County of Allegheny v. WCAB (Nicini)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny, :

: No. 2602 C.D. 2015

: Submitted: August 5, 2016

Petitioner :

:

v. :

:

Workers' Compensation Appeal :

Board (Nicini), :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: February 3, 2017

County of Allegheny (Employer) petitions for review of the

November 18, 2015 order of the Workers’ Compensation Appeal Board (Board),

affirming in part, reversing in part, and vacating in part the decision of a workers’

compensation judge (WCJ),1 which granted the review petition filed by Nicholas

Nicini (Claimant), denied Employer’s termination petition, and ordered Employer

to continue paying Claimant weekly benefits of $732.46 per week. The Board

affirmed the grant of Claimant’s review petition, reversed the denial of Employer’s

1

The decision was issued by WCJ Eric Jones, to whom the matter was reassigned

following the retirement of WCJ Susan Cercone.

termination petition in part, and vacated the WCJ’s award of ongoing

compensation. We affirm.

Claimant suffered a work injury on February 23, 2013, during the

course of his employment as a corrections officer. He was treated in the

emergency room, and he returned to light duty work with no wage loss. Employer

issued a medical-only notice of temporary compensation payable, which converted

to a medical-only notice of compensation payable (NCP),2 recognizing closed

fractures of the third and fourth fingers of Claimant’s left hand and a lumbar strain.

On January 20, 2014, Claimant filed a review petition seeking to

expand the description of the work injuries in the NCP to include an aggravation of

underlying spondylolisthesis/spinal stenosis. Employer subsequently filed a

termination petition alleging that Claimant was fully recovered from his work-

related injuries as of June 16, 2013.

Claimant testified that he worked as a corrections officer at the

Allegheny County Jail.3 He said that he was injured on February 23, 2013, after he

responded to a call from another officer who complained that an inmate was giving

2

Generally, an employer must issue a notice of compensation payable or a notice of

compensation denial within twenty-one days of notice of a work injury. Section 406.1(a) of the

Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act

of February 8, 1972, P.L. 25, as amended, 77 P.S. §717.1(a). However, where there is

uncertainty regarding compensability or the extent of liability, an employer may initiate

compensation payments for a period not exceeding 90 days without prejudice or without

admitting liability, by issuing a notice of temporary compensation payable. Section 406.1(d) of

the Act, 77 P.S. §717.1(d)(1). Both the notice of temporary compensation payable, LIBC-501,

and the notice of compensation payable, LIBC-495, provide an option for payment for medical

treatment only.

3

Claimant testified before WCJ Jones on July 28, 2014. Reproduced Record (R.R.) at

77-98.

2

him a hard time. Claimant stated that he was escorting the inmate back to his cell,

with his hand on the inmate’s back, and the inmate tried to smack Claimant’s hand

away as they ascended the stairs. Claimant grabbed the inmate’s shirt tightly and,

as Claimant walked up one or two steps, the inmate suddenly stopped and pulled

Claimant back, causing him to strike his hand and lose his balance, but not fall.

Claimant returned the inmate to his cell and continued working. He awoke during

the night with back pain and found his hand bruised and swollen.

Claimant testified that he first sought treatment from Paul Liefeld,

M.D., a panel physician, and he currently sees Gerard J. Werries, M.D., every six

weeks. He also sees David A. Provenzano, M.D., who provides him injections for

pain relief. Claimant stated that surgery had been recommended, but he was

waiting for a determination of whether it would be covered by workers’

compensation so that his credit would not be affected. He explained that he has an

excellent credit score and, while he has health insurance, he did not want to be off

work without income. R.R. at 79-94.

Claimant submitted medical records and reports, including records of

Dr. Werries, Dr. Provenzano, and David L. Kaufmann, M.D., whom Claimant saw

on July 9, 2013, for a neurosurgical evaluation.4 Employer offered into evidence

4

Section 422 of the Act, added by the Act of June 26, 1919, P.L. 642, 77 P.S. §835,

provides in part:

Where any claim for compensation at issue before a workers’

compensation judge involves fifty-two weeks or less of disability,

either the employe or the employer may submit a certificate by any

health care provider as to the history, examination, treatment,

diagnosis, cause of the condition and extent of disability, if any,

and sworn reports by other witnesses as to any other facts and such

statements shall be admissible as evidence of medical and surgical

or other matters therein stated and findings of fact may be based

upon such certificates or such reports. . . .

3

the deposition testimony of Daniel Kelly Agnew, M.D., who performed an

independent medical evaluation (IME) of Claimant on June 26, 2013. Dr. Agnew

opined that Claimant’s work injury did not aggravate his pre-existing conditions

and that Claimant was fully recovered from the work injury. R.R. at 104-58.

Claimant acknowledged during the hearing that he had fully recovered

from his hand injury. There also was no dispute that Claimant previously was

diagnosed with a grade I spondylolisthesis at L5-S1 in 2010.

By decision and order dated October 24, 2014, the WCJ granted

Claimant’s review petition and amended the description of the work injury to

include a “low back injury that substantially contributed to left sciatica,

spondylolisthesis, and degenerative disc disease.” WCJ’s decision at 11. The

WCJ denied Employer’s termination petition, finding that Claimant had recovered

from the hand injury, but Employer had not met its burden of proving that

Claimant fully recovered from the work injury.5 In making these determinations,

the WCJ resolved conflicts in the evidence in Claimant’s favor. WCJ’s Finding of

Fact No. 9.

Employer appealed to the Board, arguing, inter alia, that the WCJ

erred in denying Employer’s termination petition and failed to issue a reasoned

decision. The Board agreed with Employer’s first argument and ordered that the

termination petition be granted in part.6

5

Although Claimant was not receiving wage loss benefits, the WCJ further concluded

that Claimant remained entitled to receive weekly compensation at the rate of $742.46, less

attorney fees. The Board corrected this error on appeal and vacated that portion of the WCJ’s

order.

6

As the Board recognized, however, an employer “must prove that all of the claimant’s

work-related disability has ceased” in order to be entitled to a termination of medical and wage

(Footnote continued on next page…)

4

However, the Board rejected Employer’s contentions that the WCJ’s

credibility determinations reflect a misapprehension of the facts and the law.

According to the Board:

The WCJ accepted Claimant’s evidence over that of

[Employer’s] and stated numerous actual objective

reasons for this determination, including the fact that Dr.

Werries saw Claimant shortly after the work incident and

was his treating physician, that Dr. Agnew did not have

certain qualifications, and that Dr. Agnew did not

(continued…)

loss benefits related to the work injury. Central Park Lodge v. Workers’ Compensation Appeal

Board (Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998) (emphasis in original) (citations

omitted). Pennsylvania courts have repeatedly held that in a termination proceeding, an

employer bears the burden of proving by substantial evidence that a claimant’s disability has

ceased, “or that any remaining conditions are unrelated to the work injury. An employer may

satisfy this burden by presenting unequivocal and competent medical evidence of the claimant’s

full recovery from her work-related injuries.” Westmoreland County v. Workers’ Compensation

Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2007) (emphasis added) (citation

omitted).

The Board interpreted the decision in Indian Creek Supply v. Workers’ Compensation

Appeal Board (Anderson), 729 A.2d 157 (Pa. Cmwlth. 1999) as inviting a departure from our

case law. In that case we held that the employer satisfied its burden with respect to the

claimant’s lumbosacral strain but not the residual problems from his disc herniation. We find no

support for the Board’s analysis in Indian Creek Supply. More important, we believe that the

Board is fashioning a “cure” for a problem that does not exist: it is by now well-settled that a

finding of fact that is not challenged on appeal is binding on the parties in subsequent

proceedings. Mino v. Workers’ Compensation Appeal Board (Crime Prevention Association),

990 A.2d 832, 839 (Pa. Cmwlth. 2010); Temple University Hospital v. Workers’ Compensation

Appeal Board (Sinnot), 866 A.2d 489, 494 n.4 (Pa. Cmwlth. 2005). Here, the WCJ’s

unchallenged finding that Claimant was fully recovered from the hand injury is sufficient, in

itself, to entitle Employer to the relief the Board seeks to supply. We conclude that the Board’s

piecemeal approach is both unnecessary and ill-advised, and we direct the Board’s attention to

our decision in Ingram Micro v. Workers’ Compensation Appeal Board (Heim), (Pa. Cmwlth.,

No 1716 C.D. 2013, filed May 23 2014) (holding that termination of benefits in part was

improper).

5

persuasively cite to any medical theory or literature to

support his opinions.

Board’s opinion at 10. Thus, the Board affirmed the grant of Claimant’s review

petition.

On appeal to this Court,7 Employer argues that the WCJ failed to issue

a reasoned decision. Section 422(a) of the Act states that

[a]ll parties to an adjudicatory proceeding are entitled to

a reasoned decision containing findings of fact and

conclusions of law based upon the evidence as a whole

which clearly and concisely states and explains the

rationale for the decisions so that all can determine why

and how a particular result was reached. The workers’

compensation judge shall specify the evidence upon

which the workers’ compensation judge relies and state

the reasons for accepting it in conformity with this

section. When faced with conflicting evidence, the

workers’ compensation judge must adequately explain

the reasons for rejecting or discrediting competent

evidence. Uncontroverted evidence may not be rejected

for no reason or for an irrational reason; the workers’

compensation judge must identify that evidence and

explain adequately the reasons for its rejection. The

adjudication shall provide the basis for meaningful

appellate review.

77 P.S. §834.

Employer asserts that: the WCJ did not sufficiently address the

credibility of Claimant’s testimony; the WCJ failed to consider all of the evidence

7

Our scope of review is limited to determining whether constitutional rights were

violated, an error of law was committed, or necessary findings of fact are supported by

substantial evidence. Milner v. Workers’ Compensation Appeal Board (Main Line Endoscopy

Ctr.), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010). Substantial evidence is such relevant evidence

as a reasonable person might accept as adequate to support a conclusion. Waldameer Park, Inc.

v. Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).

6

of record; the WCJ’s credibility determination concerning Dr. Agnew’s testimony

reflects a misapprehension of the facts and the law; the WCJ relied on incompetent

medical testimony; and the WCJ’s ruling on Dr. Provenzano’s testimony is not

supported by substantial evidence.

We first address Employer’s contention that the WCJ’s decision was

not reasoned because he failed to consider all of the evidence of record,

specifically, three diagnostic reports that Employer submitted as exhibits.

Employer complains that the WCJ made no reference to these reports. He did not

note that they were uploaded in WCAIS,8 indicate whether they were admitted, or

list the reports as exhibits in his decision. Employer further complains that the

WCJ failed to consider Employer’s argument that the reports showed little change

in Claimant’s preexisting condition.

However, we have previously explained that “in providing an

adequate basis for appellate review, the WCJ is not required to address all of the

evidence presented in a proceeding” in his written adjudication. Daniels v.

Workers’ Compensation Appeal Board (Tristate Transport), 753 A.2d 293, 304

(Pa. Cmwlth. 2000), aff’d, 828 A.2d 1043 (Pa. 2003). Instead, to satisfy the

“reasoned decision” requirement, a WCJ must only make findings necessary to

resolve the issues raised by the evidence and relevant to the decision. Pryor v.

Workers’ Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197,

1202 (Pa. Cmwlth. 2006); Montgomery Tank Lines v. Workers’ Compensation

Appeal Board (Humphries), 792 A.2d 6, 13 n.10 (Pa. Cmwlth. 2002). Because the

8

WCAIS is the acronym for the Workers’ Compensation Automation and Integration

System, the Pennsylvania Department of Labor and Industry’s electronic case management

system.

7

WCJ was not required to discuss all of the evidence presented, Employer’s

argument in this regard necessarily fails.

Employer’s remaining arguments relate to the WCJ’s credibility

determinations, which are set forth in Finding of Fact No. 9. In its entirety, that

finding states:

9. Resolution of the conflict of evidence, analysis of

the evidence and discussions. Based on a weighing of

all of the evidence in the case, I make the following

findings of fact.

a. When claimant testified before me on July 28, 2014,

his testimony, overall, was very believable. He

confirmed that he returned to work based on Dr. Werries

restrictions. Claimant confirmed that the employer was

honoring the restrictions for claimant as a corrections

officer at employer. [ ]

b. The claimant’s medical experts, Dr. Werries and Dr.

Provenzano both were treating physicians of the

claimant. Dr. Kaufmann saw claimant for a consultation.

Dr. Werries saw the claimant shortly after claimant’s

February 23, 2013 injury and had continued to treat the

claimant. Dr. Werries obviously had gotten the claimant

to the point of returning to work at modified duty, but

opining claimant could not return to his regular job. That

is very reasonable, especially in view of Dr. Werries

returning the claimant to modified duty work and there

would be no wage loss involved in this litigation. Dr.

Provenzano was a pain management physician referred to

by an associate physician of Dr. Werries and apparently

continuing with Dr. Werries for the referrals. Therefore,

there are two physicians who support the claimant who

support that claimant [sic] had a low back injury that

included an aggravation of the pre-existing conditions.

Both physicians agree that it was claimant’s February 23,

2013 low back injury that caused the aggravation. Dr.

Provenzano obviously does not support the opinion of

Dr. Agnew as employer’s medical expert. There is

8

obviously a coordination of treatment between Dr.

Provenzano and Dr. Werries and especially as far as

returning claimant to modify to work [sic]. The evidence

is very persuasive that claimant’s symptoms of an

underlying low back condition became for [sic]

symptomatic following his February 23, 2013 work

injury. Clearly, the causally [sic] relationship is there

and is persuasive since employer relies on Dr. Agnew,

who opines claimant did not have a significant injury,

when obviously Dr. Werries and Dr. Provenzano have

opinions to the contrary and are continuing to treat

claimant more than a year and a half following his work

injury. Therefore, the opinions of Dr. Agnew, as

discussed previously, [are] not creditable. Dr. Agnew’s

qualifications do not establish him as any expert in

medical forensics. In fact, he does not even cite any

medical theory persuasively or any medical literature that

support his opinion that the mechanism of injury was not

significant. Rather, the evidence is very persuasive that

claimant had an underlying low back condition without

significant symptoms before his work injury and those

became more symptomatic after the work injury. Dr.

Agnew’s opinion to the contrary is not found persuasive

in view of the opinions of two treating physicians and

taking into account that claimant has returned to work at

modify [sic] duty based on the treatment of Dr.

Provenzano and Dr. Werries.

c. Even though claimant has treated for the symptoms

since the work injury, Dr. Agnew was unwilling to

acknowledge an aggravation that produced those

symptoms. Again, this appears as though advocacy by

Dr. Agnew rather than the opinion objectively analyzing

the evidence in the case (p47).

d. The physicians both agreed that claimant’s low back

injury was a substantial contributing factor to left

sciatica, spondylolisthesis and degenerative disc disease.

WCJ’s decision at 8-9.

Relying on Canavan v. Workers’ Compensation Appeal Board (B & D

Mining Co.), 769 A.2d 1250, 1252 (Pa. Cmwlth. 2001), Employer contends that

9

the WCJ’s decision is not reasoned because his ruling on Claimant’s credibility

was not sufficiently definite. In Canavan, the WCJ found that the opinions of the

claimant’s medical witness were “unpersuasive.” On appeal, this Court stated that

it could not determine whether the WCJ found the doctor’s testimony not credible

or unequivocal,9 and the employer conceded that the WCJ did not make the

specific credibility findings that were required by the Court’s prior remand order.

Here, Employer asserts that the WCJ’s statement that Claimant’s

testimony was “very believable” is insufficient for purposes of meaningful

appellate review. However, Employer does not suggest that Claimant’s testimony

was in any respect equivocal, or otherwise incompetent. We conclude that

Employer’s reliance on Canavan is misplaced, and we reject Employer’s

contention that the WCJ’s finding as to Claimant’s testimony rendered his decision

inadequate for purposes of appellate review.

Employer next argues that the WCJ’s decision is not reasoned because

his credibility determination concerning Dr. Agnew’s testimony reflects a

misapprehension of the facts and the law. Specifically, Employer complains that

the WCJ erred in rejecting Dr. Agnew’s testimony on the grounds that Dr. Agnew

was not an expert in medical forensics, he did not cite any medical theory or

literature in support of his opinion, and his testimony appeared to be advocacy

rather than an objective opinion. Employer asserts that Dr. Agnew is a qualified

9

In workers’ compensation cases, the issue of whether testimony is equivocal generally

arises with respect to medical testimony. Where the cause of a claimant’s medical condition is

not obvious, unequivocal medical testimony is required, Albert Einstein Healthcare v. Workers’

Compensation Appeal Board (Stanford), 955 A.2d 478, 482 (Pa. Cmwlth. 2008), and medical

testimony that is equivocal will be deemed incompetent. Campbell v. Workers’ Compensation

Appeal Board (Pittsburgh Post-Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). Whether

medical testimony is equivocal is a question of law subject to plenary review. Id.

10

medical expert in the field of orthopedic surgery and, as such, was not required to

cite authority for his medical opinions but properly relied on the facts and his

observations during the IME. Employer further argues that the WCJ did not apply

the same standards in evaluating the opinions of Claimant’s medical witnesses.

It is well settled that where medical experts testify by deposition, a

WCJ’s resolution of conflicting evidence must be supported by more than a

statement that one expert is deemed more credible than another. Dorsey v.

Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d

191, 194-95 (Pa. Cmwlth. 2006). “Some articulation of the actual objective basis

for the credibility determination must be offered for the decision to be a 'reasoned'

one which facilitates effective appellate review.” Id. at 194-95 (quoting Daniels,

828 A.2d at 1053). There are countless objective factors that may support a WCJ’s

credibility determinations, and such factors must be identified in the WCJ’s

decision. Dorsey, 893 A.2d 195.

Nevertheless, we have repeatedly stressed that Section 422(a) of the

Act does not permit a party to challenge or second-guess a WCJ’s reasons for

credibility determinations. Id.; Kasper v. Workers’ Compensation Appeal Board

(Perloff Brothers, Inc.), 769 A.2d 1242, 1244 (Pa. Cmwlth. 2001). In Kasper, we

declined the claimant’s “invitation to individually scrutinize each of the WCJ's

reasons for his credibility determination.” Id. We explained that

[d]eciding credibility is the quintessential function of the

fact-finder, particularly one who sees and hears the

testimony. It is not an exact science, and the ultimate

conclusion comprises far more than a tally sheet of its

various components. We will not take the statutory

mandate that a WCJ explain reasons for discrediting

evidence as a license to undermine the exercise of this

11

critical function by second guessing one or more of its

constituent parts.

Id. (footnote omitted). In sum then, unless made arbitrarily or capriciously, a

WCJ’s credibility determinations will not be disturbed on appeal. Empire Steel

Castings, Inc. v. Workers’ Compensation Appeal Board (Cruceta), 749 A.2d 1021,

1027 (Pa. Cmwlth. 2000); PEC Contracting Engineers v. Workers’ Compensation

Appeal Board (Hutchinson), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998).

Here, the WCJ credited Claimant’s medical evidence, noting that Dr.

Werries saw Claimant shortly after the incident and was Claimant’s treating

physician. The WCJ’s reasons for rejecting Dr. Agnew’s testimony include the

fact that his testimony conflicts with Claimant’s medical evidence. The WCJ also

cited Dr. Agnew’s testimony that Claimant did not have a significant injury as

indicative of bias rather than an objective opinion. Because the WCJ provided

objective reasons for these credibility determinations, we cannot conclude that the

WCJ acted arbitrarily or capriciously in this instance.

Employer further argues that Dr. Werries’ testimony was incompetent.

“A physician’s assumption that an injury is caused by a recent event because of the

temporal proximity is not a sufficiently competent opinion to establish a causal

relationship.” Lewis v. Workmen’s Compensation Appeal Board, 498 A.2d 800,

803 (Pa. 1985). However, we reject Employer’s contention that the crux of Dr.

Werries’ opinion as to causation was the temporal proximity of Claimant’s

complaints to the work event. In his report, R.R. at 203-206, Dr. Werries states

that a twisting injury to Claimant’s low back on February 23, 2013, caused

radiating pain to the left calf that continued to the time of Claimant’s first visit on

February 27, 2013. R.R. at 203. He reviews the course of Claimant’s medical

treatment, including diagnostic studies performed, and he concludes:

12

1. My diagnosis for [Claimant] is left sciatica, acquired

spondylolisthesis, and degenerative disc disease of the

lumbar spine.

2. My opinion, within a reasonable degree of medical

certainty, is that the accident was a substantial

contributing factor to [Claimant’s] current low back

problems. The injury represents an aggravating event.

He had no symptoms and no disability prior to his injury

on February 23, 2013.

R.R. at 205.

The medical report reflects that, when taken as a whole, Dr. Werries’

opinion did not rest solely on a temporal relationship between the work incident

and Claimant’s worsening back condition. See Lewis, 498 A.2d at 803-804

(testimony of a medical witness must be reviewed and taken as a whole). See,

also, Budd Co. v. Workers’ Compensation Appeal Board (Kan), 858 A.2d 170,

179-80 (Pa. Cmwlth. 2004) (concluding that a medical report is competent

evidence where disability of 52 weeks or less is at issue and stating that “[w]hether

the content of the report sufficiently addresses matters at issue and whether the

report is persuasive are questions relating to credibility and to weight rather than to

admissibility.”).

Finally, we reject Employer’s assertion that the WCJ’s decision is not

reasoned because his credibility ruling on Dr. Provenzano’s testimony is not

supported by substantial evidence. Employer argues that, contrary to the WCJ’s

statements that Drs. Werries and Provenzano both found a causal relationship

between Claimant’s work injury and his worsened medical condition, Dr.

Provenzano’s records do not address the issue of causation. However, Employer

concedes that such an opinion may have been submitted by Dr. Kaufmann, but not

discussed by the WCJ. More important, the WCJ articulated additional objective

13

bases for accepting Claimant’s medical evidence that are supported by the record.

See Dorsey, 893 A.2d at 196 (“this reason permits verification during appellate

review, and it is alone sufficient to support a credibility finding.”).

Based on the foregoing, we conclude that while the WCJ’s analysis is

not a model of clarity, it is adequate for purposes of appellate review and, thus, it

satisfies the reasoned decision requirement of Section 422(a) of the Act.

Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge

Judge McCullough did not participate in this decision of this case.

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny, :

: No. 2602 C.D. 2015

:

Petitioner :

:

v. :

:

Workers' Compensation Appeal :

Board (Nicini), :

:

Respondent :

ORDER

AND NOW, this 3rd day of February, 2017, the order of the Workers’

Compensation Appeal Board, dated November 18, 2015, is affirmed.

__________________________________

MICHAEL H. WOJCIK, Judge