Colagreco v. Workers' Comp. Appeal Bd.

• Decision Date: 14 May 2020
• Docket Number: No. 788 C.D. 2019,788 C.D. 2019
• Citation: 232 A.3d 971
• Parties: Danette COLAGRECO, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (Vanguard Group Inc.), Respondent
• Court: Pennsylvania Commonwealth Court

232 A.3d 971

Danette COLAGRECO, Petitioner

v.WORKERS’ COMPENSATION APPEAL BOARD (Vanguard Group Inc.), Respondent

No. 788 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs September 27, 2019

Decided May 14, 2020

Patrick M. Donan, Dresher, for Petitioner.

Janet Blaum, Clarks Summit, for Respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Danette Colagreco (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) that terminated Claimant's compensation and held that certain treatments rendered to Claimant were neither reasonable nor necessary because they were done after Claimant had totally recovered from her work injury. In doing so, the Board affirmed the decision of the Workers’ Compensation Judge (WCJ). The gravamen of Claimant's appeal is that the WCJ erred by not issuing a reasoned decision and by terminating Claimant's compensation in the absence of a termination petition. Discerning no merit to those contentions, we affirm the Board.

Background

Claimant worked for Vanguard Group, Inc. (Employer) as a project manager. On October 14, 2013, Claimant received a flu shot at work, which injured her right arm. Employer issued a notice of compensation payable (NCP) that described the injury as "subacromial bursitis" of the right arm "secondary to needle stick." Reproduced Record at 1a (R.R. ––––). Thereafter, Claimant and Employer filed a series of petitions related to Claimant's work injury that were consolidated by the WCJ. A brief summary of each petition follows.

On September 12, 2016, Claimant filed a review petition seeking to expand the scope of her work injury as stated in the NCP. Her petition alleged that Claimant suffered chronic regional pain syndrome (CRPS) of the right upper extremity. On October 17, 2016, Employer filed a modification and suspension petition based on a "[s]pecific job offered" to Claimant. R.R. 7a.

On March 20, 2017, Claimant filed a second review petition, seeking to further correct her work injury to include CRPS Type 2; dynamic nonvascular, non-neurogenic thoracic outlet syndrome ; chronic subacromial bursitis and supraspinatus tendinopathy ; chronic right adhesive capsulitis ; chronic pain syndrome; hypertonic upper trapezius; and restricted first rib with scapular dyskinesia.

Both of Claimant's review petitions challenged the description of Claimant's work injury that appeared in the NCP. Claimant checked the box "Incorrect description of injury" as her reason for filing her review petitions. R.R. 3a, 12a.

On April 10, 2017, Employer filed a petition for review of a determination by a utilization review organization (URO) that ketamine drip procedures, office visits and prescriptions provided to Claimant by two providers were reasonable and necessary treatment of Claimant's CRPS. On August 22, 2017, Claimant filed a penalty petition alleging that Employer refused to pay for ketamine treatments.

Claimant testified in person before the WCJ on May 8, 2017. She stated that she received the flu shot from a nurse in a clinic in Employer's building. Her right arm was "really sore" after the shot, and "[w]ithin a day or two," her arm was "almost paralyzed." Notes of Testimony (N.T.), 5/8/2017, at 7; R.R. 138a. Claimant continued to work until she left for right shoulder surgery in July 2014. She had a second shoulder surgery in July 2015 and underwent several nerve blocks, which provided no relief. In October 2016, Claimant received a notice of ability to return to work and a job offer as a financial associate for Employer. Claimant did not believe she was capable of resuming work because her condition had worsened. In addition to shoulder pain, she was experiencing pain in her joints when she walked. Claimant stated that her hand had become ice cold, numb and swollen.

Claimant testified again in person on May 30, 2018, at the hearing on her penalty petition. She stated that she was suffering stabbing pain in the upper right shoulder, joint pain with any walking, pain with touch, nonstop pins and needles of the last three fingers, swelling of the forearm, and occasional fainting from the pain. She did not believe that she could return to her original job.

Claimant presented the deposition testimony of Larry Chou, M.D., who is board certified in physical medicine and rehabilitation and began treating Claimant on April 18, 2014. Another physician in Dr. Chou's practice prescribed injections and physical therapy, but these measures did not provide relief. Dr. Chou testified that he diagnosed Claimant with chronic severe right lateral shoulder pain with hypersensitivity consistent with CRPS Type 2; chronic neuropathic symptoms related to dynamic nonvascular, non-neurogenic thoracic outlet syndrome ; chronic subacromial bursitis and supraspinatus tendinopathy ; chronic right adhesive capsulitis ; and hypertonic upper trapezius and restricted first rib with scapular dyskinesia. Dr. Chou explained that Claimant's depression and sleep problems were consistent with chronic pain syndrome.

Dr. Chou opined that the placement of the flu shot "could have caused the supraspinatus tendinopathy." N.T., 3/13/2017, at 31; R.R. 56a. Because of her shoulder pain, Claimant restricted her motion, thereby developing a frozen shoulder. Dr. Chou related all these diagnoses to the October 14, 2013, work injury because "one builds on the other that builds on the other." N.T. 30; R.R. 55a.

Claimant also presented the deposition testimony of Enrique Aradillas-Lopez, M.D., who is board certified in neurology. By the time he met Claimant, she had undergone two surgeries on her right shoulder. Based on Claimant's June 2016 ultrasound, which showed an enlargement of the right brachial plexus, Dr. Aradillas-Lopez opined that Claimant suffered a brachial plexus neuritis. This would explain Claimant's "radiating complaints of pain." N.T., 2/9/2018, at 20; R.R. 492a. Dr. Aradillas-Lopez also opined that Claimant's CRPS was caused by the flu shot.

In opposition to Claimant's review petitions and in support of its modification and suspension petition, Employer presented the deposition testimony of Noubar Didizian, M.D., who is board certified in orthopedic surgery, and examined Claimant on December 22, 2016. Dr. Didizian did not observe muscular atrophy, which would be expected had Claimant sustained CRPS. To the contrary, he found her right arm more muscular than the left, which showed that she was using her right arm. Claimant's reported shoulder pain from the pinch power grip testing was irrelevant because the shoulder was not involved in those tests.

Dr. Didizian testified that he reviewed three magnetic resonance imaging (MRI) studies, performed on August 27, 2014, October 16, 2014, and June 3, 2015. They did not support a diagnosis of tendonitis, labral tear or CRPS. Claimant's June 2014 bone scan was normal. Dr. Didizian reviewed the report of Dr. Beredjiklian, a board-certified orthopedic surgeon who examined Claimant in November 2013. That report stated that the MRI and electromyography (EMG) studies of Claimant were negative and showed no "structural disruption to account for [Claimant's] symptomatology." R.R. 313a. Dr. Beredjiklian found no evidence of CRPS. Dr. Didizian testified CRPS would have manifested by the time of Dr. Beredjiklian's examination had there been nerve trauma, but these symptoms did not appear at that time. According to Dr. Didizian, the fact that the nerve block did not relieve Claimant's symptoms also indicated that Claimant does not have CRPS, a condition relieved by nerve blocks.

Dr. Didizian reviewed Dr. George Russell Huffman's notes on Claimant's second surgery on June 17, 2015, which did not find a neuroma. An ultrasound of June 5, 2015, also did not find a neuroma or other soft tissue abnormality. Dr. Didizian explained that the absence of a neuroma means there had been no injury to the nerve that could have developed into CRPS. Dr. Didizian found Claimant's complaints inconsistent with symptoms of CRPS. Dr. Didizian found no evidence of thoracic outlet syndrome ; tendinopathy ; or subacromial bursitis. Because Dr. Huffman's operative notes indicated that he was able to move the shoulder to full range of motion, Dr. Didizian rejected the possibility of adhesive capsulitis.

Employer also presented the deposition testimony of Edward Armbruster, D.O., a board-certified orthopedic surgeon, who performed an independent medical examination (IME) of Claimant on April 14, 2015, November 10, 2015, and October 24, 2016. On April 14, 2015, Dr. Armbruster found that Claimant, who had a history of right upper arm CRPS prior to her flu shot, did not presently have CRPS. Likewise, he did not find objective evidence to substantiate Claimant's complaints of neuropathic pain. Dr. Armbruster released Claimant to sedentary work.

At his second IME on November 10, 2015, Dr. Armbruster noted that Claimant had been diagnosed with right shoulder bursitis and neuropathic pain. Dr. Armbruster found no present existence of CRPS. He included Claimant's subjective complaints of pain in his report "for completeness sake." N.T., 12/19/2017, at 37; R.R. 384a. Dr. Armbruster found that Claimant's bursitis, which he related to the work injury, had completely resolved. Dr. Armbruster completed an affidavit of recovery as a result of the second examination. Dr. Armbruster did the third IME on October 24, 2016. Again, he found Claimant fully recovered from bursitis.

WCJ Decision

The WCJ discredited Claimant's testimony with respect to her symptoms, which were not corroborated by her medical experts, Dr. Chou and Dr. Aradillas-Lopez. They did not testify about Claimant's purported numbness in her hand, spasms in the front and back, or fainting spells. Crediting the testimony of Dr. Didizian and Dr. Armbruster, the WCJ found that Claimant did not have CRPS. The WCJ...