IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark L. Boatman, :
:
Petitioner :
:
v. : No. 1771 C.D. 2017
: Submitted: April 20, 2018
Workers’ Compensation Appeal :
Board (Bortner Bros, Inc.), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: August 3, 2018
Mark L. Boatman (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) affirming the decision and order of
a Workers’ Compensation Judge (WCJ). The WCJ denied Claimant’s petition to
review compensation benefits (Review Petition) seeking to modify the description
of his work injury and denied a petition for penalties (Penalty Petition) filed by
Claimant alleging that his employer, Bortner Bros., Inc. (Employer), failed to pay
medical bills related to his work injury. For the reasons that follow, we affirm.
Claimant sustained a work-related injury to his right shoulder on May
19, 2008. (Nov. 23, 2016 WCJ Decision Finding of Fact (F.F.) ¶¶2, 3(a).) On
January 11, 2013, the WCJ circulated a decision in which he approved a
Compromise and Release Agreement (C&R Agreement) between the parties. (Id.
F.F. ¶2; Jan. 11, 2013 WCJ Decision, C&R Agreement, Reproduced Record (R.R.)
1a-11a.) Pursuant to the agreement, Claimant and Employer resolved the wage loss
portion of his claim against Employer, but Employer remained responsible for
reasonable and necessary medical benefits related to Claimant’s May 19, 2008 work
injury. (C&R Agreement ¶¶6, 7, 10, 14(c), 16, R.R. 6a-7a.)
In February 2013, April Armstrong, M.D., of the Penn State Hershey
Medical Center, operated on Claimant’s right shoulder. (Nov. 23, 2016 WCJ
Decision F.F. ¶3(a).) Claimant received physical therapy following the surgery
through July 2013. (Id. F.F. ¶3(e).) In October 2013, Claimant was involved in a
motor vehicle accident, in which his right shoulder struck the steering wheel. (Id.
F.F. ¶3(b).) On April 1, 2014, the WCJ issued a decision on utilization review
petitions filed by Employer and Claimant regarding treatment Claimant had received
for his shoulder injury with several providers. Among the treatments addressed in
the decision, the WCJ ruled that Dr. Armstrong’s February 2013 surgery on
Claimant and the associated pre- and post-operative care were reasonable and
necessary, noting that Claimant reported that the pain in his right shoulder was
greatly reduced following the surgery and the functioning in his shoulder was greatly
improved. (Apr. 1, 2014 WCJ Decision F.F. ¶17, R.R. 15a.)
Claimant filed the Penalty Petition on May 12, 2015, alleging that
Employer had failed to pay for medical bills from the Penn State Hershey Medical
Center. (Certified Record (C.R.) Item 2, Penalty Petition; C.R. Item 17, Claimant
Exhibit 1, Medical Bills.) Claimant filed the Review Petition on September 15,
2015. (C.R. Item 5, Review Petition.) Claimant testified at a hearing before the
2
WCJ1 in support of the petitions. Additionally, Claimant submitted a report by Dr.
Armstrong, who performed Claimant’s February 2013 surgery, while Employer
submitted two reports by Stanley Askin, M.D., who reviewed Claimant’s medical
records and who had performed an independent medical examination of Claimant
for previous litigation.
On November 23, 2016, the WCJ issued a decision and order denying
the Review Petition and Penalty Petition. The WCJ concluded that Claimant was
barred from attempting to add to the mutually agreed upon and judicially approved
final description of Claimant’s work injury contained in the C&R Agreement as he
had not shown that he was coerced or misled with respect to the finality of the C&R
Agreement or the description of the injury in the agreement. (Nov. 23, 2016 WCJ
Decision F.F. ¶13.) The WCJ further concluded that, even if Claimant was not
barred from seeking to modify the injury description in the C&R Agreement, the
evidence presented did not carry Claimant’s burden to allow for an expansion of the
description of the work injury to include the glenohumeral arthritis for which Dr.
Armstrong had been treating Claimant since April 2014. (Id. F.F. ¶¶17, 18,
Conclusion of Law (C.L.) ¶3.) The WCJ found Claimant’s testimony to be credible
and consistent but not ultimately determinative as to the medical issue of whether
his work injury should be expanded. (Id. F.F. ¶15.) The WCJ found the opinion of
Employer’s medical expert, Dr. Askin, that Claimant’s glenohumeral arthritis was
not causally related to his work injury to be more credible and persuasive than the
opinion of Dr. Armstrong. (Id. ¶¶16, 17.) Addressing Claimant’s claim that
1
The Review Petition and Penalty Petition were assigned to WCJ Leah Lewis, and WCJ Lewis
authored the decision currently under review. The two prior WCJ decisions discussed in this
opinion that approved the C&R Agreement and ruled on the utilization review petitions were
issued by WCJ Karl Peckmann.
3
Employer failed to pay for medical bills for the work-related injury, the WCJ found
that the bills related to Claimant’s glenohumeral arthritis and therefore Employer
was not responsible for this care.2 (Id. F.F. ¶20.) Concluding that Employer had not
violated the Workers’ Compensation Act (Act),3 the WCJ denied the Penalty
Petition. (Id. F.F. ¶21, C.L. ¶5.) Claimant appealed to the Board, which affirmed
the WCJ’s decision and order.
On appeal to this Court,4 Claimant argues that the WCJ erred in
concluding that Claimant’s treatment for glenohumeral arthritis was not related to
his May 19, 2008 work injury, which the WCJ recognized in her decision had not
fully resolved or ceased to require any treatment. Claimant argues that the WCJ
confused diagnosis with injury, and the Review Petition did not seek to alter the
understanding of his work injury to add an additional body part but rather the Review
Petition was filed in light of an updated diagnosis pertaining to the same right
shoulder work injury. Claimant argues that the WCJ further erred in placing the
burden on him to prove that the arthritis in his right shoulder for which he began
receiving treatment in April 2014 was causally related to his May 19, 2008 work
2
In addition to medical bills for the arthritis treatment, Claimant also submitted to the WCJ a
December 12, 2012 bill for an office visit and a February 22, 2013 bill for a lab test. (Nov. 23,
2016 WCJ Decision F.F. ¶8(a), (b).) The WCJ found as to the December 12, 2012 bill that
Employer had submitted documentation to demonstrate that it had already paid the bill and as to
the February 22, 2013 bill that the bill may relate to pre-operative treatment for the February 2013
surgery by Dr. Armstrong that was determined in the April 1, 2014 WCJ decision to be related to
the work injury, and therefore Claimant was invited to resubmit this bill with further explanation.
(Id. F.F. ¶20.) Claimant does not challenge these findings on appeal.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.1, 2501–2708.
4
This Court’s review of an appeal from a determination by the Board is limited to determining
whether an error of law was committed, whether the WCJ’s necessary findings of fact are
supported by substantial evidence and whether Board procedures or constitutional rights were
violated. Gahring v. Workers’ Compensation Appeal Board (R and R Builders), 128 A.3d 375,
379 n.6 (Pa. Cmwlth. 2015).
4
injury, when in fact the burden should have fallen on Employer to prove that his
current symptoms were not related to his injury. Claimant contends that he was
entitled to a presumption that the symptoms he began receiving treatment for in 2014
were related to his work injury under our decision in Kurtz v. Workers’
Compensation Appeal Board (Waynesburg College), 794 A.2d 443 (Pa. Cmwlth.
2002), which held that where there is an “obvious” connection between new
symptoms and the compensable work injury, the claimant is entitled to a
presumption of relatedness and the burden falls on the employer to prove that the
new symptoms are not related to the original injury. Id. at 447-48. Claimant argues
that Employer could not have met its burden because Employer’s expert offered no
medical evidence that glenohumeral arthritis was distinct from the work injury and
instead only relied on the fact that glenohumeral arthritis is not included in the
description of the injury in the C&R Agreement.
Before turning to Claimant’s challenges to the WCJ’s ruling on the
merits of his petitions, we must first address Employer’s argument that the WCJ
correctly ruled that Claimant was barred from attempting to expand the definition of
his work injury that had been previously agreed to in the C&R Agreement and
ratified in the WCJ decision approving the C&R Agreement. Pursuant to Section
449(b) of the Act,5 when parties agree to the compromise and release of a claim, the
C&R Agreement must be submitted to a WCJ, who shall approve the agreement
following a determination that the agreement contains all of the necessary
information provided for in the Act and that the claimant understands the full legal
significance of the document. 77 P.S. § 1000.5(b). The Act requires that every C&R
Agreement set forth details of the claim, including “the nature of the injury,” and
5
Added by Act of June 24, 1996, P.L. 350, 77 P.S. § 1000.5(b).
5
that the “agreement must be explicit with regard to the payment, if any, of
reasonable, necessary and related medical expenses.” 77 P.S. § 1000.5(b), (c)(3).
The C&R Agreement here settled the indemnity portion of Claimant’s
claim against Employer and any other claim Claimant could bring against Employer
but provided that “Employer shall continue to pay for reasonable and necessary
medical treatment causally related to Claimant’s May 19, 2008 work-related injury
on and after the date of this settlement” and that Claimant retained the right to file a
penalty petition regarding the “open medical portion of the claim.” (C&R
Agreement ¶¶10, 16, R.R. 6a-8a.) Claimant’s work injury was described in the
agreement as
a right shoulder rotator cuff tear with subacromial
impingement, as well as bicep involvement, post rotator
cuff repair with subacromial decompression with
reattachment of the bicep tendon, acromioclavicular
arthritis, small partial tear, labral involvement, and bicep
tendon involvement, and post manipulated right shoulder
under anesthesia to increase range of motion and cleaning
of the labrum and bone underlying the rotator cuff
arthroscopically.
(Id. ¶4, R.R. 5a.). The C&R Agreement further states:
[I]t is specifically understood and agreed that this
settlement includes any and all injuries or alleged injuries
sustained by Claimant on May 19, 2008, or resulting
therefrom, regardless of what terms are used to describe
the injuries…. To the extent that Claimant may have
sustained additional injuries while employed at
[Employer] or related thereto, Claimant hereby
acknowledges that any and all such injuries are included
in and fully resolved by this [C&R] Agreement even
though not specifically listed. As of the date this [C&R]
Agreement is approved, Claimant understands that he may
NEVER seek benefits of any nature or type available
pursuant to the Pennsylvania Workers’ Compensation Act
from [Employer] or [its insurer] for any injuries causally
6
related to his past employment with [Employer] except as
specifically reserved herein.
(Id., R.R. 8a.)
As this Court has previously explained, by enacting Section 449 of the
Act, the General Assembly intended to place C&R Agreements “‘on equal footing
with civil settlements’ in order to promote a public policy of encouraging the parties
to settle disputes and bring them to finality.” DePue v. Workers’ Compensation
Appeal Board (N. Paone Construction, Inc.), 61 A.3d 1062, 1066 (Pa. Cmwlth.
2013) (quoting Stroehmann Bakeries, Inc. v. Workers’ Compensation Appeal Board
(Plouse), 768 A.2d 1193, 1196 (Pa. Cmwlth. 2001)). Thus, once a C&R Agreement
is approved by a WCJ, it is final, conclusive and binding on the parties, and an
agreement may not be set aside absent a clear showing of fraud, deception, duress,
mutual mistake or unilateral mistake attributable to an opposing party’s fault.
Haslam v. Workers’ Compensation Appeal Board (London Grove Communication),
169 A.3d 704, 709 (Pa. Cmwlth. 2017); DePue, 61 A.3d at 1067. Any issue that is
not expressly reserved in a C&R Agreement may not be raised in a later proceeding.
DePue, 61 A.3d at 1067; Department of Labor and Industry, Bureau of Workers’
Compensation v. Workers’ Compensation Appeal Board (U.S. Food Service), 932
A.2d 309, 314-15 (Pa. Cmwlth. 2007).
In DePue, the claimant and employer entered into an approved C&R
Agreement to resolve the indemnity portion of the claim with the employer agreeing
to continue to pay “all reasonable and related medical bills”; the injury was described
in the agreement as “any and all injuries suffered at [the employer], including but
not limited to the accepted injuries of a severe closed head injury with seizure
disorder and short term memory loss.” 61 A.3d at 1064 (emphasis removed). Two
years after the agreement was approved, the claimant filed a penalty and review
7
petition alleging the employer’s failure to pay medical bills and seeking to correct
the description of the injury to reflect a left shoulder injury which was allegedly
erroneously omitted from the final draft of the agreement. Id. at 1064-65. This
Court rejected the argument that the description of the injury in the agreement should
be corrected to include the left shoulder injury, holding that the claimant’s failure to
“expressly reserve his right to add a new injury to the description of his work
injuries” precluded him from doing so after the C&R Agreement’s approval. Id. at
1067. In addition, the Court rejected the claimant’s argument based on contract
construction principles that the description of the injury in the agreement as “any
and all injuries” sustained at the workplace included a left shoulder injury as there
was no ambiguity that the employer had never accepted liability for the left shoulder
injury during the course of the litigation. Id. at 1068.
In Haslam, this Court similarly held that a claimant may not expand or
modify the description of an injury acknowledged in a C&R Agreement unless that
right is explicitly reserved in the agreement. 169 A.3d at 709. In that case, the
claimant and employer entered into a C&R Agreement which settled the indemnity
portion of the case but required the employer to continue paying medical benefits
related to an injury described as a right and left foot fracture. Id. at 706. Six years
after the agreement was approved, the employer filed a utilization review petition
challenging a utilization review determination that treatment the claimant was
receiving for complex regional pain syndrome was related to the claimant’s work
injury because it was not expressly accepted in the C&R Agreement. Id. The
claimant then filed a review petition alleging in part an incorrect description of the
injury asserting that the pain condition, and treatment therefor, was related to the
work injury. Id. Relying on DePue, we concluded that the claimant was barred from
8
seeking to expand or modify the description of the injury, as there was no allegation
of fraud, deception, duress or mistake. Id. at 709.
In this matter, consistent with our holdings in DePue and Haslam, we
conclude that to the extent that Claimant seeks through the Review Petition to
expand, correct or modify the description of the injury stated in the C&R Agreement,
he is barred from doing so. Claimant has not alleged or produced evidence to show
that he was the victim of fraud, deception, duress, mutual mistake or unilateral
mistake attributable to Employer with respect to the formation of the C&R
Agreement. Furthermore, the C&R Agreement does not expressly reserve to
Claimant the option of petitioning to supplement the description of the work injury
in the agreement with a new injury.
Claimant’s argument on appeal, however, does not solely rest on the
premise that the description of the work injury should be expanded to include
glenohumeral arthritis. Rather, relying on Haslam, Claimant asserts that the
contested medical treatment he received beginning in April 2014 was causally
related to his acknowledged work injury and fell within the scope of the treatment
that Employer had agreed to pay for in the C&R Agreement. In Haslam, we held
that, though the claimant was foreclosed from altering the description of the work
injury following a C&R Agreement unless that right was expressly reserved in the
agreement, he was not also barred from challenging the Board’s determination that
the medical treatment he received was beyond the scope of the medical benefits
which the employer had agreed to pay for in the C&R Agreement. 169 A.3d at 709.
We noted that in the C&R Agreement, the employer had agreed to “pay for all
reasonable and necessary medical expenses that are related to” the acknowledged
work-related injury of a fracture of both of the claimant’s feet and therefore to the
extent the treatment he received for his pain disorder was “related to [the c]laimant’s
9
fractured feet” that was also compensable. Id. at 709-10 (emphasis in original).
Furthermore, following our decision in Kurtz, because the connection between the
pain in his feet bore an “obvious connection” to the fractures of his feet, we
determined in Haslam that the claimant was entitled to a presumption that his new
symptoms were related to his injury and therefore the burden fell on the employer to
prove that his new symptoms were not related to the compensable injury. Haslam,
169 A.3d at 710-11. As the employer presented no medical evidence that
demonstrated that the symptoms were not related to the injury, we overturned the
Board’s decision and reinstated the WCJ’s determination that the treatment under
review was for symptoms that were causally related to the work injury described in
the C&R Agreement. Id. at 711.
The facts in this case are similar to those in Haslam; here, like in
Haslam, Employer agreed in the C&R Agreement to continue paying for reasonable
and necessary medical treatment “causally related to” his work injury and Claimant
maintains that the treatment at issue was directly related to the acknowledged work
injury. However, there are several key differences between this case and Haslam.
First, in this case, Claimant’s Review Petition solely alleged an incorrect description
of the injury whereas in Haslam the claimant filed a petition to review medical
treatment specifically alleging that the pain condition was related to the accepted
injury. See 169 A.3d at 705-06. Similarly, in Kurtz, which did not involve a C&R
Agreement but, like Haslam, concerned the question of whether a pain condition
was causally related to the accepted work injury,6 the claimant filed a petition to
6
In Kurtz, the claimant fell while at work suffering a grade two concussion with retrograde
amnesia and severe paracervical spasms, and these injuries were accepted by the employer through
a notice of compensation payable. 794 A.2d at 445. The claimant underwent surgery to resolve
the pain and was able to return to work, but began experiencing dizziness, headaches and a burning
10
review medical treatment alleging that the later condition was causally related to the
work injury. See Kurtz, 794 A.2d at 445-46. Therefore, it is not clear that Claimant
properly presented the argument to the WCJ that the treatment at issue was causally
related to the description of the work injury as set forth in the C&R Agreement.
Furthermore, unlike in Haslam the connection between the symptoms
Claimant was experiencing in 2014 and his accepted work injury was not obvious.
“An ‘obvious’ connection ‘involves a nexus that is so clear that an untrained lay
person would not have a problem in making the connection between’ the new
symptoms and the compensated injury; the new symptoms would be a ‘natural and
probable’ result of that injury.” Kurtz, 794 A.2d at 447-48 (quoting Tobias v.
Workmen’s Compensation Appeal Board (Nature’s Way Nursery, Inc.), 595 A.2d
781, 784 (Pa. Cmwlth. 1991)); see also Haslam, 169 A.3d at 710. In Haslam, the
claimant suffered an injury described in the C&R Agreement as a right and left foot
fracture and the new symptoms that were determined to be obviously connected to
the injury consisted of a pain condition in the same body parts. Here, rather than
having a generalized description of an injury to a body part, the C&R Agreement
does not describe a ‘right shoulder injury’ but instead details the specific parts of the
right shoulder that were injured, e.g. “right shoulder rotator cuff tear with
subacromial impingement,” and procedures that were performed on the shoulder,
e.g. “cleaning of the labrum and bone underlying the rotator cuff arthroscopically.”
sensation in the area of the incision approximately one and a half years after the surgery for which
he received treatment of a series of nerve block injections. Id. at 445-46. The employer refused
to pay for the nerve block treatment, and the WCJ concluded that the claimant had not met his
burden of proving that his new symptoms were causally related to the original injury, which ruling
the Board affirmed. Id. at 446. We reversed, concluding that the pain in such close proximity and
of a similar type to the original pain obviously appeared to be related to the original injury and that
the evidence presented by the employer did not meet its burden of showing that the new symptoms
were unrelated to that injury. Id. at 448-49.
11
(C&R Agreement ¶4, R.R. 5a.) Though the C&R Agreement specifically states that
Claimant’s work injury includes “acromioclavicular arthritis,” the C&R Agreement
does not state that Claimant suffered from arthritis to any other part of his right
shoulder including glenohumeral arthritis. (Id.) Indeed, despite the comprehensive
description of the various aspects of the shoulder injury there is no mention of an
injury to or treatment of the glenohumeral joint at all. Further attenuating the
connection between Claimant’s work injury and the contested treatment is the fact
that Claimant was involved in a car accident in October 2013 in which his right
shoulder struck the steering wheel and he experienced pain and bruising as a result.
(Oct. 22, 2015 Hearing Transcript at 7-8, R.R. 107a-08a.) In addition, Claimant
fractured his right shoulder as a child. (June 9, 2016 Report of Dr. Armstrong, R.R.
18a.) While none of these factors would rule out that the treatment he began
receiving in April 2014 for glenohumeral arthritis was causally connected to his May
19, 2008 work injury, viewed cumulatively they demonstrate that the nexus between
the injury and 2014 treatment was not so obvious that Claimant was entitled to a
presumption of their relatedness.
Because the connection between Claimant’s work injury and the
contested treatment was not obvious, Claimant was required to prove the connection
through unequivocal medical testimony. Kurtz, 794 A.2d at 448. The WCJ found
the opinion of Claimant’s treating physician contained in her June 9, 2016 report
that her treatment of Claimant for arthritis was related to his accepted work injury
as not credible and persuasive for three reasons. (Nov. 23, 2016 WCJ Decision F.F.
¶17.) First, the WCJ found that Dr. Armstrong did not demonstrate knowledge of
the detailed description of Claimant’s work injury as set forth in the C&R
Agreement. (Id.) Second, Dr. Armstrong stated only that Claimant had a general
diagnosis of arthritis in her report, yet it was clear from the records associated with
12
the rejected medical bills that Dr. Armstrong was treating Claimant specifically for
arthritis of the glenohumeral joint. (Id.) Finally, the WCJ found that Dr.
Armstrong’s credibility was undermined by the fact that her report merely stated
Claimant’s diagnosis and described the progression of his course of treatment but
lacked a persuasive explanation of how his work injury or treatment caused his
arthritis. (Id.)
In workers’ compensation matters, the WCJ is the ultimate finder of
fact and the exclusive arbiter of credibility and witness weight. Daniels v. Workers’
Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003).
The findings of the WCJ are conclusive on appeal, so long as they are supported by
substantial evidence. O’Donnell v. Workers’ Compensation Appeal Board (United
Parcel Service), 831 A.2d 784, 789 (Pa. Cmwlth. 2003). The WCJ may accept or
reject the testimony of any witness in whole or in part, including medical witnesses.
Furnari v. Workers’ Compensation Appeal Board (Temple Inland), 90 A.3d 53, 70
(Pa. Cmwlth. 2014); Stalworth v. Workers’ Compensation Appeal Board (County of
Delaware), 815 A.2d 23, 29 (Pa. Cmwlth. 2002). Unless made arbitrarily or
capriciously, determinations of witness credibility and evidentiary weight are not
subject to appellate review. Furnari, 90 A.3d at 70; Casne v. Workers’
Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth.
2008). The WCJ here offered a thorough explanation for why she rejected the
opinion of Dr. Armstrong as not credible or persuasive. The WCJ’s credibility
determinations were supported by the evidence and were not arbitrary or capricious,
and accordingly they may not be disturbed on appeal. Furthermore, because
Claimant, rather than Employer, bore the burden of persuasion on the Review
Petition, it is irrelevant whether, as Claimant contends, the opinion of Employer’s
expert was insufficient to support the denial of the Review Petition.
13
Accordingly, we affirm the WCJ’s denial of the Review Petition.
Furthermore, because Claimant did not prove that Employer violated the Act or its
regulations, the WCJ also appropriately denied the Penalty Petition. See Dixon v.
Workers’ Compensation Appeal Board (Medrad, Inc.), 134 A.3d 518, 525 (Pa.
Cmwlth. 2016) (“a violation of the Act or its regulations must appear in the record
for a penalty to be appropriate”) (quoting Gumm v. Workers’ Compensation Appeal
Board (Steel), 942 A.2d 222, 232 (Pa. Cmwlth. 2008)).
The order of the Board is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark L. Boatman, :
:
Petitioner :
:
v. : No. 1771 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Bortner Bros, Inc.), :
:
Respondent :
ORDER
AND NOW, this 3rd day of August, 2018, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge