Opinion
No. 2144 C.D. 2008.
Submitted: March 27, 2009.
Filed: July 1, 2009.
BEFORE: SMITH-RIBNER, Judge; JUBELIRER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Pella Corporation (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which reversed the Workers' Compensation Judge's (WCJ) order granting Employer's Petition to Terminate Compensation Benefits (Termination Petition). The issue before this Court is whether there is substantial evidence contained in the record to support the WCJ's finding that Rhonda Wertz (Claimant) has fully recovered from her work-related low back strain. Because we conclude that the WCJ's grant of Employer's Termination Petition is fully supported by the record, we reverse the Board's order.
The relevant facts in this case are as follows. On September 9, 2005, while working as an assembler for Employer, Claimant sustained an injury to her low back as she was pulling carts of glass. Employer issued a notice of temporary compensation payable (NTCP), which later converted to a notice of compensation payable (NCP), acknowledging liability for the injury. The NTCP described the injury as a "strain, unrelated to prior surgery." (NTCP, October 12, 2005.)
Claimant subsequently filed a Petition to Review Compensation Benefits/Medical Treatment (Review Petition). Through her Review Petition, Claimant sought to expand the description of the injury to include an L5 radiculopathy and an L4-5 disc injury. Claimant also sought to have Employer pay for surgery to treat these additional conditions. (Review Petition at 2, March 20, 2006.) Thereafter, Employer filed its Termination Petition, in which it alleged that Claimant had fully recovered from her work-related injury because she was "released to return to work at her pre-injury job as an assembler for [Employer] with no restrictions per the [independent medical examination (IME)] report of John A. Kline, [Jr.,] M.D." and his "Physician's Affidavit of Recovery." (Termination Petition ¶ 17, June 2, 2006.) Claimant filed an Answer denying that she had fully recovered from her work-related injury and asserting that she had not been released to return to work by her treating physician. Claimant's Review Petition and Employer's Termination Petition were consolidated, and the matter was assigned to a WCJ for disposition. On March 21, 2007, the WCJ held a hearing at which the parties were given the opportunity to present testimony and evidence in support of, or in opposition to, the petitions.
Claimant's Review Petition is not directly at issue in the present appeal; however, it is relevant and provides the necessary background leading up to Employer's Termination Petition.
As an alternative to its Termination Petition, Employer also filed a Petition to Modify Compensation Benefits (Modification Petition) in which it alleged that "Claimant was offered work within the restrictions of medium duty work and refused to respond in good faith to the job offer." (Modification Petition ¶ 17, August 23, 2006.) Employer's Modification Petition is not at issue in the present appeal.
In support of her Review Petition, and in opposition to Employer's Termination Petition, Claimant testified on her own behalf. Claimant testified that, while she was pulling carts of glass on September 9, 2005, she experienced pain in her lower back and in her right leg. Claimant described the pain in her right leg as extending from her buttock to underneath her foot. Claimant testified that, following the work incident, she sought treatment from several doctors, including Arnold Salotto, M.D. Claimant testified that Dr. Salotto performed surgery on her back in April of 2006. Claimant explained that, following her surgery, she continues to experience pain in her back. Claimant also explained that she no longer has any pain in her foot, but that she occasionally experiences pain down her right leg. Claimant further explained that her understanding of her current restrictions is that she can lift "no more than ten to fifteen pounds," and she cannot engage in "repetitive bending, pushing, pulling, [or] lifting." (WCJ Hr'g Tr. at 28-29, March 21, 2007.) Claimant acknowledged that she had previously undergone surgery in 2003 for a non-work related back problem and that she was restricted to light-duty work prior to the September 2005 work incident. Claimant also acknowledged that she had continued to experience pain in her back following her 2003 surgery and up to the time of the September 2005 work incident.
Claimant also presented the deposition testimony of her treating physician, Dr. Salotto, who is board-certified in neurological surgery. Dr. Salotto testified that Claimant first presented to him for treatment in September of 2002, at which time she complained of pain in her low back that radiated into her left leg. Dr. Salotto testified that he diagnosed Claimant with an L4-5 disc herniation and that he performed surgery on Claimant to treat that injury in July of 2003. Dr. Salotto testified that Claimant presented to him on multiple occasions following her 2003 surgery and reported that she continued to experience low back pain.
Dr. Salotto testified that Claimant again presented to him in December of 2005, at which time she indicated that she had injured her back at work in September of 2005. Dr. Salotto testified that Claimant reported "right-sided buttock and radiating leg pain associated with numbness and tingling of the foot and some weakness of the leg." (Salotto Dep. at 10.) Dr. Salotto testified that Claimant's complaints of pain were typical of nerve irritation. Dr. Salotto diagnosed Claimant with an L5 radiculopathy that he believed was directly related to the September 2005 work incident. Dr. Salotto testified that, in April of 2006, he performed "nerve decompression surgery on the right side at [the] L4-5" level. (Salotto Dep. at 16.) Dr. Salotto testified that "the main symptoms that [Claimant] complained about up to the point of surgery were really radicular into the leg," which was "not a typical symptom of a sprain/strain." (Salotto Dep. at 21.)
On cross-examination, Dr. Salotto testified that he had last seen Claimant on August 24, 2006, at which time she reported "complete relief of her leg pain since surgery" and that "[s]he is very pleased with the results of her surgery." (Salotto Dep. at 28.) When questioned, Dr. Salotto agreed that, as of August 24, 2006, Claimant no longer has any radicular pain into her leg, there is no longer any compression of the L5 nerve, and her radicular symptoms have been successfully treated. Dr. Salotto agreed that an "ideal result" had been achieved. (Salotto Dep. 40.) Further, Dr. Salotto acknowledged that Claimant had a pre-existing history of chronic back pain dating back to 1994. Dr. Salotto also acknowledged that Claimant previously had degenerative disc disease at the L2-3, L3-4, and L4-5 levels. In addition, Dr. Salotto acknowledged that Claimant had restrictions on excessive bending, lifting or twisting prior to the September 2005 work incident. On redirect, when questioned as to whether Claimant had fully recovered from the surgery, Dr. Salotto testified, "Well, not in terms of the back surgery itself necessarily. I mean, she still has restrictions in terms of repetitive bending and twisting and lifting." (Salotto Dep. at 57.) Dr. Salotto further testified that he would recommend a gradual return to work for Claimant.
In opposition to Claimant's Review Petition, and in support of its Termination Petition, Employer presented the deposition testimony of Dr. Kline. Dr. Kline testified that he conducted an IME of Claimant on March 14, 2006. Dr. Kline explained that, as part of his IME, he obtained a medical history from Claimant, reviewed Claimant's medical records, and conducted a physical examination. Dr. Kline testified that, at the time of the IME, Claimant reported having back pain that "travel[ed] to the outside portion of the buttock and thigh . . . [and] into the ankle and foot." (Kline Dep. at 9, October 20, 2006.) Dr. Kline explained that, in reviewing Claimant's medical records, he observed that Claimant had undergone multiple studies, which revealed that she had "a number of degenerative conditions as well as postoperative changes and scarring" that were present prior to the September 2005 work incident. (Kline Dep. at 11.) Dr. Kline testified that, upon examining Claimant, he did not observe any symptoms of radiculopathy or nerve root impingement. Based on his examination and review of Claimant's medical records, Dr. Kline concluded that Claimant had "chronic low back pain that went into the right hip and leg"; "an L4-5 disc herniation for which she previously had surgery"; "degenerative changes of the spine as well as the disc including the facet hypertrophy . . . of the low back"; and "pre-existing inflammatory changes at the right L3, L4, and L5 levels." (Kline Dep. at 15-16.) Dr. Kline diagnosed Claimant as only having "sustained a sprain or a strain to the low back area" as a result of the September 2005 work incident. (Kline Dep. at 17.) Dr. Kline testified that it was his opinion that this injury "had resolved." (Kline Dep. at 17.) Dr. Kline further testified that he believed the 2006 surgery performed by Dr. Salotto was to treat conditions that existed prior to the September 2005 work incident and that the surgery was, therefore, unrelated to the work injury.
Following the hearing, the WCJ issued a decision and order in which she accepted Claimant's testimony as credible. The WCJ also found Dr. Salotto's testimony unequivocal and credible that "Claimant's L5 radiculopathy was related to her work injury on 9/9/2005" and that "Claimant's surgery on 4/21/2006 was related to her work injury of 9/9/2005." (WCJ Decision, Findings of Fact (FOF) ¶ 13(a)-(b).) However, the WCJ discredited Dr. Salotto's testimony that "Claimant had not recovered from the 9/9/2005 work injury" because it was "inconsistent with his testimony that the surgery he performed was successful in relieving Claimant's symptoms." (FOF ¶ 13(d).) Further, the WCJ accepted Dr. Kline's testimony as unequivocal and credible to the extent that such testimony concurred with Dr. Salotto's testimony. Based on these findings, the WCJ determined that "[w]hile Claimant's medical [evidence] is sufficient to prove entitlement to an expansion of the description of injury, it [is] not sufficient to defeat [Employer]'s Termination Petition, given the admissions made by Dr. Salotto on cross-examination." (WCJ Decision at 19.) The WCJ explained, in pertinent part:
It was on cross-examination that Dr. Salotto provided support for [Employer]'s Termination Petition, testifying that the surgery he performed in April 2006 was successful in that Claimant had "complete relief" of her leg pain after surgery. Dr. Salotto agreed that there was no longer any compression on the L5 nerve, and that the injury had been successfully treated . . . an "ideal result", he agreed. Dr. Salotto recommended that Claimant take medication, and also agreed that Claimant should avoid excessive bending, twisting, and lifting; he would expect her to have pain from these activities because of her old injury in 2002. There was also the possibility of epidural scarring from the 2003 surgery. Dr. Salotto testified that the "anatomic" conditions he identified at the time of surgery all pre-existed Claimant's September 2005 injury; her injury was pain secondary to nerve irritation and Claimant no longer has pain from the nerve irritation.
As to Claimant's ongoing complaints of back pain, Dr. Salotto admitted that Claimant has had back pain since an injury in 1994; he agreed that Claimant's pre-existing degenerative findings would be consistent with her prior history of back pain. Then, on re-direct, Dr. Salotto testified that Claimant has not recovered from the surgery because she still has restrictions on lifting, bending, and twisting.
Dr. Salotto's opinion that Claimant had not recovered from the 9/9/2005 work injury was inconsistent with his testimony that the surgery he performed was successful in relieving Claimant's complaints and that any ongoing back pain, restrictions, and that the need for medication was because of her "old" injury in 2002.
Finally, Claimant's claim for recognition of an "L4-5 disc injury" must be denied. As Dr. Salotto testified, the surgery he performed on 4/21/2006 was a nerve decompression on the right at L4-5; there was no removal of disc material.
With the resolution of evidence, Claimant will prevail in part, and [Employer] will prevail in part. The accepted medical evidence supports the conclusion that Claimant suffered an L5 radiculopathy as a result of the work injury on 9/[9]/2005 for which she underwent surgery and achieved complete resolution of . . . her L5 radiculopathy. . . . And, in conclusion, [Employer]'s Termination Petition must be granted, given the admissions made by Dr. Salotto.
(WCJ Decision at 21-23 (footnotes omitted).) Accordingly, the WCJ: (1) granted in part and denied in part Claimant's Review Petition; and (2) granted Employer's Termination Petition.
Claimant subsequently appealed the WCJ's grant of Employer's Termination Petition to the Board. Before the Board, Claimant argued that the WCJ erred in terminating her benefits because there was a lack of substantial medical evidence to support that all disability related to her work injury had ceased. The Board agreed with Claimant, explaining:
Neither party appealed the WCJ's decision as to Claimant's Review Petition.
After reviewing the record, we conclude that the WCJ erred in terminating Claimant's benefits, as there is no substantial, competent evidence of record to support a finding that she was fully recovered from all of her work injuries. With respect to Dr. Salotto's testimony, although he testified that the radiculopathy at L5 was successfully treated, and Claimant was free of symptoms from that condition, we see no indication that Dr. Salotto testified that Claimant was fully recovered from her work-related low back strain. Instead, Dr. Salotto testified only that the main symptoms Claimant complained about up to the point of surgery were radicular and not a typical symptom of a lumbosacral sprain/strain.
Taking Dr. Kline's testimony into consideration, said testimony cannot support a finding of full recovery since the WCJ accepted Dr. Kline's testimony only "to the extent it concurred with the testimony of Dr. Salotto," and the two physicians disagreed as to Claimant's recovery status. Moreover, the WCJ accepted Claimant's testimony that her right leg and low back pain continues. In light of the foregoing, we agree with Claimant that the evidence of record does not support a finding that she was fully recovered. . . .
(Board Op. at 5-6 (footnote omitted).) Based on its determination that there was not substantial evidence in the record to support that Claimant fully recovered from her work-related low back strain, the Board reversed in part the WCJ's grant of Employer's Termination Petition. Employer now petitions this Court for review of the Board's order.
This Court's review in "a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence." Paul v. Workers' Compensation Appeal Board (Integrated Health Servs.), 950 A.2d 1101, 1103 n. 1 (Pa.Cmwlth.),petition for allowance of appeal denied, 599 Pa. 696, 960 A.2d 842 (2008). "Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Empire Steel Castings, Inc. v. Workers' Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1024 (Pa.Cmwlth. 2000). When reviewing the record for substantial evidence, this Court "must view the evidence in a light most favorable to the party who prevailed before the factfinder." Id.
Before this Court, Employer argues that there is substantial evidence in the record to support the WCJ's finding that Claimant fully recovered from all of her work-related injuries and that the Board, therefore, erred in reversing the WCJ's grant of its Termination Petition. We agree.
Initially, we note that Employer technically failed to comply with Rules 2111(a)(4) and 2116(a) of the Pennsylvania Rules of Appellate Procedure because its brief does not contain a statement of the questions involved. Claimant does not ask this Court to find waiver but, rather, acknowledges that the issues raised by Employer on appeal may be reasonably discerned from the other sections of Employer's brief. Under these circumstances, this Court will exercise its discretion and consider the issues raised by Employer in its brief, despite Employer's failure to technically comply with the Rules of Appellate Procedure. See Izzi v. Workmen's Compensation Appeal Board (Century Graphics), 654 A.2d 176, 178 n. 3 (Pa.Cmwlth. 1995) (exercising discretion to consider an issue raised in a claimant's brief, even though the claimant's brief did not contain a statement of questions involved).
In a termination proceeding, the employer bears the burden of proving that all disability related to the work injury has ceased. Udvari v. Workmen's Compensation Appeal Board (US Air), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997). In cases where a claimant continues to complain of pain, an employer satisfies this burden by presenting expert medical testimony establishing "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." Id.
Employer devotes a significant portion of its brief to discussing whether there was sufficient evidence to establish that Claimant fully recovered from her L5 radiculopathy. However, the Board did not reverse the WCJ's determination in that regard; the Board only reversed the WCJ's determination to the extent that the Board determined that there was insufficient evidence in the record to support that Claimant fully recovered from her low back strain. Thus, the only question that is before us is whether there is sufficient evidence contained in the record to support that Claimant fully recovered from her low back strain.
While Claimant also presents arguments in her brief regarding whether there was sufficient evidence in the record to support the WCJ's finding that Claimant fully recovered from her L5 radiculopathy, Claimant has not filed a cross-appeal of the Board's decision with this Court. Therefore, we will not consider this issue.
Employer initially argues that it was not required to prove that Claimant fully recovered from her low back strain because Dr. Salotto, the only credited medical expert, testified that Claimant sustained an L5 radiculopathy, and not a low back strain. However, this argument is misplaced for several reasons. First, Dr. Salotto was not the only credited medical expert; the WCJ also accepted Dr. Kline's testimony as credible to the extent that it concurred with Dr. Salotto's testimony. Second, Dr. Salotto did not testify that Claimant never sustained a low back strain; he merely testified that Claimant's main symptoms up to the time of the 2006 surgery were not typical of a sprain or strain. Finally, there is no indication in the record that Claimant, as part of her Review Petition, requested that the low back strain be stricken from the description of the injury contained in the NCP, nor is there any indication that the WCJ ordered the same. Under these circumstances, in order to succeed on its Termination Petition, Employer was not only required to prove that Claimant had recovered from the L5 radiculopathy that was added to the description of the injury by the WCJ's grant of Claimant's Review Petition, but also that Claimant recovered from the initially recognized low back strain. See City of Philadelphia v. Workers' Compensation Appeal Board (Smith), 946 A.2d 130, 136-137 (Pa. Cmwlth. 2008) (recognizing that, in order to terminate benefits, an employer must prove that a claimant has recovered from additional injuries that are subsequently added to an NCP in addition to injuries that were previously recognized in the NCP); Central Park Lodge v. Workers' Compensation Appeal Board (Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998) (concluding that, in a termination proceeding, an employer must prove that all of a claimant's recognized injuries have resolved).
After carefully reviewing the record, we believe that there is substantial evidence to support that Claimant fully recovered from her low back strain. Employer's expert, Dr. Kline, testified that Claimant sustained a lumbosacral low back sprain or strain and that this injury had resolved. The WCJ accepted Dr. Kline's testimony as credible to the extent that it concurred with Dr. Salotto's testimony. The only testimony that Dr. Salotto provided regarding a low back strain was that Claimant's main symptoms, up to the time of the 2006 surgery, were not typical of a strain. Dr. Salotto did not testify that Claimant never sustained a strain. When viewed in the light most favorable to Employer, the party that prevailed before the factfinder, Dr. Salotto's testimony may be read consistently with Dr. Kline's testimony to mean that Claimant fully recovered from her low back strain. Therefore, Dr. Kline's credited testimony, when considered along with Dr. Salotto's credited testimony, constitutes substantial evidence to support that Claimant fully recovered from her low back strain. As such, we conclude that the Board erred in reversing in part the WCJ's grant of Employer's Termination Petition.
That the WCJ credited Claimant's testimony as to ongoing pain in her back does not alter this conclusion. It is evident from the WCJ's determination that, based on the credited testimony of Dr. Salotto and Dr. Kline, she found Claimant's ongoing complaints of back pain to be attributable to her preexisting degenerative conditions. As factfinder, the WCJ had the sole authority to weigh the conflicting evidence, and this Court may not reassess that determination on appeal. See Empire Steel, 749 A.2d at 1024 ("[I]t is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence.").
Accordingly, the Board's order is reversed.
Judge Smith-Ribner dissents.
ORDER
NOW, July 1, 2009, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby REVERSED.