IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harley Davidson, :
Petitioner :
:
v. : No. 1274 C.D. 2019
: Submitted: January 31, 2020
Workers’ Compensation Appeal :
Board (Ness), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 26, 2020
Harley Davidson (Employer) petitions for review of an adjudication
of the Workers’ Compensation Appeal Board (Board) granting compensation
benefits to Brian S. Ness (Claimant) and denying Employer’s review petition. In
doing so, the Board affirmed the decision of the Workers’ Compensation Judge
(WCJ) that Claimant proved that he sustained an aggravation to his preexisting
hernia while lifting motorcycle parts at work, and, thus, established a compensable
work injury under the Workers’ Compensation Act (Act).1 The WCJ rejected
Employer’s assertion that the Bureau of Workers’ Compensation (Bureau) had
improperly converted Employer’s notice of temporary compensation payable
(NTCP) to a notice of compensation payable (NCP). Discerning no error, we
affirm the Board.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2710.
Background
On April 17, 2017, Claimant suffered an injury while lifting
equipment at work. On May 6, 2017, Employer issued an NTCP with a 90-day
period of temporary disability beginning April 18, 2017, and ending July 16, 2017.
The NTCP described the injury as a “Strain or Tear” of the “Abdomen Including
Groin.” Reproduced Record at 16a (R.R. __).
On July 15, 2017, Employer issued a notice stopping temporary
compensation and a notice of workers’ compensation denial. The notices informed
Claimant that compensation benefits under the NTCP would terminate as of July
10, 2017, and that Claimant would have to file a claim petition if he believed he
had suffered a compensable work injury.
On July 19, 2017, Employer issued an amended NTCP for the April
17, 2017, injury, stating that temporary disability would end on July 16, 2017, not
July 10, 2017. On July 20, 2017, the Bureau issued a notice that converted
Employer’s NTCP to an NCP.
On July 21, 2017, Claimant filed a claim petition alleging that he
sustained a work-related “[h]ernia with stomach pain” on April 17, 2017. R.R. 4a.
He sought total disability from that date and ongoing. On March 30, 2018,
Employer filed a review petition alleging that the Bureau had issued the NCP “in
error.” R.R. 11a. The two petitions were consolidated.
In support of his claim petition, Claimant testified in person before the
WCJ. He stated that he had worked for Employer for 21 years as a team leader.
On April 17, 2017, Claimant was helping a co-worker lift motorcycle parts, each
weighing approximately 30 pounds, from a conveyor belt when he felt a pull and
burning sensation in his abdomen. Claimant immediately reported the injury to
2
Employer. Ignacio Prats, M.D., diagnosed Claimant with a hernia, and he
surgically repaired the hernia on May 31, 2017.
Claimant testified that because he was still experiencing severe pain
on the right side of his abdomen, he continued to seek treatment from Dr. Prats and
his family doctor, Jeffrey Rowand, M.D. They referred him to pain management
specialists. Claimant did not believe he was capable of resuming work because he
had pain either standing or sitting. He had not been released to return to work as of
the date he testified.
Claimant testified that he had undergone a previous hernia repair in
December 2013 and returned to work without restrictions. He underwent bariatric
bypass surgery in 2012, and he had his gall bladder removed in 2013. Claimant
has a history of ulcers and diverticulitis, which also cause abdominal pain.
Claimant testified again before the WCJ on April 17, 2018. He stated
that his pain was improving and that he intended to return to work on April 30,
2018.
Claimant presented the deposition testimony of Dr. Rowand, who is
board certified in family medicine. Dr. Rowand testified that he treated Claimant
from May 5, 2015, through April 11, 2016, for chronic conditions including
insomnia, constipation, and gastroenteritis, and on a monthly basis since May 22,
2017, mostly for depression. Meanwhile, Claimant was being seen by Dr. Prats for
ongoing abdominal pain. One of Dr. Rowand’s partners treated Claimant’s
diverticulitis, which resolved some pain but not that at the hernia site. Dr. Rowand
testified that he served as Claimant’s “coordinating care” physician and referred
him to pain management for his hernia umbilical pain. Notes of Testimony (N.T.),
3
11/9/2017, at 15; R.R. 144a. A nerve block provided nearly complete relief of the
pain, which indicated a sensory nerve issue in the abdominal wall.
Based on his examinations, treatment, and review of the medical
records, Dr. Rowand diagnosed Claimant with a work-related recurrent ventral
hernia at the site of a previous hernia repair. Dr. Rowand related Claimant’s
ongoing pain symptoms to the hernia surgery Dr. Prats performed on May 31,
2017. On cross-examination, Dr. Rowand testified that Claimant’s abdominal pain
was not related to a bowel obstruction for which Claimant underwent an
emergency surgery in November of 2017. Further, there was no evidence of bowel
obstruction on the computerized axial tomography (CAT) scans done after the
hernia surgery. Dr. Rowand stated that Claimant’s pain was localized at the hernia
repair site.
Claimant also presented the deposition testimony of Dr. Prats, a
board-certified general surgeon. Dr. Prats first examined Claimant on May 2,
2017. A CAT scan showed that Claimant had an abdominal wall hernia, which Dr.
Prats treated surgically on May 31, 2017. After surgery, Claimant continued to
experience abdominal pain, which Dr. Prats diagnosed as a neuropathy. He opined
that Claimant’s multiple surgeries, including the hernia repair he performed,
caused scar tissue to develop placing pressure on the peripheral nerves in that area.
Dr. Prats could not opine on whether the hernia surgery substantially contributed to
Claimant’s symptoms because he did not measure Claimant’s pre-operative pain
levels.
Dr. Prats testified that Claimant’s CAT scan of July 22, 2016, showed
a hernia in the same area, but surgery was not recommended at the time. Claimant
reported a “pop” and the onset of pain resulting from the work incident on April
4
17, 2017, which led to the hernia surgery that Dr. Prats performed in May 2017.
N.T., 1/15/2018, at 23-24; R.R. 163a.
In opposition to Claimant’s claim petition, Employer presented the
deposition testimony of S. Ross Noble, M.D., who is board certified in physical
medicine and rehabilitation. Dr. Noble did an independent medical examination
(IME) of Claimant on October 19, 2017. Dr. Noble reviewed Claimant’s CAT
scans, which showed that Claimant had been under treatment for abdominal
complaints prior to the incident of April 17, 2017. This was contrary to Claimant’s
statement that he had not experienced abdominal pain for three years prior to the
April 17, 2017, work incident. Dr. Noble found no physiological explanation for
Claimant’s complaint of abdominal pain. Dr. Noble testified that he did not see a
hernia on Claimant’s July 22, 2016, CAT scan, but he deferred to Dr. Prats’
opinion because “[Dr. Prats is] an abdominal surgeon and [he is] not.” N.T.,
2/6/2018, at 37; R.R. 204a.
Employer also submitted reports issued by Robert Howard, D.O., a
board-certified general surgeon, who reviewed Claimant’s medical records,
including the CAT scans done on July 22, 2016, and May 10, 2017. Dr. Howard
concluded that the hernia present on July 22, 2016, was the same hernia Dr. Prats
repaired on May 31, 2017. He opined that the hernia was a preexisting condition
not related to Claimant’s work incident on April 17, 2017.
In support of its review petition to set aside the NCP, Employer
presented the deposition testimony of William McElrath, the examiner assigned to
investigate Claimant’s alleged work injury. McElrath testified that on July 15,
2017, he issued the notice stopping temporary compensation and the notice of
workers’ compensation denial. On July 18, 2017, McElrath paid a medical bill that
5
had been incurred prior to July 15, 2017, with no intention to admit liability “for
the claim.” N.T., 3/29/2018, at 6-7; R.R. 250a-51a. However, the payment of the
bill caused the computer system to generate an amended NTCP, which McElrath
described as coming “straight from the state[.]” N.T., 3/29/2018, at 7; R.R. 251a.
The Bureau issued the notice of conversion after Employer had issued its notices
stopping temporary compensation and denying Claimant’s claim for compensation.
WCJ Decision
The WCJ credited Claimant’s testimony with respect to the April 17,
2017, work incident and his symptoms. The WCJ rejected Claimant’s testimony
that he did not have abdominal pain complaints for three years prior to April 17,
2017. The WCJ credited Dr. Rowand’s testimony, except for his opinion that the
hernia was caused by the April 17, 2017, work incident. The WCJ found that the
hernia preexisted the work incident, as shown on the July 22, 2016, CAT scan, at
which time treatment was not recommended. Based on the credited testimony of
Dr. Rowand and Claimant’s medical records, the WCJ found that Claimant’s work
injury necessitated the hernia repair surgery on May 31, 2017. Claimant’s
postoperative pain was neuropathic in nature and different from the symptoms
Claimant complained of prior to April 17, 2017. The WCJ found that Claimant
sustained a work-related postoperative neuropathic injury and granted the claim
petition for a closed period from April 17, 2017, through April 30, 2018.
The WCJ rejected the conflicting testimony of Dr. Noble and Dr.
Howard. The WCJ reasoned that Dr. Noble evaluated Claimant only once, and Dr.
Howard never examined Claimant. The WCJ declined to draw an adverse
inference from Claimant’s decision not to depose his other treating physician, Dr.
Eric Pauli, noting that Dr. Pauli was “equally available to be called as a witness by
6
both [p]arties.” WCJ Decision, 9/27/2018, at 15, Finding of Fact (F.F.) No. 17(c);
R.R. 299a.
The WCJ denied Employer’s review petition, finding McElrath’s
testimony not credible. The WCJ used his “investigatory authority” to learn how
the submission of an electronic data interchange (EDI) transaction triggers the
generation of a form in the Workers’ Compensation Automation and Integration
System. WCJ Decision, 9/27/2018, at 14, F.F. No. 17(a); R.R. 298a. The WCJ
concluded that the July 19, 2017, amended NTCP was properly converted to an
NCP.
Employer appealed. The Board affirmed the WCJ’s grant of the claim
petition. The Board also affirmed the WCJ’s denial of Employer’s review petition
because “any potential error in document processing is moot.” Board
Adjudication, 8/20/2019, at 11. Employer then petitioned for this Court’s review.2
Appeal
On appeal, Employer raises three issues, which we combine into two
for clarity. First, it argues that the Board erred because the WCJ’s findings are not
supported by substantial evidence, and the WCJ should have drawn an adverse
inference from Claimant’s decision not to present Dr. Pauli as a witness. Second,
Employer argues that the Board erred with respect to its review petition because
the Bureau converted Employer’s NTCP to an NCP in error.
2
This Court’s review of an order of the Board determines whether the necessary findings of fact
are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. Cytemp Specialty
Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth.
2012).
7
I. Claim Petition
Employer argues that the Board erred in affirming the WCJ’s grant of
the claim petition. The hernia was present on the July 22, 2016, CAT scan, and
there was no credited expert testimony that the April 17, 2017, work incident
aggravated Claimant’s preexisting hernia. Employer further asserts that the WCJ
should have drawn an adverse inference from the absence of testimony from Dr.
Pauli. Claimant counters that he proved that the work incident aggravated his
condition and necessitated the surgery. Accordingly, Claimant’s postoperative
neuropathic pain was work-related. Claimant argues that the absence of testimony
from Dr. Pauli was meaningless; other medical evidence established a causal
relationship between the work incident and his loss of earning power.
In a workers’ compensation case, the claimant has the burden of
proving the causal connection between the work injury and disability. Lewis v.
Workmen’s Compensation Appeal Board (Pittsburgh Board of Education), 498
A.2d 800, 802 (Pa. 1985). A claimant satisfies his burden if he proves that the
alleged disability either “results from the injury or is aggravated, reactivated or
accelerated by the injury....” Fotta v. Workmen’s Compensation Appeal Board
(U.S. Steel/USX Corporation Maple Creek Mine), 626 A.2d 1144, 1146 (Pa. 1993)
(quoting Section 301(c) of the Act, 77 P.S. §411(1)). The WCJ is the ultimate
finder of fact, and the WCJ’s factual findings may not be disturbed unless they are
not supported by substantial, competent evidence. Westinghouse Electric
Corporation v. Workers’ Compensation Appeal Board (Weaver), 823 A.2d 209,
215 (Pa. Cmwlth. 2003). As the fact finder, “the WCJ is permitted to draw
reasonable inferences from the evidence.” Bentley v. Workers’ Compensation
Appeal Board (Pittsburgh Board of Education), 987 A.2d 1223, 1228 (Pa. Cmwlth.
8
2009). Further, a medical expert is not required to recite “magic words” such as
the exact term “aggravation of the pre-existing condition.” Schmidt v. Workers’
Compensation Appeal Board (IATSE Local 3), 19 A.3d 1171, 1177 (Pa. Cmwlth.
2010). Rather, an expert’s testimony must be reviewed in its entirety. Id.
The WCJ’s finding that Claimant suffered a work-related
postoperative neuropathic injury is supported by substantial evidence. Dr. Prats
testified that the hernia was present as of July 22, 2016, but it did not require
surgery at that point. Claimant credibly testified that he felt an immediate burning
sensation in his abdomen while lifting equipment for Employer on April 17, 2017.
At that point, Dr. Prats concluded surgery was required. Dr. Rowand credibly
testified that Claimant’s postoperative pain was localized to the hernia repair site;
was caused by scar tissue from Claimant’s surgical procedures, including the
hernia repair of May 31, 2017; and was different from the symptoms Claimant had
prior to April 17, 2017. This record evidence supports the WCJ’s factual finding
that the April 17, 2017, work incident caused an aggravation to Claimant’s
preexisting hernia.
We reject Employer’s argument that the WCJ was required to draw an
adverse inference from the absence of testimony from Claimant’s other treating
physician, Dr. Pauli. The fact finder is not required to draw an adverse inference
based on a claimant’s failure to call attending physicians. William Penn School
District v. Workers’ Compensation Appeal Board (Westerman), 717 A.2d 589, 592
(Pa. Cmwlth. 1998). “Generally, an adverse inference is permissible only where
the uncalled witness is peculiarly within the reach and knowledge of only one of
the parties.” Id.
9
Employer asserts that Dr. Pauli was not equally available to the
parties because Claimant had the burden of proof in the claim petition proceeding.
Employer did not cite, and we have not found, any legal authority in support of
Employer’s broad proposition that a witness is not available to a non-moving party.
We conclude that Dr. Pauli was available to Employer.
Employer also argues that Dr. Pauli’s absence was fatal to Claimant’s
case because Dr. Prats did not establish a causal connection between the work
incident and the hernia surgery. However, Claimant testified credibly about the
work incident and his symptoms, and he presented the deposition testimony of Dr.
Rowand, who has seen Claimant on a monthly basis since May 22, 2017, and acted
as Claimant’s “coordinating care” physician for his hernia umbilical pain. N.T.,
11/9/2017, at 15; R.R. 144a. The WCJ relied on the credited testimony of Dr.
Rowand and Claimant’s medical records to find that the work injury necessitated
the hernia repair surgery on May 31, 2017, which caused Claimant’s postoperative
neuropathy.
II. Review Petition
Employer argues that the Board erred in affirming the WCJ’s denial
of its review petition. Claims examiner McElrath testified the notice of conversion
to compensation payable was generated in error. Employer argues that in
discrediting McElrath’s testimony, the WCJ acted outside his authority by
conducting his own investigation of how forms are generated in the EDI system.
Claimant counters that the Board did not err in holding that this issue is moot
because the claim petition has been fully litigated.
Employer issued a notice stopping temporary compensation and the
notice of workers’ compensation denial on July 15, 2017. Both notices informed
10
Claimant that he had a right to file a claim petition. Claimant did so on July 21,
2017, and the claim petition was litigated to conclusion.
Whether the notice of conversion to compensation payable was
generated in error by the EDI system is no longer an actual controversy.
Horsehead Resource Development Company, Inc. v. Pennsylvania Department of
Environmental Protection, 780 A.2d 856, 858 (Pa. Cmwlth. 2001) (this Court “will
dismiss an appeal as moot unless an actual case or controversy exists at all stages
of the judicial or administrative process”). We agree with the Board that the issue
is now moot.
Conclusion
For all of the foregoing reasons, we conclude that the WCJ’s finding
that Claimant suffered a work-related postoperative neuropathic injury is supported
by substantial evidence. We also conclude that the propriety of the Bureau’s
conversion of Employer’s NTCP into an NCP is a moot question. Claimant did not
rely upon the NCP but, rather, filed a claim petition in response to Employer’s
notice stopping temporary compensation. Accordingly, we affirm the Board’s
August 20, 2019, adjudication granting Claimant’s claim petition and denying
Employer’s review petition.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Judge Fizzano Cannon did not participate in the decision in this case.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harley Davidson, :
Petitioner :
:
v. : No. 1274 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Ness), :
Respondent :
ORDER
AND NOW, this 26th day of June, 2020, the August 20, 2019,
adjudication of the Workers’ Compensation Appeal Board, in the above-captioned
matter, is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge