T. Harris v. City of Philadelphia (WCAB) ( 2023 )


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  •               IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Tawanda Harris,                         :
    Petitioner       :
    :
    v.                         :   No. 1353 C.D. 2021
    :
    City of Philadelphia (Workers’          :   Submitted: July 29, 2022
    Compensation Appeal Board),             :
    Respondent           :
    BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ELLEN CEISLER, Judge
    HONORABLE MARY HANNAH LEAVITT, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                FILED: August 7, 2023
    In this workers’ compensation case, Tawanda Harris (Claimant) petitions
    for review of the November 9, 2021 Opinion and Order of the Workers’ Compensation
    Appeal Board (Board). The Board affirmed the February 10, 2021 Decision and Order
    of Workers’ Compensation Judge (WCJ) Lawrence Beck, who granted the City of
    Philadelphia’s (Employer) Termination Petition, denied Claimant’s Review Petition,
    and denied as moot Employer’s Suspension Petition. After careful review, we affirm
    the Board.
    I.       FACTS AND PROCEDURAL HISTORY
    On February 1, 2019, Claimant tripped over a mail bin in the course and
    scope of her employment with Employer as a clerical assistant.            Employer
    acknowledged the injury in a Notice of Compensation Payable (NCP)1 that recognized
    soft tissue injuries to Claimant’s neck, shoulders, back, and knee, for which she
    received workers’ compensation (WC) benefits.           Employer filed its Termination
    Petition and an accompanying Suspension Petition on December 11, 2019, alleging in
    both that Claimant had fully recovered from her injuries as of November 20, 2019, the
    date of an independent medical examination (IME) performed by Dr. James Bonner
    (Dr. Bonner). Claimant thereafter filed her Review Petition on January 13, 2020, in
    which she sought to amend the NCP and add the injuries of bilateral cervical
    radiculopathy, cervical disc herniation, and a right shoulder partial rotator cuff tear.
    All three petitions were consolidated for hearing before the WCJ on July 20, 2020.
    At the hearing, Employer submitted the deposition testimony of Dr.
    Bonner, who testified that he performed an IME of Claimant on November 20, 2019.
    As part of the IME, Dr. Bonner reviewed Claimant’s medical history, which included
    a back injury caused by an automobile accident. Claimant informed Dr. Bonner that
    she was continuing to receive treatment for her February 1, 2019 work injury with
    physical therapy and medication and that she continued to have back pain, shoulder
    discomfort, and occasional neck pain. Dr. Bonner testified that Claimant’s subjective
    complaints of pain were inconsistent with the results of his physical examination. He
    also noted Claimant’s significant preexisting conditions involving her lumbar, spine,
    neck, and shoulders, and that Claimant’s primary care physician, Dr. Murray Brand
    (Dr. Brand), previously had diagnosed Claimant with neuropathy, radiculopathy, and
    degenerative joint disease of the spine. (WCJ Finding of Fact (FOF) 1(b)-(g); R.R.
    036a-37a.) Based on his physical examination of Claimant and review of her medical
    1
    The NCP is a converted Notice of Temporary Compensation Payable. (Reproduced Record
    (R.R.) 0361a-62a.)
    2
    history and diagnostic records, Dr. Bonner made the following conclusions, as
    summarized by the WCJ:
    [ ] Following his review of Claimant’s history, examination, and
    records, Dr. Bonner related that Claimant sustained soft tissue
    injuries to her neck, shoulders, back, and knees on February
    1, 2019. Claimant had received appropriate medical
    treatment for her injuries, which included use of [nonsteroidal
    anti-inflammatory drugs (NSAIDs)] and physical therapy.
    Claimant ha[s] fully recovered from all of the injuries she had
    sustained on February 1, 2019. She needs no additional
    treatment and can return to work as a clerical assistant without
    restrictions related to the February 1, 2019 injury. While
    Claimant does have some restrictions due to her pre[ ]existing
    frozen left shoulder, they are not related to the work injury.
    [ ] Dr. Bonner further related that there was no clinical or
    diagnostic indication that Claimant sustained bilateral
    cervical radiculopathy on February 1, 2019.              The
    [electromyogram (EMG)] findings were more consistent with
    a neuropathic process than radiculopathy. Additionally, there
    is no indication that Claimant sustained a cervical disc
    herniation on February 1, 2019. Claimant’s cervical
    [magnetic resonance imaging scan (MRI)] showed
    pre[ ]existing degenerative changes with no acute findings,
    which would have presented as increased signals with certain
    protrusions.
    [ ] Dr. Bonner further related that there was no clinical or
    diagnostic indication that Claimant sustained a right shoulder
    partial rotator cuff tear on February 1, 2019. The right
    shoulder MRI did not show any evidence of acute injury and
    the mechanism of injury was not of the type to case a rotator
    cuff tear. The partial thickness tears of the supraspinatus seen
    on the MRI are very common in people Claimant’s age[ ] and,
    because of the lack of acute signals and the fact that she has
    degenerative disease in the shoulder, Dr. Bonner believe[s]
    the tear to be pre[]existing.
    (FOF 1(h)-(j); R.R. 037a-38a) (subfinding letter designations removed).
    3
    Claimant testified by telephone on July 20, 2020, and also submitted a
    transcript of her deposition testimony taken on February 6, 2020. Claimant testified
    that her work with Employer as a clerical assistant primarily involved standing at a
    desk, but also involved lifting mail tubs. She also described two prior injuries caused
    by a motor vehicle accident and a bus accident. Although she received treatment for
    injuries to her back and left shoulder as a result of the accidents, she continued to work.
    After the February 1, 2019 work injury, Claimant underwent right shoulder, neck, and
    lower back MRIs and an EMG. She received treatment from several physicians and
    continues to utilize electrical stimulation and a heated pillow. She has not returned to
    work and does not believe that she can return to her pre-injury job with Employer
    because she cannot stand for prolonged periods or lift and carry mail tubs. She also
    has difficulty performing daily tasks like washing dishes and continues to have pain in
    and difficulties with her neck, back, and right shoulder. (FOF 2(a)-(f); R.R. 038a-39a.)
    Claimant also submitted a transcript of the deposition testimony of Dr.
    Richard Mandel (Dr. Mandel), one of her treating physicians. Dr. Mandel first saw
    Claimant on August 20, 2019, and saw her again multiple times in 2019 and 2020.
    After performing his examinations and reviewing the results of Claimant’s multiple
    post-injury diagnostic tests, Dr. Mandel ultimately opined that Claimant was not fully
    recovered from her work injury and continued to suffer from her work-related injuries,
    including aggravation of several of her preexisting conditions. Although Dr. Mandel
    agreed with Dr. Bonner that most of Claimant’s symptoms were subjective, Dr. Mandel
    also testified that he did not observe any symptom magnification, exaggeration, or
    embellishment during his examinations of Claimant. (FOF 3(s)-(v); R.R. 041a-42a.)
    In a Decision and Order circulated on February 10, 2021, the WCJ denied
    Claimant’s Review Petition, granted Employer’s Termination Petition, and denied as
    4
    moot Employer’s Suspension Petition. In rendering his decision, the WCJ made the
    following relevant findings and credibility determinations:
    [ ] [The WCJ] has reviewed Claimant’s testimony and finds it
    credible, in part. This determination is not made based upon
    Claimant’s deportment and demeanor while testifying live
    before [the WCJ] as Claimant did not testify in[ ]person, but
    rather through teleconference. [The WCJ] has no doubt
    Claimant suffers symptoms in her shoulder, neck, and back,
    and finds that testimony credible; however, regarding the
    source of such symptomatology, [the WCJ] credits the
    testimony of Dr. Bonner over that of Claimant and Dr.
    Mandel. In [the WCJ’s] assessment, Claimant’s testimony
    downplayed her significant pre[ ]existing issues and
    diagnoses, including prior accidents and diseases, in favor of
    what, by the accepted diagnostic medical record, was a minor
    trip and fall that resulted in little impact on those
    pre[ ]existing conditions. Further, [the WCJ] discredits
    Claimant’s testimony regarding her status and ability to return
    to work as a result of her injury. Notwithstanding the obvious
    secondary gain attributable to ongoing disability, Claimant’s
    full recovery is established by the credible testimony of Dr.
    Bonner.
    [ ] [The WCJ] has reviewed the testimony of Dr. Bonner and Dr.
    Mandel and credits the testimony of Dr. Bonner. Dr. Bonner
    credibly, cogently, and clearly related Claimant’ subjective
    complaints to her pre-existing diagnostic findings, diagnoses,
    and conditions. Dr. Mandel, while acknowledging that
    Claimant’s complaints are mostly subjective[,] gave scant
    attention to Claimant’s pre-existing complaints and
    diagnoses, including prior diagnoses of radiculopathy and
    neuropathy. The diagnostic studies, as credibly explained by
    Dr. Bonner, indicate no traumatic symptomatology, but rather
    longstanding and degenerative findings relative to Claimant’s
    prior accidents and pre-existing diseases. [The WCJ] notes
    that both doctors, as well as Claimant, agree that Claimant
    recovered from her knee injury.
    (FOF 4, 5; R.R. 042a-43a) (subfinding letter designations removed).
    5
    Claimant appealed to the Board on February 22, 2021, arguing chiefly that
    the WCJ’s findings were not supported by substantial evidence. By Opinion and Order
    mailed November 9, 2021, the Board affirmed. Claimant filed a petition for review
    (PFR) in this Court on December 7, 2021.
    II.        DISCUSSION2
    A.      Issues Presented
    In her PFR and brief, Claimant contends that the Board erred in affirming
    the WCJ’s decision granting Employer’s Termination Petition and denying her Review
    Petition. Claimant argues that the WCJ erred as a matter of law in these respects and
    that his decision was not supported by substantial evidence.
    B.     Analysis
    1.         Termination Petition
    “To succeed in a termination petition, an employer bears the burden of
    proving by substantial evidence that a claimant’s disability ceased, or any remaining
    conditions are unrelated to the work injury.” Westmoreland County v. Workers’
    Compensation Appeal Board (Fuller), 
    942 A.2d 213
    , 217 (Pa. Cmwlth. 2008). An
    employer seeking to terminate benefits therefore bears the burden of proving either that
    the claimant’s disability has ceased or that any current disability arises from a cause
    unrelated to the claimant’s work injury. Campbell v. Workers’ Compensation Appeal
    Board (Antietam Valley Animal Hospital), 
    705 A.2d 503
    , 506-07 (Pa. Cmwlth. 1998).
    Where a claimant complains of continued pain, an employer meets its burden when its
    “medical expert unequivocally testifies that it is his opinion, within a reasonable degree
    2
    Our scope and standard of review of an order of the Board is limited to determining whether
    the WCJ’s findings are supported by substantial evidence, whether applicable procedures were not
    followed, whether an error of law was committed, or whether constitutional rights were violated.
    Hershgordon v. Workers’ Compensation Appeal Board (Pepboys, Manny, Moe & Jack), 
    14 A.3d 922
    ,
    924 n.4 (Pa. Cmwlth. 2011).
    6
    of medical certainty, that the claimant is fully recovered, 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.” Udvari v. Workmen’s
    Compensation Appeal Board (USAir, Inc.), 
    705 A.2d 1290
    , 1293 (Pa. 1997) (footnote
    omitted). “If the WCJ credits this testimony, the termination of benefits is proper.” 
    Id.
    Claimant does not argue that Dr. Bonner’s opinions were incompetent or
    equivocal. Rather, she contends that the WCJ’s acceptance of Dr. Bonner’s opinion
    that Claimant’s ongoing subjective symptoms and pain were not caused by the
    February 1, 2019 fall violates the principles set forth in Gumro v. Workmen’s
    Compensation Appeal Board (Emerald Mines Corp.), 
    626 A.2d 94
     (Pa. 1993) and
    Beissel v. Workmen’s Compensation Appeal Board (Wanamaker, Inc.), 
    465 A.2d 969
    (Pa. 1983). Claimant argues that Gumro and Beissel require an employer that seeks to
    terminate WC benefits on the ground that the claimant’s disability no longer is work-
    related to establish an independent cause for the disability that arose after the filing of
    the original NCP. (Claimant’s Br. at 17-19.) We disagree.
    In Beissel, the claimant sought WC benefits for an injury to her back that
    occurred when she slipped and fell while working for the employer. After multiple
    hospitalizations and back surgery, the claimant filed a claim petition. 465 A.2d at 970.
    The employer eventually filed an NCP acknowledging an injury to the claimant’s lower
    back. Two years later, the employer filed a termination petition seeking to terminate
    benefits on the ground that the claimant’s ongoing condition was unrelated to her work
    injury. Id. at 970. A referee, now WCJ, determined that the claimant’s current
    symptoms were not, in fact, related to the original work injury but, instead, were related
    to a “coughing and laughing spell while playing cards” that occurred approximately
    one year prior to the filing of the NCP. Id. The referee therefore concluded that the
    7
    claimant’s condition was unrelated to the original work injury and terminated benefits.
    Id. The Board and this Court affirmed. Id. at 971.
    The Pennsylvania Supreme Court reversed, concluding that the employer
    failed to carry its burden to establish that the claimant’s disability changed after the
    filing of the NCP. Id. The Court concluded:
    It is clear that [the employer] has sought to prove, not that [the
    claimant’s] disability has terminated since 1977, but that [the
    claimant’s] current disability, which has remained unchanged
    since March [ ]1976, was never related to [the claimant’s]
    [work injury].
    ....
    [The Pennsylvania Supreme] Court has stated that in a
    termination case, the employer must show either that the
    disability has ceased or that the continued disability is the
    result of an independent cause. [McGee v. L. F. Grammes &
    Sons, Inc., 
    383 A.2d 864
    , 865 (Pa. 1978).]
    ....
    Just as we have held that the burden is on [an employer] to
    prove that an employe[e]’s disability has increased or
    decreased after the filing of [an NCP], we also hold that [an
    employer] has the burden of proving that an independent
    cause of an employe[e]’s disability arose after the filing of [an
    NCP] if the [employer] is seeking to justify the termination of
    benefits on the grounds that the employe[e]’s disability is no
    longer work-related.
    Id. at 971-72.
    Similarly, in Gumro, the claimant sustained a work-related injury to his
    knee when he slipped and fell in his employer’s coal mine. Gumro, 626 A.2d at 95.
    He received WC benefits for approximately 16 months based on an NCP filed by the
    employer, during which time he had surgery on the knee and subsequently developed
    8
    pain and swelling due to deep venous insufficiency. Id. The employer in Gumro
    eventually filed a termination petition. The referee found the claimant’s medical
    evidence regarding the venous insufficiency to be equivocal and therefore concluded
    that there was no established causal connection between that symptom, which the
    claimant’s treating physician stated was the “underlying and fundamental reason why
    the [c]laimant [was] unable to perform his pre-injury employment,” and the claimant’s
    ongoing disability. Id. at 95-96. The referee therefore terminated benefits, and the
    Board and this Court affirmed. Id. at 96. The Pennsylvania Supreme Court reversed,
    relying on Beissel. That Court noted that the employer’s medical expert specifically
    indicated that he could not testify regarding the causal relationship between the venous
    insufficiency and the claimant’s work-related knee injury. Id. at 97. The Court
    therefore concluded that the employer did not satisfy its burden to establish an
    independent cause of the claimant’s ongoing disability that arose after the NCP was
    filed acknowledging the claimant’s knee injury. Id.
    Beissel and Gumro easily are distinguishable when the equivocation of
    terms in Claimant’s argument is corrected. As Beissel instructs, the employer in a
    termination case must show either that the disability has ceased or that the continued
    disability is the result of an independent cause. Thus, the employer has the burden of
    proving that an independent cause of an employee’s disability arose after the filing of
    an NCP only if the employer is seeking to justify the termination of benefits on the
    basis that the employee’s ongoing disability is no longer work-related.
    Here, Employer is not arguing that Claimant’s disability remains ongoing
    but, nevertheless, is no longer related to her work injury. That argument would require,
    under Gumro and Beissel, Employer to establish an independent cause for the disability
    that arose after the filing of the NCP. Employer instead argues that Claimant’s
    9
    disability has ceased altogether because she has fully recovered from the injuries
    identified in the NCP and is no longer disabled. Although the WCJ acknowledged that
    Claimant has ongoing symptoms and pain, he nevertheless found, based on Dr.
    Bonner’s testimony, both that the ongoing symptoms are not related to Claimant’s
    February 1, 2019 fall and that Claimant is capable of returning to work in full capacity.
    We reiterate:
    [The WCJ] has no doubt Claimant suffers symptoms in her
    shoulder, neck, and back, and finds that testimony credible;
    however, regarding the source of such symptomatology,
    [the WCJ] credits the testimony of Dr. Bonner over that
    of Claimant and Dr. Mandel. In [the WCJ’s] assessment,
    Claimant’s testimony downplayed her significant
    pre[ ]existing issues and diagnoses, including prior
    accidents and diseases, in favor of what, by the accepted
    diagnostic medical record, was a minor trip and fall that
    resulted in little impact on those pre[ ]existing conditions.
    Further, [the WCJ] discredits Claimant’s testimony
    regarding her status and ability to return to work as a
    result of her injury. Notwithstanding the obvious
    secondary gain attributable to ongoing disability,
    Claimant’s full recovery is established by the credible
    testimony of Dr. Bonner.
    (WCJ FOF 4; R.R. 042a) (emphasis added).
    Thus, because Dr. Bonner testified unequivocally both that Claimant’s
    ongoing pain and symptoms were related only to her pre-injury degenerative conditions
    and that she, in any event, currently is not disabled from working at full capacity,
    Beissel and Gumro do not apply. Because Dr. Bonner’s medical testimony is otherwise
    sufficient to support the WCJ’s termination of benefits, we conclude that Claimant’s
    challenge to the WCJ’s decision in this regard is without merit.
    10
    2.     Review Petition
    In her Review Petition, which Claimant filed after Employer filed its
    Termination Petition, Claimant sought to correct the description of the work injury in
    the original NCP by adding the injuries of bilateral cervical radiculopathy, cervical disc
    herniation, and right shoulder partial rotator cuff tear. (R.R. 020a-23a.) As both parties
    correctly acknowledge, a claimant who files a review petition seeking to add injuries
    to those already accepted by an employer in an NCP bears the same burden of proof
    that applies to a claim petition. See Colagreco v. Workers’ Compensation Appeal
    Board (Vanguard Group Inc.), 
    232 A.3d 971
    , 978-79 (Pa. Cmwlth. 2020); Aldridge v.
    Workers’ Compensation Appeal Board (Kmart Corp.), 
    113 A.3d 861
    , 867 n.7 (Pa.
    Cmwlth. 2015). Claimant here bore the burden to prove that the alleged additional
    injuries were caused by her February 1, 2019 fall and that she suffered a resultant loss
    of earning power, i.e., a disability. Zuchelli v. Workers’ Compensation Appeal Board
    (Indiana University of Pennsylvania), 
    35 A.3d 801
    , 804 (Pa. Cmwlth. 2011) (citing
    Potere v. Workers’ Compensation Appeal Board (Kemcorp), 
    21 A.3d 684
    , 689-90 (Pa.
    Cmwlth. 2011), and Coyne v. Workers’ Compensation Appeal Board (Villanova
    University), 
    942 A.2d 939
     (Pa. Cmwlth. 2008)).           The requirements to establish
    causation depend on whether the injury is obviously work related. An injury that does
    not immediately manifest itself while the employee is working is not “obvious,” and in
    that circumstance the claimant must establish causation by unequivocal medical
    evidence.   Albert Einstein Healthcare v. Workers’ Compensation Appeal Board
    (Stanford), 
    955 A.2d 478
    , 482 (Pa. Cmwlth. 2008); Jeanette District Memorial
    Hospital v. Workmen’s Compensation Appeal Board (Mesich), 
    668 A.2d 249
    , 251 (Pa.
    Cmwlth. 1995).
    11
    Claimant argues that the WCJ erred in accepting Dr. Bonner’s opinion
    that nothing in the post-injury diagnostic studies support a finding that Claimant’s
    work-related injury caused any of the additional conditions alleged in her Review
    Petition. She argues that the WCJ’s findings in this regard are not based on substantial
    evidence because Dr. Bonner “completely downplayed the findings on the post-
    accident diagnostic studies” which, according to Dr. Mandel, clearly indicated that
    Claimant’s fall    aggravated Claimant’s       preexisting   degenerative conditions.
    Accordingly, Claimant argues that “no reasonable mind would have accepted [Dr.
    Bonner’s] opinion . . . .” (Claimant’s Br. at 19, 21.) We again disagree.
    Although Claimant couches her arguments in this regard in terms of
    “substantial evidence,” her argument in reality is a veiled challenged to the WCJ’s
    credibility determinations, which we will not disturb on appeal unless, in making those
    determinations, the WCJ acted arbitrarily or capriciously and disregarded evidence.
    Empire Steeling Castings, Inc. v. Workers’ Compensation Appeal Board (Cruceta),
    
    749 A.2d 1021
    , 1027 (Pa. Cmwlth. 2000). Here, Dr. Mandel diagnosed Claimant with
    multiple injuries in addition to those identified in the NCP, attributing the additional
    injuries to Claimant’s fall on February 1, 2019. Dr. Mandel based his diagnoses in
    large part on the differences between the results of diagnostic studies conducted prior
    to Claimant’s work-related injury and those of studies performed after the injury.
    Although Dr. Mandel’s testimony in this regard could be sufficient to support
    Claimant’s Review Petition, the WCJ found Dr. Mandel’s testimony to be not credible
    because the WCJ accepted Dr. Bonner’s contrary testimony that Claimant’s ongoing
    symptoms were related to Claimant’s significant preexisting degenerative conditions.
    We conclude that the WCJ’s credibility determinations in this regard were
    neither arbitrary nor capricious. Rather, and contrary to Claimant’s contention, a
    12
    reasonable mind could, and did, accept Dr. Bonner’s testimony. As summarized above,
    Dr. Bonner testified that there was no objective clinical or diagnostic evidence that
    Claimant sustained any of the additional injuries included in her Review Petition. He
    indicated that, in his opinion, the post-injury EMG and MRI results were more
    consistent with Claimant’s preexisting degenerative conditions and age than with an
    injury caused by Claimant’s February 1, 2019 fall. Dr. Bonner further testified that the
    diagnostic results did not indicate any evidence of acute trauma or injury, which would
    be expected if Claimant’s conditions were caused by Claimant’s fall. Dr. Bonner’s
    testimony therefore was competent and unequivocal and provides substantial evidence
    to support the WCJ’s findings and credibility determinations. Claimant’s challenge on
    this ground thus also is without merit.3
    III.   CONCLUSION
    Because we conclude that the WCJ’s decision is free of legal error and
    supported by substantial evidence, we affirm the Board.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    Judge Fizzano Cannon did not participate in the decision of this case.
    3
    We further note that, as discussed above, Dr. Bonner testified that Claimant does not have
    any conditions that restrict her ability to return to her pre-injury work in full capacity. Thus, even
    assuming that Claimant’s Review Petition had been granted, there still is competent, substantial
    evidence in the record indicating that these additional symptoms and conditions do not result in a
    “disability” that would entitle Claimant to ongoing WC benefits.
    13
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Tawanda Harris,                      :
    Petitioner         :
    :
    v.                       :    No. 1353 C.D. 2021
    :
    City of Philadelphia (Workers’       :
    Compensation Appeal Board),          :
    Respondent        :
    ORDER
    AND NOW, this 7th day of August, 2023, the November 9, 2021 Order
    of the Workers’ Compensation Appeal Board is AFFIRMED.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge