The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian Vazquez, :
:
Petitioner :
:
v. : No. 536 C.D. 2022
: Submitted: December 30, 2022
Arthur Jackson Company :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 4, 2023
Brian Vazquez (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision of a
workers’ compensation judge (WCJ) denying his Claim Petition for benefits under
the Workers’ Compensation Act (WC and Act, respectively).1 We affirm.
On June 15, 2020, Claimant filed a Claim Petition in which he alleged,
inter alia, that he suffered a work-related injury in the nature of “injury to lower
back with left lower extremity radiculopathy” while in the course of his employment
as a project manager for the Arthur Jackson Company (Employer). Certified Record
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
Docket (CR Dkt.) Entry 2 at 1. Claimant also alleged that he suffered the injury
while he “was moving furniture and felt a sharp pain in [his] lower back,” and that
he notified his supervisor of the work-related injury on March 10, 2020. Id. On
June 23, 2020, Employer filed a timely Answer to the Claim Petition in which it
denied all of the material allegations raised in the Claim Petition, specifically
denying the date, location, and occurrence of the alleged work-related injury, and
demanding strict proof thereof. See CR Dkt. Entry 4 at 1. On June 30, 2020,
Employer issued a Notice of Compensation Denial, asserting that Claimant did not
suffer a work-related injury. See CR Dkt. Entry 20 at 2. Hearings before a WCJ on
the Claim Petition ensued.
In relevant part, Claimant testified that he started working with
Employer as a project manager in July 2019, and his job duties included building
maintenance, payroll, hands-on training, inspections, and completing work orders.
He stated that on February 27, 2020, he was moving furniture with Ricardo Lively,
an employee in the building, and felt a sharp pain in his back. He remained at the
site for the rest of the day, but did no physical work and took an Aleve when he got
home. He worked the following day, but did no physical work, and was then out of
work for a week due to his injury. On March 2nd or 3rd, he e-mailed Employer that
he would be out of work that week due to his back, but he did not tell Employer how
he injured his back. On March 4th, he saw his primary care physician, who gave
him medication, but he did not recall whether he told that doctor how he injured his
back. He agreed that none of the doctors’ notes that he submitted to Employer
contained anything about a work-related injury.
On March 10, 2020, Claimant then returned to work at a light-duty job
and told his director, Charles Biney (Biney), that he injured his back. He had a
2
number of conversations with Biney about the work-related injury; however, he did
not fill out an incident report because he was too busy at work. From April 6, 2020,
to April 20, 2020, Claimant worked from home due to Employer’s COVID-19
policy. That same week, Employer asked him to return to work, but he did not do
so because he did not want to be exposed to COVID-19 and because of his back
pain. Claimant has never returned to his pre-injury job and stopped working on April
20, 2020.
Ultimately, Claimant’s family doctor referred him to a pain
management doctor, Dr. Ng, who performed an injection to his back. His attorney
then referred him to Stephen Ficchi, D.O. (Dr. Ficchi), who prescribed medication
and physical therapy. Claimant testified that he has excruciating low back pain down
his left leg to his foot, his foot is numb, and the pain radiates into his buttocks. He
cannot straighten his back for most of the day, and he can only walk or sit for about
30 minutes. He does not feel capable of performing his pre-injury job due to severe
pain and drowsiness caused by his medications.
In support of his Claim Petition, Claimant also submitted the deposition
testimony of Dr. Ficchi. Dr. Ficchi is board certified in general family medicine.
He first saw Claimant on June 18, 2020, who complained of low back pain with
numbness and tingling down the left leg, and presented a history of the work injury
and medical treatment. Physical examination showed spasm and significant range
of motion deficits. He reviewed a May 11, 2020 lumbar magnetic resonance imaging
(MRI) study, which showed a disc bulge with an annular fissure and a central disc
extrusion at the L4-5 level. He then ordered a July 15, 2020 electromyography
(EMG), which showed a left L-5 radiculopathy. Dr. Ficchi’s diagnoses include
lumbar strain and sprain, myofascial pain syndrome, extruded/protruded disc at the
3
L4-5 level, and active L5 radiculopathy on the left side. He opined that these
diagnoses are a direct result of Claimant’s work injury and that Claimant cannot
return to work at his pre-injury job. He stated that Claimant can do sedentary work
three to four hours per day, three days a week, to start.
Employer presented the deposition testimony of Biney, who stated that
he is one of Employer’s two operations managers and he was Claimant’s direct
supervisor. During his work orientation with Melissa Usher (Usher), Employer’s
human resources director, Claimant was trained on the need to be aware of work
injuries, to fill out incident reports, and to immediately submit them to the claims
department. In fact, Claimant has submitted incident reports for other employees.
Employer also has a work order system under which he assigns work
orders to the staff, the staff all signs the work order when the task is completed, and
the signed work order is returned to the administrator. Claimant did not sign a work
order for moving furniture on February 27, 2020, or any other day, and Claimant did
not tell him that he was moving furniture that day. Claimant is not permitted to do
physical work because the union does not allow managers to do cleaners’ work.
Rather, the managers under Claimant inspect jobs and manage workers. There was
a February 27, 2020 work order to move furniture, but he did not know who
completed it because it was not signed.
Biney testified that Claimant never reported a work injury to him and
he first learned of the purported injury when Claimant e-mailed Usher in June 2020.2
2
Employer also submitted a June 7, 2020 e-mail from Claimant to Usher that he could not
report to work the next day because he had had excruciating pain since the beginning of March
after he completed a furniture move at the work site. He stated that he was unsure as to when he
could return to work, and requested that she send him paperwork for a leave under the federal
Family and Medical Leave Act (FMLA), 29 U.S.C. §§2601, 2611-2620, 2631-2636, 2651-2656.
See CR Dkt. Entry 25.
(Footnote continued on next page…)
4
Claimant e-mailed him on March 3rd, simply stating that he would not be in because
he was not feeling well. Later that day, Claimant told Biney over the telephone that
he had a serious spinal condition, but he never indicated that the condition was work
related.
Biney stated that this was when the COVID-19 pandemic began, and
Claimant indicated that he did not want to be part of Employer’s team that stays to
service buildings because he had underlying conditions. When Claimant said that
he could work from home, Biney rejected the offer. Claimant was then given time
off when he said that he had to take care of his father. Claimant was terminated on
June 16, 2020, after he stopped reporting for work.
Employer also presented the records from Jefferson Family Medicine
(Jefferson), the practice of Claimant’s primary care physician. See CR Dkt. Entry
24. In relevant part, the records indicate: (1) Claimant was seen on March 4, 2020,
complaining of acute bilateral back pain with left-side sciatica, noting that he had
chronic intermittent back pain for 15 years, which worsened two days earlier with
“no triggers”; (2) Claimant was seen on April 7, 2020, for viral exposure with no
mention of back pain; (3) Claimant was seen on April 20, 2020, and the diagnoses
were acute and chronic bilateral back pain with left-sided sciatica noting that the low
back pain was a “chronic issue”; (4) Claimant was seen on May 21, 2020, when he
complained of back pain and left leg swelling, and was concerned about deep vein
thrombosis, and the diagnoses were tightness of leg fascia and acute bilateral low
back pain with left-sided sciatica; (5) Claimant was seen on June 9, 2020, when the
Employer also submitted a June 8, 2020 e-mail exchange in which Usher indicated that
Claimant did not qualify for FMLA leave. Claimant responded asking if he would be eligible for
WC benefits if his back did not improve since he moved furniture at the end of February. Usher
then responded that Employer was not aware of him moving furniture. See id.
5
diagnoses were generalized anxiety disorder and lumbar pain with radiculopathy,
and Claimant complained of very severe low back pain and wanted it noted that
“This Occurred at Work in February. Was Moving Furniture at Work.”; and (6)
Claimant was seen on June 11, 2020, when the diagnoses were the same. See id. at
4, 21-22, 31-32, 39-40, 49-50, 57. The records from that appointment also state, in
relevant part:
Patient [s]tates he reported accident at work moving tables
to supervisor who said to make an incident report, but
never did. Patient is wishing to confirm that the accident
happened at work and confirm it is in the medical recor[d].
I explained that I did not see him for this problem
originally. I said it is a possibility the lifting at work
caused it, but I cannot say for certain.
Id. at 58.
Employer also submitted the deposition testimony of Armando
Mendez, M.D. (Dr. Mendez), a physician board certified in orthopedic surgery. Dr.
Mendez stated that he performed an independent medical evaluation (IME) on
October 28, 2020, at which Claimant complained of pain in his back and down his
left leg and provided a history of his alleged work injury and his treatment.
The WCJ summarized Dr. Mendez’s relevant testimony as follows:
c. On physical examination, Claimant walked with
a normal gait. There was discomfort with palpation of the
lower left lumbar musculature, but no spasms. Claimant
exhibited a very limited range of motion. Claimant
complained of lower back pain with simultaneous spine
and pelvis rotation, which is not an anatomically
explainable complaint because the rotation occurs through
the hip joint and not in the lower back. Dr. Mendez could
not examine him in the prone position because Claimant
said that caused him too much pain. With straight leg
raising testing, Claimant complained of low back pain, but
no radicular pain.
6
In the supine position, when the doctor tried to bend
his knees and hips, Claimant complained of severe pain on
the left side, which was inconsistent with the fact that he
sat in that position, with his hip at 90 degrees, for about 20
minutes while the doctor questioned him. There was
normal sensation, strength[,] and reflexes in both lower
extremities with no atrophy or asymmetry. Claimant had
full range of motion of the hips, knees[,] and ankles.
Examination of the knees and ankles was normal with no
effusion, instability, or meniscal pathology. Objectively,
it was a normal physical examination.
CR Dkt. Entry 6 at 9.
Dr. Mendez reviewed the EMG study, which suggested a left L-5
radiculopathy, but noted that there was not much in the accompanying examination
to support that diagnosis. He also reviewed the report of the MRI study, which
showed an L4-5 disc bulge and extrusion, loss of disc height and signal, and disc
desiccation consistent with a chronic degenerative process, with no impingement,
compression or displacement of the left L-5 nerve root; however, it does not support
the EMG finding or Claimant’s subjective complaints, and does not indicate an acute
injury. He also reviewed the May 29, 2020 letter from Dr. Ng. releasing Claimant
to return to full-duty work on June 8, 2020.
Based on the initial records available for review at the time of the IME,
and Claimant’s history regarding his job duties and the occurrence of the alleged
injury, Dr. Mendez opined that Claimant had sustained a strain and sprain from
which he was fully recovered. He subsequently reviewed additional records and Dr.
Ficchi’s deposition testimony, noting that the records from Claimant’s primary care
physician contain no entry about a work-related injury and suggested that Claimant
had a chronic back issue. The first mention of a work-related injury by Claimant
was on June 9, 2020.
7
Ultimately, the WCJ made the following relevant credibility
determinations:
9. I have carefully reviewed Claimant’s testimony
in conjunction with the other evidence, and do not find it
credible. Claimant did not seek medical treatment on the
day of his alleged injury, February 27, 2020; he finished
that day and thinks he also worked the next day. He then
e-mailed Employer on March 2 or 3 that he would be out
of work due to his back, but did not tell Employer he had
suffered a work-related injury. He asked Employer about
short[-]term disability. The records from his primary care
practice, [Jefferson], contain no mention of any work
injury for visits in March, April[,] and May 2020; in fact,
the March 4, 2020 note indicates that Claimant had
chronic intermittent back pain for 15 years, which
worsened two days before [] [this would have been March
2] with “no triggers.” It was not until June 9 that the
Jefferson physician wrote, “Patient wants it Noted that
This Occurred at Work in February. Was Moving
Furniture at Work.” The first indication that he told
Employer about an alleged work injury was June 7;
although Claimant testified that he told [Biney] on March
11 about the incident moving furniture, Claimant never
completed an incident report, even though he was familiar
with this process because he was a supervisor and because
he had a previous [WC] claim himself. Although
Claimant said he signed a work order after moving
furniture on February 27, 2020, [Biney] said there was a
work order[,] but it was not signed by anyone. [Biney]
said Claimant told him he had a serious spinal condition[,]
but did not say it was due to a work injury, and never gave
him a doctor’s note. Although Claimant said in a June 8
e-mail to [Usher] that he had “e[-]mailed the site and
copied [Biney] on it,” Claimant did not produce any such
e[-]mail; the only e[-]mail to the site was the April 6 e[-
]mail to [another employee] about potential COVID[-19]
exposure. The e[-]mails and medical records, in
conjunction with [Biney’s] testimony, indicate that
Claimant was anxious about COVID[-19] exposure and
wanted to work at home, which [Biney] would not allow,
8
and that in fact, Claimant never returned to work after his
early April COVID[-19] concerns.
10. I have carefully considered the testimony of
[Biney], in conjunction with the other evidence, and find
it credible. [Biney’s] testimony is supported by the e[-
]mails between Claimant and [Usher], and it was only after
the pandemic began and Claimant was not permitted to
work at home that he asked the Jefferson physicians to
document in his record that he alleged a work injury and
began to inquire about [WC]. As noted above, Claimant
produced nothing to support his testimony – which I do
not find credible – that he verbally told [Biney] after being
out a week that he had a work injury; he did not produce
the e[-]mail about the work injury he said he sent the site
and copied [Biney] on, and he admitted he did not
complete an incident report.
11. I have carefully reviewed the testimony of Dr.
Ficchi and Dr. Mendez in conjunction with the other
evidence, and find the testimony of Dr. Mendez more
credible. Dr. Mendez is board[]certified in orthopedic
surgery. Dr. Mendez’s opinions are supported by the fact
that Claimant did not initially report a work injury to his
employer or his treating doctors at [Jefferson], and by the
fact that the MRI documents degenerative changes
consistent with Claimant’s previous back injury and the
Jefferson notes that indicated Claimant had a “chronic”
low back condition. Dr. Ficchi is board[]certified only in
family practice. He was not Claimant’s initial treating
physician and did not see Claimant until four months after
the alleged work injury when Claimant was referred by
counsel.
CR Dkt. Entry 6 at 10-11.
Based on the foregoing, the WCJ found “that Claimant did not sustain
a work injury on February 27, 2020 or any other date,” and concluded that he failed
to sustain his burden of proving such to support the award of WC benefits. CR Dkt.
Entry 6 at 11. Accordingly, the WCJ issued an order denying Claimant’s Claim
9
Petition, and the Board affirmed the WCJ’s order on appeal. Claimant then filed the
instant petition for review of the Board’s order.
Claimant’s sole claim on appeal3 is that the Board erred in affirming the
WCJ’s decision because it is not a “reasoned decision” as required by Section 422(a)
of the Act.4 Specifically, Claimant asserts that the WCJ’s finding that he did not
sustain a work-related injury constitutes an arbitrary and capricious disregard of Dr.
Mendez’s testimony that Claimant had sustained a low back strain and sprain that
had resolved at the time of his October 28, 2020 IME. As a result, Claimant
contends, the WCJ should have at least granted the Claim Petition from the date of
injury, February 27, 2020, to the date of the IME. We do not agree.
As this Court has previously explained:
3
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether the necessary findings of fact
are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704.
4
77 P.S. §834. Section 422(a) states, in pertinent part:
All 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 [WCJ] shall specify
the evidence upon which the [WCJ] relies and state the reasons for
accepting it in conformity with this section. When faced with
conflicting evidence, the [WCJ] 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 [WCJ] must identify that evidence and explain
adequately the reasons for its rejection. The adjudication shall
provide the basis for meaningful appellate review.
As exhaustively recounted above, the WCJ clearly complied with the foregoing requirements by
extensively outlining the bases for her comprehensive credibility determinations.
10
In a claim petition, the claimant bears the burden of
proving all of the elements necessary to establish
entitlement to benefits under the Act. Inglis House v.
Workmen’s Compensation Appeal Board (Reedy), [634
A.2d 592, 595 (Pa. 1993)]. [The c]laimant must prove that
his injury arose in the course of employment and was
related thereto. Krawchuk v. Philadelphia Electric
Company, [439 A.2d 627, 630 (Pa. 1981)].
Here, [the c]laimant testified that he sustained
injuries following a slip and fall . . . in the course and
scope of his employment. The WCJ did not believe [the
c]laimant. No other witnesses corroborated the slip and
fall. . . . [The c]laimant asserts that [the e]mployer’s
medical witness [(doctor)] corroborates [his] testimony.
[The d]octor took a history from [the c]laimant regarding
the alleged work incident and based his medical diagnosis
on the assumption that [the c]laimant had fallen. [The
doctor] based his opinion on causation entirely upon the
history provided to him by [the c]laimant, which the WCJ
rejected. If the WCJ rejects the relied-upon information,
then expert medical testimony premised upon the expert’s
assumption of the truthfulness of the information provided
is not competent. See Sewell v. Workers’ Compensation
Appeal Board (City of Philadelphia), 772 A.2d 93, 98 (Pa.
Cmwlth. 2001). Moreover, acceptance of a history of an
injury by an employer’s medical expert for purposes of
rendering a medical diagnosis does not constitute an
admission or concession by the employer that the injury
was work[]related. Ultimately, [the c]laimant, not [the
e]mployer, had the burden to prove that [he] sustained a
work-related injury. The record lacks competent evidence
supporting [the c]laimant’s claim petition because the
WCJ discredited [the c]laimant’s testimony and rejected
the existence of any work-related injury.
Wrecsics v. Workers’ Compensation Appeal Board (National Carriers, Inc.) (Pa.
Cmwlth., No. 754 C.D. 2012, filed October 26, 2012), slip op. at 6-7.5
5
See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. Non-
precedential decisions . . . may be cited for their persuasive value.”).
11
Likewise, in the instant case, there is simply no evidence supporting
Claimant’s Claim Petition because the WCJ discredited Claimant’s testimony and
rejected the existence of any work-related injury. The fact that Dr. Mendez rendered
an opinion based on the false history that Claimant provided is of no moment, and
does not constitute an admission, concession, or competent evidence that a work-
related injury occurred in the first instance. As a result, the Board did not err in
affirming the WCJ’s order denying Claimant’s Claim Petition.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian Vazquez, :
:
Petitioner :
:
v. : No. 536 C.D. 2022
:
Arthur Jackson Company :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
ORDER
AND NOW, this 4th day of August, 2023, the order of the Workers’
Compensation Appeal Board dated May 16, 2022, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge