Wiggins v. Urban Outfitters (Workers' Comp. Appeal Bd.)

Nancy Wiggins, Petitioner v. Urban Outfitters, Inc. (Workers' Compensation Appeal Board), Respondent

No. 499 C.D. 2022

Commonwealth Court of Pennsylvania

February 22, 2023

OPINION NOT REPORTED

Submitted: December 2, 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

MEMORANDUM OPINION

ANNE E. COVEY, JUDGE

Nancy Wiggins (Claimant) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) May 3, 2022 order (Order) affirming the WC Judge's (WCJ) December 14, 2021 decision that granted in part and denied in part Claimant's Petition to Review Compensation Benefits (Review Petition), and granted Urban Outfitters, Inc.'s (Employer) Petition to Terminate Compensation Benefits (Termination Petition). Claimant presents three issues for this Court's review: (1) whether Employer's medical evidence constituted substantial evidence that supported the WCJ granting Employer's Termination Petition; (2) whether the Board erred by affirming the portion of the WCJ's decision wherein the WCJ directed Employer to pay a bill for medical services Claimant incurred after the termination of Claimant's WC benefits, rather than remanding to the WCJ for clarification; and (3) whether the Board erred by affirming the WCJ's decision when it appeared to be missing a factual finding rather than remanding to the WCJ for clarification. After review, this Court affirms.

Employer employed Claimant as a material handler/order picker. On July 12, 2019, Claimant sustained a left shoulder injury while stacking heavy boxes at work. Employer accepted Claimant's injury by issuing an Amended Notice of Compensation Payable and paid her WC benefits. Claimant initially treated with Employer's workers' compensation panel doctors who referred her for therapy, pain management, and, ultimately, to panel orthopedic surgeon Carl E. Becker, M.D. (Dr. Becker).

On August 21, 2019, Dr. Becker performed a left shoulder acromioplasty with extensive debridement of the biceps anchor tear on Claimant. Thereafter, Claimant attended physical therapy. In September 2019, a physical therapist stretched Claimant's left arm, after which Claimant experienced neck and bilateral arm pain. On October 2, 2019, Claimant again treated with Dr. Becker, who ordered a magnetic resonance imaging (MRI) of Claimant's left shoulder and neck. Dr. Becker referred Claimant to Dr. Sandusky^[1] for pain management. Dr. Sandusky administered trigger point injections to Claimant's shoulder and an epidural injection to her neck. Because the injections were ineffective, Dr. Sandusky referred Claimant to neurologist Perry Argires, M.D. (Dr. Argires) in April 2020.

Claimant was initially seen by another physician in Dr. Argires' practice and by some of his physician's assistants. Dr. Argires' staff conducted a diagnostic workup before Dr. Argires personally examined Claimant. The staff updated Claimant's MRI on June 8, 2020. Claimant underwent a bone scan of her neck to rule out facet arthropathy, plus x-rays and upper extremity bilateral diagnostic studies. Claimant had an electromyography study (EMG) on June 23, 2020.

On August 27, 2020, one year following her left shoulder surgery, Claimant presented to Dr. Becker with neck pain. Dr. Becker took left shoulder x-rays which revealed that her shoulder was normal, and he administered a steroid injection into Claimant's left shoulder. In his September 24, 2020 treatment records, Dr. Becker noted that Claimant had no relief from the steroid injection, but her shoulder was doing well. Claimant had some myelopathy which Dr. Becker believed was coming from her neck. Dr. Becker stated that he would order an MRI to see if Claimant's condition had worsened since the last MRI.

Dr. Argires first treated Claimant on November 11, 2020, chiefly for neck pain, and sent her for a bone scan on November 25, 2020, to help identify the source of her pain. On December 15, 2020, Dr. Argires again examined Claimant for neck pain that she stated radiated to her left side. The bone scan study results showed that Claimant had some mild facet arthropathy; therefore, Dr. Argires recommended nerve blocks. Dr. Argires concluded that cervical surgery was not indicated for Claimant. Dr. Argires did not see Claimant again after December 15, 2020.

On February 17, 2021, Dr. Becker conducted a follow-up evaluation of Claimant's left shoulder. Dr. Becker ordered another steroid injection for Claimant's left shoulder and provided her with a note to return to work with restrictions. On March 17, 2021, Dr. Becker saw Claimant for a follow-up evaluation for left shoulder pain, at which she reported that she had no relief from the injection and had persistent pain and soreness. Accordingly, Dr. Becker recommended left shoulder AC joint excision surgery. Dr. Becker also placed work restrictions on Claimant with no lifting over 10 pounds and no reaching above her head.

On July 1, 2020, John Petolillo, D.O. (Dr. Petolillo) performed an independent medical evaluation (IME) on Claimant. On August 3, 2020, Claimant filed the Review Petition alleging that she injured her neck, arms, and back while receiving physical therapy for her work-related left shoulder injury. Employer filed an Answer to the Review Petition denying the allegations. On August 11, 2020, Employer filed the Termination Petition alleging that, based on the IME, Claimant had fully recovered from her work injury as of July 1, 2020. Claimant filed an Answer to the Termination Petition denying that she had fully recovered. The parties offered Claimant's, Dr. Argires' and Dr. Petolillo's deposition transcripts, Dr. Petolillo's IME report, and Dr. Becker's medical records into evidence.

On December 14, 2021, the WCJ granted Claimant's Review Petition in part, finding that Claimant sustained a left shoulder strain with labral tear at work on July 12, 2019, and a cervical sprain during physical therapy in September 2019, but no other work-related injury. The WCJ also granted Employer's Termination Petition, finding that Claimant had fully recovered from her work-related left shoulder injury.

Claimant appealed to the Board contending that the WCJ's decision was legally erroneous, unsupported by substantial evidence, and not well reasoned. Claimant further asserted that a remand was warranted because the WCJ rendered inconsistent findings about Claimant's cervical sprain by finding that Claimant was fully recovered from her work injury by July 1, 2020, but her November 25, 2020 bone scan was a treatment causally related to that work injury. Claimant argued that the WCJ's factual findings were incomplete because, although the WCJ's decision includes Findings of Fact (FOF) Nos. 7 and 9, it does not contain FOF No. 8. On May 3, 2022, the Board affirmed the WCJ's decision. Claimant appealed to this Court.^[2]

Claimant contends that Employer's medical evidence did not constitute substantial evidence to support the Termination Petition. Specifically, Claimant asserts that the WCJ should not have credited Dr. Petolillo's testimony over Dr. Becker's testimony because Dr. Becker was Claimant's treating orthopedic surgeon and Employer's panel doctor, and Dr. Becker had recommended Claimant undergo additional surgery and continued work restrictions, whereas Dr. Petolillo examined Claimant only once during the IME.

This Court has explained:

Section 422(a) of the [WC] Act[]^[3] . . . provides that a WCJ must render a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole, and must clearly and concisely explain the rationale for the decision so that parties to a [WC] action can understand the reasoning underlying a particular result. The WCJ must articulate an actual objective reason for his credibility determinations of witnesses other than those testifying in person at the hearing. An appellate tribunal may not imagine the reasons for a WCJ's credibility determinations.

An adequate explanation for a determination is provided when the WCJ outlines the evidence considered, states [the] credible evidence relied upon, and establishes the reasons underlying the ultimate decision rendered.

Further, as the ultimate finder of fact and the sole authority for determining the weight and credibility of evidence, the WCJ may accept or reject the testimony of any witness in whole or in part, including medical witnesses. Lombardo v. Workers' Comp[.] Appeal B[d.] (Topps Co., Inc.), 698 A.2d 1378 (Pa. Cmwlth. 1997). The WCJ's findings will not be disturbed if they are supported by substantial, competent evidence.^[4]

Hughes v. Wawa, Inc. (Workers' Comp. Appeal Bd), 271 A.3d 922, 935-36 (Pa. Cmwlth. 2021) (emphasis added; some citations omitted).

For purposes of appellate review, it is irrelevant whether there is evidence to support contrary findings; if substantial evidence supports the WCJ's necessary findings, those findings will not be disturbed on appeal. . . . A court may overturn a credibility determination "only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of facts, or so otherwise flawed, as to render it irrational." Casne v. Workers' Comp[.] Appeal B[d.] (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).

Verizon Pa., Inc. v. Workers' Comp. Appeal Bd. (Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015) (emphasis added; some citations and footnote omitted).

Dr. Petolillo testified: "I felt [Claimant] was fully recovered from her injury consistent with a left shoulder strain with labral tear." Reproduced Record (RR) at 110a. Dr. Petolillo expounded:

[Reviewing the operative report[,] she had a type II [superior labrum from anterior to posterior (]SLA

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