Opinion
No. 1909 C.D. 2011
05-10-2012
Kimberly Szczepanski, Petitioner v. Workers' Compensation Appeal Board (Leggett & Platt), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Kimberly Szczepanski (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting the termination petition filed by Leggett & Platt (Employer). Claimant contends the Board erred in affirming the WCJ's decision because she did not fully recover from her injuries. Upon review, we affirm.
Background
While working for Employer as a bagger on June 30, 2004, Claimant's arm became
trapped in an automated machine that pushes product and wraps it in plastic ... a roll came through and [she] put [her] hand on the plastic and ... it started to fly backwards, and [her] arm jolted in the machine and ... [she] pulled it out just in time before the two steel bars came down.(Work Incident) WCJ Op. 9/25/08, at 1, Reproduced Record (R.R.) at 3a. Claimant immediately reported the Work Incident to Employer. She also sought treatment for her right shoulder.
Claimant continued working without restriction until October 30, 2006. Employer then laid off Claimant because automation eliminated her position. Claimant could not perform other positions offered by Employer. Claimant filed a claim petition for her 2004 shoulder injury, which Employer contested.
In the claim proceeding, Claimant presented testimony of her treating physician, Dr. James Jiunta (Claimant's Physician), who is eligible for board certification in family medicine. Employer presented testimony of Dr. David C. Baker (Employer's Physician), a board certified orthopedic surgeon. Employer's Physician testified that Claimant's condition and pain was degenerative, unrelated to the Work Incident. Claimant's Physician testified Claimant sustained a work injury in the nature of a right shoulder strain, causing chronic pain and restricted mobility.
Ultimately a workers' compensation judge (WCJ Thomas Kutz) credited Claimant's Physician's opinion and found his testimony more persuasive than that of Employer's Physician. Based on Claimant's Physician's testimony, WCJ Kutz concluded Claimant suffered "a shoulder injury ... that produced chronic pain in the right shoulder, right bicipital tendinitis, right subdeltoid bursitis and supraspinatus and infraspinatus tendinitis." (Adjudicated Injury), WCJ Op. 9/25/08 at 10, R.R. at 12a.
Two years later, Employer filed its petition to terminate benefits as of May 27, 2009, asserting Claimant fully recovered from the Adjudicated Injury. A hearing ensued. During the hearing, Employer submitted the deposition testimony of Employer's Physician, the same doctor who served as its medical expert in the claim proceeding. Claimant also testified, and again submitted the deposition testimony of Claimant's Physician.
Claimant's Physician testified that Claimant remains totally disabled from her shoulder injury and that he did not release her to return to work. He noted that the MRI reports reflected tendinosis of the supraspinatus and infraspinatus tendon, and "primarily the supraspinatus tendinitis was the permanent feature on all of those MRIs." R.R. at 79a (Claimant's Physician's deposition). Claimant's Physician conceded that a March 2008 MRI did not reveal any evidence of a tear or tendinitis. He also conceded that a February 2010 MRI showed no evidence of fracture, bone contusion, osteonecrosis, bone lesion or bursitis and that the rotator cuff, tendon and gelnoid labrum now appear normal. He reported that Claimant's condition was static despite her increased subjective reports of pain. R.R. at 83a. He also noted that surgery was not recommended. He conceded he is not sure whether a degenerative cyst in her shoulder is causing her pain. Id. at 89a.
Claimant testified she continues to have constant pain in her right shoulder. She planned another appointment with her surgeon to assess whether the pain could be alleviated. She also testified that because it hurt to use her right arm, she used her left for most tasks.
Employer's Physician examined Claimant on May 27, 2009. He testified he reviewed records of Claimant's Physician, Hoch Chiropractic, a 2006 MRI, notes from her surgeon, and the arthroscopy report from March 2007.
An October 2006 MRI showed tendinosis of the rotator cuff, AC joint degeneration and a cyst in the humeral head. Claimant underwent an arthroscopy in March 2007.
At the time of the 2009 examination, Claimant was taking a mild analgesic for pain, two to four times a day. On physical examination, Employer's Physician did not notice any visible abnormalities in Claimant's right arm or shoulder. He noted that she was right-arm dominant and had no atrophy, indicating she did not perform everything with her left hand as she testified. He reported she had an "essentially equal" range of motion, with a "slight deficit in forward flexion." R.R. at 39a. He tested the supraspinatus, infraspinatus and subscapularis of the rotator cuff and found they were strong. Her right arm measured 2 cm larger than her left.
In his Affidavit of Recovery, Employer's Physician diagnosed a right shoulder strain. R.R. at 41a. Employer's Physician was provided with additional records and a letter asking him to address the complete Adjudicated Injury. He completed a supplemental report (Supplemental Report) in response. When asked if he formed an opinion as to whether Claimant fully recovered from the Adjudicated Injury, he responded:
Yes. I did not think she was suffering from the effect of those things [right bicipital tendinitis, right subdeltoid bursitis,
supraspinatus and infraspinatus tendinitis] when I saw her ... I don't think she had symptoms consistent with those diagnoses or findings consistent with those diagnoses.R.R. at 42a-43a. He testified the results of the March 2008 MRI were consistent with his opinion, showing "normal tendons at this time." R.R. at 44a. Employer's Physician did not review the February 2010 MRI.
Employer's Physician stated Claimant "complained of pain, non-specific with basically any activity or position of the arm." R.R. at 47a. He testified that the "most specific [he] could be is she had right shoulder pain." R.R. at 40a. He further testified, "I ... did not think her pain was explainable." R.R. at 41a.
Employer's Physician opined that he did not believe that the Adjudicated Injury occurred as a result of the Work Incident. Rather, he believed Claimant suffers from a degenerative condition. R.R. at 66a. Employer's Physician stated in his Supplemental Report, "Again, I think she is recovered from any right bicipital tendinitis, right subdeltoid bursitis and supraspinatus and infraspinatus tendinitis as well as chronic right shoulder pain that would have been brought on by one event on 6/30/04." R.R. at 67a.
Employer's Physician explained these conditions may be generally described as inflammation of the rotator cuff.
In the termination proceeding, the WCJ (WCJ Mark Peleak) credited Employer's Physician's testimony over that of Claimant's Physician. WCJ Op., 11/24/10, Finding of Fact (F.F.) No. 11. WCJ Peleak found Claimant's testimony conflicted with that of Employer's Physician. Id. He concluded from the fact that her right arm is larger than her left that she is able to use her right arm, despite her testimony to the contrary. WCJ Peleak noted she is taking only modest medication and that no surgery is recommended. WCJ Peleak found that Employer's Physician opined that Claimant fully recovered from her work injury. WCJ Op., 11/24/10, F.F. No. 6. Claimant appealed to the Board.
The Board recognized that Employer's Physician did not believe Claimant's pain was explainable and that he opined her symptoms were not consistent with rotator cuff tendonitis. The Board noted that Employer's Physician acknowledged that the results from his first examination in 2007 compared to those in 2009 are "essentially the same." R.R. at 45a. Nevertheless, the Board concluded WCJ Peleak had sufficient evidence to support his findings of full recovery. As such, the Board affirmed.
Claimant appeals to this Court. She contends the WCJ erred in finding that she is fully recovered, or that any remaining disability was no longer related to the Adjudicated Injury. She argues the WCJ disregarded material evidence, a 2010 MRI study demonstrating continued supraspinatus tendonitis. Claimant also asserts the WCJ erred in finding her condition changed from the time of Employer's Physician's 2007 examination. Additionally, Claimant asserts that Employer bears the burden to demonstrate through its expert that Claimant's continued pain complaints were not related to the Adjudicated Injury.
This Court's review is limited to determining whether there was a violation of constitutional rights, errors of law committed, or a violation of Board procedures, and whether necessary findings of fact were supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Comp. Appeal Bd. (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).
Discussion
Claimant asserts that Employer's Physician never accepted the Adjudicated Injury; therefore, he did not render a competent opinion as to recovery. Claimant contends that Employer's Physician's testimony is that her condition has not changed since his 2007 evaluation. Claimant argues that if her condition did not change, then the WCJ could not find full recovery from her Adjudicated Injury.
In a termination proceeding, Employer
bears the burden of proving by substantial evidence either that the employee's disability has ceased, or that any current disability arises from a cause unrelated to the employee's work injury. Employer must show that any continued disability is the result of an independent cause or the lack of a causal connection between the continued disability and the original compensable injury. In either situation, this is a considerable burden because the claimant's disability is presumed to continue until demonstrated otherwise; there is no burden on the claimant to prove anything at all.Davis v. Workers' Comp. Appeal Bd. (Mercy Douglas & PMA Grp.), 749 A.2d 1033, 1035 (Pa. Cmwlth. 2000). Employer must show that any continued disability is not causally linked to the Adjudicated Injury. Id. "[W]here a claimant continues to complain of pain, the employer's burden is met when it presents unequivocal medical testimony 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 link them to the work injury." Indian Creek Supply v. Workers' Comp. Appeal Bd. (Anderson), 729 A.2d 157, 161 (Pa. Cmwlth. 1999).
We are asked to address two issues: (1) is the evidence sufficient for the WCJ to find that Claimant fully recovered; and (2) did Employer meet its burden of proving a change in condition.
1. Full Recovery
Claimant challenges the competence of Employer's Physician's testimony, alleging he did not accept her Adjudicated Injury. We disagree.
For his testimony to qualify as competent, Employer's Physician must assume she suffered each condition recognized in her Adjudicated Injury. See Elberson v. Workers' Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007). A medical expert is "not required to believe a condition existed; he is merely required to accept as true the adjudicated fact that a condition existed and opine as to whether the condition continues to exist at the time of the examination." Folmer v. Workers' Comp. Appeal Bd. (Swift Transp.), 958 A.2d 1137, 1147 (Pa. Cmwlth. 2008); see also Hall v. Workers' Comp. Appeal Bd. (Amer. Svc. Grp.), 3 A.3d 734 (Pa. Cmwlth. 2010) (expert need not believe work injury occurred). A medical expert offers competent testimony when he assumes the presence of an injury and opines that the adjudicated injury resolved. Id.
An expert's testimony may be sufficient despite a doctor's contrary beliefs or diagnoses. Jackson v. Workers' Comp. Appeal Bd. (Res. for Human Dev.), 877 A.2d 498 (Pa. Cmwlth. 2005); To v. Workers' Comp. Appeal Bd. (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003). In To, when the medical expert characterized the claimant's injury as "medically and physiologically impossible," the claimant argued the expert could not opine that he recovered from the injury. To, 819 A.2d at 1224. We disagreed. Likewise, in Jackson we held that testimony that the claimant "made a full and complete recovery from any injury he may have sustained in the course of his employment" met the burden. Jackson, 877 A.2d at 503 (emphasis in original).
Employer's Physician's opinions exceed that standard here. Employer's Physician testified that Claimant did not suffer from any conditions consistent with her Adjudicated Injury when he saw her in 2009. R.R. at 42a. In his Supplemental Report, Employer's Physician clearly stated that he assumed the presence of the Adjudicated Injury, including Claimant's alleged chronic pain. R.R. 67a. Based on that assumption, he concluded Claimant fully recovered. Id.
Claimant asserts Employer's Physician did not address her complete Adjudicated Injury. Unlike the cases cited by Claimant, however, Employer's Physician did not limit his opinion to only one aspect of her injury. Had Employer's Physician not supplemented his Affidavit of Recovery, which did not address each individual condition, we may find these cases applicable. But as his Supplemental Report assumes her complete Adjudicated Injury, Claimant's argument lacks merit.
See, e.g., GA&FC Wagman, Inc. v. Workers' Comp. Appeal Bd. (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001); cf. Jones v. Workers' Comp. Appeal Bd. (J.C. Penney Co.), 747 A.2d 430 (Pa. Cmwlth. 2000) (reversing termination of benefits because expert acknowledged continuation of one aspect of claimant's injury). --------
Further, Claimant's contention that Employer's Physician's testimony is insufficient because he did not review her February 2010 MRI lacks merit. WCJ Peleak made a specific finding that Claimant's Physician conceded that the February 2010 MRI showed that "basically, the rotator cuff, tendon and glenoid labrum now appeared to be normal." F.F. No. 10. Further, WCJ Peleak found "the most recent evidence, particularly the diagnostic testing in the form of MRIs ... indicate [Claimant] is able to use her right arm despite her testimony." Id.
WCJ Peleak, in his role as the ultimate fact-finder, found Employer's Physician more credible than Claimant or her physician. Accordingly, we conclude there is sufficient evidence to support the WCJ's determination of full recovery.
2. Change in Condition
Claimant next asserts Employer failed to meet its burden that her condition changed since Employer's Physician's 2007 exam as required by Lewis v. Workers' Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). "Change in condition" is defined as "any change in the claimant's physical well-being that affects his ability to work." Prebish v. Workers' Comp. Appeal Bd. (DPW/W. Center), 954 A.2d 677, 682 n.3 (Pa. Cmwlth. 2008).
However, medical evidence of "a total recovery from the recognized work injury ... would satisfy the employer's burden of proving a change in the claimant's physical condition." Delaware Cnty. v. Workers' Comp. Appeal Bd. (Browne), 964 A.2d 29, 35 (Pa. Cmwlth. 2008).
Employer's Physician opined consistently in 2007 and 2009 that Claimant's condition is not work-related; nevertheless, his testimony supports a finding of a change in condition. As noted by the Board, Employer's Physician testified that the post-surgery March 2008 MRI showed the rotator cuff and biceps tendon as normal. Bd. Op. at 6. Further, he testified that Claimant's right arm measures 2 cm larger than her left. Id. Further, Employer's Physician opined that the evidence of inflammation of the shoulder structures resolved. He also opined that Claimant was not suffering from her Adjudicated Injury at the time of his exam and he did not think she had symptoms consistent with those diagnoses. Id. We agree with the Board that this evidence suffices to show a change in condition and full recovery. Delaware Cnty.
Contrary to Claimant's characterization, Employer does not have the burden to explain the reasons why Claimant continued to suffer pain. Employer's Physician acknowledged that Claimant complained of continued right shoulder pain, and that remained his diagnosis. However, Employer's Physician testified there were no objective causes for Claimant's subjective complaints of pain. Such testimony is sufficient. Udvari v. Workmen's Comp. Appeal Bd. (US Air, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997).
Moreover, WCJ Peleak did not find Claimant credible. The WCJ is entitled to disbelieve Claimant's complaints of pain, particularly where there is no objective medical cause to which they may be attributable. Folmer (WCJ may reject claimant's complaints of pain pursuant to his fact-finding role).
For the foregoing reasons, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 10th day of May, 2012, the Order of the Workers' Compensation Appeal Board dated September 15, 2011 at No. A10-2129 is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge