C. Cannon v. General Motors, LLC (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Courtney Cannon, :
Petitioner :
:
v. :
:
General Motors, LLC :
(Workers’ Compensation :
Appeal Board), : No. 1089 C.D. 2022
Respondent : Submitted: May 5, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 24, 2023
Courtney Cannon (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) September 12, 2022 order
affirming WC Judge (WCJ) Robert Benischeck’s (WCJ Benischeck) April 20, 2022
decision that granted General Motors, LLC’s (Employer) Petition to Terminate WC
Benefits (2021 Termination Petition). Claimant presents one issue for this Court’s
review: whether the Board erred by affirming WCJ Benischeck’s finding that
Employer established a change in Claimant’s medical condition. After review, this
Court affirms.
On May 17, 2013, while she was working as a floor supervisor for
Employer, a forklift struck Claimant and she fell to the concrete floor. On February
21, 2014, Claimant filed a claim petition for WC benefits (Claim Petition). Claimant
also filed a penalty petition, alleging therein that Employer failed to issue a Notice
of Compensation Denial, a Notice of Temporary Compensation Payable, or a Notice
of Compensation Payable (NCP) within 21 days of her May 17, 2013 work injury
(Penalty Petition). On March 21, 2014, Employer issued a medical-only NCP
accepting Claimant’s May 17, 2013 work injuries as a right thigh contusion, left
elbow contusion/abrasion, and a left shoulder, low back, and neck strain and sprain.
On May 4, 2015, WCJ Bonnie Callahan (WCJ Callahan) granted the Penalty Petition
and granted the Claim Petition, in part, finding that Claimant sustained injuries on
May 17, 2013, in the nature of a right thigh contusion, a left elbow abrasion, left
shoulder, cervical, and lumbar strain and sprain, and a left rotator cuff tendonitis.
However, because WCJ Callahan further found that Claimant failed to establish that
she was entitled to wage loss benefits after January 30, 2014, she suspended
Claimant’s WC benefits as of that date.
On August 28, 2015, Employer filed a Petition to Terminate WC
Benefits (2015 Termination Petition) alleging that Claimant completely recovered
from her work injury as of August 12, 2015. Claimant filed a Petition to Reinstate
WC Benefits (2015 Reinstatement Petition) alleging that her condition had worsened
and sought indemnity benefits as of February 6, 2014. The petitions were assigned
to WCJ Joseph McManus (WCJ McManus). On September 16, 2016, WCJ
McManus denied the 2015 Termination Petition, and granted the 2015
Reinstatement Petition for wage loss benefits as of December 10, 2015, determining
that Claimant’s low back and left shoulder had worsened. Employer appealed to the
Board. On July 26, 2017, the Board affirmed WCJ McManus’ 2015 Termination
Petition denial, and reversed the granting of the 2015 Reinstatement Petition because
the record evidence did not support the conclusion that Claimant’s condition had
worsened. Claimant appealed to this Court, which affirmed the Board’s order on
July 17, 2018. See Cannon v. Workers’ Comp. Appeal Bd. (Gen. Motors, LLC) (Pa.
Cmwlth. No. 1168 C.D. 2017, filed July 17, 2018).
2
On May 10, 2021, Employer filed the 2021 Termination Petition,
alleging that Claimant had fully recovered from her work injuries as of April 20,
2021. On November 18, 2021, WCJ Benischeck held a virtual hearing, during which
Claimant testified that her low back and right leg were her primary problems.
Claimant further stated that her leg was in “constant nerve pain.” Reproduced
Record (R.R.) at 29a. She also related that she was limited in sitting and becomes
fatigued when standing. Claimant described that her left shoulder was “only bad
when [she] overused it” or if she worked overhead. R.R. at 30a. According to
Claimant, she could not sleep on her right side, her neck was stiff, and she sometimes
had shooting pain in her left arm if she moved it a certain way. She recalled that,
some days, she felt some soreness in her elbow. Claimant expressed that at no time
since May 17, 2013, had she felt fully recovered.
Claimant also presented her July 16, 2021 deposition testimony.
Therein, Claimant stated that she had treated at South Jersey Health and Wellness
with Garo C. Avetian, D.O., Dr. Vernon,1 and various chiropractors up until April
2019. She described that there was a gap in treatment from April 2019 through May
3, 2021, when she treated with Young Lee, M.D. (Dr. Lee), on her attorney’s referral.
Claimant acknowledged that she was only treating with Dr. Lee, but has not treated
with him since May 2021 because she was awaiting authorization to have Magnetic
Resonance Imaging (MRI). However, Claimant saw Barry S. Gleimer, D.O. (Dr.
Gleimer), on November 4, 2021, on a referral from her attorney. Claimant also
confirmed that she was not taking prescription medications. She claimed that she
had carpal tunnel syndrome, and she woke at night with numbness in both hands.
Her complaints at the time of her deposition were burning and tingling in her right
leg all day, and pain in her right hip, low back, neck, left shoulder, left elbow, and
1
Dr. Vernon’s full name is not contained in the record. He is described therein as an
“orthopedic doctor” at South Jersey Health and Wellness. R.R. at 215a.
3
wrist. She declared that she could sit only for 20-25 minutes, and standing “ma[de]
everything hurt,” R.R. at 89a, so she walked around. She stated that she could lift
five pounds, and that she was able to cook and do some light cleaning.2
Employer submitted the deposition testimony of Marc Manzione, M.D.
(Dr. Manzione), a board-certified orthopedic surgeon who examined Claimant on
three occasions - May 6, 2014, August 12, 2015, and April 20, 2021.3 With respect
to his April 20, 2021 examination, Dr. Manzione recounted that Claimant’s
complaints were neck pain, bilateral shoulder pain (greater on the left), a feeling of
pins and needles throughout her left hand, and right hip pain and low back pain, with
pain and tingling radiating down the right leg. Dr. Manzione further stated that
Claimant indicated that her complaints had not changed since the last examination.
According to Dr. Manzione, Claimant reported that she had stopped chiropractic
treatment in 2019, and was taking only over-the-counter medications.
Dr. Manzione related that his April 20, 2021 clinical examination of
Claimant revealed that she had subjective tenderness consistent with non-work-
related degeneration, but no objective signs of post-traumatic pathology. According
to Dr. Manzione, Claimant stood and walked normally and climbed on and off the
examination table without difficulty. He recalled that she had cervical complaints,
but no neck spasm, and her range of motion was essentially normal. Dr. Manzione
explained that Claimant complained of leg pain when he palpated her right greater
trochanter, which was also non-physiologic since that area is far removed from any
major peripheral nerve. He recollected that both of Claimant’s shoulders showed
some degenerative acromioclavicular pathology, but no rotator cuff or labrum
2
Claimant also presented Dr. Lee’s and Dr. Gleimer’s office visit notes.
3
Dr. Manzione testified in regard to the May 6, 2014 and August 12, 2015 examinations
in prior litigation.
4
pathology. Dr. Manzione attributed Claimant’s complaints of pins and needles in
her left hand to carpal tunnel syndrome which is unrelated to her work injury.
Regarding Claimant’s medical records, Dr. Manzione noted Claimant
did not undergo treatment for two years until she saw Dr. Lee on May 3, 2021.
Further, Dr. Manzione observed that Dr. Lee documented multiple objective
abnormalities that were not present at Claimant’s April 20, 2021 exam - just 13 days
earlier. In addition, Dr. Manzione had previously reviewed Claimant’s 2014 cervical
MRI and 2013 lumbar MRI, found no post-traumatic pathology, and concluded that
Claimant’s spinal bulges and foraminal stenosis were degenerative.
Ultimately, Dr. Manzione concluded on April 20, 2021, that Claimant
had fully recovered from the May 17, 2013 work injury. He explained that the “work
injuries are various strains, sprains and abrasions and a rotator cuff tendonitis” from
which Claimant recovered with no need for further medical treatment. R.R. at 129a.
He opined that Claimant clearly had lumbar degenerative disease that causes her
some lower radicular symptoms. However, according to Dr. Manzione, it was clear
from her early imaging studies and electrodiagnostic tests that Claimant “did not
sustain any injury that resulted in any structural or anatomic change or would have
any impact on an otherwise natural clinical course of preexisting spinal degenerative
disease.” R.R. at 146a. Dr. Manzione described Claimant’s first electromyography
(EMG) from August 2013, as completely normal, and noted that her August 2014
EMG showed radiculopathy. Dr. Manzione opined that, if Claimant suffered a
traumatic radiculopathy, it would have been detected on her first EMG, and the
abnormalities noted on the 2014 EMG were from an underlying degenerative
process.
On April 20, 2022, WCJ Benischeck granted the 2021 Termination
Petition. Crediting Claimant’s testimony and Dr. Manzione’s opinion, the WCJ
found that Claimant’s condition had changed. WCJ Benischeck further determined
5
that Claimant had fully recovered from the work injury as of April 20, 2021, and
adopted Dr. Manzione’s opinion as credible. WCJ Benischeck rejected Claimant’s,
Dr. Lee’s, and Dr. Gleimer’s contrary testimony and reports. Claimant appealed to
the Board. On September 12, 2022, the Board affirmed WCJ Benischeck’s decision.
Claimant appealed to this Court.4
Claimant contends that Employer failed to secure the requisite medical
proof of a change in condition before proceeding with its second attempt to terminate
WC benefits, and WCJ Benischeck instead relied solely on Claimant’s testimony to
find a change in condition. Thus, Claimant asserts that WCJ Benischeck and the
Board erred by granting the 2021 Termination Petition.
Section 413(a) of the WC Act5 states, in relevant part:
A [WCJ] designated by the [D]epartment [of Labor and
Industry (Department)] may, at any time, . . . terminate
a[n] [NCP], . . . upon petition filed by either party with the
[D]epartment, upon proof that the disability of an injured
employe has . . . temporarily or finally ceased . . . .
Such . . . termination shall be made as of the date upon
which it is shown that the disability of the injured employe
has . . . temporarily or finally ceased[.]
77 P.S. § 772.
This Court has explained:
“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 Cnty. v.
Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217
(Pa. Cmwlth. 2008) (emphasis added). The burden is
4
“[This Court’s] review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed or whether
constitutional rights were violated.” DiLaqua v. City of Phila. Fire Dep’t (Workers’ Comp. Appeal
Bd.), 268 A.3d 1, 4 n.5 (Pa. Cmwlth. 2021) (quoting Bristol Borough v. Workers’ Comp. Appeal
Bd. (Burnett), 206 A.3d 585, 595 n.6 (Pa. Cmwlth. 2019)).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2710.
6
substantial since disability is presumed to continue
unless and until proved otherwise. Giant Eagle, Inc. v.
Workmen’s Comp[.] Appeal Bd. (Chambers), . . . 635 A.2d
1123 ([Pa. Cmwlth.] 1993).
In a case where the claimant complains of
continued pain, this burden is met when an
employer’s medical expert unequivocally
testifies that it is his 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. If
the WCJ credits this testimony, the
termination of [WC] benefits is proper.
Udvari v. Workmen’s Comp. Appeal Bd. (USAir,
Inc.), . . . 705 A.2d 1290, 1293 ([Pa.] 1997) (footnote
omitted; emphasis added) . . . .
Baumann v. Workers’ Comp. Appeal Bd. (Kellogg Co.), 147 A.3d 1283, 1289-90
(Pa. Cmwlth. 2016).
Moreover, our Supreme Court has held:
In order to terminate [WC] benefits on the
theory that a claimant’s disability has
reduced or ceased due to an improvement of
physical ability, it is first necessary that the
employer’s petition be based upon medical
proof of a change in the claimant’s
physical condition. Only then can the
[WCJ] determine whether the change in
physical condition has effectuated a change
in the claimant’s disability, i.e., the loss of his
earning power. Further, by natural extension
it is necessary that, where there have been
prior petitions to . . . terminate [WC]
benefits, the employer must demonstrate a
change in physical condition since the last
disability determination.
7
Lewis v. Workers’ Comp. Appeal Bd. (Giles & Ransome,
Inc.), . . . 919 A.2d 922, 926 ([Pa.] 2007) (emphasis
added). Accordingly, “[An e]mployer’s case [must]
begin with the adjudicated facts found by the WCJ in
[his/her previous] termination petition [denial] and
work forward in time to show the required
change.” Folmer v. Workers’ Comp. Appeal Bd. (Swift
Transp.), 958 A.2d 1137, 1143-44 (Pa. Cmwlth. 2008)
(emphasis added).
“The determination of whether a claimant’s subjective
complaints of pain are accepted is a question of fact for the
WCJ.” Udvari, 705 A.2d at 1293. Moreover, it is well
established that “[t]he WCJ is the ultimate fact[-]finder
and has exclusive province over questions of credibility
and evidentiary weight.” Univ. of Pa. v. Workers’ Comp.
Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in
whole or in part, the testimony of any witness, including
medical witnesses.” Griffiths v. Workers’ Comp. Appeal
Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Baumann, 147 A.3d at 1290 (footnote omitted).
Noting that, in denying Employer’s 2015 Termination Petition, WCJ
McManus specifically rejected Dr. Manzione’s opinion that Claimant had fully
recovered from her work injury, Claimant argues:
Employer filed its [2021] Termination Petition, once again
relying upon Dr. Manzione, who offered an opinion of full
recovery for a third time.[6] []R.R. at []1a-[]3a[].
As a result of [] Employer’s previous failure to terminate
[WC] benefits, [] Employer was required to secure a
medical opinion showing a change in condition from the
previous adjudication to prevail on its [2021] Termination
Petition.
However, Dr. Manzione’s medical report and deposition
testimony were silent on the issue of whether he found
6
Claimant explains that “Employer relied on the medical opinion of [Dr. Manzione] to
defend against the Claim Petition and WCJ Callahan specifically rejected Dr. Manzione’s opinion
of full recovery.” Claimant Br. at 8.
8
a change in Claimant’s condition since the prior
termination proceedings before WCJ McManus.
Rather, Dr. Manzione simply confirmed that based on
the history, the review of the records, the testimony, his
examination, the diagnostic film and records, Claimant
had fully recovered from all of the orthopedic injuries
that occurred on May 17, 2013 . . . , similar to his prior
testimony offered before WCJs McManus and Callahan.
Claimant Br. at 14 (citation omitted; emphasis added).
This Court has recognized that the evidence necessary to
prove a change since a prior adjudication “will be different
in each case.” Folmer, 958 A.2d at 1144. “[B]y accepting
the employer’s medical evidence of full recovery as
credible, a WCJ could properly make a finding that the
employer has met the standard set forth in Lewis [of] a
change in [the c]laimant’s condition.” Del[.] Cnty. v.
Workers’ Comp. Appeal Bd. (Browne), 964 A.2d 29, 35
(Pa. Cmwlth. 2008) (emphasis added)[.] Moreover,
although the WCJ’s finding cannot be based solely upon
evidence that pre-dates the previous adjudication, . . . it
may be based upon a review of such evidence plus a
post-adjudication examination. Finally, “it is not
necessary [for the employer] to demonstrate that a
claimant’s diagnoses have changed since the last
proceeding, but only that his symptoms have improved
to the point where he is capable of gainful
employment.” Simmons v. Workers’ Comp. Appeal Bd.
(Powertrack Int’l), 96 A.3d 1143, 1149 (Pa. Cmwlth.
2014) (emphasis added). This Court has declared that a
change sufficient to satisfy the Lewis requirement exists
if there is a lack of objective findings to substantiate a
claimant’s continuing complaints.
Baumann, 147 A.3d at 1291 (citations and footnotes omitted).
Here, on review, the Board observed:
WCJ [Benischeck] concluded that Claimant’s condition
has changed in over five years since the last adjudication
based on the testimony of Claimant and Dr. Manzione. By
accepting Dr. Man[zione’s] opinion of full recovery, as
well as his testimony that there were no objective findings
in relation to the work injury, [] WCJ [Benischeck] did not
9
err in finding that [Employer] met the change in condition
standard. Dr. Man[zione] based his opinion in part on the
latest April 20, 2021 exam[ination] and the history of
Claimant’s treatment since his prior evaluation on August
12, 2015, which were both done after August 12, 2015, the
first date [Employer] alleged full recovery. Dr.
Man[zione] testified that “in connection with my most
recent examination [on April 20, 2021,] I did review
records primarily from the end of 2015 going through
April of 2019.” [R.R. at 120a]. Although [] WCJ
[Benischeck] stated “that [] Claimant’s condition has
changed based on an analysis of Claimant’s testimony[,]”
it is clear in the decision and the record that this statement
is not all-inclusive but is specific to the credibility
determination as to Claimant. Thus, Claimant’s argument
that the finding of a change in condition is based on her
testimony alone is without merit as [] WCJ [Benischeck]
also relied on the testimony of [Employer’s] expert Dr.
Man[zione]. Because the credited testimony of Dr.
Man[zione,] as well as [] WCJ[ Benischeck’s] observation
of Claimant[,] constitute substantial, competent evidence
supporting a change in condition since the September 16,
2016 [d]ecision, the [2021] Termination Petition was
properly granted.
R.R. at 20a-21a (citations and footnotes omitted). This Court discerns no error in
the Board’s reasoning. Accordingly, the Board properly affirmed WCJ
Benischeck’s finding that Employer established a change in Claimant’s medical
condition.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
Judge Dumas did not participate in the decision in this matter.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Courtney Cannon, :
Petitioner :
:
v. :
:
General Motors, LLC :
(Workers’ Compensation :
Appeal Board), : No. 1089 C.D. 2022
Respondent :
ORDER
AND NOW, this 24th day of August, 2023, the Workers’ Compensation
Appeal Board’s September 12, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge