The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmel G. Jean, :
:
Petitioner :
:
v. : No. 74 C.D. 2022
: Submitted: February 24, 2023
Bloomin’ Brands, Inc. (Workers’ :
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 25, 2023
Carmel G. Jean (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a decision of the
Workers’ Compensation Judge (WCJ) denying both her Review Petition to expand
the description of her work injury and Penalty Petition, and granting Bloomin’
Brands, Inc.’s (Employer) Termination Petition. Claimant contends that the WCJ’s
finding that Claimant’s work injury was limited to a lumbar strain and sprain and
post-traumatic headaches is not supported by substantial evidence because the WCJ
misconstrued the testimony of Employer’s medical expert. Upon review, we affirm.
I. Background
On September 7, 2019, Claimant sustained an injury in the course and
scope of her employment with Employer. Pursuant to a Notice of Temporary
Compensation Payable (NTCP), Employer recognized Claimant’s injury as a low
back strain and paid Claimant workers’ compensation benefits. The NTCP
converted to a Notice of Compensation Payable (NCP) by operation of law.
On December 27, 2019, Employer filed a Termination Petition alleging
that Claimant had fully recovered from her work-related low back strain as of
November 20, 2019. Claimant filed a timely answer denying the material
allegations.
On January 15, 2020, Claimant filed a Review Petition alleging an
incorrect injury description. Claimant sought to amend the description of her injury
to include lumbar radiculopathy, post-concussion syndrome, and post-traumatic
headaches. Employer filed a timely answer admitting that the injury description
should be amended to include post-traumatic headaches from which Claimant had
fully recovered as of January 3, 2020. However, Employer otherwise denied that
the description of her injury should be expanded to include lumbar radiculopathy or
post-concussion syndrome.
On February 26, 2020, Claimant filed a Penalty Petition alleging that
Employer violated the Pennsylvania Workers’ Compensation Act (Act)1 by
unilaterally modifying and stopping Claimant’s temporary total disability benefits
without Claimant’s agreement or an order from the court. Claimant sought penalties
in the amount of 50% of all outstanding benefits owed as well as unreasonable
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
contest attorney’s fees. Employer filed a timely answer denying the material
allegations.
The petitions were consolidated and assigned to a WCJ for disposition.
Before the WCJ, Claimant testified and presented the deposition testimony of two
medical experts, Steven Diamond, D.O. (Dr. Diamond), and Adam Weinstein, M.D.
(Dr. Weinstein). Employer also presented the deposition testimony of two medical
experts, Amir Fayyazi, M.D. (Dr. Fayyazi), and Bryan X. DeSouza, M.D. (Dr.
DeSouza).
The WCJ summarized the evidence and made the following relevant
findings. Claimant testified that she worked for Employer as a kitchen manager for
11 years. On September 7, 2019, she slipped on plastic on the floor and fell, hitting
her head on the lower part of a sink and her low back on the floor. She also hit the
right side of her forehead. Claimant experienced headaches and was treated for a
concussion. Claimant receives therapy for her back, shoulder, head, and leg. Her
current complaints include dizziness, headaches, shoulder pain, lower back pain, and
right leg cramps. Claimant also complains of short-term memory, vision, and
dizziness issues. Claimant testified that she is unable to return to her pre-injury job
because she cannot sit, stand, or lay for long periods. Her job requires her to bend
down, lift, climb, and continuously move. Claimant testified that prior to the
September 7, 2019 work incident, she had occasional low back pain which she
attributed to either falling off a ladder in 2016 or being on her feet at work. WCJ’s
Op., 2/17/21, Finding of Fact (F.F.) No. 6(a)-(e).
Claimant’s first medical expert, Dr. Diamond, who is board certified in
family medicine, testified that he examined Claimant on October 7, 2019, and took
a medical history from her. Claimant reported that she fell backward and hit her
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head and low back on September 7, 2019. Claimant complained of sharp and
throbbing headaches, low back pain, radiating pain to the right lower extremity, light
sensitivity, and dizziness. Dr. Diamond testified that his physical examination of
Claimant revealed reduced range of motion of the cervical spine and spasm and
reduced range of motion of the lumbar spine. Neurologically, Claimant’s gait and
balance were poor. Claimant’s Dix-Hallpike test was benign. Dr. Diamond
reviewed Claimant’s November 18, 2019 lumbar spine MRI, which revealed L5-S1
spondylolisthesis. However, he could not say when that happened. Dr. Diamond
acknowledged that the medical records immediately following the work incident do
not mention a cervical injury. Dr. Diamond diagnosed Claimant with post-
concussion syndrome with cervicalgia and lumbar strain and sprain. He saw
Claimant three more times; her symptoms and examinations were unchanged. F.F.
No. 4(a)-(d).
Claimant’s second medical expert, Dr. Weinstein, who is board
certified in adult neurology, testified that he first examined Claimant on November
21, 2019, for her September 7, 2019 work-related injury when she fell backward and
hit her low back and the back of her head. Claimant complained of headaches three
to four times per week, light sensitivity, nausea, dizziness, and low back pain that
radiates to the buttock on both sides and sometimes to the feet. Dr. Weinstein opined
that Claimant’s complaints of dizziness, balance issues, memory loss, and blurred
vision are subjective complaints. Dr. Weinstein found Claimant’s neurological
examination to be normal except for bilateral straight leg raising. Her mental status
examination, cranial nerves, coordination, reflexes, and sensory examination were
all normal. There was no aversion to light upon testing. Dr. Weinstein opined that
Claimant sustained a head contusion with concussion without loss of consciousness,
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symptoms of post-concussive syndrome, post-traumatic headaches, low back
contusion with low back pain and radicular symptoms. He testified that Claimant’s
December 2, 2019 EMG did not clearly confirm lumbar radiculopathy but her
clinical symptoms supported lumbar radiculopathy. Dr. Weistein noted that the
November 18, 2019 brain MRI (brain MRI) was normal. F.F. No. 5(a)-(e).
Employer’s first medical witness, Dr. Fayyazi, who is a board-certified
orthopedic surgeon, testified that he performed an independent medical examination
(IME) of Claimant on November 20, 2019, for the September 7, 2019 injury.
Claimant relayed to him that the injury occurred when she slipped and fell and
landed on her back and hit her head. Claimant described her complaint level as 8/10
regarding her headaches and concussion, and 3/10 regarding her low back. Claimant
also complained of leg pain but said the back pain was worse than the leg pain and
the right leg was worse than the left leg. During his physical examination, Dr.
Fayyazi noted that Claimant was able to walk on her heels and her toes but acted as
if she was unsteady. She also demonstrated unsteadiness performing a single leg
stand. According to Dr. Fayyazi, Claimant appeared to be manipulating this part of
the examination because she had no unsteadiness when walking in place. Dr.
Fayyazi reported that Claimant’s lumbar extension was 50% of normal, which was
reasonable given her body size and age. Claimant complained of discomfort with
palpation of the lumbar spine, at the right posterior superior iliac spine, and on the
lateral aspect of the right hip running down the leg, consistent with bursitis. Overall,
Dr. Fayyazi found Claimant’s examination to be relatively benign. Dr. Fayyazi
reviewed Claimant’s medical records including the lumbar spine MRI and found
nothing to show trauma was creating the findings at L5-S1. Dr. Fayyazi opined that
Claimant sustained a lumbar strain and sprain from which she has fully recovered.
5
He did not offer an opinion regarding the concussion because it was outside the
scope of his practice. F.F. No. 2(a)-(d).
Notably, Dr. Fayyazi opined that if Claimant had no back complaints
prior to the September 7, 2019 injury, she may have aggravated her preexisting
chronic isthmic spondylolisthesis and neural proximal stenosis resulting in lower
extremity symptoms. Assuming that Claimant was completely asymptomatic prior
to the work incident, Dr. Fayyazi would opine that Claimant had reached maximum
medical improvement rather than fully recovered. F.F. No. 2(d).
Employer’s second medical witness, Dr. DeSouza, a board-certified
neurologist, conducted an IME of Claimant on January 3, 2020, for her September
7, 2019 work-related injury. Dr. DeSouza testified that Claimant reported her initial
and follow up treatment in a detailed fashion, noting that she had a good, clear
memory, which showed how well her brain was working. Claimant complained of
headaches in the back of her head, which she rated at 7/10, dizziness, and nausea
with blurred vision. Claimant also reported back pain and leg pain one to two times
per week. Dr. DeSouza’s physical examination of Claimant revealed no positive
findings. Dr. DeSouza testified that the EMG revealed no evidence of radiculopathy
or plexopathy. The brain MRI was normal. Dr. DeSouza opined that Claimant may
have had post-traumatic headaches from when she fell backwards and hit her head,
but there was no evidence of concussion or post-concussion syndrome. He remarked
that both his evaluation and that of Dr. Weinstein were normal for cognition,
memory, attention, mood, cranial nerves, and gait. Dr. DeSouza opined that
Claimant was fully recovered from her post-traumatic headaches. F.F. No. 3(a)-(e).
The WCJ found Claimant less than credible. The WCJ explained that
Claimant did not disclose her 2016 fall from a ladder resulting in low back pain to
6
three of the medical experts in this matter. Claimant also complained about body
parts and symptoms, such as shoulder pain, about which none of her experts testified.
The WCJ also noted that Claimant’s description of a forehead injury was not
consistent with the mechanism of a backwards fall. F.F. No. 8.
As for the medical testimony, the WCJ found
Dr. Fayyazi’s opinion of full recovery of the accepted
injuries more competent and credible than the opinions of
Dr. Diamond based on the benign examination findings
and lack of relevant findings on objective studies. As for
Dr. Fayyazi’s potential expansion of Claimant’s injury, he
stated that would be so only if Claimant had no prior back
complaints, which according to her testimony was not the
case. Both Dr. DeSouza and Dr. Weinstein reported
normal neurological examinations supporting no ongoing
post-traumatic headache[s], and no finding of concussion
or concussion sequelae. Based on the lack of findings in
both examinations, Dr. DeSouza’s opinions are accepted.
F.F. No. 7 (emphasis added).
Ultimately, the WCJ found that Claimant had recovered from her
lumbar sprain and strain as of November 20, 2019, and from her post-traumatic
headaches as of January 3, 2020. F.F. Nos. 9-10. The WCJ further found that
Claimant sustained no additional injuries as a result of her September 7, 2019 work-
related injury. F.F. No. 11.
Accordingly, the WCJ concluded that Employer met its burden of
proving that Claimant had fully recovered from her accepted work-related injuries
sustained as a result of the September 7, 2019 incident. The WCJ concluded that
Claimant failed to meet her burden of proving that she sustained any additional
work-related injuries or that Employer violated the Act. Thus, the WCJ granted
Employer’s Termination Petition and denied Claimant’s Review and Penalty
Petitions.
7
Claimant appealed the WCJ’s decision to the Board, which affirmed.
Claimant now petitions this Court for review.2
II. Issue
Claimant argues that the WCJ erred or abused his discretion by denying
her Review Petition and granting Employer’s Termination Petition by misconstruing
Employer’s expert evidence. According to Claimant, Dr. Fayyazi testified that, if
Claimant did not have any prior lower extremity symptoms before the work incident,
the work-related injury should be expanded to include a work-related aggravation of
isthmic spondylolisthesis, which has not fully resolved. However, the WCJ
misconstrued Dr. Fayyazi’s testimony by finding that the doctor would support an
expansion of the injury description only if Claimant did not have any prior lower
back pain. The assessment of whether Claimant sustained a work-related
aggravation hinged on the presence or absence of prior lower extremity symptoms,
not simply lower back pain, as found by the WCJ. Although Claimant admitted to
occasional lower back pain prior to the work injury, she did not have any prior
symptoms. Claimant contends that Dr. Fayyazi’s testimony, if properly construed,
supports an expansion of the accepted work injury.
III. Discussion
It is well settled that, in workers’ compensation cases, “[t]he WCJ is
the ultimate finder of fact, and the exclusive arbiter of credibility and evidentiary
2
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. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).
8
weight.” LTV Steel Company, Inc. v. Workers’ Compensation Appeal Board
(Mozena), 754 A.2d 666, 676 (Pa. 2000). In executing his factfinding role, “the WCJ
is free to accept or reject, in whole or in part, the testimony of any witness.” Id.
Determinations as to witness credibility and evidentiary weight are generally not
subject to appellate review. Joy Global, Inc. v. Workers’ Compensation Appeal
Board (Hogue), 876 A.2d 1098, 1103 (Pa. Cmwlth. 2005).
However, the WCJ’s evidentiary findings are not immune from review.
LTV Steel, 754 A.2d at 676. “The WCJ must base [his] decision on substantial
evidence.” Id. “Substantial evidence” is such
relevant evidence that a reasonable person might accept as
adequate to support a conclusion. In reviewing a decision
for substantial evidence, the court must view the evidence
in the light most favorable to the party [that] prevailed
before the WCJ and draw all reasonable inferences from
the evidence in favor of the prevailing party. . . . [I]t is
irrelevant whether the record contains evidence to support
findings other than those made by the WCJ; the critical
inquiry is whether there is evidence to support the findings
actually made.
Pocono Mountain School District v. Workers’ Compensation Appeal Board
(Easterling), 113 A.3d 909, 918 (Pa. Cmwlth. 2015) (internal citations and
quotations omitted).
With a review petition, the burden is on the claimant to establish the
existence of additional compensable injuries. Cinram Manufacturing, Inc. v.
Workers’ Compensation Appeal Board (Hill), 975 A.2d 577, 582 (Pa. 2009).
Conversely, in a termination petition proceeding, it is the employer that bears the
burden of proving that the claimant has fully recovered from the work injury. Jones
v. Workers’ Compensation Appeal Board (J.C. Penney Co.), 747 A.2d 430, 432 (Pa.
Cmwlth. 2000). An employer can meet this burden by “proving either that the
9
employee’s disability has ceased, or that any current disability arises from a cause
unrelated to the [claimant’s] work injury.” Campbell v. Workers’ Compensation
Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503, 506-07 (Pa.
Cmwlth. 1998). Where the claimant complains of ongoing pain, there must be
unequivocal medical evidence, offered within a reasonable degree of medical
certainty, that “the claimant is fully recovered[ and] can return to work without
restrictions and that there are no objective medical findings which either substantiate
the claims of pain or connect them to the work injury.” Udvari v. Workmen’s
Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
Here, the WCJ found:
Dr. Fayyazi opined that if Claimant had no back
complaints prior to the September 7, 2019 injury, she may
have aggravated her pre-existing chronic isthmic
spondylolisthesis and neural proximal stenosis resulting in
lower extremity symptoms. Assuming Claimant was
completely asymptomatic prior to the injury, he would say
Claimant had reached maximum medical improvement
rather than saying she was fully recovered.
F.F. No. 2(d) (emphasis added). In addition, the WCJ found: “As for Dr. Fayyazi’s
potential expansion of Claimant’s injury, he stated that would be so only if Claimant
had no prior back complaints, which according to her testimony was not the case.”
F.F. No. 7.
Dr. Fayyazi testified that, based on his review of her MRI, Claimant
suffered from “chronic isthmic spondylolisthesis and neural foraminal stenosis.”
Reproduced Record (R.R.) at 92a. He opined, “assuming that she was asymptomatic
with respect to her back and lower extremity, that her September [7, 2019] injury
may have aggravated that condition and had resulted in her lower extremity
10
symptoms.” Id. Dr. Fayyazi stated that he “would need to confirm that she was not
symptomatic . . . prior to the injury.” Id. at 93a.
On cross-examination, Dr. Fayyazi explained:
If she had lower extremity symptoms prior to this fall, then
the lower extremity symptoms at this time would not be
related to the fall. If those symptoms were not present
before the fall, then the fall resulted in aggravation of the
spondylolisthesis or isthmic spondylolisthesis.
R.R. at 110a-11a (emphasis added). He reiterated “if she was asymptomatic before
the fall, then the injury resulted in an aggravation of the isthmic spondylolisthesis.”
Id. at 112a (emphasis added).
Upon review, the WCJ did not misconstrue Dr. Fayyazi’s testimony.
Dr. Fayyazi’s potential expansion of Claimant’s work injury to include injuries
beyond a lumbar sprain and strain, namely an aggravation of isthmic
spondylolisthesis and neural foraminal stenosis, was dependent on whether Claimant
had no prior back complaints or symptoms. R.R. at 92a, 112a. Dr. Fayyazi testified
that low back pain is a symptom of isthmic spondylolisthesis and neural foraminal
stenosis. Id. at 103a-04a.
Claimant admitted that she had “some back issues” before the 2019
work incident. R.R. at 49a. Claimant explained that she fell off a ladder at work in
2016, and she reported the incident to Employer. Id. at 49a-50a, 58a-59a. Although
Claimant denied requiring medical attention for the 2016 ladder fall, she admitted to
experiencing backaches. Id. at 50a. Claimant was not sure if her pre-injury back
pain was attributable to the 2016 ladder fall or from being on her feet at work for
long periods of time. See id. at 50a, 64a. Claimant testified that her low back pain
intensified after the 2019 injury. Id. at 64a. By admitting that she had back
symptoms prior to the 2019 incident, Claimant negated the condition imposed by
11
Dr. Fayyazi for his testimony to support the expansion of the work injury to include
an aggravation of her underlying conditions. Consequently, Dr. Fayyazi’s testimony
does not support an expansion of Claimant’s injury description. Because the WCJ
rejected Claimant’s medical evidence, F.F. No. 7, Claimant did not satisfy her
burden of proving the existence of additional compensable injuries. We, therefore,
conclude that the WCJ did not err or abuse his discretion by denying her Review
Petition.
As for the Termination Petition, Employer’s medical experts both
credibly testified that Claimant had fully recovered from the accepted work-related
injuries -- lumbar strain and sprain and post-traumatic headaches -- and could return
to work without restrictions. F.F. No. 7; R.R. at 91a, 93a; Certified Record (C.R.)
at 408.3 Specifically, Dr. Fayyazi testified that Claimant was fully recovered from
the accepted lumbar strain and sprain injury. R.R. at 91a, 93a. Dr. DeSouza credibly
testified that Claimant was fully recovered from her post-traumatic headaches and
released her to her pre-injury job without restrictions. C.R. at 408. Although
Claimant presented conflicting medical testimony that she was not fully recovered
from her work injury, the WCJ rejected the opinions of Drs. Diamond and Weinstein
as not credible. F.F. No. 7. Although Dr. Fayyazi testified that Claimant has not
fully recovered from the isthmic spondylolisthesis, R.R. at 115a-16a, this injury was
not accepted as a compensable work injury. Upon review, the WCJ’s finding that
Claimant was fully recovered from her accepted work injuries is supported by
substantial evidence. We, therefore, conclude that the WCJ did not err or abuse his
discretion by granting Employer’s Termination Petition.
3
Because the Certified Record was filed electronically and was not paginated, the page
numbers referenced in this opinion reflect electronic pagination.
12
IV. Conclusion
Upon review, we affirm the Board’s order affirming the WCJ’s
decision.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmel G. Jean, :
:
Petitioner :
:
v. : No. 74 C.D. 2022
:
Bloomin’ Brands, Inc. (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 25th day of September, 2023, the order of the Workers’
Compensation Appeal Board, dated December 29, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge