The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Luterman, :
Petitioner :
:
v. : No. 108 C.D. 2021
: Submitted: July 2, 2021
School District of Philadelphia :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: September 14, 2021
Michael Luterman (Claimant) petitions for review from the January 14,
2021 Order of the Workers’ Compensation Appeal Board (Board) that affirmed the
January 28, 2020 Decision and Order of the workers’ compensation judge (WCJ),
granting the Petition to Terminate Compensation Benefits (Termination Petition)
filed by the School District of Philadelphia (Employer).
I. Background
On October 19, 2016, Claimant[, a health and physical education
teacher for Employer,] sustained a work-related injury, described as a
soft tissue contusion to the head/temple area, concussion, post-
concussion syndrome, cervical strain/sprain superimposed over
degenerative changes in the cervical spine, and adjustment disorder
with mixed anxiety and depressed mood. These injuries were accepted
by two Notices of Compensation Payable and a Supplemental
Agreement.
Bd. Op., 1/14/21, at 1.
On September 14, 2018, Employer filed a Termination Petition,
asserting that Claimant was fully recovered and able to return to work as of August
16, 2018. Reproduced Record (R.R.) at 1a. Claimant filed an Answer denying same.
The matter was referred to the WCJ for disposition, and after
conducting three hearings and admitting six exhibits presented by Claimant and four
exhibits presented by Employer, the WCJ issued a January 28, 2020 Decision and
Order which included Findings of Fact and Conclusions of Law.
II. The WCJ’s Decision and Order
Employer presented the January 23, 2019 deposition testimony of
Dennis McHugh, D.O., a board-certified orthopedic surgeon, which the WCJ
summarized as follows. Dr. McHugh examined Claimant on August 16, 2018, and
reviewed Claimant’s medical records. Claimant returned to work after his October
19, 2016 work incident, but “reportedly was struck on the top of his head with a
rubber ball on December 28, 2016. He went out of work on January 17, 2017[,] and
has not returned to work.” Finding of Fact (F.F.) No. 1.b. A January 31, 2017
magnetic resonance imaging (MRI) of Claimant’s cervical spine showed “a tiny
herniated disk at C4-C5, a bulge and herniation at C5-C6, as well as a herniation at
C6-C7. These changes were compared to previous studies, and there was no
significant change found.” F.F. No. 1.c. Claimant’s medical records revealed that
he reported a history of headaches, which began in 2012, and occurred two to three
times per month. Id. Notes, dated February 2, 2017, in Claimant’s medical records
indicated that Claimant had a history of chronic neck problems. Id. “Motor testing
was conducted and revealed no deficits. There was no diagnosis relating to
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Claimant’s neck.” Id. Dr. McHugh’s examination of Claimant found that there were
no spasms in Claimant’s neck. Dr. McHugh conducted “provocative tests for
neuropathy, and these tests were negative.” F.F. No. 1.d. Dr. McHugh’s
examination revealed Claimant had “full strength, normal sensation and normal
reflexes in the upper extremities. He had 100 pounds of grip strength on grip
strength testing.” Id. The WCJ found that, “[t]aking into consideration Claimant’s
history and his review of the voluminous records as well as his examination of
Claimant, Dr. McHugh concluded Claimant is fully recovered from his cervical
sprain/strain as of [the date of his examination, i.e., August 16, 2018].” F.F. No. 1.e.
Dr. McHugh opined that Claimant’s work incident resulted in inflammation and a
sprain/strain, and concluded that Claimant required no additional medical treatment
for his work injury and that he is able to perform his pre-injury job without
restrictions. Id. Dr. McHugh indicated that preexisting degenerative changes in
Claimant’s neck did not change as a result of the sprain and strain. Id. The WCJ
added that Dr. McHugh concluded that an October 10, 2018 MRI study revealed
Claimant had “pre[]existing degenerative findings with very little change from the
previous MRI.” F.F. No. 1.f.
Employer also presented the February 15, 2019 deposition testimony of
Christopher King, Psy.D., a licensed psychologist and clinical neuropsychologist.
Dr. King evaluated Claimant on April 5, 2018. Claimant reported a history of neck
issues since 2011 or 2012 from prior work injuries. F.F. No. 4.b. “Dr. King
administered five hours of testing during which time Claimant exhibited no gross or
fine motor problems. He had no signs of pain or discomfort, and his mental stamina
and physical endurance were normal. Claimant had a pleasant and normal mood.”
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F.F. No. 4.c. Dr. King reviewed a compilation of Claimant’s medical records. F.F.
No. 4.h. Dr. King concluded that Claimant
is fully recovered from his concussion, post-concussion syndrome and
adjustment disorder with mixed anxiety and depressive mood. His
neuropsychological functioning is normal and there is no evidence of
any intellectual decline . . . . There are no objective findings to
substantiate Claimant’s subjective complaints. Claimant requires no
further treatment or testing and is able to perform his pre-injury job
without restrictions.
F.F. No. 4.k.
Claimant testified by deposition on November 18, 2018. He testified
that his October 2016 work injury was his seventh concussion and neck injury. He
testified that he returned to work for two days and that he was hit in the head again.
F.F. No. 6.a. Claimant testified that he has headaches nearly every day and that “he
has pain in his disc that [does not] ever go away.” F.F. No. 6.e.
Claimant also testified at a hearing before the WCJ, on April 23, 2019,
that “[h]e has had light and sound sensitivity and nausea associated with his
headaches since 2011.” F.F. No. 6.l. Claimant has not had any injuries since his
previous testimony and has not worked or looked for work. F.F. No. 6.t.
Claimant presented the March 28, 2019 deposition testimony of Steven
Mazlin, M.D., a board-certified neurologist and psychiatrist. Dr. Mazlin has been
treating Claimant since June 5, 2012. Dr. Mazlin saw Claimant on February 2, 2017
in regard to the October 19, 2016 work injury. The WCJ found:
[Dr. Mazlin] diagnosed concussion and unresolved post-concussion
syndrome. Claimant had been hit in the head by a basketball thrown by
a student . . . . He indicated Claimant would need to find another line
of work and that he would never clear him to return to work as a gym
teacher . . . . His diagnosis [of Claimant] [was] post-concussion
syndrome triggered by a head injury superimposed on a history of
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migraines and concussions resulting in chronic daily headaches with
neck pain.
F.F. No. 2.c. Dr. Mazlin did not agree that Claimant had fully recovered from his
work injury. F.F. No. 2.i.
Claimant also presented the April 18, 2019 deposition testimony of
William Burstein, M.D., who is board certified in internal medicine. Dr. Burstein
first examined Claimant on January 24, 2017. Dr. Burstein diagnosed Claimant with
“concussion and post-concussion syndrome, anxiety and depression and chronic
cervical pain with underlying cervical disc disease and disc displacement.” F.F. No.
3.d. Dr. Burstein’s findings included thoracic spine tenderness and lumbar spine
limited range of motion and tenderness. F.F. No. 3.e. “Given Claimant’s
complaints, Dr. Burstein advised he did have a back injury.” Id.
In addition, Claimant presented the June 6, 2019 deposition testimony
of Stephen Murray, Ph.D., who is a clinical psychologist. Dr. Murray first spoke
with Claimant on April 18, 2018. Dr. Murray’s diagnosis of Claimant is that he
suffers from anxiety and depression. The WCJ stated “[w]hile Dr. Murray testified
he had not released Claimant to return to work, he never addressed Claimant’s ability
to work in any of his reports.” F.F. No. 4.ee.
Based on the evidence of record, the WCJ did not find Claimant
credible that his work injury continues. The WCJ made this finding, in part, as a
result of his direct observation of Claimant during live testimony. The WCJ also
found that Claimant’s testimony contradicted his medical witnesses. F.F. No. 8.b.
Further, the WCJ found that “[a]ll of the objective testing performed on Claimant
was normal.” F.F. No. 8.c.
The WCJ found the testimony of Dr. McHugh to be credible, noting
that he is a board-certified orthopedic surgeon who is “well qualified to render
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opinions regarding the condition of Claimant’s cervical spine” and that Dr.
McHugh’s testimony was very detailed and that he reviewed “voluminous medical
records and provided a credible, persuasive opinion regarding the condition of
Claimant’s neck[,] taking into consideration all of the medical records and
Claimant’s past history.” F.F. No. 9.a.-9.c.
In addition, the WCJ found Dr. King’s testimony to be credible, noting
that he is a psychologist and clinical neuropsychologist and that he performed hours
of objective testing on Claimant. F.F. No. 10.
The WCJ rejected the opinion of Dr. Burstein that Claimant is not fully
recovered from his work injury, in part because his testimony conflicted with that of
Claimant. Further, he found “Dr. Burstein is an internist and therefore less qualified
than Dr. McHugh to render opinions regarding Claimant’s cervical condition.” F.F.
No. 11.
The WCJ also rejected the testimony and opinions of Dr. Mazlin that
Claimant had not fully recovered from his work injury. The WCJ stated that there
were no objective findings that would support Dr. Mazlin’s testimony, and the WCJ
did not find Claimant’s complaints to be credible. F.F. No. 12.
The WCJ found that Claimant was fully recovered from his work injury
as of August 16, 2018. Thus, he granted Employer’s Termination Petition. Claimant
appealed the WCJ’s Decision to the Board.
III. The Board’s Opinion
The Board affirmed the Decision and Order of the WCJ. In its January
14, 2021 Opinion and Order, the Board concluded:
Here, [Employer] bore the burden of proof that Claimant’s
injuries fully ceased. [] [Employer] was able to meet its burden of proof
because the WCJ credited Dr. McHugh’s testimony that Claimant was
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fully recovered, could return to work without restrictions, and had no
objective medical findings that substantiated Claimant’s claims of pain
or connected them the to the work injury. Claimant asserts that Dr.
McHugh did not consider the entirety of Claimant’s accepted work
injury. On the contrary, Dr. McHugh specifically acknowledged the
injury description as a cervical sprain/strain superimposed over
degenerative changes in the cervical spine and opined that Claimant
fully recovered from that injury. Claimant also points to
inconsistencies within the factual findings. However, our review of the
record shows that the WCJ summarized the testimony, and the
testimony itself was inconsistent, which was the basis of the WCJ
finding that Claimant was not credible. We find no error.
Bd. Op., 1/14/21, at 6. Claimant now petitions this Court for review1 of the Board’s
Order.
IV. Arguments
A. Claimant’s Arguments
Claimant argues that the Board erred by affirming the WCJ because
Employer’s medical expert based his opinion of Claimant’s full recovery on an
incorrect understanding of the work injury. Claimant asserts:
In offering his opinion of full recovery, Dr. McHugh mistakenly
believed that the work incident did not have any effect on Claimant’s
underlying degenerative changes nor did he offer an opinion that
Claimant had returned to his pre-injury baseline condition, such that his
testimony was legally insufficient to support a termination of benefits.
[]. Moreover, Dr. McHugh was mistaken in his belief that there was
only one traumatic event, where Claimant sustained an additional injury
to his head in December of 2016, as he continued to work following the
work incident further calling into question the competency of Dr.
McHugh’s understanding of Claimant’s post-injury medical history and
his condition.
1
Our 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. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).
7
Clearly, Dr. McHugh not only failed to recognize all of the
accepted injuries, but based his medical opinions . . . on an incorrect
understanding of the extent of the work-related trauma to Claimant’s
head and its cumulative effect on the cervical spine. As such, the WCJ
erred in relying upon his testimony to terminate benefits . . . where such
testimony was insufficient to support a termination of benefits . . . .
Accordingly, the Board’s Opinion and Order must be vacated
and the termination of benefits must be reversed.
Claimant’s Br. at 16-17.
B. Employer’s Arguments
Simply stated, Employer argues that the WCJ’s Findings of Fact and
Conclusions of Law are well supported by substantial competent evidence and in
accordance with the law. Further, Employer notes that the WCJ’s credibility
determinations may not be disturbed on appeal, and accordingly, the Board’s Order
affirming the WCJ must be affirmed.
Employer adds that
Dr. McHugh recognized the description of injury regarding
[Claimant’s] cervical spine. He discussed what is meant by a
sprain/strain superimposed over degenerative changes in the cervical
spine; specifically, the work incident caused an inflammatory aspect or
sprain and strain but did not change the pre[]existing degenerative
changes in Claimant’s neck. He further explained that this [] condition
has resolved. Clearly, Dr. McHugh was both aware of the description
of injury and his testimony competently established that Claimant is
fully recovered from such injury . . . .
Likewise, Claimant’s argument [that] Dr. McHugh mistakenly
believed [] there was only one traumatic event, rendering his testimony
incompetent, is without merit. Although the only injury at issue is the
acknowledged October 19, 2016 work injury, Dr. McHugh also
obtained a history of the December 28, 2016 incident, which is not an
acknowledged work injury, and multiple other head and/or neck
injuries. Despite this history, at the time of Dr. McHugh’s examination,
there were no positive objective findings to substantiate ongoing
cervical pathology. Consequently, Dr. McHugh concluded that
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Claimant is fully recovered from the work injury. The [WCJ] rejected
Dr. Burstein’s contrary opinions as not credible and her credibility
determinations may not be disturbed on appeal.
Clearly Drs. McHugh and King’s testimony constitutes
substantial competent evidence which supports the [WCJ’s] conclusion
that Claimant is fully recovered from his work injury as of August 16,
2018. Therefore, the [WCJ] properly granted Employer’s [Termination
Petition] and the Board’s Opinion affirming [the WCJ’s] Decision must
be affirmed.
Employer’s Br. at 21-22.
V. Discussion
At the outset, we note that termination of benefits is proper where the
employer’s medical expert testifies unequivocally that the claimant is fully
recovered, can return to work without restrictions, and there are no objective medical
findings that either substantiate the claims of pain or connect them to the work injury.
Udvari v. Workmen’s Comp. Appeal Bd. (US Air), 705 A.2d 1290, 1293 (Pa. 1997).
The WCJ may accept or reject the testimony of any witness, in whole or in part. See
Wilson v. Int’l Peripheral Sys., Inc., 427 A.2d 293 (Pa. Cmwlth. 1981).
Determinations of credibility and the weight to be afforded evidence are the
prerogative of the WCJ, not the Board. Vols v. Workmen’s Comp. Appeal Bd.
(Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994). The reviewing court may not re-
weigh the evidence, it must simply determine whether, upon consideration of the
evidence as a whole, findings of the WCJ have the requisite measure of support in
the record. Lehigh Cnty. Vo-Tech Sch. v. Workmen’s Comp. Appeal Board (Wolfe),
652 A.2d 797 (Pa. 1995).
In the present matter, Claimant contends that Employer’s medical
expert, Dr. McHugh, did not have the correct understanding of Claimant’s work
injury and did not address the full extent of the injury as accepted by Employer. Dr.
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McHugh testified that Claimant’s work incident resulted in inflammation and a
sprain/strain and that preexisting degenerative changes in Claimant’s neck did not
change as a result of his work injury. Dr. McHugh then concluded that Claimant
required no additional medical treatment for the work injury and that he was able to
perform his pre-injury job without restrictions. Dr. McHugh completed a
Physician’s Affidavit of Recovery to this same effect. In fact, during Dr. McHugh’s
deposition the following exchange occurred between the doctor and Employer’s
counsel:
Q: And, Doctor, the injury in this matter is described as a
cervical sprain/strain superimposed over degenerative changes in the
cervical spine. Can you explain what that means?
A: Sure. As I’d outlined, the radiological studies had shown
some age-appropriate degenerative findings. I think it’s semantics
when we talk about acute pathology. You can either have an
inflammatory issue from the acute event in the muscles. [sic]. You can
have an aggravation of pre[]existing degenerative findings. It all
culminates in the fact there was a one-time incident when [Claimant]
was struck. It caused an inflammatory aspect, meaning acute
musculoskeletal changes in the muscles - that would be the sprain and
strain - to inflammatory tissues with the already pre[]existing
degenerative findings. He had gotten appropriate treatment and, in my
opinion, he had resolved both.
Dep. Tr. of Dennis McHugh, D.O., 1/23/19, at 19-20; R.R. at 355a-56a.
The above exchange supports the WCJ’s and the Board’s respective
determinations, as it reveals that Dr. McHugh understood the accepted injury and its
relationship to Claimant’s degenerative condition and that he concluded Claimant
was fully recovered. Claimant’s position that Dr. McHugh failed to grasp the nature
of the accepted injury or that he was confused about it is not supported by the record.
In addition, despite Claimant’s assertion to the contrary, Dr. McHugh was clearly
10
aware of Claimant’s December 28, 2016 incident, noting in his August 16, 2018
report that Claimant “was struck in the head yet again on December 28, 2016.” R.R.
at 381a.
In addition, the WCJ accepted the testimony and opinions of Dr. King
as credible and rejected the opinions of Dr. Murray. Thus, the WCJ determined that
Claimant had fully recovered from the concussion, post-concussive syndrome, and
adjustment disorder with mild anxiety and depressed mood aspect of his injury as
well.
Accordingly, and in light of the fact that the WCJ’s determination was
based on the substantial, competent evidence of record and that her credibility
determinations were sufficiently explained to enable our review, we see no basis
upon which we would disturb the outcome in the present matter.
VI. Conclusion
For the foregoing reasons, we affirm the January 14, 2021 Order of the
Board.
______________________________
J. ANDREW CROMPTON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Luterman, :
Petitioner :
:
v. : No. 108 C.D. 2021
:
School District of Philadelphia :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 14th day of September 2021, the January 14, 2021
Order of the Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge