IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marie Dennis, :
Petitioner :
:
v. : No. 1223 C.D. 2022
: Submitted: July 14, 2023
Inglis House (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: October 12, 2023
Marie Dennis (Claimant) petitions for review of the October 20, 2022,
adjudication of the Workers’ Compensation Appeal Board (Board) that affirmed the
May 31, 2022, remand decision of a workers’ compensation judge (WCJ). Claimant
argues that the WCJ’s original decision erred in regard to the description of her
injury, its duration, and associated wage loss.1 We affirm the Board’s adjudication
that although Claimant sustained a work injury, she was not entitled to wage loss
benefits.
On April 14, 2020, Claimant filed a claim petition asserting that she
was injured in the course of her employment as a certified nurse assistant with Inglis
House (Employer), while attempting to move a 300-pound patient on January 14,
2020. Claimant alleged that she sustained injuries to her neck, right arm, right
shoulder, and right hand/wrist. She sought partial disability benefits from January
1
The portion of the WCJ’s remand decision awarding attorney’s fees to Claimant is not challenged
by Claimant or the employer.
14, 2020, through March 26, 2020, and total disability benefits from March 27, 2020,
ongoing.
Before the WCJ, Claimant testified that she returned to work in light-
duty status the day after her injury and continued working light duty for
approximately two months. She was directed to attend an appointment with Francis
Burke, III, M.D., at WorkNet, who did a physical examination of Claimant on March
25, 2020. Based on that exam, Dr. Burke released Claimant to return to work full
time. However, Claimant testified that she did not return to work because she could
not perform the duties of her full-duty position. Notes of Testimony (N.T.),
5/13/2020, at 38-40; Reproduced Record at 38a-40a (R.R. __). On May 20, 2020,
Claimant returned to work at a modified-duty assignment, working her regular total
hours and receiving full pay. N.T., 11/18/2020, at 8-9; R.R. 338a-39a. She testified
that her doctor took her off work on August 13, 2020, and she has not worked since.
On September 17, 2020, Claimant underwent rotator cuff surgery. She testified that
she cannot perform her full-duty position with Employer.
Claimant presented the deposition testimony of Kevin O’Donnell,
M.D., who first examined her on April 13, 2020. Dr. O’Donnell diagnosed Claimant
with a right shoulder partial thickness rotator cuff tear caused by the work incident.
He opined that this aspect of Claimant’s work injury would restrict her from heavy
and repetitive lifting. Dr. O’Donnell opined that Claimant also sustained a work-
related cervical spine strain and sprain and hand/wrist pain, both of which had
resolved as of July 6, 2020.
Employer presented the deposition testimony of Dr. Burke, who
diagnosed Claimant with a cervical spine sprain; a resolved trapezius sprain;
preexisting cervical degenerative disc disease; a resolved right shoulder sprain;
2
preexisting right hand pain and paresthesia; and weak right hand edema. He opined
that Claimant was fully recovered from her work injuries, and he released her from
his care as it related to her neck, back, and right shoulder injuries. Burke Dep.,
10/8/2020, at 26; R.R. 278a. Dr. Burke did not release Claimant in regard to her
hand condition without a follow-up examination by Dr. Stephen Cash, the hand
surgeon with whom Claimant had been treating. Dr. Burke noted that Claimant had
preexisting hand issues, predating the January 2020 work incident, which the work
incident did not aggravate.
Employer also presented the deposition testimony of Dennis McHugh,
D.O., who examined Claimant on July 17, 2020. He diagnosed Claimant with a
cervical sprain, a right trapezial sprain, and a right shoulder sprain, which were
caused by the January 14, 2020, work incident. He determined that Claimant was
fully recovered from these injuries as of the date of the examination, and he placed
no work restrictions on Claimant.
The WCJ accepted Claimant’s testimony, in part. However, the WCJ
rejected Claimant’s testimony that she could not work and that she could not do
light-duty work on and after March 24, 2020, or any work after August 13, 2020.
WCJ Decision, 3/24/2021, at 13, Finding of Fact No. 19; R.R. 413a.
The WCJ found Dr. Burke credible as to some of his “work[-]related
and non-work[-]related diagnoses, specifically cervical sprain and strain, trapezius
sprain and strain, right shoulder strain, pre-existing cervical degenerative disc
disease, pre-existing right hand pain and paresthesias or abnormal sensation, and a
weak right hand.” WCJ Decision, 3/24/2021, at 14; Finding of Fact No. 22; R.R.
414a. However, the WCJ did not credit Dr. Burke’s opinion that Claimant was
recovered from her cervical and right shoulder sprain as of March 25, 2020. Id. The
3
WCJ credited Dr. Burke’s statement that Claimant could not do her pre-injury job
from January 14, 2020, to March 25, 2020, but rejected his opinion that there was
no relationship between Claimant’s right hand condition and her work injury.
The WCJ credited Dr. O’Donnell’s testimony that Claimant was
capable of performing modified work as of April 13, 2020, and that her cervical
spine issue had resolved as of July 6, 2020. WCJ Decision, 3/24/2021, at 14-15,
Finding of Fact No. 23; R.R. 414a-15a. In addition, the WCJ credited Dr.
O’Donnell’s diagnosis of a right shoulder partial thickness rotator cuff tear.
Likewise, the WCJ credited his opinion that Claimant’s right hand and wrist pain
were caused by the work injury.
The WCJ credited Dr. McHugh’s testimony that as of July 17, 2020,
Claimant was recovered from her work injury of January 14, 2020, and that as of
July 6, 2020, Claimant was recovered from any hand and wrist pain. WCJ Decision,
3/24/2021, at 15, Finding of Fact No. 25; R.R. 415a. The WCJ credited Dr.
McHugh’s opinion that there was no relationship between Claimant’s work injury
and her shoulder surgery due to the location of the tear. WCJ Decision, 3/24/2021,
at 15, Finding of Fact No. 26; R.R. 415a.
Based on these findings, the WCJ determined that Claimant met her
burden of proving that she sustained a work injury on January 14, 2020. The WCJ
suspended Claimant’s benefits for the period between January 14, 2020, and July
17, 2020. The WCJ determined that Claimant was fully recovered from her cervical
sprain of her right hand and wrist pain as of July 6, 2020. Finding Claimant fully
recovered from her right trapezial and shoulder sprain as of July 17, 2020, the WCJ
terminated Claimant’s benefits as of that date. Finding that Employer had engaged
4
in an unreasonable contest, the WCJ awarded Claimant unreasonable contest
attorney’s fees.2
Both Claimant and Employer appealed to the Board. Claimant
contended that the WCJ erred, in part, by not recognizing her rotator cuff injury.
Employer contended that the WCJ erred when she determined that it engaged in an
unreasonable contest of the claim petition and awarded Claimant attorney’s fees.
On March 16, 2022, the Board affirmed the WCJ’s adjudication
regarding the description and duration of Claimant’s injuries and the extent of her
disability from each. The Board reversed the WCJ’s determination that Employer’s
contest was unreasonable. Nevertheless, the Board remanded the matter to the WCJ
for the limited purpose of deciding whether Claimant should receive attorney’s fees
in light of the Supreme Court’s 2021 holding in Lorino v. Workers’ Compensation
Appeal Board (Commonwealth of Pennsylvania), 266 A.3d 487 (Pa. 2021), which
provided that attorney’s fees may be assessed even where a contest is not
unreasonable.3
On remand, the WCJ granted Claimant’s request for attorney’s fees
and, once again, granted Claimant’s claim petition, by incorporating “the findings
and conclusions from her original Decision and Order in the matter.” Board
Adjudication, 10/20/2022, at 2; R.R. 456a. In its adjudication, the Board affirmed
the WCJ, which made the Board’s previous adjudication final.
2
Confusingly, the WCJ found as fact that Employer “didn’t reasonably contest [Claimant’s]
petitions” but concluded, as a matter of law, that Employer “reasonably contested the petitions.”
WCJ Decision, 3/24/2021, at 15-16, Finding of Fact No. 28, Conclusion of Law No. 2.
3
In Lorino, the Supreme Court stated: “We do not suggest that . . . a WCJ may never deny an
award of attorney’s fees when the employer has established a reasonable basis for its contest . . .
[as] the language of [the Workers’ Compensation Act (Act)] affords the WCJ discretion to refuse
an award of attorney’s fees in such circumstances.” Lorino, 266 A.3d at 494 (referencing the Act
of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710).
5
Claimant petitioned for this Court’s review.4 On appeal, Claimant
raises two issues. First, she asserts that the Board erred in affirming the WCJ’s
limited description of her injuries and by finding she had fully recovered from them.
Second, Claimant contends that the Board erred by affirming the WCJ’s denial of
any wage loss benefits for Claimant’s injuries.
We begin our analysis with a review of the applicable legal principles.
In a claim petition, the claimant has the burden of proving all the
elements necessary to support an award, including the existence of a work-related
injury resulting in disability and its duration. Inglis House v. Workmen’s
Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). Where the
causal relationship between the work incident and the disability is not obvious,
unequivocal medical evidence is necessary to establish it. Jeannette District
Memorial Hospital v. Workmen’s Compensation Appeal Board (Mesich), 668 A.2d
249, 251 (Pa. Cmwlth. 1995). The WCJ is free to accept or reject, in whole or in
part, the testimony of any witness, including medical witnesses. Greenwich
Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703, 706
(Pa. Cmwlth. 1995). Determinations of credibility and the weight to be accorded the
evidence are the prerogative of the WCJ. Vols v. Workmen’s Compensation Appeal
Board (Alperin, Inc.), 637 A.2d 711, 714 (Pa. Cmwlth. 1994).
4
Our review determines whether the WCJ’s findings of fact are supported by substantial evidence,
whether an error of law was committed, or whether constitutional rights were violated.
Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838 (Pa.
2013). Substantial evidence is the relevant evidence a reasonable person might accept as adequate
to support a finding. York Terrace/Beverly Enterprises v. Workmen’s Compensation Appeal Board
(Lucas), 591 A.2d 762, 764 n.5 (Pa. Cmwlth. 1991). The relevant inquiry in a substantial evidence
analysis is not whether the record contains evidence to support findings other than those made by
the WCJ, but rather whether there is evidence to support the findings actually made. Hoffmaster
v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa.
Cmwlth. 1998).
6
Where the evidence supports a finding of disability for a closed period,
the WCJ may so limit benefits. Connor v. Workmen’s Compensation Appeal Board
(Super Sucker, Inc.), 624 A.2d 757, 758 (Pa. Cmwlth. 1993). For a termination of a
claimant’s benefits, the employer bears the burden of presenting unequivocal and
competent medical evidence that the claimant has fully recovered from the work
injury. Koszowski v. Workmen’s Compensation Appeal Board (Greyhound Lines,
Inc.), 595 A.2d 697, 699 (Pa. Cmwlth. 1991).
Where the Board remands a matter to the WCJ, the aggrieved party
cannot appeal the Board’s adjudication to this Court. Shuster v. Workers’
Compensation Appeal Board (Pennsylvania Human Relations Commission), 745
A.2d 1282, 1285 (Pa. Cmwlth. 2000). Once the WCJ issues her remand decision,
the aggrieved party can appeal the Board’s initial adjudication to the Commonwealth
Court. Macaluso v. Workmen’s Compensation Appeal Board (Philadelphia College
of Osteopathic Medicine), 597 A.2d 730, 731-32 (Pa. Cmwlth. 1991).
As a threshold matter, we address Employer’s contention that a
substantial portion of Claimant’s appeal has been waived. In her appeal of the
WCJ’s remand decision to the Board, Claimant stated that she was reasserting her
previous appeal to the Board. Employer argues that this statement “fails to
adequately preserve any issues not specifically set forth in the present Notice of
Appeal.” Employer Brief at 7. Employer maintains that there is no provision in the
Board’s rules for preserving issues by mere reference. Although Employer
acknowledges Macaluso, it contends that “[e]ven in cases of remand[,] . . . a party
is required to follow normal procedure.” Employer Brief at 8 (citing Shuster, 745
A.2d at 1285).
7
In Shuster, the Court held that an appeal of a WCJ’s decision had to be
filed with “the Board within 20 days after notice of that decision has been received.”
Shuster, 745 A.2d at 1287 (emphasis added). It did not provide that the post-remand
appeal must restate each specific issue raised in the initial appeal to the Board. The
point in Shuster was that a WCJ remand decision cannot be appealed directly to
Commonwealth Court; rather, it must be appealed first to the Board.
The Board’s rules do not expressly provide for the preservation of
issues by reference. Likewise, there is no Board rule that prohibits the preservation
of an issue by reference to a pre-remand appeal to the Board. The Special Rules of
Administrative Practice and Procedure Before the Workers’ Compensation Appeal
Board require an appeal to include “[a] statement of the particular grounds upon
which [it] 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.” 34 Pa. Code §111.11(a)(2) (regarding content and form of workers’
compensation appeals). Here, Claimant’s incorporation of her initial appeal within
her second appeal sufficiently brings the Board’s attention to the issues being
challenged.
For the foregoing reasons, we reject Employer’s contention that
Claimant waived those issues in her current appeal that were raised to the Board
prior to its remand to the WCJ. Accordingly, we turn to the merits of Claimant’s
appeal.
In her first issue, Claimant contends that the Board erred in affirming
the WCJ’s limited description of her injuries and recovery therefrom. Claimant
argues that the WCJ’s findings “limiting the injury to a shoulder and cervical strain
8
and right wrist and hand sprain are inconsistent and unsupported[]” by the record.
Claimant Brief at 11. The WCJ credited Claimant’s expert, Dr. O’Donnell, and he
testified that Claimant’s injuries included “rotator cuff pathology or possibly
tendinitis or strain[.]” Id. Employer’s medical expert, Dr. McHugh, did not dispute
Claimant’s claim that her job duties exacerbated her hand condition. Accordingly,
Dr. McHugh’s testimony “does not constitute substantial competent evidence on
which to deny the claim for wage loss benefits as of March 25, 2020[,] or as of
surgery on September 17, 2020.” Claimant Brief at 12. Likewise, Dr. McHugh’s
testimony does not support a termination of Claimant’s benefits because he did not
opine that she was fully recovered from her surgery, and his testimony about
Claimant’s shoulder and trapezial strain was contradicted by a magnetic resonance
imaging (MRI) of her shoulder that showed a tear, which could only be explained
by the work injury.
Claimant simply challenges the WCJ’s credibility determinations and
assignment of weight to the evidence, both of which are squarely within the WCJ’s
ambit. Despite Claimant’s claims to the contrary, the WCJ found that Dr. McHugh
credibly testified that the MRI of Claimant’s right shoulder was “indicative of
chronic, typical, and age[-]appropriate findings with desiccated collagen fibers from
old age and without a relationship to an acute incident [on] January 14, 2020.” WCJ
Decision, 3/24/2021, at 11, Finding of Fact No. 15b.; R.R. 411a. Further, Dr.
McHugh found no “ongoing evidence of any conditions” relatable to Claimant’s
cervical or hand complaints, and agreed that she had fully recovered from any work
injury she may have sustained to these body parts. McHugh Dep., 9/10/2020, at 16-
17; R.R. 212a-13a.
9
Where, as here, the WCJ’s findings are supported by the substantial
evidence of record, they cannot be disturbed. Thus, we affirm the Board’s
adjudication, which affirmed the WCJ as to the description of Claimant’s injuries
and her recovery therefrom.
We next address Claimant’s argument that the Board erred by affirming
the WCJ’s denial of any wage loss benefits for Claimant’s injuries. In opposition,
Employer contends that Claimant waived this issue because she did not raise it at the
earliest opportunity, i.e., in her original appeal to the Board, after the WCJ’s initial
decision. We agree with Employer.
An issue is waived unless it is preserved at every stage of the
proceeding. “The purpose of the waiver doctrine is to ensure that the WCJ is
presented with all cognizable issues so that the ‘integrity, efficiency, and orderly
administration of the [workers’] compensation scheme of redress for work-related
injury’ is preserved.” Wheeler v. Workers’ Compensation Appeal Board (Reading
Hospital and Medical Center), 829 A.2d 730, 734 (Pa. Cmwlth. 2003) (quoting
Smith v. Workmen’s Compensation Appeal Board, 670 A.2d 1146, 1149 n.6 (Pa.
1996)). See also Clark v. Workers’ Compensation Appeal Board (Wonder Bread
Company), 703 A.2d 740, 743 n.6 (Pa. Cmwlth. 1997) (where initial appeal to Board
does not challenge WCJ’s determination that injury was not work-related, a remand
to address other discrete issues does not create an opportunity to litigate issues not
raised in the initial appeal).
In Macaluso, 597 A.2d at 731, this Court stated that “[r]emand orders
are interlocutory and not appealable except by permission[.]” This rule applies to
an appeal of a Board’s remand adjudication to this Court. However, Claimant was
required to raise the issue of the denial of wage loss benefits, with requisite
10
specificity, at her earliest opportunity, i.e., in her first appeal to the Board. Although
Claimant’s most recent appeal to the Board refers to “denial of wage loss,” her first
appeal did not. Certified Record (C.R.), Item 19 at 2. Claimant’s initial appeal form
stated that the WCJ’s conclusions of law, specifically conclusions of law #2 and #4,
were not supported by substantial competent evidence and contained legal errors,
without any specificity. C.R., Item 9 at 2.
In Jonathan Sheppard Stables v. Workers’ Compensation Appeal
Board (Wyatt), this Court stated that
in specifying the errors of law committed by the WCJ and the
reasons why his decision does not conform to the provisions of
the Act, Employer merely stated “2–10” on the appeal form to
the Board . . . It is unclear as to what “2–10” is meant to convey
as a basis for the appeal to the Board, and such a cryptic assertion
clearly does not specify the errors of law committed by the WCJ
or why his decision does not conform to the provisions of the
Act.
739 A.2d 1084, 1089 n.5 (Pa. Cmwlth. 1999) (internal citation omitted).5 However,
we quoted Section 111.11(a)(2) of the Special Rules of Administrative Practice and
Procedure Before the Workers’ Compensation Appeal Board, which states:
5
In Jonathan Sheppard Stables, the employer’s appeal to the Board stated, in pertinent part, as
follows:
I hereby appeal from the decision of Judge Lloyd P. Nyce and allege the following findings
of fact are in error and are not supported by substantial evidence, or contain other errors as
specifically set forth below. A copy of the Judge’s decision is attached.
3, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 ...
I hereby appeal from the decision of Judge Lloyd P. Nyce and specify the following errors
of law committed by said Judge, and the reasons why the decision does not conform to
the provisions of the . . . Act or the Occupational Disease Act[, Act of June 21, 1939, P.L.
566, as amended, 77 P.S. §§1201-1603]. A copy of the Judge’s decision is attached.
2–10 ...
739 A.2d at 1088 (emphasis in original).
11
(a) An appeal to the Board shall be filed with the Board on a
form provided by the Board or on a form containing substantially
the following information:
***
(2) A statement of the particular grounds upon which [it] 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.
Jonathan Sheppard Stables, 739 A.2d at 1088 (quoting 34 Pa. Code §111.11(a)(2)).
In her initial appeal form filed with the Board, Claimant asserted that
the WCJ’s decision should be reversed
as it contains numerous errors of law and is not supported by
substantial competent evidence. The Claimant maintains that the
following findings of fact are not supported by substantial
competent evidence: [Findings of Fact Nos.]: 15b, 15c,15d, 15e,
15f, 15i, 19, 24, 25 and 26. The Claimant argues that the WCJ’s
Decision contains conflicting findings of fact and credibility
determinations that render the decision legally incompetent and
form a strong legal basis for reversal of the WCJ’s Decision. The
following Conclusions of Law are not supported by substantial
competent evidence and contain numerous errors of law:
[Conclusions of Law Nos.]: 2 and 4.
C.R., Item 9 at 2. These general and conclusory statements do not sufficiently bring
to the attention of the Board the specific wage loss error asserted by Claimant. It is
only in the second appeal, post-remand, that Claimant enunciated a more specific
attack on the WCJ’s decision.6 By failing in her initial Board appeal to raise the
6
Claimant’s initial appeal to the Board explains in detail why she believes the WCJ’s Finding of
Fact No. 24 is “at odds” with Finding of Fact No. 26. C.R., Item 9 at 2. However, Claimant’s
focus in comparing the two findings is limited to the WCJ’s determinations relative to Dr.
O’Donnell’s and Dr. McHugh’s opinions on the work-relatedness, or lack thereof, of Claimant’s
shoulder injury. Claimant does not address the issue of wage loss as subsequently raised in her
appeal of the WCJ’s remand decision.
12
matter of whether the WCJ erred by denying “wage loss benefits to at least May 20,
2020,” Claimant has waived the issue. She cannot assert it for the first time to the
Board after the WCJ’s remand decision and order.
For the foregoing reasons, we affirm the adjudication of the Board,
which affirmed the decision of the WCJ.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marie Dennis, :
Petitioner :
:
v. : No. 1223 C.D. 2022
:
Inglis House (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 12th day of October, 2023, the October 20, 2022,
adjudication of the Workers’ Compensation Appeal Board, in the above-captioned
matter, is AFFIRMED.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita