Roman v. Workers' Compensation Appeal Board (Tri State Enterprises, LLC), 011221 PACCA, 658 C.D. 2020
| Opinion Judge | ELLEN CEISLER, JUDGE |
| Party Name | James Roman, Petitioner v. Workers' Compensation Appeal Board (Tri State Enterprises, LLC), Respondent |
| Judge Panel | BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge |
| Case Date | January 12, 2021 |
| Court | Pennsylvania Commonwealth Court |
OPINION NOT REPORTED
SUBMITTED: November 6, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, [1] HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge
MEMORANDUM OPINION
ELLEN CEISLER, JUDGE
James Roman (Claimant) petitions this Court for review of the June 15, 2020 order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of a workers' compensation judge (WCJ) terminating Claimant's receipt of benefits under the Workers' Compensation Act (Act)2 on the basis that he had fully recovered from his work injury. Claimant argues that the Board erred in affirming the WCJ, as the evidence he relied upon was incompetent and inadmissible. After review, we affirm.
I. Background
Claimant sustained a work injury on August 12, 2017, while working at a construction site for Tri State Enterprises, Inc. (Employer). Reproduced Record (R.R.) at 2a, 56a-57a. In a claim petition filed on October 18, 2017, Claimant sought total disability workers' compensation benefits for the work injury, described as "upper back, lower back and down both legs, left arm [and] shoulder." Id. at 2a. Employer initially denied liability for the work injury. Id. at 7a-8a, 35a.
In an order circulated on January 25, 2018, the WCJ adopted and approved a stipulation of the parties, which provided in relevant part that Claimant's work injury consisted of an "upper back contusion." Id. at 156a. Employer agreed to pay Claimant temporary total disability benefits from the date of injury and ongoing and accepted responsibility for Claimant's reasonable and necessary medical treatment. Id. The stipulation further provided that the parties would continue to litigate the exact description of the injury and Employer reserved its right to contest Claimant's future entitlement to benefits. Id.
On October 30, 2018, Employer filed a petition seeking termination of Claimant's benefits based on the results of an independent medical examination (IME) performed by Timothy Amann, D.O., who concluded that Claimant had fully recovered from the August 12, 2017 work injury. Id. at 17a. Claimant denied that he had fully recovered. Id. at 21a.
A. Claimant's Evidence
At a December 1, 2017 deposition, Claimant testified that, on the day of the work injury, he was supervising a crew cleaning trash from the fifth floor of an apartment complex, which was under construction. Id. at 56a. While bending over to grab a skid located on the ground level, Claimant was struck in the back by a "four-by-six" that fell from the fifth floor. Id. at 57a, 59a. The impact knocked Claimant down and he "started hurting instantly." Id. at 59a. Claimant went to the emergency room (ER) after finishing his shift. Id. at 63a.
Claimant's medical records from the ER indicate that he presented with severe pain in "the area of the left scapula" and on the left side of his upper- and mid-thoracic spine. Id. at 24a. He was diagnosed with a "contusion with abrasion," and instructed to apply ice to the injury for 30 minutes, 5 times daily, for 1 week. Id. at 25a. The ER physician prescribed Ultram, to be taken every six hours, as needed for pain. Id. Claimant received a tetanus shot and was told to follow up with his family doctor. Id. at 63a.
On August 14, 2017, Claimant submitted an incident report to Employer in which he indicated that his back and shoulder were injured. Id. at 30a. A subsequent "Report of Injury Form" dated September 16, 2017, and signed by Claimant, specified that Claimant sustained injuries to the "left shoulder [and] upper mid left side of back [and] shoulder." Id. at 32a.
Dr. Dabundo, Claimant's family doctor, provided Claimant with a note keeping him out of work until August 21, 2017. Id. at 65a. Claimant asserted that he contacted Employer about returning to work, but he was notified not to return for "another couple of weeks." Id. at 97a. Thereafter, Claimant returned to work for "three or four days," but he was unable to keep up with the physical aspects of the job, which required he carry equipment weighing 40 to 50 pounds and wear a 25- to 30-pound tool belt. Id. at 68a-69a, 79a.
Initially, Claimant testified that he returned to work at the end of August. Id. at 97a. Later, Claimant stated that he returned to work in mid-September. Id. at 99a. Employer presented a note from Dr. Dabundo's office, which indicated that Claimant sought treatment on September 14, 2017, and he was taken out of work that day. Id. at 100a. Claimant clarified that he returned to work for Employer on September 25, 2017, but he "worked in between" August 12, 2017, and that date. Id. at 101a-02a. Following an off-the-record discussion between counsel for Claimant and Employer, Claimant agreed that he was out of work from August 12, 2017, through "some point after [September 25th]." Id. at 103a. Claimant subsequently worked a few days, with a restriction of no-lifting. Id.
Approximately 10 days later, Claimant sought treatment with William Murphy, D.O., following a referral by his counsel. Id. at 104a. At that time, Dr. Murphy provided Claimant a note taking him out of work entirely. Id.
Claimant testified that he continues to suffer from pain in his neck, his mid-and lower back, left shoulder, and left arm, and he periodically loses feeling in his left arm. Id. at 71a-72a, 112a-13a. Claimant feels a sharp pain in his left arm if he raises it in a "certain direction." Id. at 106a. He also feels pain and tingling in the back of his left leg. Id. at 112a. Claimant described the "constant" pain in his back as an 8 out of 10. Id. at 115a-16a. He treats his symptoms with muscle relaxers and Tylenol. Id. at 108a. Prior to the work injury, Claimant played softball and basketball, but he is no longer able to play sports. Id. at 118a. Claimant does not believe he is capable of performing his regular job duties or any other work. Id. at 73a, 119a. Claimant attends physical therapy twice a week, which helps somewhat. Id. at 105a.
Claimant acknowledged he suffered a work-related lower back sprain in 2007 after slipping on water, which took him out of work for approximately two months. Id. at 73a-74a, 110a. He injured his hand in a motor vehicle accident (MVA) in 1995. Id. at 109a. Beyond those incidents, Claimant denied involvement in any other workers' compensation matters or MVAs, and he denied any previous history of neck injury. Id. at 112a, 123a.
During redirect examination, in an attempt to refresh Claimant's recollection with regard to his medical history, Claimant's counsel presented a September 14, 2017 office note from Dr. Dabundo, which indicated Claimant complained that day of tingling in his left arm which Claimant related to an injury sustained in a July 2016 MVA. Id. at 125a-26a. Claimant admitted he had pain in his left arm as a result of that MVA, but "nobody got hurt" in the accident. Id. at 126a. Despite receiving physical therapy for "about seven months," Claimant described the pain in his left arm as "very minimum." Id. at 129a-30a. During additional questioning on re-cross-examination, Claimant agreed he previously suffered "a little" neck pain, which was related to an injury he received playing basketball a few months before the 2016 MVA. Id. at 131a-32a. Claimant concluded his deposition testimony by asserting that the tingling and numbness in his left arm was a recent issue. Id. at 133a.
Claimant also testified in person before the WCJ on October 30, 2018. He had not worked for any other employer since August 12, 2017, the date of his work injury. R.R. at 320a. Claimant briefly returned to work for Employer because he was afraid of losing his job. Id. at 321a. He continued to suffer pain in his upper back and in the back of his left shoulder and left arm. Id. at 323a-24a. Claimant remained incapable of returning to work. Id. at 322a.
Claimant asserted that he had recovered from any injuries suffered prior to the August 12, 2017 work injury and that he was not restricted from working prior to that date. Id. at 324a-25a. Claimant agreed he received medical treatment following the July 2016 MVA and he experienced numbness in his left arm as a consequence. Id. at 326a-27a. He did not recall testifying at the December 1, 2017 deposition that he suffered a neck injury while playing basketball. Id. at 327a.
Dr. Murphy testified by deposition on April 30, 2018. Claimant's counsel referred Claimant to Dr. Murphy for evaluation and treatment approximately two months after Claimant sustained the work injury. R.R. at 168a, 194a. Dr. Murphy first examined Claimant on October 5, 2017. Id. at 168a. Subsequent visits took place on November 13, 2017, and April 30, 2018. Id. at 178a, 182a.
Claimant related to Dr. Murphy that he was injured at work when a piece of wood fell from a roof and landed on his upper back. Id. at 168a, 204a. At that time, Claimant presented with left-sided neck and left shoulder pain, and pain in his upper-and mid-back, which radiated into his left arm and down both legs. Id. at 169a. Claimant had a prior work-related injury to his lower back in 2007. Id. at 170a. Imaging studies taken in 2007 indicated the presence of mild degenerative disc disease. Id. at 171a. Claimant advised Dr. Murphy that he previously injured his cervical spine in a MVA that occurred "several years" before the work injury. Id. at 170a. Dr. Murphy's subsequent review of Claimant's medical records revealed that the MVA occurred in July 2016. Id. at 170a, 201a. Claimant was initially evaluated for an injury related to this MVA by Dr. Raymond Wisdo on July 8,...
To continue reading
Request your trial