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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ibtissam Hanna,

:

Petitioner :

:

v.

: No. 1213 C.D. 2004

: SUBMITTED: November 12, 2004
Workers' Compensation Appeal
:
Board (Americold Logistics, LLC), :

Respondent :

BEFORE:
HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE DAN PELLEGRINI, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: February 7, 2005

Ibtissam Hanna petitions for review of the order of the Workers'
Compensation Appeal Board (Board), which affirmed the suspension of her
benefits. Hanna seeks a remand, contending that the Workers' Compensation
Judge (WCJ) did not issue a reasoned decision, excluded relevant testimony and
failed to rule on objections to testimony by employer's medical expert. We reject
all of these contentions as either meritless or waived. Therefore, we affirm.

In December 2001, Hanna, a packer at Americold Logistics, LLC, hit
her back and head when she fell while standing on a pallet and reaching up to
retrieve an empty box of stack pallets. Hanna received total compensation benefits
pursuant to a notice of compensation payable (NCP) until, based on a release from
her then treating doctor, she returned to her pre-injury job with restrictions in April
of 2002. As described by the WCJ, based on the testimony of Hanna's supervisor,

Mr. Fritzinger, the job ("CT II ortho dock worker") entailed standing at a counter
packing and labeling boxes, placing those boxes on a conveyor belt, lifting no
more than ten pounds frequently and no more than twenty pounds occasionally and
walking a distance of four to five feet. Employer provided a stool in Hanna's work
area and directed her to sit down and relax a bit as needed. After working for only
one week, Hanna stopped without offering a reason and benefits resumed. In
September of 2002, after obtaining an independent medical examination (IME)
from a doctor who approved Hanna's return to work, Americold asked her to
return to the same job with the same restrictions, but she did not do so.

On September 26, 2002, Americold petitioned to suspend Hanna's
benefits.1 Before the WCJ, Hanna testified, describing her injury and stating that
pain in her back and down her right leg prevents her from performing the offered
job. The WCJ received conflicting deposition testimony from each party's medical
expert regarding whether Hanna's work injury continued to cause back pain that
prevented her from working. Hanna presented the opinion of Dr. Cerciello, an
orthopedic surgeon, who first examined her in May of 2002 and Americold
presented the opinion of Dr. Mauthe, who is certified in physical medicine and
rehabilitation and examined Hanna in July of 2002. The doctors agreed that Hanna
continued to suffer pain as a result of her work injury but could return to work.
They disagreed on the precise etiology of that pain and on whether Hanna could
perform the offered job, a light duty position, or was more limited to strictly
sedentary work. The WCJ found, in pertinent part, as follows:

1 In addition, Hanna filed a petition in December of 2002, seeking payment for certain
medical expenses. The WCJ granted this request in part and no appeal was taken therefrom.
2

6.
In light of the fact that Dr. Cerciello examined
claimant on several occasions and had the opportunity to
listen to claimant's description of her pain on more than
one occasion, his opinion that claimant suffers from
chronic low back pain secondary to disease at L4-5 with
a tear in the annular ligament as a result of her work
injury is accepted as credible and persuasive. However,
Dr. Cerciello's opinion that claimant is limited to
performing sedentary employment and changing position
"every minute" is rejected in favor of the more credible
testimony of Dr. Mauthe regarding claimant's physical
capabilities. Dr. Mauthe's opinion that claimant is
physically capable of performing the CT II ortho dock
worker job is also credible. Dr. Mauthe's experience in
physical medicine and rehabilitation is one of the factors
considered in making this credibility determination.
Another factor is that claimant remained seated during
the entire hearing on February 27, 2003 for a period of
forty minutes. In addition, claimant testified that she was
able to alternate sitting and standing when she attempted
the job in April of 2002.
Hanna v. Americold Logistics, LLC, (claim no. 2436408, filed July 21, 2003) WCJ
decision at 8-9.

Based on these findings, the WCJ concluded that "[t]he defendant has
proven that claimant is capable of returning to work at modified duty and that work
within claimant's physical limitations was made available to her as of September 5,
2002. Claimant has refused available employment, in bad faith." Id. Therefore, the
WCJ suspended benefits. Hanna appealed to the Board, challenging the sufficiency
of evidence, challenging the decision as not well reasoned, asserting that the WCJ
improperly excluded testimony by the insurer's rehab nurse/consultant, Bobbie
O'Donnell, R.N., who requested the IME by Dr. Mauthe, and asserting that the
WCJ failed to rule on objections to Dr. Mauthe's testimony. The Board rejected
each of these contentions and affirmed. Thereafter, Hanna filed the present appeal,
asserting the same arguments.
3

Inasmuch as the WCJ received conflicting evidence on the disputed
fact regarding Hanna's ability to return to the available job, we will not disturb her
finding by revisiting her assessment of the weight and credibility of each medical
expert. See Greenwich Collieries v. Workmen's Comp. Appeal Bd. (Buck), 664
A.2d 703, 706 (Pa. Cmwlth. 1995). Our review of the record reveals that Dr.
Mauthe's testimony amply supports the WCJ's finding that Hanna is capable of
performing her pre-injury job modified to accommodate her physical restrictions,
as stated in the job analysis form describing the "Cat II Ortho Dock Worker"
position and as described in the testimony of her supervisor, Mr. Fritzinger.

Parties in a workers' compensation case 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." Section 422(a) of the Workers' Compensation Act, Act of June 2, 1915,
P.L. 736, as amended, 77 P.S. § 834. When faced with conflicting competent
evidence, the WCJ must adequately explain the reasons for rejecting evidence and
the adjudication must provide a basis for meaningful appellate review. Id. In the
present case, the WCJ's decision fully complies with these requirements. In her
brief, Hanna failed to adequately explain or provide legal support for her
contention to the contrary. She merely cites Daniels v. Workers' Comp. Appeal Bd.
(Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003) without any discussion
thereof and points to the WCJ's explanation that Hanna's ability to sit for the
duration of the hearing belied her doctor's statement as to the frequency with
which she needed to change positions. These statements alone do not articulate any
grounds or rationale for this court to declare the decision not well reasoned.
4

Therefore, we need not consider the contention. See Williams v. Workers' Comp.
Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 141 (Pa. Cmwlth. 2004).
Moreover, the WCJ fully complied with our Supreme Court's directive in Daniels
and adequately explained the basis for her determinations as to the credibility of
the deposed medical experts. The inference drawn from Hanna's ability to sit
through the hearing is entirely rational.

The exclusion of evidence is a decision left to the sound discretion of
the WCJ and, in general, the exclusion of relevant, competent, non-duplicative
evidence constitutes an abuse of that discretion. See Westinghouse Electric Co. v.
Workmen's Comp. Appeal Bd. (Pollock), 507 A.2d 1287, 1288-89 (Pa. Cmwlth.
1986). However, in the present case, the WCJ did not err in excluding testimony by
the insurer's nurse consultant, Bobbie O'Donnell. O'Donnell did nothing more
than request the IME from Dr. Mauthe. Hanna does not explain in either her appeal
to the Board nor in her brief to our court what relevant information the nurse, who
is not qualified to offer a medical opinion and who apparently did not treat Hanna,
could possibly add to the record.

Hanna waived her final contention that the WCJ erred in failing to
rule on objections to Dr. Mauthe's testimony. First, as acknowledged in her brief,
the certified record does not contain the written preservation of objections
allegedly delivered to the WCJ prior to her issuance of a decision. Second, neither
the appeal to the Board nor the brief to our court contains any explanation as to the
objections and the grounds therefore.

Accordingly, we affirm.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ibtissam Hanna,

:

Petitioner :

:

v.

: No. 1213 C.D. 2004

:
Workers' Compensation Appeal
:
Board (Americold Logistics, LLC), :

Respondent :

O R D E R

AND NOW, this 7th day of February, 2005, the order of the
Workers' Compensation Appeal Board in the above captioned matter is hereby
AFFIRMED.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge

Document Outline