IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mohamed Mohamed, :
Petitioner :
: No. 309 C.D. 2015
v. :
: Submitted: July 24, 2015
Workers’ Compensation Appeal :
Board (Lincoln Recycling), :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 16, 2015
Mohamed Mohamed (Claimant) petitions for review of the February 6,
2015 order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a workers’ compensation judge (WCJ) granting Claimant benefits for a
closed period and denying his requests for penalties and counsel fees. For the reasons
that follow, we affirm.
Claimant was employed by Lincoln Metal Processing Company
(Employer) as a laborer. On February 10, 2012, Claimant filed a claim petition
alleging that he sustained work-related injuries to his lumbar spine and chest on July
30, 2011. On February 29, 2012, Claimant filed a penalty petition alleging that
Employer violated the Workers’ Compensation Act (Act)1 by failing to make prompt
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.1, 2501–2708.
payment of medical and indemnity benefits. Claimant subsequently amended the
claim petition to add aggravation of pre-existing cervical spinal stenosis and
aggravation of bone spurring to the description of the work injury. The petitions
were assigned to a WCJ, who held multiple hearings.
Claimant speaks Arabic and was provided an interpreter at all hearings.
He testified that he came to the United States in 2004 and was hired by Employer to
drive a forklift. Claimant testified that, on July 30, 2011, he drove with a co-worker,
William Bonecutter (Bonecutter), to a car dealership to pick up metals. Claimant
stated that while he was moving a container of heavy metal on a dolly, the dolly
struck him in the chest and the container of metal struck him in the side. Claimant
said that he told his supervisor about the incident, but his supervisor did not take any
further action. Claimant testified that he vomited blood and had blood in his urine
after the incident. (Reproduced Record (R.R.) 11a-19a, 28a.)
Claimant testified that approximately one week later he told his
supervisor that he was still injured and could not work. He said that his supervisor
had Bonecutter take him to Priority Care for medical attention. Claimant added that
he still had blood in his urine when he went to Priority Care. Claimant testified that
the doctor at Priority Care restricted him to light-duty work and gave him muscle
relaxers. Claimant stated that Employer did not have light-duty work available and
he kept working his regular-duty job. (R.R. at 14a-16a.)
Priority Care subsequently referred Claimant to Todd S. McCloy, D.C.,
who began treating him on November 9, 2011. Claimant said that Dr. McCloy
prescribed muscle relaxers, provided treatment, and instructed Claimant to do
exercises. Claimant stated that Dr. McCloy restricted him from working as of March
13, 2012, and he has not worked since that date. Claimant added that Dr. McCloy
2
and a Dr. Roger Esper, Claimant’s family doctor, also prescribed a cane for him to
use. (R.R. at 17a-23a, 32a-33a.)
Claimant testified that Dr. McCloy referred Claimant to Oluchi Ozumba,
M.D., a pain specialist at St. Vincent Hospital. Claimant stated that Dr. Ozumba
prescribed medications, took an MRI, and treated Claimant with injections that have
not helped alleviate his pain. (R.R. at 32a.) Claimant further testified that Dr.
McClain, his physical therapist, has restricted him from working because of his back
injury. (R.R. at 76a.)
Claimant stated that he has pain in both legs as well as constant pain in
his lower back. (R.R. at 31a.) He said that his pain increases when he stands for any
period of time or walks any distance. (R.R. at 32a.) Claimant said that he does not
believe that he can go back to work for Employer, as it is difficult for him to walk or
take a shower. (R.R. at 100a.) Claimant also testified that Dr. Ozumba and a Dr.
Khoja recommended that he have surgery to relieve his pain. (R.R. at 99a.)
Bonecutter was subpoenaed to be present at the July 12, 2012 hearing.
He testified that he had worked for Employer for nineteen months, and he
remembered two incidents that he believed occurred prior to July 30, 2011.
Bonecutter stated that the first incident occurred at a car dealership when Claimant
lost control of a barrel, and he remembered Claimant wincing in pain and reaching
around to his back. Bonecutter testified that a second incident occurred at another car
dealership where a barrel came off a handcart, causing Claimant to sustain a “pretty
good strain.” He said that Claimant “winced in some pain and took a little bit of a
break and then continued to work.” Bonecutter added that both of these incidents
occurred sometime in July and involved moving barrels full of brake rotors. He
3
stated that, sometime after these incidents, Claimant stopped doing the heavy barrel
work. (R.R. at 49a-53a.)
Dr. McCloy testified that he began treating Claimant in November of
2011 and continues to see him once a week. He stated that his examination of
Claimant was consistent with a musculoskeletal sprain/strain injury. Dr. McCloy
acknowledged that an MRI from September 2011 was read as normal, but he stated
that a closed MRI taken in February 2010 provided a more detailed picture and
revealed minimal Grade 1 anterolisthesis and a bulging disc at L5-S1, some
degenerative changes, and foraminal stenosis. Dr. McCloy believed that Claimant’s
work injury aggravated his pre-existing degenerative condition, caused Claimant to
suffer sprains to his middle and lower back, and likely resulted in a bulging disc. Dr.
McCloy further opined that Claimant is not capable of performing any type of work.
(R.R. at 113a-19a.)
Dr. Ozumba, who is board certified in anesthesiology and pain
management, testified that she first saw Claimant on February 2, 2012. Dr. Ozumba
diagnosed Claimant with lumbar radiculopathy and back pain. She said that
Claimant’s presentation was consistent with his description of the work injury and
she believed that his symptoms were causally related to the work injury. Dr. Ozumba
would limit Claimant to light-duty work. (R.R. at 180a-82a, 201a-03a.)
Claimant also offered the testimony of Daniel V. Loesch, M.D., a board
certified neurosurgeon. Dr. Loesch testified that Claimant first saw another physician
in his practice, Dr. Khoja, in June 2012, complaining of neck and low back pain. Dr.
Loesch stated that in July 2012, Claimant was still complaining of back and leg pain,
and an MRI showed a disc bulge at C3-4, which created a mild stenosis. Dr. Loesch
4
stated that Dr. Khoja recommended surgery for Claimant’s lower back in the nature
of a L5-S1 fusion with an L4-5 decompression. (R.R. at 397a-403a.)
Dr. Loesch testified that he saw Claimant in February and April 2013,
and he reviewed Claimant’s medical records and ordered additional tests. Based on
the absence of any prior problems with Claimant’s lower back, Dr. Loesch concluded
that Claimant suffered injuries to his neck and lower back as a result of the July 30,
2011 work incident, and he opined that Claimant was not able to return to work as a
laborer. Dr. Loesch stated that Claimant had not improved after two years of
conservative management and that he would recommend surgery as a reasonable
treatment option. (R.R. at 406a-11a.)
Employer presented the deposition testimony of Thomas D. Kramer,
M.D., which was taken on February 6, 2013, and June 12, 2013. Dr. Kramer, a board
certified orthopedic surgeon, testified that he performed an independent medical
examination (IME) of Claimant on August 14, 2012, and reviewed Claimant’s
medical records, including x-rays and MRI studies. Dr. Kramer noted that medical
records from different providers included different accounts concerning the
mechanism of the work injury and different descriptions of Claimant’s specific
complaints. Dr. Kramer stated that on the date of his evaluation, Claimant was using
a walker and complaining of lower back pain radiating down the back of both legs.
He testified that his examination of Claimant revealed no evidence of spasm or
swelling, and hyperextension and rotation maneuvers did not elicit any pain. (R.R. at
295a-311a.)
Dr. Kramer stated that he performed a full neurologic examination of
Claimant’s lower extremities and found no evidence of atrophy or asymmetric
swelling to suggest disuse of muscle weakness. He noted that Claimant “was able to
5
demonstrate three over five motor strength involving bilateral lower extremities,
which would not be compatible with walking.” (R.R. at 301a.) Dr. Kramer stated
that, since he had seen Claimant walk into the room, those responses represented a
submaximal effort. (Id.)
During his testimony on June 12, 2013, Dr. Kramer stated that he had
reviewed additional medical records, including an August 13, 2012 CT scan of the
lumbar spine, a July 17, 2012 MRI study of the cervical spine, and EMG/nerve
conduction studies, and that the results of those tests were normal. When asked to
state his conclusions in layman’s terms, Dr. Kramer responded that “there is nothing
in [Claimant’s] back that is causing any compression of his nerve roots . . . [and]
there’s no indication of a radiculopathy . . . .” (R.R. at 347a.) Dr. Kramer added that
the report of the CT myelogram study showed minimal bulging with no evidence of
any root compression or canal stenosis. He stated that the findings were not
consistent with an acute injury that would have occurred on July 30, 2011. Instead,
he testified, the findings were indicative of a chronic degenerative condition that
would have preceded the work injury. On cross-examination, Dr. Kramer stated that,
based upon Claimant’s subjective complaints and his history, Claimant had sustained
a lumbar strain. (R.R. at 346a-49a, 365a.)
Dr. Kramer said that he recommended additional testing for Claimant to
be evaluated for non-musculoskeletal-related problems, such as a prostate
abnormality, bladder abnormality, or kidney problem. He explained that Claimant
had blood in his urine after the work injury and that a urinalysis Claimant underwent
prior to the work injury was consistent with hematuria (blood in the urine) as well.
Dr. Kramer stated that pain in the kidneys, bladder, or prostate can cause lower back
6
pain or flank pain and that the mechanism of the work injury was not consistent with
blood in the urine. (R.R. at 351a-54a.)
Summing up his August 2012 IME findings and conclusions, Dr.
Kramer testified that Claimant alleged he had a lower back injury as a consequence of
the work event in July 2011 but that the emergency room record does not reveal any
indication of a lower back injury or lower back complaints. Dr. Kramer stated that,
as of the date of his examination, Claimant had fully recovered from any injury that
he may have suffered. He added that the additional records he reviewed, including
Dr. Loesch’s report, support his opinion that the alleged work injury did not result in
a disc herniation. Dr. Kramer clarified that he could not offer an opinion as to
whether Claimant was disabled before the date of August 14, 2012 IME. He
confirmed that as of that date, it was his opinion that Claimant had fully recovered
from any type of alleged lumbar strain that occurred on July 30, 2011. (R.R. at 363a-
64a, 376a-77a.)
The WCJ accepted the testimony of Claimant and Bonecutter to find that
Claimant suffered a work-related injury on July 30, 2011. The WCJ relied on Dr.
Kramer’s testimony to find that the nature of the work injury was lower back and
chest contusions from which Claimant had fully recovered as of August 14, 2012.
Based on her credibility determinations, the WCJ awarded temporary total disability
benefits for a closed period from March 13, 2012, the day Claimant last worked,
through August 14, 2012. The WCJ denied Claimant’s penalty petition, noting that
Employer’s insurer had issued a denial in a timely fashion and concluding that
Claimant did not establish any violation of the Act. The WCJ also concluded that
Employer’s contest of issues involving the nature and extent of disability was
reasonable, and she did not award attorney fees for unreasonable contest.
7
Claimant appealed to the Board, which affirmed the WCJ’s decision.
The Board concluded that the credited testimony supported the WCJ’s findings and
that the WCJ did not err in denying Claimant reasonable contest attorney fees or
penalties.
On appeal to this Court,2 Claimant first argues that the WCJ erred in
concluding that he had fully recovered from the work injury. In making this
argument, however, Claimant relies on the testimony of Drs. Loesch, Ozumba, and
McCloy, rather than the testimony of Dr. Kramer, which was the only expert
testimony that was credited by the WCJ. We note that the WCJ’s complete authority
over questions of witness credibility and evidentiary weight is a fundamental tenet of
workers’ compensation law. Sherrod v. Workmen’s Compensation Appeal Board
(Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to
accept or reject, in whole or in part, the testimony of any witness. Lombardo v.
Workers’ Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381
(Pa. Cmwlth. 1997). Thus, whether the record contains evidence to support findings
other than those made by the WCJ is irrelevant. Hoffmaster v. Workers’
Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa.
Cmwlth. 1998).
Claimant also argues that “a close reading of Dr. Kramer’s testimony,”
taken as a whole, does not support a termination of benefits. (Claimant’s brief at 13.)
However, contrary to Claimant’s assertions, Dr. Kramer unequivocally testified that,
as of the date of his examination, Claimant had fully recovered from any injury that
2
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
8
he may have suffered, (R.R. at 365a), and our review of the record reveals that Dr.
Kramer never wavered from this opinion.
Claimant also argues that the WCJ erred in failing to assess penalties,
regardless of whether Employer issued a timely denial of the claim. Section 435 of
the Act3 provides that a WCJ may award penalties where there has been a violation of
the Act. Claimant asserts that Employer violated its duty under section 406.1 of the
Act,4 which requires an employer to promptly commence payment of compensation
after it has notice or knowledge of the employee’s disability. In making this
argument, Claimant contends that Dr. Kramer’s expert medical report as well as his
testimony never disputed that an injury took place or that Claimant was disabled as a
result of a work injury prior to the IME. However, Claimant either misstates or
misapprehends Dr. Kramer’s testimony and opinions. As noted by the Board, Dr.
Kramer did not testify that Claimant suffered a work injury or any period of
disability. Rather, his testimony was that Claimant’s subjective complaints and
history would support a diagnosis of a lumbar strain and that, if Claimant had
sustained a work injury, he had fully recovered from it as of the date of the IME.
Accordingly, the record does not establish a violation of the Act, and the WCJ did not
err in denying Claimant’s penalty petition.
Finally, Claimant argues that the WCJ erred in determining that
Employer had a reasonable basis to contest the claim. Under section 440 of the Act, 5
a claimant who prevails in any contested case is entitled to an award of attorney fees
3
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. §991.
4
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. §717.1.
5
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. §996.
9
unless the record supports the conclusion that the employer had a reasonable basis for
contesting liability. Steeple v. Workers’ Compensation Appeal Board (PA Liquor
Control Board), 796 A.2d 394, 397 (Pa. Cmwlth. 2002). A reasonable contest is
established where the medical evidence is conflicting or susceptible to contrary
inferences and where there is an absence of evidence that the employer’s contest was
frivolous or filed for purposes of harassment. Mason v. Workmen’s Compensation
Appeal Board (Wheeling-Pittsburgh Steel Corp.), 600 A.2d 241, 244 (Pa. Cmwlth.
1991). Bona fide issues concerning the nature and the extent of disability will render
a contest reasonable. Striker v. Workers’ Compensation Appeal Board (California
University of PA), 650 A.2d 1109, 1111 (Pa. Cmwlth. 1994); Dwokek v. Workers’
Compensation Appeal Board (Ragnar Benson), 646 A.2d 713, 716 (Pa. Cmwlth.
1994).
Additionally, counsel fees will not be assessed against an employer for
unreasonable contest where an employer has a factual basis to contest liability at the
time it issues a notice of denial. Hansen v. Workers’ Compensation Appeal Board
(Stout Road Associates), 957 A.2d 372, 375-76 (Pa. Cmwlth. 2008). Here, the record
reflects that at the time Employer filed its answer, Claimant was still working at his
pre-injury job with no loss of wages. Claimant maintains that Employer was
provided “clear and convincing evidence from both [Claimant’s] and [Employer’s]
experts” establishing that Claimant suffered a compensable injury. (Claimant’s brief
at 19.) As previously noted, however, Claimant’s assessment of Dr. Kramer’s
opinions is not supported by the record. Instead, Dr. Kramer’s opinions, credited by
the WCJ, provided Employer with an additional reasonable basis to contest the extent
of Claimant’s alleged injuries and disability. Striker, 650 A.2d at 1111.
10
Accordingly, having concluded that the WCJ’s decision is supported by
substantial evidence and discerning no error or law, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mohamed Mohamed, :
Petitioner :
: No. 309 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Lincoln Recycling), :
Respondent :
ORDER
AND NOW, this 16th day of November, 2015, the order of the
Workers’ Compensation Appeal Board, dated February 6, 2015, is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge