Opinion

B. Vazquez v. Arthur Jackson Co. (WCAB)

Court
Commonwealth Court of Pennsylvania
Filed
Aug 4, 2023
Status
Unpublished
On the bench
Wojcik, J.
Cited by
0 cases
Authority
More cited than 24.7%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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