Feldman v. Superior Prods. Support, LLC

1

Sean Feldman, Petitioner v. Superior Products Support, LLC (Workers' Compensation Appeal Board), Respondent

No. 1389 C.D. 2021

Commonwealth Court of Pennsylvania

February 16, 2023

OPINION NOT REPORTED

Submitted: July 29, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE LORI A. DUMAS Judge

MEMORANDUM OPINION

ANNE E. COVEY, Judge

Sean Feldman (Claimant) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) November 19, 2021 order affirming the WC Judge's (WCJ) decision that granted his Claim Petition for WC benefits (Claim Petition) in part, and denied his Petition for Penalties (Penalty Petition) against Superior Products Support, LLC (Employer).^[1] Claimant presents one issue for this Court's review: whether the WCJ mischaracterized the nature of Claimant's work injuries and rendered findings of fact and conclusions of law inconsistent with the evidence.^[2] Upon review, this Court affirms.

Claimant began working for Employer as a box machine operator on July 15, 2019. On August 19, 2019, while removing scrap plastic and cardboard from a large 1,200 pound wooden box called a Gaylord, the Gaylord tilted on the forklift, slid off, and struck Claimant in the right front shoulder region, knocking him backwards.^[3] Claimant felt a jolt of pain, burning, and numbness in his right shoulder. No one witnessed the accident, but Claimant reported the injury to his supervisor and was transported to WellSpan Medical Center (WellSpan) for treatment. Although Claimant attempted to return to modified-duty work several weeks later, he did not feel capable of doing the job and stopped working.

On September 3, 2019, Employer filed a Medical-Only Notice of Temporary Compensation Payable for a shoulder contusion. On September 5, 2019, Employer issued an Amended Notice of Compensation Payable that added payment of temporary total compensation benefits of $524.50, based upon an average weekly wage of $607.50. On November 5, 2019, Employer issued a Notice Stopping the Temporary Notice of Compensation Payable and a Notice of WC Denial (NCD) denying the claim because Claimant did not sustain a work-related injury, and Claimant failed to attend an independent medical examination (IME) without adequate explanation.

On December 13, 2019, Claimant filed the Claim Petition seeking total disability benefits from August 20, 2019, and ongoing for injuries to his "cervical spine, including but not limited to sprain/strain and C5-6 disruption/herniation; right shoulder injury including aggravation of pre[]existing conditions; right brachial plexus injury, complex regional pain syndrome [(CRPS),] and all other injuries/diagnosis established by the medical evidence." Reproduced Record (R.R.) at 3a. On December 27, 2019, Employer denied Claimant's Claim Petition allegations.

The WCJ conducted hearings on January 22, April 15, July 22, September 2, and October 28, 2020. On March 25, 2021, the WCJ partially granted the Claim Petition, declaring that Claimant "prov[ed] that he sustained a work-related injury on August 19, 2019[,] in the form of a right shoulder contusion that prevented him from working his pre-injury job and light[-]duty work, at times, from August 19, 2019 through March 2, 2020." Claimant Br. App. (WCJ Dec.) at 32. The WCJ denied the Claim Petition to the extent that "Claimant failed to prove that he sustained any [] condition or injury other than a right shoulder contusion as a result of the August 19, 2019 work injury." Id. Claimant appealed to the Board. On November 19, 2021, the Board affirmed the WCJ's decision. Claimant appealed to this Court.^[4]

Claimant argues that the WCJ mischaracterized the nature of Claimant's work injuries and rendered findings of fact and conclusions of law inconsistent with the evidence. In particular, Claimant asserts that the WCJ erred by considering the 2019 work injury to be an aggravation of a brachial plexus injury and CRPS that Claimant never previously had, and the WCJ relied on inadmissible hearsay testimony by Christopher Davis, M.D. (Dr. Davis) that was neither admitted as evidence nor relied upon by Employer's medical expert, physical medicine and rehabilitation specialist Scott Naftulin, D.O. (Dr. Naftulin).^[5]

"In a claim proceeding, the employee bears the burden of establishing a right to compensation and of proving all necessary elements to support an award." Henderson v. WP Ventures, Inc. (Workers' Comp. Appeal Bd.), 269 A.3d 1272, 1275 (Pa. Cmwlth. 2022) (quoting Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993)). In particular, "the claimant bears the initial burden of proving that his injury arose in the course of employment and was related thereto." Frankiewicz v. Workers' Comp. Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991, 995 (Pa. Cmwlth. 2017). "Generally, a claimant satisfies h[is] burden by presenting unequivocal medical evidence that establishes a causal connection between the alleged injury and the work incident." Roundtree v. Workers' Comp. Appeal Bd. (City of Phila.), 116 A.3d 140, 144 (Pa. Cmwlth. 2015).

At the WCJ hearings, Claimant described that, after his August 19, 2019 work accident, WellSpan x-rayed his shoulder, instructed him to take Ibuprofen, placed his right arm in a sling, and indicated that he could return to work, but should not use his right arm. See R.R. at 39a, 499a. Claimant recalled that, the next day, he experienced shooting pain from his shoulder through his right armpit and into his elbow. See R.R. at 39a-40a. Claimant stated that tingling pain, burning sensation, hypersensitivity, and numbness then extended into his right wrist, through the bottom of his right hand, and into his right first and pinky fingers, so he treated with Carl Becker, M.D. (Dr. Becker) on August 22, 2019. See R.R. at 40a-41a. Claimant recollected that Dr. Becker ordered a magnetic resonance imaging (MRI) of his neck (which he understood revealed a herniated disc), prescribed Celebrex, and gave him a note to remain off from work. See R.R. at 41a-42a, 49a. An August 23, 2019 MRI reflected some narrowing at Claimant's C5-6, disc protrusion at that C5-6 level, and a mild disc bulge with some degeneration at the C3-4 level. See R.R. at 295a, 303a.

Claimant recalled that he treated with Dr. Becker again on August 28, 2019, at which time his pain had gotten more severe, and his right hand had swollen and had a purple blemish. See R.R. at 43a-44a. At the January 22, 2020 WCJ hearing, Claimant testified that he was not working, his right hand swelling had gotten worse over time, he had discomfort if he straightened his fingers, and he guarded his hand and arm from cold/heat and being bumped because hypersensitivity made it extremely painful.^[6] See R.R. at 44a-45a, 48a.

On August 28, 2019, Dr. Becker released Claimant to return to modified-duty work, without using his right arm. See R.R. at 50a. Although Employer assigned Claimant to work left-handed at the box machine, and also as a small parts bagger, Claimant declared those are two-hand jobs^[7] and pain prevented him from doing them fully, the noise combined with his pain and inability to concentrate was too much of a distraction, and he was "bumped into a lot." R.R. at 240a; see also R.R. at 50a-51a, 78a-81a, 233a-239a, 241a. Thereafter, Dr. Becker prescribed medications and physical therapy, which Claimant undertook for approximately four weeks without benefit. See R.R. at 51a, 84a, 303a.

On September 17, 2019, Claimant treated at the emergency room for extreme pain that prevented him from sleeping. See R.R. at 52a. On September 25, 2019, Dr. Becker gave Claimant a note excusing him from work, and ordered an MRI and electromyography (EMG) of Claimant's right shoulder, after which Dr. Becker considered that Claimant had a brachial plexus injury or reflex sympathetic dystrophy (RSD), and recommended that he follow up with a pain management specialist. See R.R. at 52a-54a, 81a. Claimant last treated with Dr. Becker on October 3, 2019. See R.R. at 82a. On October 4, 2019, because his pain and hypersensitivity continued to be severe in his right shoulder, arm, and hand (to the point that he could not drive), Claimant sought a second opinion from Christian Fras, M.D. (Dr. Fras), who prescribed medication, a heating/cooling pad, and pain management. See R.R. at 54a-56a, 82a-83a.

On November 14, 2019, Claimant treated with pain management physician Gerald Dworkin, M.D. (Dr. Dworkin), who prescribed treatment for RSD and sympathetic nerve blocks,^[8] plus medications which only "very slightly" took the edge off his pain. R.R. at 57a; see also R.R. at 56a, 252a-253a. Claimant further asserted that the nerve block injection did not afford him any relief. See R.R. at 89a. Because he lost his insurance in the interim, Claimant did not treat again for injuries related to the August 19, 2019 work accident until he saw board-certified interventional pain neurologist Todd A. Bromberg, M.D. (Dr. Bromberg) on March 10, 2020. See R.R. at 252a-253a.

At the January 22, 2020 WCJ hearing, Claimant testified that, as of that time, he "pretty regularly," R.R. at 59a experienced "shooting pain, a jolting pain that runs down through the neck into the chest, shoulder, and then down through the arm and the elbow and the fingers[,]" R.R. at 58a, and constant hypersensitivity in his shoulder, arm, and hand.^[9] See R.R. at 59a. Claimant asserted that he had limited mobility in his right arm and shoulder regions, and he could not sleep on his right side. See R.R. at 59a, 62a-63a. Claimant avowed that he never experienced those types of symptoms in the past. See R.R. at 59a. He stated that Dr. Dworkin did not release him to return...