The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James F. Buckley, :
Petitioner :
:
v. : No. 1456 C.D. 2022
:
Suburban Propane Partners, LP :
(Workers’ Compensation Appeal :
Board), :
Respondent : Submitted: October 10, 2023
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 1, 2023
James F. Buckley (Claimant) petitions this Court for review of the November
30, 2022 order of the Workers’ Compensation Appeal Board (Board), affirming the
decision of workers’ compensation judge (WCJ) Alan Harris (Judge Harris) that
granted a termination petition filed by Suburban Propane Partners, LP (Employer).
The issue before this Court is whether substantial evidence supports Judge Harris’s
finding that Claimant had fully recovered from his work injury and that Claimant’s
work restrictions were unrelated to his work injury. After review, we affirm.
I. Background
Claimant suffered a work injury to his lower back and neck on January 29,
2019, after slipping on ice while delivering fuel to one of Employer’s customers.
Employer issued a medical-only Notice of Compensation Payable (NCP), accepting
liability for Claimant’s work injury, which the NCP described as a “lower back area
injury.” Certified Record (C.R), Item No. 6, Finding of Fact (F.F.) No. 1. Claimant
worked light duty for approximately six months before his physician, Joseph Paz,
D.O., took him out of work. Employer issued an amended NCP on August 23, 2019,
in recognition of Claimant’s right to wage loss benefits. On July 7, 2021, Employer
filed a termination petition, alleging that Claimant had fully recovered from his work
injury, based on the opinion of Rodwan Rajjoub, M.D., who conducted an
independent medical examination (IME) of Claimant on June 29, 2021. In support
of its termination petition, Employer presented Dr. Rajjoub’s deposition testimony,
as well as a surveillance video of Claimant that was recorded on November 6, 2020,
and photographs Claimant posted on social media. Claimant testified live before
Judge Harris and presented Dr. Paz’s deposition testimony. Claimant also presented
deposition testimony he gave on October 14, 2020, as part of a previous termination
proceeding.1
A. Employer’s Evidence
Employer submitted into evidence copies of several photographs posted on
Claimant’s Facebook page from April 2020 through August 2021 that demonstrated
Claimant engaged in various activities, such as fishing, holding his grandson, and
operating a table saw. Still photographs taken from the November 6, 2020
1
Judge Harris denied Employer’s prior termination petitions in a February 12, 2021
decision. While Judge Harris credited Dr. Rajjoub’s opinion that many of Claimant’s back and
neck symptoms preexisted the January 29, 2019 work injury, he found that Dr. Rajjoub failed to
suitably explain the basis for his opinion that Claimant had fully recovered from the work injury.
Judge Harris also granted Claimant’s review petition, expanding Claimant’s work injury – a lower
back strain superimposed upon preexisting degenerative lower back conditions – to include a
cervical strain and sprain that caused a traumatic disc injury at C5-6 with associated radiculopathy.
Additionally, Judge Harris found that Claimant failed to prove his chronic traumatic
encephalopathy (CTE) and cognitive issues were caused by the work injury.
2
surveillance video appeared to depict Claimant carrying windows into a house that
Claimant and his wife were in the process of renovating.
Dr. Rajjoub, a board-certified neurosurgeon, testified that he performed an
IME of Claimant on June 29, 2021. At that time, Claimant advised Dr. Rajjoub that
he fell at home approximately four months earlier, causing a temporary increase in
his lower back pain. By the date of the IME, Claimant reported mild cervical pain
with numbness and tingling in his upper extremities, and mid-back pain, with
numbness and tingling in his left foot. He also reported suffering from headaches
two to three days a week. Claimant treated his current pain symptoms with steroid
injections, Tramadol, physical therapy, and chiropractic treatment. Overall,
Claimant’s pain symptoms were less significant than what he described during an
IME Dr. Rajjoub conducted during the first termination proceeding. Dr. Rajjoub’s
findings upon physical examination indicated improvement in Claimant’s cervical
spine range of motion, which Dr. Rajjoub stated was “almost back to normal.” C.R.,
Item No. 25, Rajjoub Dep., 10/28/21, at 27. Claimant walked normally, his gait was
steady, and he could walk on his heels and toes. He had normal range of motion in
his lumbar spine, and Dr. Rajjoub found no evidence of lumbar herniation in
Claimant’s recent magnetic resonance imaging (MRI) studies. Dr. Rajjoub did not
detect the presence of radiculopathy based on Claimant’s responses to reflex and
sensation testing.
Dr. Rajjoub noted that Claimant’s pre-injury medical records documented a
history of headaches, neck pain, and lower back pain, as well as numbness and
tingling in his hands and left leg. Diagnostic studies taken prior to the January 29,
2019 work injury, including 2015 and 2016 MRIs of Claimant’s lumbar and cervical
spine, revealed multi-level degenerative disc disease and bulging discs. Claimant’s
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medical records indicated that Claimant treated his pre-injury symptoms with
Tramadol. Dr. Rajjoub also understood that Claimant suffered a stroke in 2012, and
he was diagnosed with CTE, with mild to moderate cognitive function deficit.
Ultimately, Dr. Rajjoub opined that Claimant had fully recovered from his
work injury, which Judge Harris found in his February 12, 2021 decision to consist
of a lower back strain superimposed over preexisting degenerative lower back
conditions and disc disease, and a cervical strain and sprain, causing a traumatic disc
injury at C5-6, with radiculopathy. Dr. Rajjoub noted that Claimant’s cervical
injections were placed at the C3-4, C4-5, and C7-T1 levels, and not C5-6. The
photographs of Claimant fishing and working on his house also supported Dr.
Rajjoub’s opinion that Claimant had fully recovered from his work injury. Dr.
Rajjoub saw no need to limit Claimant’s activity as Claimant “did not limit himself.”
Rajjoub Dep. at 35. Dr. Rajjoub also opined that Claimant’s work injury did not
require further treatment, as Claimant had returned to the pre-injury condition
documented in his 2015 and 2016 MRIs. Dr. Rajjoub felt that Claimant’s current
medical treatment solely addressed his preexisting degenerative disc disease.
Dr. Rajjoub recognized, however, that Claimant had been off work for over
two years. Therefore, Dr. Rajjoub recommended that Claimant return to light work
before progressing to his pre-injury job. Dr. Rajjoub did not believe that Claimant’s
work injury limited his ability to return to work.
During cross-examination, Dr. Rajjoub acknowledged that Claimant’s
subjective complaints had not changed over time; however, Dr. Rajjoub could not
corroborate Claimant’s subjective complaints with objective findings. Dr. Rajjoub
reiterated that Claimant’s MRI results from 2020 were “[m]ore compatible” with
those documented in his pre-injury MRIs. Id. at 41. Dr. Rajjoub’s IME report from
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the first termination proceeding noted that Claimant’s forward flexion in his cervical
spine was 90 degrees, which Dr. Rajjoub considered normal. His cervical extension
was “a little bit limited” at 45 degrees. Id. at 44. At the June 29, 2021 IME, however,
Claimant was able to extend his neck 70 degrees, a normal finding. Claimant’s
forward and lateral cervical flexion were also normal at the June 29, 2021 IME. Dr.
Rajjoub advised that range of motion tests are objective, rather than subjective.
Dr. Rajjoub acknowledged that Claimant had degenerative arthritis prior to
the January 29, 2019 work injury, a condition for which Claimant had not been
“cured[.]” Id. at 50. With regard to the work injury, however, Dr. Rajjoub
maintained that Claimant had returned to his pre-injury “baseline.” Id. As for
Claimant’s return to work, Dr. Rajjoub indicated that any patient who had been out
of work for an extensive period should return to light duty before progressing to
regular-duty work. Dr. Rajjoub stressed that any restrictions on Claimant’s ability
to return to work were not related to his work injury.
B. Claimant’s Evidence
In an October 14, 2020 deposition, Claimant testified that he continued to
experience daily pain in his neck and back as a result of the January 29, 2019 work
injury. Claimant advised that even the slightest physical effort would trigger his
symptoms, and he could not sit for long periods or walk more than a few blocks.
Claimant’s lower back pain radiated down his left leg into his calf. He also suffered
frequent headaches that would last all day. Claimant treated his back and neck
symptoms with injections, and he attended physical therapy for his back. Claimant’s
symptoms prevented him from fishing or working on cars. Additionally, Claimant
noticed a change in his vision and memory, although he acknowledged experiencing
mild memory issues prior to the work injury. Later in his testimony, Claimant stated
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that his memory problems began in 2012 after he suffered a stroke while working as
an emergency medical technician (EMT).
During cross-examination, Claimant acknowledged sustaining a prior work
injury “somewhere between 2012 and 2015[.]” C.R., Item No. 16, Claimant Dep.,
10/14/20, at 31. Upon further questioning, Claimant agreed that he sustained three
additional work injuries, including a neck strain, in 2006 while employed as an EMT.
Claimant could remember undergoing osteopathic manipulation therapy to his spine
and neck prior to the January 29, 2019 work injury, but he could not remember the
dates he received such therapy. Claimant did not recall being disabled from working
as an EMT in 2015 due to neurological issues but he remembered filling out
disability forms in 2017. Claimant likewise did not recall having a cervical spine
MRI in 2006 or having computerized tomography (CT) and MRI studies of his neck
taken in 2015. He did agree that MRIs of his brain were taken prior to January 29,
2019. Claimant conceded that he sustained “probably close to 20” head injuries
prior to January 29, 2019, including 10 incidents that occurred when Claimant was
less than 5 years old. Id. at 48. Additionally, Claimant rode his bicycle “off a
bridge” when he was 10, he was involved in a motor vehicle accident at age 17, and,
at some point between 2010 and 2012, a car that was improperly jacked fell on
Claimant’s head. Id. at 49. Claimant agreed that he had physical therapy for a
muscle strain in his back, but he could not recall any other specifics. Claimant denied
taking Tramadol for back pain prior to the January 29, 2019 work injury, but he did
take Flexeril for the back muscle strain. Claimant stated that it was “feasible” that
he complained about frequent headaches and vision problems in September 2018.
Id. at 51. It was “fair to say” that one of Claimant’s treatment providers advised
Claimant prior to January 29, 2019, that he had CTE. Id. at 60.
6
At a November 3, 2021 hearing before Judge Harris, Claimant asserted that
he has not fully recovered from his work injury. Claimant receives injections in his
neck and back every few months, which provide “some relief[.]” C.R., Item No. 12,
Notes of Testimony (N.T.), 11/3/21, at 14. Claimant’s neck pain radiates from the
base of his skull down to his shoulders. Dr. Paz recently recommended that Claimant
receive physical therapy for his neck symptoms, which are worse than his back pain.
He no longer receives physical therapy for his back pain. Claimant continues to
experience numbness and tingling in his hands, which he treats with Lyrica.
Periodically, Claimant suffers intense nerve pain in his arms and left leg. Claimant
rated his neck pain at four or five on “a good day.” Id. at 21. At times, his pain is a
six or seven. Claimant’s back pain is “much more tolerable” and “pretty much a
four.” Id. Claimant advised that he remains out of work, and he does not believe
that he could return to his pre-injury job. Claimant asserted that if he tries to perform
any labor, such as hanging a picture, his neck pain increases, and he loses sensation
in his arms. Claimant also suffers from various ailments that are unrelated to his
work injury, including visual problems attributed to CTE and urinary dysfunction.
During cross-examination, Claimant acknowledged having diagnostic studies
of his back and neck for “two automobile accidents[.]” Id. at 25. He did not recall
any incidents prior to the January 29, 2019 work injury that would have caused pain
in his neck and lower back. Claimant denied telling Dr. Rajjoub that his neck pain
had improved. Claimant agreed that Dr. Paz’s office is a two-hour drive from his
home. Regarding his physical activity, Claimant stated that he goes fishing with his
grandson “once in a while.” Id. at 31. Claimant did not deny that he and his wife
were in the process of renovating a home; however, Claimant asserted that he could
only perform small tasks, such as using a screw gun and stapling insulation into
7
place. He denied performing any demolition of the house after the first day, and he
did not help with any electrical or plumbing work. Although Claimant testified that
it “hurts too much to get up and down off the floor[,]” he admitted having sat on the
porch to install flooring. Id. at 32, 35. Claimant estimated that the heaviest item he
lifted was a 2x4 board that weighed five to seven pounds.
At a subsequent hearing before Judge Harris held on February 2, 2022,
Claimant addressed the photographs Employer introduced from Claimant’s
Facebook page. Regarding the photographs of Claimant fishing, Claimant advised
that, prior to the work injury, he would go fly fishing and walk in streams for several
miles. Currently, Claimant can no longer cast a fishing line and he fishes at a pond
by dropping a line into the water. Claimant denied installing a plank ceiling at his
house. Claimant’s wife performed any interior painting and Claimant only painted
a six- or seven-inch section on the exterior of the home. Claimant acknowledged
that one photograph depicted him carrying window frames, but he asserted that the
frames did not contain glass and each frame weighed only three or four pounds.
Claimant denied having any accidents or injuries after the January 29, 2019 work
injury, beyond minor cuts to his fingers that he sustained while working on the
house.
Dr. Paz is board certified in anesthesia and pain medicine. In a July 6, 2020
deposition taken for the first termination proceeding, Dr. Paz testified that he first
examined Claimant on October 28, 2019. Claimant presented with neck and lower
back pain and frequent headaches, which he rated as an average of 3 “plus” out of
10. C.R., Item No. 17, Paz Dep., 7/6/20, at 9. Claimant related a history of motor
vehicle accidents and occasional neck and lower back pain throughout the years, but
he had not seen anyone for those symptoms in the year prior to the work injury.
8
Claimant had “some limitations” in his cervical and lumbar range of motion, with
cervical tenderness and muscle spasm. Id. at 14. Claimant’s straight leg test was
negative, and his reflexes and sensation were normal. Dr. Paz reviewed cervical
MRIs from February 3, 2019 and March 22, 2019, and a lumbar MRI from March
11, 2019. The cervical MRIs revealed acute disc protrusions at C5-6, with stenosis,
which Dr. Paz related to Claimant’s work injury. The lumbar MRI documented a
herniated disc at L5-S1, which Dr. Paz also related to the work injury. Dr. Paz also
identified the presence of degenerative arthritis in both the cervical and lumbar
MRIs. Dr. Paz recommended that Claimant continue treating with his existing pain
management doctor and remain off work.
At a subsequent appointment on December 12, 2019, Claimant reported non-
radiating neck and lower back pain. Reflex, sensation, and strength test results were
normal. Claimant exhibited cervical muscle spasm. At a February 6, 2020
appointment, Claimant reported pain radiating from his elbows to his fingers, with
numbness and tingling. Dr. Paz examined Claimant again on the date of his
deposition, July 6, 2020, at which time Claimant reported worsening neck and upper
extremity pain. On cross-examination, Dr. Paz acknowledged that he did not review
a pre-injury lumbar MRI from 2015, and he was not aware that Claimant underwent
a cervical MRI in September 2016. The only medical records Dr. Paz reviewed that
predated the January 29, 2019 work injury came from Claimant’s family doctor, and
those records were limited to the year leading up to the work injury.
Dr. Paz testified by deposition for the instant termination petition on January
19, 2022. Dr. Paz conducted a telemedicine visit with Claimant on December 17,
2020, during which Claimant reported headaches and neck and back pain that
radiated to his extremities. Claimant advised that his neck and back pain have
9
increased since the work injury, although steroid injections to his neck improved his
symptoms by 30-40%. Claimant otherwise treated his symptoms with Tramadol,
anti-inflammatories, Tylenol, and muscle relaxants. Dr. Paz advised that, while he
prescribes some of Claimant’s medication, he is largely responsible for coordinating
Claimant’s treatment with other providers.
Dr. Paz next examined Claimant in-person on July 21, 2021. Claimant
continued to receive cervical and lumbar injections to address headaches and pain in
his neck, lower back, upper extremities, and lower left leg that Dr. Paz related to the
January 29, 2019 work injury. Claimant also described burning pain in his legs and
arms. Claimant exhibited limited range of motion in his cervical and lumbar spine,
with tenderness in both areas and mild cervical spasm. Claimant had a positive result
in his straight leg test on the left side and left notch sciatic tenderness. At a
September 27, 2021 appointment, Claimant reported an increase in his pain
symptoms, which he described as a 7 or 8 out of 10. Dr. Paz’s findings on physical
examination remained the same as those he documented on July 21, 2021. At that
time, Dr. Paz began prescribing Claimant Lyrica for nerve pain. During a
telemedicine appointment on October 26, 2021, Claimant advised Dr. Paz that the
Lyrica helped his neuropathic pain. Claimant rated his neck pain at a 6 out of 10
and his back pain at a 5 out of 10. Dr. Paz recommended that Claimant continue
treating his symptoms with Tramadol, Lyrica, and muscle relaxants. He also
recommended that Claimant remain out of work. Dr. Paz referred Claimant for a
surgical consultation with a neurosurgeon.
Dr. Paz reviewed a March 5, 2020 cervical MRI that documented an increase
in Claimant’s degenerative disc disease, findings that Dr. Paz considered to be post-
traumatic and related to Claimant’s work injury. Dr. Paz also reviewed a recent
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cervical MRI from September 16, 2021, the results of which Dr. Paz deemed largely
consistent with Claimant’s prior MRIs, with additional disc herniations documented
at C5-6 and C6-7.
Dr. Paz opined that Claimant is disabled from gainful employment and
incapable of working in any capacity, and he disagreed with Dr. Rajjoub that
Claimant had fully recovered from his work injury. Dr. Paz was not “disturb[ed]”
by photographs of Claimant engaged in various activities, as Claimant appeared to
be “doing a lot of sitting[.]” C.R., Item No. 18, Paz Dep., 1/19/22, at 27.
On cross-examination, Dr. Paz agreed that Claimant did not complain of
numbness, tingling, or a burning sensation in his neck or arms during his December
17, 2020 telemedicine appointment. He agreed that Claimant demonstrated full
strength in his extremities during the July 21, 2021 office visit and that Claimant’s
reflexes and sensation were normal. Dr. Paz acknowledged that Claimant took
Tramadol before the January 29, 2019 work injury, but Dr. Paz did not know the
condition for which it was prescribed. Dr. Paz conceded that he did not administer
Claimant’s steroid injections, although he read the reports from the physician who
gave the injections. Dr. Paz did not review any records from Claimant’s physical
therapist. Although Dr. Paz understood that Claimant “was an avid fisherman and
liked to work on cars[,]” he did not ask Claimant about his out-of-work activities or
hobbies. Id. at 46. Dr. Paz stated that he “leave[s] it up to [his] patients to limit”
their out-of-work activities. Id. at 59. Dr. Paz knew that Claimant had a motor
vehicle accident prior to the January 29, 2019 work injury and that he “suffered some
traumatic brain injury or concussions in the past.” Id. at 47. While Dr. Paz admitted
that he did not review Claimant’s pre-injury medical records that discussed
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Claimant’s lower back and neck complaints, he maintained that a pre-injury MRI
only documented “mild and minimal” degenerative findings. Id. at 20.
C. WCJ’s Decision
In a February 12, 2021 decision, Judge Harris granted Employer’s termination
petition. Judge Harris noted that he had multiple opportunities to observe Claimant
testify. After comparing Claimant’s testimony with the surveillance video and
photographs taken from Claimant’s Facebook page, Judge Harris found that
Claimant was frequently evasive and that he was not a credible witness. Although
Claimant testified that his condition had worsened, he no longer attended physical
therapy. Judge Harris deemed this last admission more consistent with Dr. Rajjoub’s
finding that Claimant’s condition had improved. Claimant did not disclose the work
he performed at his house until confronted with the Facebook photographs.
Thereafter, Claimant attempted to minimize his involvement. Judge Harris rejected
Claimant’s testimony regarding his ongoing symptoms, as Claimant would be
unable to attempt the work he admitted performing. Furthermore, Judge Harris felt
it was “impossible” to eliminate Claimant’s activities as the source of his symptoms,
rather than the natural progression of his work injury. C.R., Item No. 6, F.F. No. 10.
Regarding the medical testimony, Judge Harris considered that Dr. Paz did
not appear to treat Claimant. Rather, Dr. Paz “merely [saw Claimant] often enough
to establish a record that he [could] use for testimony.” F.F. No. 12. Judge Harris
also recognized that Dr. Paz did not have Claimant’s pre-injury medical records and,
thus, Dr. Paz had little knowledge of Claimant’s pre-injury condition. Additionally,
Dr. Paz expressed no interest in Claimant’s out-of-work activities, and he failed to
recognize that Claimant appeared to perform construction work at his house or to
consider whether that work aggravated Claimant’s condition. Judge Harris found it
12
nonsensical to restrict an individual’s work activities but “not to restrict what he does
off the job.” F.F. No. 12. Accordingly, Judge Harris found Dr. Paz “less than
credible.” Id. Judge Harris credited Dr. Rajjoub’s testimony over that of Dr. Paz,
in part because Dr. Rajjoub examined Claimant’s pre-work injury records and was,
therefore, more familiar with his condition prior to the work injury. Unlike Dr. Paz,
Dr. Rajjoub considered Claimant’s activity in renovating his house. Judge Harris
was also persuaded by Dr. Rajjoub’s experience as a neurosurgeon, which rendered
Dr. Rajjoub more qualified to comment on Claimant’s neurological condition. To
the extent the medical testimony conflicted, Judge Harris resolved those conflicts in
Dr. Rajjoub’s favor. Based on these findings and credibility determinations, Judge
Harris found that Claimant had fully recovered from his work injury, effective June
29, 2021, and Judge Harris ordered Claimant’s benefits terminated as of that date.
Claimant appealed to the Board, which affirmed Judge Harris in a November
30, 2022 order and opinion. Relevant to the instant appeal, Claimant argued that Dr.
Rajjoub’s opinion that Claimant should return to work at light duty undermined his
opinion that Claimant had fully recovered from his work injury. The Board rejected
this argument, as Dr. Rajjoub clearly indicated that any work restrictions were not
related to or necessitated by Claimant’s work injury. This appeal followed.2
II. Issues
Claimant argues that the Board erred in affirming Judge Harris, as Employer
failed to establish that any work restrictions Claimant required upon returning to
work were not causally related to his work injury.
2
Our review is limited to determining whether a WCJ’s findings of fact are supported by
substantial evidence, whether an error of law was committed, or whether constitutional rights were
violated. Prebish v. Workers’ Comp. Appeal Bd. (DPW/Western Church), 954 A.2d 677, 681 n.1
(Pa. Cmwlth. 2008).
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III. Discussion
To succeed in a termination petition, an employer bears the burden of proving
by substantial evidence that a claimant’s disability ceased or that any remaining
conditions are unrelated to the work injury. Westmoreland County v. Workers’
Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). This burden is
met when the employer proves either that all physical disability has ceased or that
any physical disability stems from an independent cause that is totally separate and
distinct from the work injury. Saville v. Workers’ Comp. Appeal Bd. (Pathmark
Stores, Inc.), 756 A.2d 1214, 1219 (Pa. Cmwlth. 2000). Restrictions placed on a
claimant that “are not causally related to the work injury do not preclude the grant
of an employer’s termination petition.” Id.
The WCJ has exclusive province over questions of credibility and evidentiary
weight, and the WCJ may accept or reject the testimony of any witness, including a
medical witness, in whole or in part. A & J Builders, Inc. v. Workers’ Comp. Appeal
Bd. (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). This Court’s role is not to
reweigh the evidence or review witness credibility. Sell v. Workers’ Comp. Appeal
Bd. (LNP Eng’g), 771 A.2d 1246, 1251 (Pa. 2001). Whether the record contains
evidence to support findings other than those made by the WCJ is irrelevant; the
critical inquiry is whether the record supports the findings actually made, and we
must view the evidence in the light most favorable to the prevailing party and give
it the benefit of all inferences reasonably deduced therefrom. A & J Builders, 78
A.3d at 1238-39. Unless made arbitrarily or capriciously, a WCJ’s credibility
determinations will be upheld on appeal. Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006).
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Claimant argues that Dr. Rajjoub’s testimony that Claimant had fully
recovered from the work injury was equivocal, given that he also testified Claimant
should return to work in a light duty capacity because he had been out of work for
over two years. Claimant contends that, where the accepted medical evidence shows
that an employee has been “deconditioned” from time off work, the employer must
establish that no causal connection exists between the employee’s condition and the
work injury. Claimant’s Br. at 14. According to Claimant, although Dr. Rajjoub
testified that Claimant did not require any work restrictions due to the work injury,
he did not confirm that Claimant’s deconditioned state was not causally connected
to the work injury. Therefore, Employer failed to prove that Claimant had fully
recovered from his work injury.
Claimant cites Parker v. Workers’ Compensation Appeal Board (Dock
Terrace Nursing Home), 729 A.2d 102 (Pa. Cmwlth. 1999), to support his argument
that Judge Harris erred in terminating his benefits. In Parker, the claimant was
deconditioned due to chiropractic treatment she received for her work injury. As a
result, the claimant was unable to return to work. This Court reversed the Board’s
order affirming the termination of her benefits, as the employer presented no
evidence “establishing a lack of causal connection between” the claimant’s
deconditioned state and her work injury.
We reject Claimant’s comparison to Parker, as the Parker claimant’s
deconditioned state was caused by treatment that related to her work injury. Here,
Claimant’s deconditioned state is the result of the lengthy period of time he has been
out of work, not his work injury or any treatment related thereto.
Another decision cited by Claimant, Thompson v. Workers’ Compensation
Appeal Board (Sacred Heart Medical Center), 720 A.2d 1074 (Pa. Cmwlth. 1998),
15
is likewise distinguishable, as the medical expert in Thompson did not “plainly or
clearly opine that the [c]laimant had” fully recovered from her work injury.
Thompson, 720 A.2d at 1077. While the employer’s medical expert opined that the
claimant’s return-to-work restrictions were solely based on the length of time she
had been out of work, the work restrictions he recommended were necessitated by
the claimant’s ongoing pain symptoms.
Claimant’s situation is more properly likened to the claimant in Davis v.
Workers’ Compensation Appeal Board (Mercy Douglas), 749 A.2d 1033 (Pa.
Cmwlth. 2000), who was similarly advised to return to her pre-injury job with
restrictions because she had been out of the workforce for a long period of time.
Because the restrictions were not necessitated by the work injury itself, and the
employer’s medical expert credibly testified that the claimant had fully recovered
from the work injury, her employer met the burden of proof required to terminate
her benefits.
Instantly, Judge Harris rejected Claimant’s testimony regarding his
symptoms, and credited Dr. Rajjoub’s testimony that Claimant had fully recovered
from his work injury, that Claimant no longer required treatment for his work injury,
and that any restrictions on Claimant’s return to work were unrelated to the work
injury.
Based on the evidence presented, we conclude that substantial evidence
supports Judge Harris’s finding that Claimant had fully recovered from his work
injury, which consisted of “a lower back strain superimposed upon [preexisting]
degenerative lower back conditions and degenerative disc disease of the lower
back[,] as well as “a cervical strain and sprain causing a traumatic disc injury at C5-
6 with associated radiculopathy.” C.R., Item No. 44, F.F. No. 19. Dr. Rajjoub found
16
no evidence that Claimant still suffered from a traumatic disc injury at C5-6 with
associated radiculopathy, based in part on the physical examination he conducted on
June 29, 2021. Dr. Rajjoub also noted that Claimant’s cervical injections were
placed at the C3-4, C4-5, and C7-T1 levels. Claimant had normal range of motion
in his lumbar spine, and Dr. Rajjoub found no evidence of lumbar herniation.
Claimant’s degenerative cervical disc disease and cervical disc bulges were
identified in a 2015 cervical MRI and, therefore, those conditions preexisted the
work injury.
Regarding Claimant’s return to work, Dr. Rajjoub “[did] not see the need for
any restriction[s.]” C.R., Item No. 25, Rajjoub Dep. at 31. Dr. Rajjoub did advise
Claimant to “start light work [and] progress into [his] regular job, gradually, because
[Claimant] had been off for a while.” Id. When questioned by Employer’s counsel,
Dr. Rajjoub confirmed that he did not feel that Claimant’s work injury limited his
ability to perform only light to medium duty. Id. During cross-examination, Dr.
Rajjoub reiterated his opinion that Claimant had recovered from the described work
injury, and, while Claimant still suffered from preexisting arthritis, he had returned
to his pre-injury “baseline.” Id. at 50. Claimant’s counsel asked Dr. Rajjoub if
Claimant required work restrictions for his cervical and lumbar condition, regardless
of its relation to the work injury. Dr. Rajjoub replied that Claimant “had
degenerative lumbar and cervical disc disease. The question, does the [work] injury
require any? No.” Id. at 53. Dr. Rajjoub stated that individuals with degenerative
lumbar and cervical disc disease do not usually require restriction and that it
“depends on the degree” of stenosis. Id. at 54. In Claimant’s case, Dr. Rajjoub did
not feel that Claimant’s MRIs documented a significant degree of stenosis.
However, because Claimant had been off work for more than two years, Dr. Rajjoub
17
advised him, as he would any patient, to start with light duty and slowly progress to
regular duty work. On re-cross, Dr. Rajjoub answered in the negative when asked
if Claimant’s January 29, 2019 work injury caused Claimant to have “any
restrictions on his ability to return to work[.]” Id. at 55. Additionally, Dr. Rajjoub
noted in his June 29, 2021 IME report that Claimant “is able to return to his previous
employment and he may start with that or . . . start him on light to medium duty[.]”
C.R., Item No. 43, IME Report, at 6. Dr. Rajjoub “did not place [Claimant] on any
restrictions based on the [January 29, 2019] injury.” Id.
During his deposition testimony, Dr. Rajjoub clearly and consistently stated
that any restrictions Claimant required were solely based on the length of time he
had been off work, and not due to the work injury from which Dr. Rajjoub opined
Claimant had fully recovered. Indeed, Dr. Rajjoub stated that individuals with
degenerative arthritis “usually” do not require work restrictions, and Claimant did
not have a significant degree of stenosis that could warrant work restrictions. In
essence, neither the January 29, 2019 work injury nor Claimant’s preexisting
degenerative arthritis necessitated work restrictions. Claimant simply was not
physically conditioned to immediately return to full-duty work after being out of
work for more than two years. Thus, Dr. Rajjoub suggested that Claimant initially
work light duty and progress towards fully-duty work.
Judge Harris granted Employer’s termination petition based on the credible
testimony of Dr. Rajjoub, which Judge Harris favored over that provided by Dr. Paz.
Judge Harris explicitly rejected Claimant’s testimony regarding his ongoing
18
symptoms. This Court will not reweigh the evidence or overturn Judge Harris’s
credibility determinations. Accordingly, we affirm the Board.
__________________________________
ELLEN CEISLER, Judge
Judges Fizzano Cannon and Dumas did not participate in the decision of this case.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James F. Buckley, :
Petitioner :
:
v. : No. 1456 C.D. 2022
:
Suburban Propane Partners, LP :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 1st day of November, 2023, the November 30, 2022 order
of the Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge