IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Myrna Edwards, :
Petitioner :
: No. 891 C.D. 2015
v. :
: Submitted: December 18, 2015
Workers’ Compensation Appeal :
Board (Department of Public :
Welfare), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 1, 2016
Myrna Edwards (Claimant) petitions for review of the May 19, 2015
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a Workers’ Compensation Judge (WCJ) denying Claimant’s reinstatement
petition. For the reasons that follow, we vacate and direct a remand to the WCJ to
issue a new decision that reassesses the credibility of Claimant’s medical expert(s).
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
Background
On June 3, 2009, Claimant fell and sustained a work-related injury to her
lower back during the course and scope of her employment with the Department of
Public Welfare (Employer). In a June 22, 2009 Notice of Compensation Payable
(NCP), Employer accepted liability for a “cervical, thoracic and lumber strain.”
Claimant returned to work on a full-time basis in June 2009. (WCJ’s Findings of
Fact at Nos. 1-2.)
On September 22, 2009, Claimant filed a reinstatement petition alleging
a worsening of her condition on September 22, 2009, and ostensibly seeking to
amend the NCP to include additional injuries. In support, Claimant, among other
evidence, submitted the deposition testimony of Paul Sedacca, M.D., who stated that
Claimant’s work-related injuries included chronic low back pain syndrome,
radiculopathy, and coccydynia. By decision dated April 11, 2011, the WCJ denied
Claimant’s reinstatement petition, but amended the NCP to include coccydynia. The
WCJ, however, declined to add the conditions of chronic low back pain syndrome
and radiculopathy to the NCP. (WCJ’s Findings of Fact at Nos. 1-2, 4)
On May 10, 2012, Claimant filed the instant reinstatement petition,
alleging that her condition recurred and had worsened as of March 22, 2012, and
requesting reinstatement of total disability benefits. Employer filed a timely answer
denying the averments in the petition. (WCJ’s Finding of Fact at No. 1.)
Before the WCJ, Claimant testified that she stopped working on March
22, 2012, because the pain in her back, buttocks, hip, thigh, and feet had gradually
increased to the point where it became unbearable. Claimant stated that in
accordance with her physician’s directives, she did not work from March 22, 2012,
through May 2012. According to Claimant, she is unable to return to work because
2
she cannot sit, stand, or walk due to ongoing pain in her back area and feet. (WCJ’s
Finding of Fact at No. 4.)
Claimant also presented the deposition testimony of Dr. Seddaca, a
physician practicing internal medicine, who stated that he treats Claimant’s lumbar
disc pathology, a radiculopathy, and a coccydynia problem. Dr. Seddaca explained
that after the first reinstatement petition was decided, it became more difficult for
Claimant to sit for extended periods of time and he prescribed her a seat cushion.
According to Dr. Seddaca, Claimant continued to complain of lower back pain with
radiation into her legs, and he diagnosed her as suffering from bilateral radiculopathy.
Dr. Seddaca stated that Claimant received pain injections into her lower back, but
was not experiencing any relief, so she was placed on Lyrica therapy. Dr. Seddaca
stated that Claimant is no longer suffering from or being treated for a cervical strain
and opined that Claimant’s increased pain was due to radiculopathy. (WCJ’s
Findings of Fact at No. 5.)
Claimant further submitted the deposition testimony of Ramon Manon-
Espailla, M.D., who is a board-certified neurologist with a specialty in clinical
neurophysiology. Dr. Manon-Espailla testified that the objective bases for
Claimant’s complaints of pain are her MRI studies depicting abnormalities and her
EMG/nerve conduction study showing bilateral L5 radiculopathy. Ultimately, Dr.
Manon-Espailla diagnosed Claimant with lumbar radiculopathy, which he opined was
caused by Claimant’s initial work-related fall on June 3, 2009. (WCJ’s Finding of
Fact at No. 7.)
In opposition, Employer presented the deposition testimony of Neil
Kahanovitz, M.D., who is a board-certified orthopedic surgeon. Dr. Kahanovitz
testified that he examined Claimant and reviewed objective test studies showing
3
longstanding degenerative disease in the cervical spine and mild degenerative disease
in the lumbar and thoracic spine. Dr. Kahanovitz opined that Claimant had fully
recovered from the thoracic, lumbar, and cervical strains and coccydynia, and he
stated that Claimant is capable of returning to work without restrictions. Dr.
Kahanovitz admitted that the EMG findings showed severe L5 radiculopathy, but he
disagreed with the diagnosis proffered by Drs. Seddaca and Manon-Espailla that
Claimant suffered post-traumatic lumbosacral radiculopathy. According to Dr.
Kahanovitz, Claimant’s symptoms were unrelated to her work injury. (WCJ’s
Finding of Fact at No. 7.)
By decision dated November 21, 2013, the WCJ denied Claimant’s
reinstatement petition. In so determining, the WCJ noted that there was no event in
March 2012 that precipitated the worsening of Claimant’s condition, such as trauma,
and, aside from Claimant’s subjective complaints of pain, there were no objective
clinical findings to substantiate a worsening of Claimant’s condition or that she could
not continue working. The WCJ further noted that the accepted injuries in the NCP
are limited to strains and sprains and do not include lumbar radiculopathy. The WCJ
stated that the objective test studies and Dr. Kahanovitz’s testimony demonstrate that
Claimant’s condition is degenerative in nature. (WCJ’s Finding of Fact at No. 8.)
In dismissing Dr. Seddaca’s expert opinion as “incompetent,” the WCJ
stated:
It appears that the medical treatment [Claimant] is receiving
now is directly attributable to her degenerative conditions in
her spine and is unrelated to lumbar radiculopathy. The
description of injury related to the June 3, 2009 work injury
has been previously adjudicated [in the first reinstatement
petition] and this WCJ did not amend the work injury
diagnosis to include lumbar radiculopathy, as opined by Dr.
Seddaca [during the proceedings on the first reinstatement
4
petition]. Therefore, pursuant to Weney v. Workers’
Compensation Appeal Board (Mac Sprinkler Systems, Inc.),
960 A.2d 949 (Pa. Cmwlth. 2008), Dr. Seddaca’s medical
opinion is incompetent on the issue of lumbar radiculopathy
and its relatedness to the work injury. Furthermore, a back
strain is not the same as lumbar radiculopathy. City of
Philadelphia v. Workers’ Compensation Appeal Board
(Smith), 860 A.2d 215 (Pa. Cmwlth. 2004). This [WCJ]
finds Dr. Seddaca’s and Dr. [Manon-Espailla’s] testimony
neither credible nor convincing on the issue of worsening of
[Claimant’s] work injuries.
(WCJ’s Finding of Fact No. 9.)
From this reasoning, the WCJ found the testimony of Dr. Kahanovitz to
be more credible and convincing than the testimony of Claimant’s medical experts.
The WCJ credited Dr. Kahanovitz’s opinions that there was no worsening of the
condition suffered by Claimant and that Claimant’s ongoing symptomatology is the
result of her non-work-related conditions of spinal degeneration and lumbar
radiculopathy. Based on these credibility determinations, the WCJ concluded that
Claimant failed to establish that her June 3, 2009 work injury worsened as of March
22, 2012, and/or caused temporary total disability. The WCJ further concluded that
Claimant failed to show that the previously adjudicated injuries of June 3, 2009, as
reflected in the NCP, should be reviewed and/or revised. (WCJ’s Finding of Fact at
No. 10; Conclusions of Law at Nos. 2-3.)
Claimant then appealed to the Board, arguing that the WCJ applied the
incorrect burden of proof and erred in denying the reinstatement petition. The Board
disagreed, concluding that the WCJ, as fact-finder, properly rejected Claimant’s
medical evidence as not credible and, therefore, Claimant failed to carry her burden
of proof. In addition, Claimant argued that the WCJ erred in relying on Weney and
finding that Dr. Seddaca’s medical opinion was incompetent. The Board agreed that
Weney was a res judicata/collateral estoppel case and did not concern the legal
5
competency of a medical expert’s opinion. Nonetheless, the Board concluded that the
WCJ’s characterization of Dr. Seddaca’s opinion as incompetent was harmless error
because “Claimant was barred by res judicata to expand the description of her injury
to include lumbar radiculopathy.” (Board’s decision at 4-6.)
Claimant now appeals to this Court,2 reiterating the arguments that she
made before the Board.
Discussion
Burden of Proof
Claimant first argues that the Board erred in concluding that the WCJ
applied the correct standard regarding the burden of proof in a reinstatement petition.
Claimant asserts that under Latta v. Workmen’s Compensation Appeal Board
(Latrobe Die Casting Co.), 642 A.2d 1083 (Pa. 1994), she may meet her burden of
proof in a reinstatement petition with her own credible testimony that her prior work-
related injury continues. Claimant contends that the WCJ did not find her testimony
to be incredible and apparently requests a remand for an express credibility
determination by the WCJ.
In Latta, our Supreme Court stated:
Given the nature of suspension status, which actually
acknowledges a continuing medical injury, and suspends
benefits only because the claimant’s earning power is
currently not affected by the injury, the testimony of a
claimant alone could easily satisfy his burden of
establishing that his work-related injury continues. . . .
2
Our scope of review is limited to determining whether an error of law was committed,
whether necessary findings of fact are supported by substantial evidence, and whether constitutional
rights were violated. DeGraw v. Workers’ Compensation Appeal Board (Redner’s Warehouse
Markets, Inc.), 926 A.2d 997, 999 n.2 (Pa. Cmwlth. 2007).
6
[O]nce a claimant testifies that his prior work-related injury
continues . . . the claimant’s testimony, if believed by the
[WCJ], is sufficient to support reinstatement of the
suspended benefits.
Id. at 1085 (emphasis in original). The Supreme Court’s statement, however, was
qualified by the language in footnote 4, which reads:
Clearly, the degree of inquiry and the difficulty of
establishing that a work-related injury continues in any
given case is necessarily governed by the nature of the
injury and the length of time that has passed since the
claimant originally established the existence of the work-
related injury. Where a relatively short period of time has
elapsed and/or the injury is one that has obviously
continued, a claimant’s task is qualitatively simpler than if a
considerable period of time has elapsed and/or the injury is
one that is less obvious.
Latta, 642 A.2d at 1085 n.4 (emphasis added).
While Claimant is generally correct in her interpretation of Latta, this
Court has subsequently held that in certain circumstances, a claimant must adduce
medical testimony to establish causation in support of a reinstatement petition.
Sacred Heart Hospital v. Workers’ Compensation Appeal Board (Mutis), 703 A.2d
577 (Pa. Cmwlth. 1997). In Hinton v. Workers’ Compensation Appeal Board (City of
Philadelphia), 787 A.2d 453 (Pa. Cmwlth. 2001), this Court interpreted Latta as
standing for the proposition that “a claimant is entitled to a presumption that his or
her work-related injury still persists.” Id. at 456 n.7. We have further explained that
even though there is a presumption in suspension cases that the physical disability
continues, “it is not presumed that the physical disability . . . is the cause of [the
claimant’s] present loss of earnings,” Serrano v. Workers’ Compensation Appeal
Board (Chain Bike Corp.), 718 A.2d 885, 890 (Pa. Cmwlth. 1998), and “the burden
7
does remain with [the] claimant to affirmatively establish that it is the work-related
injury which is causing his or her present disability.” Hinton, 787 A.2d at 456.
In Sacred Heart Hospital, the claimant suffered a back injury in October
of 1988, returned to work in February of 1990, sustained an injury to her back in
April of 1993, and later filed a reinstatement petition. The WCJ found no obvious
causal connection between the claimant’s prior injury and the incident occurring in
April of 1993 and, therefore, denied the reinstatement petition on the basis that
Claimant failed to produce any medical testimony in support of her petition. On
appeal, the Board reversed, concluding that unequivocal medical evidence is not
necessary for a claimant to establish that the original work-related injury continues.
Having concluded that the claimant’s testimony, alone, satisfied her burden of proof,
the Board reversed the WCJ and granted the reinstatement petition.
On further appeal to this Court in Sacred Heart Hospital, we reversed
the Board and concluded that the WCJ applied the correct burden of proof and that
medical evidence was necessary. In doing so, we quoted footnote 4 from Latta and
noted that the claimant testified that there was no specific incident which precipitated
her back pain in 1993 and that it gradually increased through time. We determined
that the claimant’s testimony surrounding her back condition in April of 1993 did not
establish a causal connection between the 1988 work-related injury and the 1993
disability and noted that the claimant’s reinstatement petition was filed five years
after the initial injury occurred. In this context, where there was no obvious causal
connection between the original and subsequent injury, we concluded that it was the
claimant’s burden to affirmatively establish that the work-related injury caused her
present disability with medical expert testimony.
8
Here, as in Sacred Heart Hospital, Claimant’s testimony is insufficient
to establish a causal link between the injuries listed in the NCP – cervical, thoracic,
and lumber strain, and coccydynia – and her current or “new” injury of radiculopathy.
See Hinton, 787 A.2d at 456; Serrano, 718 A.2d at 890. See also Holland v.
Workers’ Compensation Appeal Board (SEPTA), (Pa. Cmwlth., No. 615 C.D. 2008,
filed September 24, 2008) (unreported decision, Leadbetter, P.J., concurring), slip op.
at 2-3 (concluding that expert medical testimony is needed when “reinstatement is
sought on the basis that the claimant’s medical condition has changed [because] the
new medical condition and its causal connection to claimant’s work-related injury
have not been previously established.”) (emphasis in original).3 Indeed, Claimant’s
testimony does not provide a direct connection between her original work injuries and
current injury and fails to prove that her original work injuries continued; in fact, Dr.
Seddaca testified that Claimant is no longer being treated for her original work
injuries. Like the WCJ in Sacred Heart Hospital, here, the WCJ found there was no
event in March of 2012 that precipitated the exacerbation of Claimant’s work injury
and Claimant’s testimony merely evidences a gradual worsening of pain in her lower
back area. (WCJ’s Findings of Fact at Nos. 4-8.) Moreover, 2 years and 9 months
have passed from the date of Claimant’s original work injuries to the currently
alleged worsening of her injuries and there is no obvious connection between the
injuries listed in the NCP and radiculopathy. See also City of Philadelphia v.
Workers’ Compensation Appeal Board (Smith), 860 A.2d 215, 223 (Pa. Cmwlth.
2004) (“A lower back strain is not the same as . . . lumbar radiculopathy. They are
separate and discrete conditions.”). Following our decision in Sacred Heart Hospital,
3
Unreported panel decisions issued after January 15, 2008 may be cited for their persuasive
value, but not as binding precedent. 210 Pa.Code §69.414.
9
we conclude that the WCJ applied the correct burden of proof and that Claimant was
required to adduce medical expert testimony to demonstrate causation because her
testimony was insufficient to establish a causal connection between her original work
injuries and radiculopathy. Therefore, Claimant’s first argument fails on the merits.
Res Judicata and Collateral Estoppel
Claimant next argues that the Board and WCJ erred in discounting Dr.
Seddaca’s testimony on grounds of res judicata and collateral estoppel. Claimant
contends that she experienced a change of condition and that the second reinstatement
petition differs in kind and nature from the first reinstatement petition, particularly
the time frame in which the disability is alleged to have occurred.
The doctrine of collateral estoppel, often referred to as issue preclusion,
“forecloses relitigation in a later action, of an issue of fact or law which was actually
litigated and which was necessary to the original judgment.” Hebden v. Workmen’s
Compensation Appeal Board (Bethenergy Mines, Inc.), 632 A.2d 1302, 1304 (Pa.
1993). Stated otherwise, collateral estoppel is “designed to prevent relitigation of
issues which have once been decided and have remained substantially static, factually
and legally.” C.D.G., Inc. v. Workers’ Compensation Appeal Board (McAllister), 702
A.2d 873, 875 (Pa. Cmwlth. 1997). Collateral estoppel applies where:
(1) the issue decided in the prior case is identical to the one
presented in the later case; (2) there was a final judgment on
the merits; (3) the party against whom the doctrine is
asserted was a party or in privity with a party in the prior
case and had a full and fair opportunity to litigate the issue;
and (4) the determination in the prior proceeding was
essential to the judgment.
Pucci v. Workers’ Compensation Appeal Board (Woodville State Hospital), 707 A.2d
646, 648 (Pa. Cmwlth. 1998).
10
However, collateral estoppel does not apply when different issues are
presented in the proceedings. C.D.G., 702 A.2d at 876. In C.D.G., this Court
explained that:
[I]n situations where a party has filed a subsequent petition,
we have held that there has to be more than the mere
passage of time for collateral estoppel not to apply. A party
seeking to alter benefits must prove that there has been a
change in physical condition since the last legal proceeding
addressing the nature and extent of the injury. For example,
when a claimant seeks reinstatement of benefits after
termination, the claimant is required to establish by precise
and credible evidence that the disability has increased or
recurred and must show that his physical condition has
actually changed in some manner.
Id.
“Res judicata or claim preclusion is when a former judgment bars a later
action proceeding on all or part of the very claim which was the subject of the
former.” C.D.G., 702 A.2d at 876 n.5.
In a line of workmen’s compensation cases . . . we
consistently have held that claim preclusion does not
operate to bar a second claim petition which alleges a date
of disability later than that alleged in the first claim petition.
There is no identity of causes of action in such situations
because the subject matter and the ultimate issues of the two
claim petitions, being based upon different time periods, are
not identical. The state of the claimant’s health at a given
time is the subject matter of any claim petition alleging
disability, and the ultimate issue is whether or not the
claimant is disabled within the meaning of the act at the
time alleged in the petition. The issue of a claimant’s
disability is not static.
Id. at 877 n.6 (citations omitted).
In National Fiberstock Corporation v. Workers’ Compensation Appeal
Board (Grahl), 955 A.2d 1057 (Pa. Cmwlth. 2008), the claimant received benefits for
11
a work-related injury in 1994, and the employer petitioned to terminate the benefits as
of October 20, 1997. On March 27, 2002, the WCJ found that the claimant had fully
recovered from her work-related injury on October 20, 1997, and granted the
termination petition. The claimant appealed to the Board which affirmed.
Thereafter, on February 2, 2005, the claimant filed a reinstatement petition and
alleged that as of January 3, 2005, she suffered a recurrence of her work-related
disability in the nature of a worsening of her condition. The employer denied the
allegations.
The WCJ granted the reinstatement petition, and the Board affirmed.
The employer raised the issue of res judicata and collateral estoppel and asserted that
the claimant testified that she continued to have the same symptoms since she
stopped working for the employer in 1994. The employer contended that, because
the claimant was found to have been fully recovered on October 20, 1997, the
claimant was essentially attempting to relitigate the issues in the termination petition.
On appeal, this Court in National Fiberstock determined that the
claimant’s reinstatement petition was not barred by res judicata or collateral estoppel.
We elucidated:
The ultimate and controlling issue decided in [the
employer’s] termination petition was whether [the claimant]
was fully recovered from her work-related injury, and she
was found to be fully recovered as of October 20, 1997.
The ultimate controlling issue in [the claimant’s]
reinstatement petition, the matter before us, is whether her
work injury recurred as of January 3, 2005. These issues
are not identical because they involve factual questions
about [the claimant’s] condition at two unrelated time
periods. In short, [the claimant’s] reinstatement petition is
not barred by res judicata or collateral estoppel.
National Fiberstock, 955 A.2d at 1061-62.
12
Here, in the first review/reinstatement proceedings, the WCJ declined to
correct the NCP to add radiculopathy, finding that Claimant did not sustain
radiculopathy at the time when she was first injured or when the NCP was issued.
(See WCJ’s First Decision at Finding of Fact Nos. at 6, 9, 11, 12; Conclusion of Law
Nos. 1, 4.) See also Westmoreland County v. Workers’ Compensation Appeal Board
(Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008) (“[A] WCJ is authorized to modify
an NCP . . . if it is established the NCP was materially incorrect when issued and the
claimant, who has the burden, establishes she suffered additional work-related
injuries. However, the WCJ does not have the authority under this approach to
include injuries that developed over time as a result of the injury; instead, only
injuries that existed at the time the NCP was issued may be addressed.”) (citations
omitted). After the WCJ rendered her April 11, 2011 decision in the first
reinstatement proceedings, Claimant worked for Employer on a full-time basis, (see
WCJ’s Finding of Fact at No. 4), until March 22, 2012, and filed the instant
reinstatement petition, asserting that she sustained a worsening of her condition as of
March 22, 2012.
During the second reinstatement proceedings, Dr. Seddaca testified that
Claimant recently experienced intolerable pain and explained that, along with the
aging process, people who have permanent disc injuries like Claimant will suffer
“increased pain in the back [and] the coccyx region because of the radiculopathy.”
(WCJ’s Finding of Fact at No. 5.) In terms of questions of law and fact, the issue of
whether Claimant suffered from radiculopathy at the time she was originally injured
on June 3, 2009, is materially distinguishable and markedly different from the issue
of whether Claimant subsequently developed, through a gradual worsening of her
original condition, radiculopathy on March 22, 2012. Moreover, the ultimate issues
13
concerning Claimant’s diagnosis of radiculopathy concern two distinct time periods –
when she was first injured on June 3, 2009, and her status and condition on March 22,
2012. Pursuant to National Fiberstock, we conclude that the doctrines of res judicata
and collateral estoppel do not bar Dr. Seddaca’s testimony
Consequently, there was no legal basis for the WCJ to discount Dr.
Seddaca’s testimony as “incompetent” on grounds of res judicata or collateral
estoppel. A fair reading of the WCJ’s Finding of Fact No. 9 reveals that the WCJ
found Dr. Seddaca’s testimony incredible, in large part, because she believed that his
testimony was unworthy of credence as a matter of law. On the record before us, we
cannot conclude that the WCJ would have made the same credibility determination
absent this error. See also US Steel Mining Co., LLC v. Workers’ Compensation
Appeal Board (Sullivan), 859 A.2d 877, 833 (Pa. Cmwlth. 2004) (explaining that “the
WCJ’s reliance upon incompetent medical evidence plainly could not be severed
from the WCJ’s credibility determination;” accordingly, the WCJ’s reliance upon the
incompetent testimony to render a credibility determination was not “harmless
error.”). Therefore, we will vacate the Board’s order and remand the case to the
Board with instructions to remand to the WCJ. On remand, the WCJ shall issue a
new decision that reassesses the credibility of Dr. Seddaca’s testimony and, if
necessary, the testimony of Claimant’s other medical expert, Dr. Manon-Espailla.
Conclusion
For the above-stated reasons, we conclude that under the circumstances
of this case, the WCJ applied the correct burden of proof with regard to Claimant’s
reinstatement petition. We further conclude that the Board and the WCJ erred in
determining that Dr. Seddaca’s testimony was “incompetent” and/or barred by res
14
judicata or collateral estoppel. Therefore, we vacate the Board’s order and direct a
remand to the WCJ in order for the WCJ to reevaluate the credibility of Dr. Seddaca’s
testimony – and, if necessary, the testimony of Dr. Manon-Espailla – and to issue a
new decision that reflects the new credibility determination(s).
________________________________
PATRICIA A. McCULLOUGH, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Myrna Edwards, :
Petitioner :
: No. 891 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Department of Public :
Welfare), :
Respondent :
ORDER
AND NOW, this 1st day of April, 2016, the May 19, 2015 order of the
Workers’ Compensation Appeal Board (Board) is vacated and the case is
remanded to the Board with instruction to remand to the Workers’ Compensation
Judge (WCJ). On remand, the WCJ shall render a new credibility determination
with respect to Dr. Seddaca’s testimony and shall issue a new decision reflecting
that credibility determination.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge