Ambler Borough v. G. Gullo (WCAB) ( 2022 )


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  •          IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Ambler Borough,                         :
    Petitioner     :
    :
    v.                         :   No. 519 C.D. 2021
    :   Submitted: February 4, 2022
    Giuseppe Gullo (Workers’                :
    Compensation Appeal Board),             :
    Respondent       :
    BEFORE:     HONORABLE RENÉE COHN JUBELIRER, President Judge
    HONORABLE ELLEN CEISLER, Judge
    HONORABLE STACY WALLACE, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE WALLACE                                    FILED: March 28, 2022
    Ambler Borough (Employer) petitions for review of the May 6, 2021 Order
    of the Workers’ Compensation Appeal Board (Board), which affirmed the June 23,
    2020 Decision of the Workers’ Compensation Judge (WCJ) denying Employer’s
    Petition to Terminate Compensation Benefits (Termination Petition).      Employer
    argues that the Board erred because: (a) the WCJ denied its Termination Petition
    based on incompetent testimony from Giuseppe Gullo’s (Claimant) medical expert,
    (b) the WCJ’s findings relative to Employer’s medical expert were not reasoned, (c)
    the WCJ should have permitted it to present after-discovered evidence that Claimant
    had a preexisting condition, and (d) litigation costs should not have been awarded
    because the Termination Petition should have been granted. Upon review, we affirm
    the Order of the Board.
    I.      Background and Procedural History
    On March 1, 2017, Claimant, an equipment operator, hit his head while
    preparing his street cleaning machine in the course of his employment with
    Employer. He sustained an injury in the nature of “cervical radiculopathy, mostly
    C6-C7, mostly on the right with symptoms down the left arm as well, neck pain, and
    limitation of range of motion . . . .” Reproduced Record (R.R.), at 23a; WCJ
    Decision, 6/23/2020, Finding of Fact (FOF) 2. On January 10, 2019, Employer filed
    its Termination Petition, alleging Claimant was fully recovered from the work injury
    as of December 14, 2018. FOF 1. The WCJ accepted evidence from both parties
    and held five hearings from February 13, 2019, to January 6, 2020.
    The WCJ noted that she personally observed Claimant’s testimony and found
    it to be credible based on his demeanor. The WCJ accepted Claimant’s testimony
    that he had not fully recovered from his work injury and that, although the surgery
    performed by his doctor, board-certified orthopedic surgeon Harvey Smith, M.D.,
    helped with his radicular symptoms, he continued to experience neck pain and
    reduced cervical range of motion. FOF 11a, 13.
    The WCJ found that the testimony of Employer’s medical expert, Ira Sachs,
    D.O.,1 was not credible. The WCJ found Dr. Sachs not to be credible in his testimony
    that the surgery performed by Dr. Smith was unrelated to Claimant’s work injury.
    FOF 14. The WCJ also found that Dr. Sachs’ opinion that there was no reduction in
    1
    Ira Sachs, D.O., is a board-certified surgeon who examined Claimant on December 14,
    2018, and testified that Claimant was fully recovered from his work injury as of the date of the
    examination.
    2
    the range of motion of Claimant’s cervical spine was contrary to the WCJ’s
    observation of Claimant during his testimony. Id.
    The WCJ found Dr. Smith to be credible when he testified that the surgery he
    performed on Claimant was related to the work injury and that the surgery relieved
    Claimant’s symptoms. FOF 15. The WCJ also found Dr. Smith’s testimony to be
    credible when he opined that Claimant had not fully recovered from his work injury
    and that Claimant is not capable of performing his pre-injury job. Id. The WCJ gave
    weight to the fact that Dr. Smith is Claimant’s treating orthopedic surgeon and that
    he examined Claimant on several occasions. Id. The WCJ further determined that
    Dr. Smith’s testimony regarding Claimant’s post-surgery symptoms was consistent
    with Claimant’s credited testimony. Id. The WCJ denied Employer’s Termination
    Petition.
    Employer appealed the WCJ’s Decision and Order to the Board, raising the
    same issues it now raises before this Court. The Board opined, in part, as follows:
    [Employer] contends that a fundamental ramification of the
    WCJ’s acceptance of the incompetent opinion of Dr. Smith is the
    expansion of the work injury to include spinal stenosis, spondylosis,
    [broad-]based protrusion and spinal pathology at multiple levels when
    WCJ [Joseph] McManus did not adjudicate[2] those as work-related.
    We disagree. Dr. Smith testified in detail as to his review of the medical
    records and as to his review of WCJ McManus’s determination
    establishing the nature of the work injury. He opined that Claimant’s
    surgery and restrictions were work-related. There is no indication that
    Dr. Smith made any false assumptions or that his opinions were solely
    predicated upon any inaccuracies so as to render them incompetent.
    [Employer’s] attack on the WCJ’s acceptance of Dr. Smith[’s opinions]
    glosses over the fact that it had the burden of proof in this termination
    proceeding and the WCJ specifically rejected the opinion of Dr. Sachs
    2
    WCJ McManus circulated a Decision and Order in this matter on October 31, 2018, in
    which he granted Claimant’s Claim Petition for workers’ compensation benefits and denied
    Employer’s March 30, 2018 Termination Petition.
    3
    as to Claimant’s full recovery. With its contentions, [Employer] is
    essentially asking us to reweigh the evidence, but questions of weight
    and credibility are for the fact finder.
    [Employer] argues that the WCJ’s treatment of Dr. Sachs’
    testimony violated the reasoned decision requirements of the [Workers’
    Compensation] Act [(Act)].[3] The fact that the WCJ denied relief is not
    a basis for determining that the Decision is not reasoned . . . . As the
    Decision contains necessary findings of fact and is capable of
    meaningful appellate review, we reject any contention that it is not
    reasoned. Section 422(a) [of the Act][4] does not permit a party to
    second guess the WCJ’s reasons for credibility determinations.
    Bd. Op., 5/6/2021, at 10-11 (internal citations omitted).
    As to Employer’s contention that the WCJ erred by refusing to allow it to
    present after-acquired evidence regarding Claimant’s alleged preexisting cervical
    condition, the Board stated:
    [Employer] argues that the WCJ erred in not permitting it to
    present after[-]discovered evidence in the form of diagnostic proof of
    Claimant’s substantial pre[]existing cervical condition even though
    allowing it would not have resulted in undue delay or prejudiced
    Claimant. In this respect, [Employer] asserts that following the close
    of the evidentiary record it submitted a letter to the WCJ on April 6,
    2020[,] asking to submit a portion of the testimony of Dr. Scott
    Rushton, taken in conjunction with a separate pending Suspension
    3
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
    4
    Section 422(a) of the Act states, in pertinent part:
    All parties to an adjudicatory proceeding are entitled to a reasoned decision
    containing findings of fact and conclusions of law based upon the evidence as a
    whole which clearly and concisely states and explains the rationale for the decisions
    so that all can determine why and how a particular result was reached. The workers’
    compensation judge shall specify the evidence upon which the workers’
    compensation judge relies and state the reasons for accepting it in conformity with
    this section. When faced with conflicting evidence, the workers’ compensation
    judge must adequately explain the reasons for rejecting or discrediting competent
    evidence.
    77 P.S. § 834.
    4
    Petition based on a job offer, in which Dr. Rushton explained that
    November 24, 2015 x-rays (obtained by [Employer] while arranging
    for Claimant’s examination with Dr. Rushton) revealed substantial
    degenerative changes at multiple levels. [Employer] states that by
    memorandum of April 6, 2020[,] the WCJ denied its request and this
    was [in] error.
    Section 426 of the Act, 77 P.S. § 871, [5] allows the Board to grant
    a rehearing in appropriate circumstances where the interests of justice
    require. Requests for remand are frequently analyzed using the same
    standards as requests for rehearing under the Act. A rehearing may be
    appropriate where after-acquired evidence can be produced or a party
    has not been given the opportunity to present its case, but not for the
    purposes of strengthening weak proofs.
    [Employer] contends it was not able to obtain a copy of a
    November 24, 2015 cervical x-ray until arranging for an examination
    by Dr. Rushton in conjunction with its Suspension Petition and the WCJ
    should have allowed that small portion of Dr. Rushton’s testimony
    referring to the results of that x-ray as evidence in the Termination
    Petition because it essentially would have caused no harm. We first
    point out that at the hearing of January 6, 2020, the WCJ stated that the
    hearing was for the Termination Petition . . . . She stated that on
    December 26, 2019, [Employer] filed a Suspension Petition and there
    was a discussion at the last hearing about the fact that [Employer] had
    requested a new examination and the results would not be used in
    conjunction with the litigation that was already pending, so the
    Suspension Petition was going to be kept separate. [Employer] does
    not dispute the WCJ’s statement that the evidence utilized for the
    Suspension Petition was to be kept separate.
    Further, [Employer’s] implication is that the WCJ robbed it of
    the ability to establish that Claimant had cervical conditions prior to the
    March 1, 2017 work injury. [Employer’s] argument is disingenuous
    given that it not only presented the testimony of Dr. Sachs as to his
    opinion of Claimant’s work injury, recovery and pre[]existing
    conditions, but the WCJ also permitted it to present the deposition
    testimony from Drs. [Carol] Ludolph, [Richard] Bennett, and [Gene]
    Salkind, whose testimony was utilized in [the] previous litigation
    before WCJ McManus, which established the nature of [Claimant’s]
    injury. They all testified as to MRI [Magnetic Resonance Imaging] and
    CT [Computerized Tomography] results and as to medical records pre-
    dating the work injury and the diagnoses contained therein. The fact
    that [Employer] later came into possession of a 2015 x-ray does not
    5
    Section 426 was added by the Act of June 26, 1919, P.L. 642.
    5
    change the fact that the WCJ chose to reject the opinion of Dr. Sachs
    that as of the date of his examination on December 14, 2018, Claimant
    had fully recovered from his work injury. [Employer’s] request is
    nothing more than an impermissible attempt to strengthen weak proofs,
    which does not merit relief.
    Bd. Op., 5/6/2021, at 11-13 (internal citations omitted). The Board ultimately
    rejected Employer’s argument that the award of litigation costs to Claimant should
    be reversed. Employer now petitions this Court for review.
    II.    Discussion
    At the outset, we note that our review is limited to determining whether the
    WCJ’s findings of fact are supported by substantial evidence, whether an error of
    law was committed, or whether constitutional rights were violated.       Phoenixville
    Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 
    81 A.3d 830
     (Pa. 2013). We also
    note that in order to prevail on a termination petition, an employer must prove, via
    competent medical evidence, that the claimant’s disability has ceased and that he has
    made a full recovery from his work injury. Benson v. Workmen’s Comp. Appeal Bd.
    (Haverford State Hosp.), 
    668 A.2d 244
     (Pa. Cmwlth. 1995). Thus, the burden of
    proof is on the employer to establish its right to relief.
    The WCJ’s role, as fact finder, is to assess credibility and to resolve conflicts
    in evidence; questions regarding the weight of the evidence and the credibility of the
    witnesses are for the WCJ to determine. Bethenergy Mines, Inc. v. Workmen’s
    Comp. Appeal Bd. (Skirpan), 
    612 A.2d 434
     (Pa. 1992). The WCJ may accept or
    reject any medical witness’s testimony, in whole or in part. Hills Dep’t Store No.
    59 v. Workmen’s Comp. Appeal Bd. (McMullen), 
    646 A.2d 1272
     (Pa. Cmwlth.
    1994). Greater credence may be given to the testimony of a claimant’s treating
    physician than to the testimony of a specialist who examined the claimant only for
    the purpose of giving testimony for litigation purposes. D.P. “Herk” Zimmerman,
    6
    Jr., Inc. v. Workmen’s Comp. Appeal Bd. (Himes), 
    519 A.2d 1077
     (Pa. Cmwlth.
    1987).
    Employer’s first contention on appeal is that the WCJ accepted incompetent
    evidence from Claimant’s medical expert. Employer argues that Claimant’s medical
    expert “did not accept or defer to the adjudicated work injury description, but instead
    presumed to expand the work injury description . . . .” Employer’s Br. at 31
    (emphasis omitted). In addition, Employer suggests that Dr. Smith “addressed a
    multi-level stenosis condition at C3-C4, C4-C5 and C5-C6 levels – a stenosis
    condition that is not part of the compensable work injury at issue.” Employer’s Br.
    at 24 (emphasis omitted).
    Dr. Smith, however, explained that Claimant had “significant compressions
    from a broad-based protrusion at C3-C4” and that “[a]t that level, there is
    impingement in the neural tissue which give[s] rise to the nerves that arise below,
    such as the C7 nerve.” R.R. at 212a. Further, the WCJ found that Dr. Smith
    determined that “Claimant . . . had cervical radiculopathy, whether the terminal level
    was C5-C6 or C6-C7” and that “Claimant’s symptomatic presentation was due to
    the work injury.” FOF 11b. In addition, Dr. Smith noted that cervical radiculopathy
    does not always follow specific dermatomes,6 testifying that “the cervical
    dermatomes are not set in stone for each patient, particularly with C6 and C7 nerves”
    and that “it’s been shown[,] particularly with C6 and C7 nerves[,] that not everyone
    follows the same exam.” 
    Id.
     at 211a. When asked whether the surgery he performed
    on Claimant treated the condition acknowledged by WCJ McManus, Dr. Smith
    responded: “Yes.” 
    Id.
     at 210a.
    6
    A dermatome is “an area of skin that is supplied with the nerve fibers of a single, posterior,
    spinal root.” Dictionary.com, https://www.dictionary.com/browse/dermatome (last visited on
    March 25, 2022).
    7
    Thus, even though Dr. Smith offered a more comprehensive explanation of
    the nature of Claimant’s work injury, he did not ignore or reject the adjudicated
    description of the injury in WCJ McManus’s earlier decision. Accordingly, Dr.
    Smith’s testimony is competent in this matter. Employer’s contention relates,
    instead, to Dr. Smith’s credibility, and the WCJ found the opinions of Dr. Smith to
    be credible. The WCJ also found the opinions of Employer’s expert, Dr. Sachs, not
    to be credible when he opined that Claimant had fully recovered from his work
    injury. Such credibility determinations are left to the discretion of the WCJ, and as
    the Board noted, and we reiterate here, Employer’s contention “glosses over the fact
    that it had the burden of proof in this termination proceeding and the WCJ
    specifically rejected the opinion of Dr. Sachs as to Claimant’s full recovery.” Bd.
    Op., 5/6/2021, at 10; R.R. at 28a-29a.
    Employer’s second contention on appeal is that the WCJ’s Decision was not
    reasoned. However, the WCJ made clear findings, explained her reasons for
    determining whether particular testimony was credible, and provided the basis upon
    which she resolved conflicting evidence. Accordingly, the WCJ’s Decision allows
    for meaningful appellate review, making it a reasoned decision pursuant to Section
    422(a) of the Act. See Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.),
    
    828 A.2d 1043
     (Pa. 2003).
    Employer next argues that the Board erred by affirming the WCJ’s denial of
    its request to re-open the record so it could admit a portion of the transcript of the
    testimony from Dr. Rushton in which he explained that x-rays, from November 24,
    2015, showed that Claimant had substantial degenerative changes at multiple levels.7
    7
    This testimony and accompanying x-rays were related to a separate Petition for
    Suspension of Compensation Benefits (Suspension Petition) filed by Employer in December 2019.
    (Footnote continued on next page…)
    8
    However, Employer presented the testimony of four doctors, each of whom testified
    regarding the results from various imaging studies and medical records, including
    the diagnosis contained therein, predating the work injury. Bd. Op., 5/6/2021, at 13;
    R.R. at 50a. In addition, at the October 23, 2019 hearing before the WCJ in the
    present matter, Employer’s counsel stated that he was provided with an x-ray study
    of Claimant’s cervical spine, and the WCJ relisted the case for January 6, 2020. R.R.
    at 149a. On January 6, 2020, the WCJ closed the record, and Employer’s counsel
    did not object or request to keep the record open to present any additional medical
    evidence. R.R. at 192a. Accordingly, we see no error in the Board’s determination
    that affirmed the WCJ’s decision to deny Employer’s request to submit additional
    evidence after the record was closed.               As the Board opined, and we agree,
    “[Employer’s] request is nothing more than an impermissible attempt to strengthen
    weak proofs, which does not merit relief.” Bd. Op., 5/6/21, at 13 (citing Paxos v.
    Workmen’s Comp. Appeal Bd. (Frankford-Quaker Grocery), 
    631 A.2d 826
     (Pa.
    Cmwlth. 1993)).
    Because the Termination Petition was properly denied, we do not address
    Employer’s argument that the WCJ’s award of litigation costs was inappropriate.
    III.   Conclusion
    For the reasons set forth herein, and in accordance with our standard of
    review, we determine that the Board properly affirmed the WCJ. The WCJ’s
    findings of fact were supported by substantial evidence. There was no legal error
    The WCJ and the parties discussed the Suspension Petition at the last two hearings before the WCJ
    in the present matter and agreed that a new examination of Claimant, and the results of same,
    would not be utilized in the litigation relative to the Termination Petition, but that evidence in
    support of the Suspension Petition would be kept separate. Bd. Op., 5/6/2021, at 12; R.R. at 144a-
    53a, 155a-61a, 192a-96a.
    9
    nor abuse of discretion, and Claimant’s constitutional rights were not violated. Thus,
    we affirm the Order of the Board.
    ______________________________
    STACY WALLACE, Judge
    10
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Ambler Borough,                      :
    Petitioner     :
    :
    v.                        :   No. 519 C.D. 2021
    :
    Giuseppe Gullo (Workers’             :
    Compensation Appeal Board),          :
    Respondent    :
    ORDER
    AND NOW, this 28th day of March 2022, the May 6, 2021 Order of
    the Workers’ Compensation Appeal Board is AFFIRMED.
    ______________________________
    STACY WALLACE, Judge
    

Document Info

Docket Number: 519 C.D. 2021

Judges: Wallace, J.

Filed Date: 3/28/2022

Precedential Status: Precedential

Modified Date: 3/28/2022