T. Webb v. Prime Healthcare Services, Inc. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tashneen Webb, :
Petitioner :
:
v. : No. 582 C.D. 2021
: Submitted: December 30, 2021
Prime Healthcare Services, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: April 29, 2022
Tashneen Webb (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) granting Claimant compensation
benefits for a closed period of time and thereafter terminating them. In doing so, the
Board affirmed the decision of the Workers’ Compensation Judge (WCJ). On
appeal, Claimant argues that because the answer of her employer, Prime Healthcare
Services, Inc. (Employer), was not timely filed, the WCJ erred in denying her motion
to have all the allegations in her claim petition admitted as true. Accordingly, there
was not sufficient evidence for the WCJ to terminate her workers’ compensation
benefits. After review, we affirm.
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
Claimant worked for Employer as a certified nursing assistant at
Employer’s facility, Suburban Community Hospital, located in Montgomery
County. On July 21, 2018, while assisting a patient into a chair, Claimant sustained
a work injury. On July 31, 2018, Employer issued a medical-only Notice of
Temporary Compensation Payable describing the injury as “[m]ultiple [p]hysical
[i]njuries” in “[m]ultiple [b]ody [p]arts.” Reproduced Record at 14a (R.R. __). On
August 24, 2018, Claimant filed a claim petition alleging that she sustained injuries
in the nature of a low back sprain and strain; aggravation of degenerative disc disease
of the lumbar spine; lumbar radiculopathy; and left knee sprain and strain. Claimant
sought disability compensation benefits from July 21, 2018, and ongoing.
Employer filed its answer September 19, 2018, three days after the
deadline set forth in the Workers’ Compensation Act (Act).2 Employer’s answer
denied the material allegations contained in the claim petition. Asserting that
Employer’s answer was untimely, Claimant filed a Yellow Freight3 motion to have
all the allegations in her claim petition deemed admitted. The WCJ deferred ruling
on Claimant’s motion because Employer asserted that it had an adequate explanation
for filing a late answer.
On February 26, 2019, Employer filed a termination petition alleging
that Claimant was fully recovered as of November 30, 2018. The two petitions were
consolidated for a hearing before the WCJ.
By deposition on November 30, 2018, Claimant testified that she had
worked eight years for Employer as a full-time certified nursing assistant. On July
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
3
Yellow Freight System, Inc. v. Workmen’s Compensation Appeal Board, 423 A.2d 1125 (Pa.
Cmwlth. 1981). There, our Court held that when an employer files a late answer, all well-pleaded
factual allegations must be deemed admitted by the WCJ.
2
21, 2018, as Claimant was transferring a patient to a chair, the patient grabbed ahold
of her, causing Claimant to experience a “pop” in her back. Claimant Dep. at 12;
R.R. 49a. She described the pop as “coming in an L shape down from [her] neck all
the way down to [her] left leg.” Claimant Dep. at 13; R.R. 49a. Claimant was taken
to the emergency room at Suburban Community Hospital and received magnetic
resonance imaging (MRI) scans of her cervical, thoracic, and lumbar spine, as well
as of her left knee. Claimant was referred to Dr. Steven Valentino, a board-certified
orthopedic surgeon, for her back, and to Dr. John Pasqualla, also an orthopedic
surgeon, for her knee. Claimant received a cortisone injection in her knee and was
directed to physical therapy.
At a hearing before the WCJ on July 17, 2019, Claimant testified that
she was unable to go back to work because she was still “in chronic pain.” Notes of
Testimony (N.T.), 7/17/2019, at 7; R.R. 242a. She described the pain as a “stabbing”
or “pinching” in her back each time she moves or bends over. Id. at 14; R.R. 249a.
Claimant testified that she was also experiencing pain in her neck; that her knee felt
like it is going to “buckle;” and that her leg was swollen. Id. She confirmed that Dr.
Valentino continued to treat her for pain. Claimant explained that she did not accept
Employer’s job offers in August 2018 and March 2019 because she was not fully
recovered from her work injuries.
On cross-examination, Claimant testified that she discontinued physical
therapy because it did not alleviate her symptoms. Claimant acknowledged that Dr.
Valentino is treating her only for back pain and not for her neck or knee pain. She
stated that the reason she was not getting treatment for her knee was because she did
not have insurance, and the doctor would not accept her workers’ compensation
insurance because “it’s closed.” Id. at 20; R.R. 255a.
3
Claimant presented the deposition testimony of Dr. Valentino. Dr.
Valentino testified that he initially treated Claimant in 2015 for low back pain caused
by a motor vehicle accident. He examined her on July 25, 2018, shortly after her
work injury, at which time Claimant presented with low back pain radiating into her
left leg. She also complained of left knee pain and upper back and neck pain.
Claimant walked with a cane. Dr. Valentino reviewed the results of the MRI scans
of Claimant’s cervical, thoracic, and lumbosacral spine, and her left knee. Dr.
Valentino diagnosed Claimant as having a strain of the cervical, thoracic, and lumbar
spine, as well as a left knee sprain.
Dr. Valentino testified that when he saw Claimant in August 2018, she
reported improvement of the cervical and thoracic spine and left knee. Upon
examination, he found her cervical and thoracic region to be normal. Dr. Valentino
did not examine Claimant’s knee because she was treating with a knee specialist.
He concluded that Claimant could return to full-time, sedentary to light-duty work.
Valentino Dep. at 50; R.R. 96a. During examinations in December 2018 and
January 2019, Claimant reported a worsening of her symptoms.
Employer presented the deposition testimony of Ira Sachs, M.D., an
orthopedic surgeon, who did an independent medical examination (IME) of
Claimant on November 30, 2018. Dr. Sachs reviewed Claimant’s medical records
and her MRI scans. At the IME, Claimant complained of pain in her back, left leg
and left knee, as well as left knee swelling. Dr. Sachs observed that Claimant did
not have a knee brace, back brace, or any assistive device for ambulation. She sat
comfortably, and she was able to rise from a seated position and walk without a limp.
Dr. Sachs explained that the MRI scan of the left knee showed a small
joint effusion and a grade one sprain of the medial collateral ligament and anterior
4
cruciate ligament with mild bursitis. Dr. Sachs did not observe anything other than
self-limiting sprain and bursitis. Dr. Sachs noted that an August 2, 2018, report of
Dr. Pasquella documented a sprain of the left knee. At the IME, Dr. Sachs examined
Claimant’s left knee and found no deformity, swelling, synovitis, effusion, atrophy,
wasting, or malalignment. Dr. Sachs concluded that Claimant’s sprain of the left
knee had resolved.
Dr. Sachs testified that he performed manual muscle, sensibility, and
reflex testing in the lower extremities, none of which revealed evidence of
radiculopathy or disc syndrome or post-traumatic abnormality. Additionally, he did
sciatic stretch testing, which was negative for sciatic radiculopathy. There was no
calf swelling or tenderness, and Claimant’s circulation was normal. Dr. Sachs did
not find any clinical evidence of active radiculopathy.
Dr. Sachs further testified that, on observation, the cervical spine
revealed a normal curve. Although Claimant complained of tenderness to palpation,
he found no ongoing injury to the cervical spine. He also examined her thoracic and
lumbar spine and did not observe any ongoing problem. Upon review of the MRI
scans, he observed mild preexisting degenerative changes in her spine, but no
evidence of cord or nerve root compression.
Based on his physical examination and review of medical records, Dr.
Sachs opined that Claimant suffered a strain and sprain of her cervical, thoracic, and
lumbar spine and left knee. He concluded that she had fully recovered from her
work injury as of the date of the IME, or November 30, 2018. When asked about
Dr. Valentino’s diagnosis of lumbar stenosis with disc protrusion, Dr. Sachs
explained that Claimant had some “mild discogenic changes, some mild
narrowing[,]” but these conditions were preexisting. Sachs’ Dep. at 18-19; R.R.
5
193a-94a. Dr. Sachs acknowledged the possibility that Claimant could have
sustained a soft tissue injury to her spine but clarified that there was “nothing in the
MRIs of her spine to suggest [that the discs] were aggravated.” Sachs’ Dep. at 19;
R.R. 194a.
Employer also presented the testimony of Kevin Carion, a human
resources manager for Suburban Community Hospital. Carion testified about
Employer’s light-duty job offers to Claimant. On March 25, 2019, Employer offered
Claimant a light-duty position of greeter and asked her to respond within 14 days.
She did not respond to the job offer. Claimant had been previously offered a light-
duty position as a greeter on August 27, 2018, but she did not respond to that job
offer. Carion confirmed that Employer has three facilities in Pennsylvania: Lower
Bucks Hospital, Roxborough Memorial Hospital, and Suburban Community
Hospital, where Claimant worked.
The WCJ denied Claimant’s Yellow Freight motion, attributing
Employer’s untimely answer to the “confusion as to the addresses of [] Employer.”
WCJ Decision, 12/30/2019, at 4, Finding of Fact No. 8; R.R. 283a. The WCJ granted
the claim petition, limiting the description of Claimant’s injuries to “cervical,
thoracic, [and] lumbar [spine] and left knee strains and sprains” based upon the
testimony of Employer’s medical expert, Dr. Sachs, whose opinion was found
cogent, well-explained and balanced. WCJ Decision at 3, 4, Findings of Fact Nos.
5, 6; R.R. 282a-83a. Also, on the basis of Dr. Sachs’ testimony, the WCJ held that
Employer met its burden of proving that Claimant had fully recovered from her
work-related injuries as of November 30, 2018. Claimant appealed to the Board,
and it affirmed the decision of the WCJ. Claimant petitioned for this Court’s review.
6
On appeal,4 Claimant argues that the WCJ erred in denying her Yellow
Freight motion. As a result, Dr. Sachs’ opinion was not based upon the injury
described in her claim petition and, therefore, not competent to support a finding that
Claimant had fully recovered.
We begin with a review of the relevant provisions of the Act. Section
416 of the Act requires the employer to answer a claimant’s claim petition within 20
days of service. It states as follows:
Within twenty days after a copy of any claim petition or other
petition has been served upon an adverse party, he may file with
the department or its workers’ compensation judge an answer in
the form prescribed by the department.
Every fact alleged in a claim petition not specifically denied by
an answer so filed by an adverse party shall be deemed to be
admitted by him. But the failure of any party or of all of them to
deny a fact alleged in any other petition shall not preclude the
workers’ compensation judge before whom the petition is heard
from requiring, of his own motion, proof of such fact. If a party
fails to file an answer and/or fails to appear in person or by
counsel at the hearing without adequate excuse, the workers’
compensation judge hearing the petition shall decide the matter
on the basis of the petition and evidence presented.
77 P.S. §821 (emphasis added). Absent an “adequate excuse” for an untimely
answer, every well-pleaded factual allegation in the claim petition is admitted as true
and the employer is barred from challenging the factual allegations in the claim
petition. Washington v. Workers’ Compensation Appeal Board (National Freight
Industries, Inc.), 111 A.3d 214, 218 (Pa. Cmwlth. 2015). An employer must present
4
This Court’s review determines whether constitutional rights were violated, whether an error of
law was committed, or whether necessary findings of fact are supported by substantial evidence.
E.W. Bowman, Inc. v. Workers’ Compensation Appeal Board (Wilson), 809 A.2d 447, 450 n.3 (Pa.
Cmwlth. 2002).
7
evidence of an adequate excuse for its late answer. Ghee v. Workmen’s
Compensation Appeal Board (University of Pennsylvania), 705 A.2d 487, 491 (Pa.
Cmwlth. 1997) (the WCJ must determine “whether the facts proven and the reasons
presented by the [e]mployer amount to [an] adequate excuse”). The failure to serve
an employer with the claim petition constitutes an adequate excuse for an untimely
answer. Abex Corporation v. Workmen’s Compensation Appeal Board (Scears), 665
A.2d 845, 847-48 (Pa. Cmwlth. 1995). However, an adequate excuse does not
include factors within the control of the party responsible for filing the answer. City
of Philadelphia v. Workers’ Compensation Appeal Board (Candito), 734 A.2d 73,
77 (Pa. Cmwlth. 1999). The adequacy of the employer’s excuse for an untimely
filing is evaluated on a case-by-case basis. Id.Claimant contends that the WCJ erred in holding that Employer
presented an adequate excuse. The claim petition was served at the address for
Employer in the Workers’ Compensation Automation and Integration System
(WCAIS).5 Further, at the initial hearing on September 24, 2018, Employer’s
counsel stated that the answer was filed late and that the petition appears to have
been sent “to the right place.”6 Claimant Brief at 17 (quoting N.T., 9/24/2018, at 6;
R.R. 29a).
It is undisputed that Employer operates three facilities in Pennsylvania:
Lower Bucks Hospital located at 501 Bath Road in Bristol; Roxborough Memorial
Hospital located at 5800 Ridge Avenue in Philadelphia; and Suburban Community
5
The WCAIS is the Department of Labor and Industry’s (Department) web-based system that
enables users to file petitions, applications, forms and other documents online.
6
Employer’s counsel prefaced his statements by advising the WCJ that he received the case only
a few days before the hearing and “[had not] had a chance to investigate.” N.T., 9/24/2018, at 6;
R.R. 29a. The WCJ scheduled a status conference for 30 days, indicating that Claimant’s Yellow
Freight motion was preserved. N.T., 9/24/2018, at 6-7; R.R. 29a-30a.
8
Hospital located at 2701 DeKalb Pike in East Norriton. Claimant worked at
Employer’s Suburban Community Hospital location. However, her claim petition
listed Employer’s address as the Lower Bucks Hospital. Both the proof of service
for the claim petition and the notice of assignment listed addresses other than the
address for Suburban Community Hospital.7 As Employer’s counsel explained:
My understanding is [Claimant] worked at Suburban Community
Hospital, specifically, which is within the corporate hierarchy of
[Employer].
The Claim Petition cites an Employer address – citing
[Employer] located in Bristol, Pennsylvania.
The proof of service on the Claim Petition then says that the
Claim Petition was instead served on an address in Norristown,
Pennsylvania.
The Notice of Assignment cites the Bristol address.
A review of Suburban Community Hospital’s website shows an
address in East Norriton, Pennsylvania[.]
N.T., 10/24/2018, at 6-7; R.R. 38a-39a. The claim petition, its proof of service and
the notice of assignment each listed a different address for Employer. This evidence
supports the WCJ’s finding that there was “confusion as to the addresses of []
Employer[.]” WCJ Decision, 12/30/2019, at 4, Finding of Fact No. 8; R.R. 283a.
Furthermore, we reject Claimant’s argument that any one of the three hospital
addresses was valid because Employer owned each facility. It was Suburban
Community Hospital that was entitled to notice of the claim petition, not one of its
corporate affiliates.
7
The address listed on the proof of service was 2701 DeKalb Pike in Norristown, Pennsylvania.
The Notice of Assignment listed the address for Lower Bucks Hospital.
9
Nevertheless, the grant of Claimant’s Yellow Freight motion would not
change the outcome. An employer’s admission covers allegations up to the answer
deadline. See Heraeus Electro Nite Company v. Workmen’s Compensation Appeal
Board (Ulrich), 697 A.2d 603, 609 (Pa. Cmwlth. 1997). Further, a claimant enjoys
a rebuttable presumption that a disability continues through the pendency of the
litigated matter. Id. at 609 n.10. However, the employer may rebut the presumption
with evidence. Chik-Fil-A v. Workers’ Compensation Appeal Board (Mollick), 792
A.2d 678, 689 (Pa. Cmwlth. 2002).
Here, Employer presented the deposition testimony of Dr. Sachs, who
testified that as of the date of the IME, November 30, 2018, Claimant had fully
recovered from her July 21, 2018, work injury; required no further medical
treatment; and could return to work without restriction. Sachs’ Dep. at 18, 21; R.R.
193a, 196a. The WCJ found Dr. Sachs’ testimony credible and persuasive in its
entirety. This testimony fully rebutted the presumption that Claimant’s disability
continued and supported the termination of Claimant’s workers’ compensation
benefits as of November 30, 2018. Udvari v. Workmen’s Compensation Appeal
Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997) (employer meets its burden on
termination by offering an expert opinion “within a reasonable degree of medical
certainty[] that the claimant is fully recovered [and] can return to work without
restrictions and that there are no objective medical findings which either substantiate
the claims of pain or connect them to the work injury”).
Claimant asserts, however, that Dr. Sachs did not opine that she had
fully recovered from all her alleged injuries, i.e., aggravation of her degenerative
disc disease in the lumbar spine and lumbar radiculopathy. We disagree. Dr. Sachs
testified that his observations and testing during the IME revealed “no evidence of a
10
radiculopathy or disc syndrome or post-traumatic abnormality.” Sachs’ Dep. at 15;
R.R. 190a. Further, in his physical examination of Claimant, Dr. Sachs found no
evidence of an aggravation of the degenerative disease of her lumbar spine. The
MRI scans also showed no such aggravation. Dr. Sachs acknowledged that it was
possible that Claimant sustained a soft tissue injury superimposed on her lumbar
stenosis or disc protrusions that may have caused her symptoms to last longer, but
by the time of her IME those symptoms had resolved.
In short, even if Claimant’s Yellow Freight motion had been granted
and the allegations in the claim petition were accepted as true, Dr. Sachs’ testimony
satisfied Employer’s burden of proving that Claimant had fully recovered from her
work-related injuries as of November 30, 2018, the date of the IME. See Hall v.
Workers’ Compensation Appeal Board (America Service Group), 3 A.3d 734, 741
(Pa. Cmwlth. 2010) (expert need not believe the claimant has sustained a certain
injury so long as the expert opines on whether the accepted injury continues to
disable the claimant). Accordingly, we affirm the Board’s adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tashneen Webb, :
Petitioner :
:
v. : No. 582 C.D. 2021
:
Prime Healthcare Services, Inc. :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 29th day of April, 2022, the adjudication of the
Workers’ Compensation Appeal Board, dated April 28, 2021, is hereby
AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita