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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA James McMillan, : Petitioner : : v. : No. 1362 C.D. 2004 : Submitted: December 30, 2004 Workers' Compensation : Appeal Board (Mt. Airy Lodge : and Zurich North America), : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: March 9, 2005 James McMillan (Claimant), pro se, petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) terminating his disability benefits. The Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant had fully recovered from his injury, but it modified the WCJ's order. The Board's order established an earlier recovery date, and it suspended benefits for an additional work-related injury because that injury did not result in a disability. On July 2, 1999, in the course of his employment with Mount Airy Lodge (Employer), Claimant fell while lifting a 55-gallon garbage drum filled with water and leaves. Thereafter, Employer issued a Notice of Compensation Payable (NCP) that described the injury as a lumbar strain/sprain. On April 23, 2001, Employer filed a petition to terminate benefits, alleging that Claimant had fully recovered from his work injury. Claimant denied the allegations in Employer's petition. Thereafter, on May 8, 2002, Claimant filed a review petition, asserting that the NCP should be amended to include a more severe low back injury and a cervical injury. A WCJ conducted a hearing on both petitions. In support of its termination petition, Employer presented the deposition testimony of John A. Kline, M.D., who is board certified in physical medicine, rehabilitation and pain management. He observed, inter alia, that Claimant did not suffer spasms, enjoyed a full range of motion in the lumbar region, could walk without difficulty, and tested negative for radiculopathy. Based on this examination and Claimant's history and medical records, Dr. Kline opined that Claimant had sustained a lumbosacral strain in July 1999 and that this injury had fully resolved by the time of his examination on March 27, 2001. Dr. Kline noted that Claimant had pre-existing spondylolisthesis, or slippage of the L5-S1 disc, which Dr. Kline believed to be congenital because it appeared on an MRI done only 17 days post-injury. Further, the disc bulges were consistent with pre- existing degeneration in Claimant's spine; Claimant's reports of what aggravated his pain were consistent with arthritis. Dr. Kline specifically commented upon Claimant's complaints of numbness and tingling into the hands, noting that the nerve roots which enervate these areas exit from the cervical spine, rather than the lumbar spine, and, therefore, were completely unrelated to a low back sprain. Dr. Kline's examination of Claimant revealed subjective complaints that were out of proportion and inconsistent with the physical findings of Claimant's condition. Employer also presented a video tape surveillance of Claimant that showed him lifting moving boxes, a sofa, a stereo television and other furniture. 2 On the tape, Claimant's face did not express pain, his gait was normal, and there were no indications of weakness or limitation. In opposition to Claimant's review petition, Employer presented the deposition testimony of Barry E. Berger, M.D., a board-certified orthopedic surgeon. After review of the medical records1 and examination of Claimant on June 17, 2002, Dr. Berger opined that Claimant sustained, at most, a cervical strain on July 2, 1999. He based this opinion on the facts that immediately after the injury Claimant did not complain of cervical spine pain, Claimant did demonstrate neurological symptoms and Claimant's MRI did not change between 1999 and 2001. He opined that Claimant was fully recovered and could return to work without restrictions. On cross-examination, Dr. Berger testified that MRI films from 1999 and 2001 did reveal the presence of mild multi-level disc changes and a small, herniated disc at C5-6. However, Dr. Berger specifically opined that the small disc herniation was not related to the work injury, noting that a high percentage of people will show a similar herniation on an MRI but are asymptomatic. In opposition to the termination petition and in support of his review petition, Claimant testified. He also presented the deposition testimony of Michael H.O. Dawson, M.D. Claimant testified that he cannot perform any work because of the throbbing pain in his back, that he suffers constant, stabbing pains in his back 1 Dr. Berger reviewed medical records from Northeastern Rehabilitation Associates, HealthSouth physical therapy, Dr. Dawson, De. Terhaar, Dr. Francis, Dr. Engelman, Pocono Medical Center, Dr. Dawson's testimony, Claimant's testimony, Dr. Kline's testimony and surveillance tapes dated February 19, 2001 and March 27, 2001, as well as physical therapy notes from Advanced Rehabilitation, emergency room records from Hahnemann University Hospital dated June 26, 1991, and a report from Dr. Piacentile dated September 24, 1991. 3 when he sits, and that he has numbness in his fingertips, the bottoms of his arms and the bottoms of his legs. He stated that the weather affects his neck pain, as does moving his neck or staying still. He denied that he can engage in any physical activity without pain, and he asserted specifically that he cannot do his grounds-keeping tasks that include lifting trash cans, walking behind a lawnmower or dusting chandeliers. Claimant readily admitted that he and his friends moved his "things" from one house to another in February or March of 2001. Despite what was shown on the surveillance tape, Claimant denied that he moved objects heavier that five or ten pounds and stated that the day after he moved, "everything hurt." Notes of Testimony at 31 (N.T. ___ ). Dr. Dawson, who is board-certified in orthopedic surgery and pain management, opined that Claimant sustained a herniated disc at C5-6 on July 2, 1999, thereby exacerbating his pre-existing, congenital spondylolisthesis in the lumbar spine. He acknowledged that the 2001 cervical MRI demonstrated three degenerative discs and that this was likely due to the natural aging process. Nevertheless, he opined that the preexisting defects in the neural arch of L5 were strained and torn by Claimant's fall. This tearing, according to Dr. Dawson, also caused the tearing of pain sensitive nerve endings, which rarely heal and become the source of chronic pain. Dr. Dawson opined that as a result of the work injury, Claimant is totally disabled from any work because he is incapable of standing up straight, barely capable of walking, and cannot sit with his head in any fixed position for any length of time. He opined that Claimant's lumbar condition is more severe than his cervical condition, which may explain both the more frequent complaints about the lumbar symptoms and the much later onset of the cervical complaints. 4 Dr. Dawson stated that the nature of Claimant's injury was well documented in the medical records and in the radiological studies. Dr. Dawson stood by his opinion that Claimant's anatomic abnormalities were caused by the work-related injury notwithstanding his knowledge that Claimant had moved furniture and had been engaged in a fist fight. Dr. Dawson agreed that Claimant exaggerated his symptoms. The WCJ accepted the opinions of Drs. Kline and Berger as substantial, competent and credible evidence that Claimant had fully recovered from any cervical strain sustained on July 2, 1999, and that Claimant had not sustained a disc herniation in his cervical spine as a result of the July 1999 incident. The WCJ found it significant that although Claimant was complaining to both Drs. Berger and Kline of an inability to move his neck, and complained to Dr. Dawson of a severe inability to use his upper limbs, all three physicians noted an absence of muscle atrophy; indeed, Claimant was found to be extremely well- muscled. The WCJ rejected Claimant's testimony in its entirety as not credible. Claimant's testimony did not stand up to the opinions of Drs. Kline and Berger, and the surveillance evidence contradicted Claimant's claim of severe physical limitations. The WCJ also found that Claimant's testimony was inconsistent with his movement and appearance at the hearing and with what was found at his physical examination by the physicians who testified. Noting that even Claimant's witness, Dr. Dawson, testified that Claimant magnifies his symptoms, the WCJ rejected the testimony of Dr. Dawson in its entirety. The WCJ found that Dr. Dawson's opinion that Claimant suffers from an ongoing injury was unworthy of belief and not borne out by Dr. Dawson's 5 examination of Claimant that showed Claimant to be well-muscled. Dr. Dawson's opinion was also found to be equivocal. The WCJ found, as a fact, that Claimant had fully recovered from the lumbar sprain and strain sustained on July 2, 1999. He rejected Claimant's assertion that he sustained a more severe injury to his lumbar spine at the time of the work injury or that Claimant continues to suffer from his lumbar sprain. He also found that Claimant sustained, at most, a cervical sprain and strain on July 2, 1999, but this sprain was not disabling. He specifically found that Claimant had fully recovered from this cervical strain no later than June 17, 2002, the date of Dr. Berger's evaluation, that Claimant was fully capable of returning to work without restrictions and in need of no further treatment. On these findings, the WCJ granted Employer's termination petition and granted Claimant's review petition as well. Benefits were terminated effective June 17, 2002. Claimant and Employer filed cross appeals with the Board. Before the Board, Claimant contended that the WCJ erred because Claimant is still under a doctor's care for his work injury, and he is unable to be gainfully employed because of his level of pain. In its appeal, Employer contended that the WCJ erred because he should have terminated Claimant's benefits on March 27, 2001, the date Claimant was examined by Dr. Kline, whose testimony was credited by the WCJ. Employer further asserted that because the WCJ found as a fact that Claimant suffered no disability as a result of his cervical injury, benefits for this injury should have been suspended. The Board agreed with Employer. It ordered benefits to terminate as of March 27, 2001. It also suspended benefits for Claimant's cervical injury because it was not disabling. 6 Finally, the Board denied Claimant's appeal. Claimant now petitions this Court for review.2 On appeal, Claimant presents three issues for our review.3 Claimant asserts that he is still injured and unable to work as a result of his injury, which consists of a more severe lumbar injury and a cervical injury than what was accepted by Employer on the NCP. Second, Claimant maintains that Employer should be required to provide him with vocational training and to offer Claimant a light-duty job. Finally, Claimant contends that he was never given an opportunity to view the surveillance videotape either prior to its submission into evidence or since the hearing before the WCJ. An employer has the burden in a termination proceeding to prove that the claimant has fully recovered from his work injury. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). This burden is met when its expert unequivocally testifies that, within a reasonable degree of medical certainty, a claimant is fully recovered and can return to work without restrictions, and there are no objective medical findings which either substantiate the 2 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, and whether necessary findings of fact are supported by substantial evidence. McNulty v. Workers' Compensation Appeal Board (McNulty Tool & Die), 804 A.2d 1260 (Pa. Cmwlth. 2002). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Hoffmaster v. Workers' Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998). 3 In the Statement of Question Involved in Claimant's pro se brief, Claimant lists six questions. These questions can be summarized as asserting that Claimant is still injured as a result of the work-related injury; that Employer should have offered Claimant vocational retraining; that Employer should have offered Claimant a job within his restrictions; that the reasons for termination of Claimant's benefits were not justified; and that Claimant was never given an opportunity to view the surveillance videotape. These questions do not appear in the Argument section of the Brief in any particular sequence, although each question seems to have been addressed within the general text. 7 complaints of pain or connect them to the work injury. Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). Here, Employer presented the testimony of two physicians regarding Claimant's physical condition. Dr. Kline, who examined Claimant prior to the filing of Claimant's review petition, expressed the unequivocal opinion that Claimant was fully recovered from his lumbar spine injury as of the date of his examination of Claimant on March 27, 2001. Dr. Kline detailed the bases for this opinion, and it was accepted by the WCJ without reservation as credible and competent. Our review of the record confirms that the WCJ did not err in basing his findings upon Dr. Kline's testimony. Claimant sought to amend the NCP to include a more severe lumbar spine injury and a cervical injury. To establish a right to benefits for an injury not originally noted on an NCP, a claimant must file either a claim or review petition and prove the relationship between the alleged injury and the workplace incident. Jeanes Hospital v. Workers' Compensation Appeal Board (Hass), 819 A.2d 131 (Pa. Cmwlth. 2003). A claimant must prove not only that he sustained the injuries alleged in his petition but also that he was disabled by those injuries. Commercial Credit Claims v. Workers' Compensation Appeal Board (Lancaster), 556 Pa. 325, 728 A.2d 902 (1999). Here, the expert medical testimony of Dr. Dawson offered by Claimant was rejected by the WCJ as unworthy of belief for the reasons we have already enumerated. Further, Employer's witness, Dr. Berger, who thoroughly reviewed Claimant's medical records and conducted a physical examination, opined that Claimant had a mild cervical strain. His diagnostic tests showed 8 symptom magnification and inappropriate pain responses by Claimant, and Dr. Berger's testimony was found by the WCJ to be credible without reservation. Claimant's real challenge is to the WCJ's credibility findings, and it is beyond peradventure that the credibility determinations of the WCJ may not be set aside by an appellate court. A review of the record confirms that the WCJ's credibility determinations are supported by all the evidence. The Board correctly determined that Employer proved by substantial evidence that Claimant fully recovered from his work injury as of the date of his examination by Dr. Kline on March 27, 2001. We will not address Claimant's remaining issues of whether Employer is required to retrain him or provide light duty work and whether he was denied an opportunity to review the surveillance tape prior to its admission into evidence.4 Nothing in the certified record demonstrates that these claims were properly raised or preserved in Claimant's appeal to the Board. Issues not raised before the Board are deemed waived. Williams v. Workmen's Compensation Appeal Board (Montgomery Ward), 562 A.2d 437 (Pa. Cmwlth. 1989). 4 We note, without addressing the merits of Claimant's allegation regarding the admission of the video tape into evidence, that Claimant was represented by counsel throughout the proceedings, including three days of hearings, and every deposition. Claimant's counsel filed a brief on Claimant's behalf referencing the video tape evidence, and specifically waived any objection to admission of the tape or any need for authentication on the record of the hearing before the WCJ on February 20, 2002. N.T. 4-5. Whether Claimant's counsel provided him with an opportunity to view the tape, or elected to merely advise him of it contents is beyond the control of the WCJ and opposing counsel. The strategy of Claimant's counsel is not a basis for appeal. A review of the testimony of the hearing before the WCJ on February 20, 2002, reveals that Claimant testified as to the substance of the activities depicted on the tape. 9 Accordingly, we affirm the Board. _____________________________ MARY HANNAH LEAVITT, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James McMillan, : Petitioner : : v. : No. 1362 C.D. 2004 : Workers' Compensation : Appeal Board (Mt. Airy Lodge : and Zurich North America), : Respondent : ORDER AND NOW, this 9th day of March, 2005, the order of the Workers' Compensation Appeal Board dated May 12, 2004, in the above-captioned matter is hereby affirmed. _____________________________ MARY HANNAH LEAVITT, Judge
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