J. Messina v. WCAB (City of Philadelphia)
1111 C.D. 2017
| Pa. Commw. Ct. | Jan 8, 2018Background
- Claimant (Joseph Messina) injured while operating a mower on August 26, 2011; Employer (City of Philadelphia) accepted strain/sprain to right shoulder and right elbow via NCP.
- In November 2014 Claimant filed a Review Petition to expand the injury description to include cervical disc herniations and radiculopathy; Employer denied and requested Utilization Review (UR) challenging a November 11, 2014 elbow surgery.
- Claimant’s treating physician (Dr. Baldino) and treating surgeon (Dr. Talaie) relied on late MRIs/EMG (2014) showing multilevel cervical herniations and C7-8 radiculopathy, and Dr. Talaie performed ulnar nerve release/transposition on Nov. 11, 2014.
- Employer presented IME by Dr. Mendez (orthopedic surgeon) and UR reviewer Dr. Collini who found no objective cervical findings, poor correlation between MRI and EMG, and that surgery was premature without 8–12 months of conservative care.
- The WCJ found Claimant credible on some symptoms but rejected his claim of immediate post-injury neck complaints and credited Dr. Mendez and Dr. Collini over Claimant’s treating doctors, denying both the Review Petition and the UR Petition.
- The Workers’ Compensation Appeal Board affirmed; this Court affirmed, emphasizing deference to WCJ credibility findings and the absence of substantial evidence that the 2011 incident included cervical injuries or that the 2014 surgery was reasonable/necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2011 work incident should be expanded to include cervical injuries (multilevel herniations, radiculopathy) | Messina: Felt shooting pain from right neck to hand at time of injury; later MRIs/EMG (2014) and treating doctors show cervical pathology caused/ aggravated by 2011 incident | Employer: Lack of contemporaneous neck complaints or objective findings until 2014; MRI and EMG do not correlate; IME shows normal cervical exam and attributes symptoms to elbow | Denied — WCJ credited Employer experts; Court affirmed due to WCJ credibility determinations and substantial evidence supporting them |
| Whether Dr. Talaie’s November 11, 2014 elbow surgery was reasonable and necessary (UR Petition) | Messina: Surgery was work-related and sought to relieve symptoms; treatment may be reasonable even if symptomatic | Employer/UR: Surgery was premature without 8–12 months of conservative care; neuropraxia alone insufficient to justify a third exploratory surgery | Denied — WCJ credited UR reviewer (Dr. Collini) that surgery was not reasonable/necessary; Court affirmed |
| Whether WCJ erred in credibility and weight given to medical witnesses | Messina: WCJ improperly discredited treating physicians and claimant and favored IME/UR reviewers | Employer: WCJ properly weighed credentials, objective findings, and temporal gaps in diagnostic testing | Denied — Court defers to WCJ’s exclusive province over credibility and evidentiary weight |
| Whether substantial evidence supports WCJ/Board findings | Messina: Record medically supports cervical causation and that surgery provided relief | Employer: Record supports WCJ’s conclusions and shows lack of objective cervical findings and lack of post-surgery improvement | Affirmed — Court finds substantial evidence supports WCJ/Board conclusions; no legal error |
Key Cases Cited
- A & J Builders, Inc. v. Workers' Compensation Appeal Board (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013) (WCJ has exclusive province over credibility and evidentiary weight)
- Anderson v. Workers' Compensation Appeal Board (Penn Center for Rehab), 15 A.3d 944 (Pa. Cmwlth. 2010) (deference to WCJ credibility findings)
- Cruz v. Workers' Compensation Appeal Board (Philadelphia Club), 728 A.2d 413 (Pa. Cmwlth. 1999) (treatment may be reasonable to manage symptoms even if not curative)
- Namani v. Workers' Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850 (Pa. Cmwlth. 2011) (burden to prove NCP materially incorrect to amend description)
- Roundtree v. Workers' Compensation Appeal Board (City of Philadelphia), 116 A.3d 140 (Pa. Cmwlth. 2015) (scope of review limited to legal error, constitutional violation, or lack of substantial evidence)
- Waldemeer Park, Inc. v. Workers' Compensation Appeal Board (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003) (definition and standard for substantial evidence)