M. Gilbert v. WCAB (Drug Emporium)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle Gilbert, :
Petitioner :
:
v. : No. 1576 C.D. 2016
: Submitted: January 20, 2017
Workers’ Compensation Appeal :
Board (Drug Emporium), :
Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: February 16, 2017

Michelle Gilbert (Claimant) petitions for review from a decision of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) grant of Drug Emporium’s (Employer) Petition to
Terminate Compensation Benefits. We affirm.

I.
On November 7, 1996, Claimant sustained work-related injuries while
attempting to unjam a trash compacting machine. Employer issued a Notice of
Compensation Payable (NCP) under the Workers’ Compensation Act (Act)1

1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 11041.4, 25012708.
describing her injuries as a “right shoulder, right arm & neck strain & sprain.”
(Reproduced Record (R.R.) at 12a.) Two subsequent WCJ decisions2 expanded her
injuries to include: carpal tunnel syndrome and a “cervical degenerative process . . .
either severely accelerated by the herniations at C5/6 and C6/7 or completely evolved
from them;”3 and “chronic neck pain, chronic myofascial pain syndrome, discongenic
disc disease of the cervical spine, traumatically induced cervical disc herniations,
radiculitis of the right upper extremity, cervical radiculopathy, and chronic right
shoulder syndrome.” (R.R. at 31a.)

In October 2013, Employer filed a Termination Petition alleging that
Claimant had fully recovered from her work injury as of June 19, 2013. Claimant
filed an Answer denying Employer’s allegations.

II.
A.
Before the WCJ, Claimant testified that her job duties for Employer
included checking prices and removing outdated stock. She testified that in
November 1996, she sustained her work-related injuries when attempting to dislodge
cardboard boxes from a jammed trash compactor. While she did not immediately feel
any symptoms, she was subsequently taken to the hospital after her body began

2
Those decisions were issued on March 29, 2006, and July 12, 2007. In addition to
expanding Claimant’s work injury, both decisions also denied Termination Petitions filed by
Employer.

3
(R.R. at 22a.)

2
shaking and she became unable to move. Eventually, Claimant started treatment with
Dr. Doug Kimmel (Dr. Kimmel), who now remains her primary care physician.

Regarding her present condition, Claimant testified that the pain in her
neck, right shoulder and right arm has never gone away, but admitted that she never
had carpal tunnel syndrome even though it was later added to the description of her
work injury. She stated that the pain from her neck goes up and gives her blinding
headaches and that the pain in her shoulder makes her so weak she sometimes has to
use two hands to lift a cup of coffee. Also, as a result of her spine collapsing, her legs
do not work well so that she now requires the assistance of either a wheelchair or
walker. She testified that she had heart failure eight years ago and underwent surgery
on her right shoulder in 2011.

Regarding her medical treatment, Claimant stated that she sees Dr.
Kimmel every month for her work injury and he prescribes her pain medication, but
she has not received physical or massage therapy in several years. She also stated
that she sees Dr. Kimmel every three months for her heart condition.

Dr. Kimmel, board certified in family practice, testified that he has
treated Claimant for her work injury since 1997. He stated that Claimant continued
to have ongoing neck and shoulder pain, and intermittent pain into the right upper
extremity described as a burning-type pain with ongoing profound limitations. His
current working diagnosis is chronic neck pain syndrome, secondary to the injury and
associated evolution of degenerative disc disease, status post cervical disc herniation
at C5-6, C6-7 levels, chronic right shoulder pain with evolution of arthritic joint

3
disease, status post right shoulder acromioplasty, and tendinitis involving the right
shoulder, all related to the work injury. He opined that Claimant is permanently
disabled and not able to return to work, and that she has tremendously altered her
lifestyle so that she minimizes the pain, which is constantly present to some degree.
Dr. Kimmel opined that Claimant’s prognosis is poor.

On cross-examination, Dr. Kimmel acknowledged “I don’t perceive
myself as actively treating [Claimant] for ongoing work-related injuries”4 except for
the use of anti-inflammatory medicine for her neck and shoulder. Although Claimant
used to receive pain management injections and used to take pain medication, Dr.
Kimmel stated that he has not provided Claimant with any pain management
injections or medication for at least the past three years, and that Claimant has not
undergone physical therapy in several years. Dr. Kimmel admitted that in the last
three years, he did not document conditions regarding her neck in his clinical
findings. He opined that Claimant’s work injury “plateaued” but that, with time, her
condition will likely worsen. (R.R. at 109a.) He admitted that her carpal tunnel
syndrome is not related to her work injury. Dr. Kimmel also admitted that he never
performed provocative testing on Claimant’s shoulder or neck, opining that there was
no atrophy in these regions.

B.
In support of its Termination Petition, Employer presented the
deposition of Dr. Noubar A. Didizian (Dr. Didizian), a board certified orthopedic

4
(R.R. at 88a.)

4
surgeon with additional certification in upper extremity surgery. Dr. Didizian
testified that he examined Claimant on June 19, 2013, for the purpose of conducting
an independent medical examination (IME). He stated that the IME included taking
her history, reviewing her medical records and diagnostic studies, and performing a
physical examination. Regarding her work-related injuries, he noted that after
unclogging the trash compacting machine, Claimant reported waking up in the middle
of the night with pain in her neck and her legs in the form of cramping of the calves,
which is something one sees with spinal stenosis in the older population emanating
from the lumbar spine, but not from the cervical spine which was the accepted injury.

Dr. Didizian confirmed that he “did not find any objective evidence for
any carpal tunnel or right shoulder problems or neck problems.” (R.R. at 149a.) He
opined that “when I saw her on June 19, 2013 . . . she was fully recovered from her
injuries that she sustained on 11/7/1996 as described and accepted by the employer as
well as expanded by the judge.” (R.R. at 149a-150a.) Specifically, he opined that “if
[Claimant] had carpal tunnel syndrome it was resolved” and that she “fully recovered
with respect to her symptoms relative to the cervical degenerative disease
[accelerated by herniations at C5-6 and C6-7].” (R.R. at 153a-154a.) Dr. Didizian
then stated that Claimant was capable of performing the physical requirements of her
pre-injury job as she described it to him and did not require any further medical
treatment in relation to her work injury.5

5
Claimant’s counsel did not question Dr. Didizian as to whether he acknowledged or
evaluated Claimant’s other accepted work injury described as: chronic neck pain, chronic
myofascial pain syndrome, discongenic disc disease of the cervical spine, traumatically induced
cervical disc herniations, radiculitis of the right upper extremity, cervical radiculopathy, and chronic
right shoulder syndrome. Moreover, we find no portion of the record indicating that Claimant
challenged the competency of Dr. Didizian’s testimony before the WCJ.

5
 C.
Concluding that Employer presented credible and unequivocal medical
evidence that Claimant fully recovered from her work injury and was capable of
returning to full-duty work without restrictions and that no further medical treatment
was warranted, the WCJ granted Employer’s Termination Petition. In so finding, the
WCJ accepted Dr. Didizian’s testimony in its entirety, noting that he was a board
certified orthopedic surgeon and that he credibly outlined Claimant’s lengthy
treatment history and demonstrated a thorough understanding of her work injury and
affected body parts. The WCJ rejected Claimant’s testimony that she continues to
suffer ill effects of her work injury, noting that it is inconsistent with Dr. Kimmel’s
testimony. The WCJ also rejected the testimony of Dr. Kimmel, noting that he does
not perform surgeries in his practice, discontinued formal treatment of Claimant’s
work injury except for prescribing anti-inflammatory medication, and that he
admitted that he does not perceive himself as Claimant’s workers’ compensation
physician.

Claimant appealed to the Board, contending that the WCJ erred when
“finding Dr. Didizian more credible than Dr. Kimmel. . . . The Judge’s conclusion in
this regard are a complete disregard of competent evidence as Dr. Kimmel has been
treating the claimant for nearly 20 years and Dr. Didizian has only seen the claimant
on one occasion,” and because Dr. Kimmel “has been found to be credible by not
only this particular Judge but other Judges who have previously dismissed prior
termination petitions filed in this case.” (R.R. at 186a-187a.) With only this one

6
issue being raised on appeal to the Board,6 the Board affirmed. Claimant then filed
this petition for review.7

III.
A.
The main issue raised on appeal by Claimant is that the Board erred
when granting Employer’s Termination Petition because Dr. Didizian’s testimony
failed to demonstrate Claimant’s full recovery from all of her accepted work injuries
since the last legal proceeding that addressed the nature and extent of her work
injuries. However, we cannot consider this issue because it was not raised before the
Board.

Rule 1551(a) of the Pennsylvania Rules of Appellate Procedure
provides:

(a) Appellate jurisdiction petitions for review. Review of
quasijudicial orders shall be conducted by the court on the
record made before the government unit. No question shall
6
34 Pa. Code § 111.11(a)(2) provides that a party must specifically identify in its appeal
documents the particular grounds being appealed to the Board. 34 Pa. Code § 111.11(a)(2) (“An
appeal or cross appeal shall be filed with the Board on a form provided by the Board. . . . All forms
must contain the following information: . . . A statement of the particular grounds upon which the
appeal is based, including reference to the specific findings of fact which are challenged and the
errors of the law which are alleged. General allegations which do not specifically bring to the
attention of the Board the issues decided are insufficient.”).

7
Our review of a decision of the Board is limited to determining whether errors of law were
made, whether constitutional rights were violated, and whether necessary findings of fact are
supported by substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of
Philadelphia), 966 A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009).

7
 be heard or considered by the court which was not
raised before the government unit except:

(1) Questions involving the validity of a statute.

(2) Questions involving the jurisdiction of the
government unit over the subject matter of the adjudication.

(3) Questions which the court is satisfied that the
petitioner could not by the exercise of due diligence have
raised before the government unit. . . .

Pa. R.A.P. 1551(a) (emphasis added); see also 2 Pa.C.S. § 703(a) (“A party who
proceeded before a Commonwealth agency under the terms of a particular statute
shall not be precluded from questioning the validity of the statute in the appeal, but
such party may not raise upon appeal any other question not raised before the
agency. . . .”) (emphasis added).

Claimant, while acknowledging “that an appeal from a WCJ’s
determination must raise and preserve the specific issue sought to be considered,”8
contends that Employer’s failure to offer expert testimony demonstrating a change in
her condition was placed at issue when she challenged the credibility determinations.
However, nothing in Claimant’s appeal notice to the Board suggests that this issue
was being raised.

8
(Brief of Claimant at 27.)

8
 Because Claimant entirely failed to raise this issue to the Board, it has
been waived. See McGaffin v. Workers’ Compensation Appeal Board (Manatron,
Inc.), 903 A.2d 94 (Pa. Cmwlth. 2006).9

B.
As to the issue preserved – that the WCJ erred in finding Dr. Didizian
more credible than Dr. Kimmel – Claimant contends that the WCJ found Dr. Kimmel
not credible by misconstruing his testimony that he was no longer actively treating
the work-related injury. What that ignores is that Dr. Kimmel acknowledged that he
does not view himself as “actively treating” Claimant. (R.R. at 88a.) This also
ignores Dr. Kimmel’s statement that, while he has prescribed some anti-inflammatory
medication, he has not prescribed Claimant any pain management medication or
injections for at least the past three years or physical therapy for the last several years,
and that for the last three years, he did not document conditions regarding her neck in
his clinical findings, all which indicate that he was not actively treating Claimant’s
work-related injury.

9
Employer notes in its brief that “Claimant specifically appealed from credibility
determinations rendered by the WCJ,” (Brief of Respondent at 3), but neither acknowledges nor
responds to Claimant’s newly raised issues. Regardless:

It is irrelevant that Employer did not argue in this appeal that the issue
was not preserved. Our scope of review, under the rules of appellate
procedure, cannot be enlarged by a party’s decision. Claimant failed
to preserve this issue before the Board and, consequently, the Board
did not address it in its decision. . . . Because the issue was not
preserved, as clearly stated in Rule 1551, we [cannot] hear it. (“No
question shall be heard or considered by the court which was not
raised before the government unit.”)

Manatron, Inc., 903 A.2d at 102 n.14 (internal citation omitted) (emphasis in original).

9
 Here, in a thorough and complete decision, the WCJ accepted the
medical opinion and testimony of Dr. Didizian in its entirety, noting that he is a board
certified orthopedic surgeon, the thoroughness of both his examination of Claimant
and his analysis of her medical records. Conversely, the WCJ rejected the testimony
of Claimant and Dr. Kimmel because there were various inconsistencies between the
two testimonies, and Dr. Kimmel admitted that he does not perform surgeries in his
practice and was not formally treating Claimant for her work injuries, save for
prescribing her anti-inflammatory medication. Given that the WCJ has complete
authority over questions of credibility, conflicting medical evidence and evidentiary
weight, and we will not disturb these findings unless unsupported by substantial
evidence, Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995), the Board did not err in rejecting the claim
that the WCJ made improper credibility findings.

Accordingly, the Board’s order is affirmed.

___________________________________
DAN PELLEGRINI, Senior Judge

10
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle Gilbert, :
Petitioner :
:
v. : No. 1576 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Drug Emporium), :
Respondent :

ORDER

AND NOW, this 16th day of February, 2017, it is hereby ordered that
the order of the Workers’ Compensation Appeal Board dated August 23, 2016, is
affirmed.

___________________________________
DAN PELLEGRINI, Senior Judge