of work completely. Claimant described that she has
constant pain in her right wrist, right elbow, and right shoulder, she cannot straighten
her right arm or raise it overhead, her right hand and fingers shake, she cannot make
a fist, and she sweats. She explained that she was unable to undergo physical therapy
due to pain and panic attacks, and she was unable to tolerate an electromyography
procedure (EMG) because of the needles utilized for the test. Claimant stated that
3
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa.
Cmwlth. 2018) (quoting B.B. Kim’s Mkt., Inc. v. Dep’t of Health, Div. of Women, Infants & Child.
(WIC), 762 A.2d 1134, 1135 (Pa. Cmwlth. 2000)).
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she wears a brace on her right arm, but complained that it becomes painful when she
wears it for long periods.
Claimant stated that shredding five papers at a time at work caused her
right arm to swell. She declared that her children and husband do the chores at home
and, since she is unable to take care of herself, her daughter and husband help her
dress and do her hair. Claimant asserted that she cannot write or hold a glass with
her right hand, but acknowledged caring for her three-year-old child and taking
selfies posted on Facebook that she took with her right hand. She claimed that she
is unable to return to her pre-injury job or light-duty work for Employer.
Claimant also presented the testimony of family physician Michael
McCoy, M.D. (Dr. McCoy).4 Dr. McCoy took Claimant’s work injury history,
including that her family doctor concluded she was disabled from working as of
February 13, 2019, and examined Claimant on March 18, 2019, at which time he
observed that she exhibited right shoulder atrophy, swelling in her right forearm,
radiating pain on manipulation, and shaking. Dr. McCoy diagnosed Claimant with
a right wrist sprain/strain and right ulnar neuropathy versus brachial plexopathy
related to the November 9, 2018 work incident, and opined that Claimant was totally
disabled as of that date.
Dr. McCoy also treated Claimant on April 1, April 22, May 13, June 3,
July 1, and August 13, 2019, and continued to observe resting tremors in her right
arm. He reviewed the results of magnetic resonance imaging (MRI) scans taken of
Claimant’s right elbow on February 1 and May 20, 2019, her cervical spine and right
shoulder on May 19, 2019, and her right wrist on May 26, 2019. He observed during
Claimant’s August 13, 2019 visit that a recent wrist injection afforded her significant
pain relief, but she still had swelling in her wrist. At that time, Dr. McCoy diagnosed
4
Dr. McCoy has not been board certified in family medicine since 2015.
5
Claimant with De Quervain’s tenosynovitis, complex regional pain syndrome
(CRPS), right wrist strain/sprain, and right shoulder strain/sprain, which he
attributed to her work injury. Dr. McCoy concluded that she continued to be
disabled due to her November 9, 2018 work injury, her prognosis is guarded, and
she is unable to return to gainful employment. Dr. McCoy testified that Claimant
takes Cymbalta for nerve pain and she has been referred for pain management
injections. Dr. McCoy continues to treat Claimant monthly.
The WCJ summarized based on Dr. McCoy’s testimony:
[Dr. McCoy] agreed that [] Claimant was referred to him
by counsel. He also admittedly had no firsthand
knowledge of [] Claimant’s condition prior to March 18,
2019. [Dr. McCoy] understood that the light[-]duty
position involved only shredding papers, and he had not
reviewed a job description. [Dr. McCoy] did not measure
[] Claimant’s right arm or shoulder during examination.
[Dr. McCoy] agreed that [] Claimant’s symptoms
remained the same despite treatment, and had worsened,
as of May 13, 2019. [] Claimant had shaking in the arm
during Tinel’s testing on March 18, 2019, but tremors
were not mentioned in his reports until June 3, 2019. []
Claimant’s condition continued to worsen in June, July
and August despite being out of work. [Dr. McCoy] did
not diagnose CRPS until the August 13, 2019 visit. [Dr.
McCoy] admittedly did not review the MRI films. Pain
out of proportion to an inciting event can also be a sign of
symptom magnification. [Dr. McCoy] noted that he was
no longer including a right shoulder strain and sprain in
his work-related diagnoses; he did not believe that
[Claimant] had this diagnosis. [] Claimant had admittedly
not undergone EMG testing as of the time of [Dr.
McCoy’s] deposition.
WCJ Dec. at 11 (R.R. at 439a).
Employer presented the deposition of board-certified orthopedic
surgeon, Stephanie Sweet, M.D. (Dr. Sweet), who specializes in upper extremities
(i.e., the elbows, wrists, and hands). Dr. Sweet reviewed Claimant’s medical
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records, took her medical history, and conducted an independent medical
examination of Claimant on February 12, 2019. Dr. Sweet observed that Claimant
was not wearing a brace, and Claimant informed her that she could do activities of
daily living and got herself dressed. Dr. Sweet stated that she did not objectively
find anything during Claimant’s physical examination to corroborate Claimant’s
subjective complaints of pain. Rather, Dr. Sweet found that Claimant’s “symptoms
are largely subjective and there is pain out of proportion to physical findings.” R.R.
at 137a. Dr. Sweet observed that Claimant had “exaggerated resting tremors, almost
volitional.” R.R. at 102a. In her March 1 and November 1, 2019 addendum reports,
Dr. Sweet opined that Claimant’s objective tests showed no significant abnormality.
Dr. Sweet disagreed with Dr. McCoy’s CRPS diagnosis, stating that Claimant did
not meet the criteria of CRPS and, thus, Claimant did not require ongoing pain
management. Although Dr. Sweet agreed that Claimant suffered a work-related
right elbow extension injury on November 9, 2018, she opined that Claimant had
fully recovered, and she was capable of returning to her pre-injury job with
Employer as a CNA without any restrictions.
The WCJ found Dr. Sweet’s testimony more credible than Dr.
McCoy’s, explaining:
This [WCJ] finds the testimony and opinions of Dr. Sweet
that the Claimant suffered an extension injury of the right
elbow from which she was fully recovered as of February
12, 2019[,] to be more credible and persuasive than the
testimony of Dr. McCoy. Significant to this determination
are the following: Dr. Sweet, a Board[-]Certified
orthopedic surgeon with a practice focused on upper
extremity injuries, was more highly qualified to render an
opinion in this matter than Dr. McCoy, a family physician
with no Board certifications; Dr. McCoy did not begin
treating [] Claimant until six weeks after she discontinued
working at the request of counsel; Dr. Sweet’s diagnosis
and opinions were consistent with the mechanism of
injury, her clinical examination findings, her extensive
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review of medical records, and the diagnostic test results;
unlike Dr. Sweet, Dr. McCoy did not measure []
Claimant’s upper extremities; Dr. McCoy admittedly did
not reference tremors in his medical records until June 3,
2019.
WCJ Dec. at 21 (R.R. at 449a).
On appeal, the Board concluded:
Claimant was able to meet [her] burden of proving she
sustained a work-related extension injury to the right
elbow from November 9, 2018 through February 11,
2019[,] based on her credited testimony and that of Dr.
Sweet . . . . Because the WCJ did not accept Claimant’s
evidence as to an ongoing disability, but accepted Dr.
Sweet’s opinion of full recovery, the WCJ did not err in
granting the claim for a closed period.
Board Op. at 7 (R.R. at 460a). After a thorough review, this Court agrees that
substantial record evidence supported the WCJ’s findings and conclusion that
Claimant fully recovered from her work injury as of February 12, 2019.
Accordingly, the Board properly affirmed the WCJ’s decision.
Based on the foregoing, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Porscha Purnell, :
Petitioner :
:
v. :
:
Catholic Health Services LLC :
d/b/a Catholic Health Group :
(Workers’ Compensation :
Appeal Board), : No. 508 C.D. 2021
Respondent :
ORDER
AND NOW, this 21st day of March, 2022, the Workers’ Compensation
Appeal Board’s April 22, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge