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Bryn Mawr Landscaping Co. v. Workers' Compensation Appeal Board (Cruz-Tenorio)

Commonwealth Court of Pennsylvania

October 18, 2019

Bryn Mawr Landscaping Company, Petitioner
v.
Workers' Compensation Appeal Board (Cruz-Tenorio), Respondent

          Submitted: February 22, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, PATRICIA A. McCULLOUGH, ELLEN CEISLER, Judges.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         Bryn Mawr Landscaping Company (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that granted Jonathan De Jesus Cruz-Tenorio's (Claimant) claim petition and denied Employer's termination and suspension petitions that were each submitted pursuant to the Workers' Compensation Act (Act).[1] In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant suffered a disabling injury at work. Discerning no error, we affirm the Board.

         Claimant worked for Employer for three years performing tree trimming and removal services. On May 15, 2015, Claimant was struck in the head by a large tree branch. On June 1, 2015, Employer issued a medical only Notice of Temporary Compensation Payable (NTCP) listing head concussion as the injury. On June 2, 2015, Employer issued a second medical only NTCP accepting head contusion as Claimant's injury.[2]

         On August 5, 2015, Claimant filed a claim petition alleging that he sustained a "concussion, traumatic brain injury with difficulty comprehending, memory loss, severe headaches and migraines, severe dizziness, head pain, bilateral vision problems including double vision, neck pain that radiates to the right shoulder; anxiety and depression" as a result of the May 15, 2015, incident. Reproduced Record at 2 (R.R.__). On the same day, Claimant filed a penalty petition asserting that Employer had violated the Act by not issuing a Notice of Compensation Payable (NCP) and not paying indemnity benefits as of the date of injury. Claimant further averred that Employer interfered with his ability to obtain medical treatment. Employer filed an answer denying the allegations, and the matter was assigned to a WCJ. Thereafter, Employer filed a termination petition alleging that Claimant had fully recovered from his work-related injuries. Employer also filed a suspension petition seeking, as "lesser included relief," a change in Claimant's status to partially disabled because he could not lawfully work in the United States. R.R. 31.

         Claimant testified before the WCJ on September 3, 2015. Claimant, who is a citizen of Mexico, testified that he has come to the United States to work for Employer every year since 2012. He explained that his job with Employer required him to cut branches with a chainsaw and place them in a branch chipper. On May 15, 2015, a tree branch being pulled by a cable struck him in the head behind his right ear. The force was strong enough to break the right ear protector of his helmet. Claimant immediately saw darkness and experienced dizziness and head pain. Claimant was initially treated in the emergency room at Paoli Hospital. Thereafter, he began treating with Dr. Dan Gzesh, a neurologist, and Dr. Bruce Menkowitz, an orthopedic surgeon.

          Claimant testified that the injury caused pain to his head, neck and right shoulder. The pain in his head extended from behind his right ear to the front of his head. He experienced memory loss, dizziness, vision problems and nervousness. On June 15, 2015, he was driving to get a prescription but became confused and could not remember where he was or where he was going. He called his brother, who took him to Einstein Hospital Emergency Room. Claimant has not driven since this incident.

         Claimant testified by deposition on February 2, 2016. As of that date, Claimant was still treating with Dr. Gzesh and Dr. Menkowitz, who had not cleared him to return to work. Claimant testified that he continues to suffer headaches, neck and right shoulder pain and, on occasion, dizziness and blurry vision. Claimant stated that he was depressed, nervous and insecure because of his symptoms. Claimant was going to physical therapy twice a week to treat his neck and shoulder pain.

         Claimant offered the deposition testimony of Dr. Gzesh, a board-certified neurologist, who began treating Claimant in June 2015 for headaches, dizziness, double vision, memory loss, hearing loss, ringing noises in his ears and problems with balance and trouble sleeping at night.

         After a physical and neurological examination, Dr. Gzesh found that Claimant had abnormal eye movements, which Dr. Gzesh deemed congenital. Claimant also had nystagmus, a condition causing beating eye movements when a patient looks in one direction. Dr. Gzesh explained that nystagmus may be caused by problems with the vestibular system, which was distinct from Claimant's congenital abnormal eye movements. Dr. Gzesh diagnosed Claimant with post- concussive syndrome, [3] post-concussive headaches, nystagmus and vestibular dysfunction, all of which he attributed to the May 15, 2015, injury.

         Dr. Gzesh referred Claimant for vestibular therapy to help with his dizziness and ordered magnetic resonance imaging (MRI) to rule out other possible causes of Claimant's nystagmus. Dr. Gzesh saw Claimant again in July, September, and November of 2015. During this time, Dr. Gzesh prescribed four different medications, none of which alleviated Claimant's headaches. Dr. Gzesh stated that this is not uncommon. Claimant could not attend vestibular therapy because his insurance did not cover the cost.

         Dr. Gzesh opined that Claimant's initial symptoms had not resolved. He stated that Claimant's return to work in tree trimming was a "very poor idea" because of Claimant's impaired cognition and balance. N.T., 11/25/2015, at 24; R.R. 322. On cross-examination, Dr. Gzesh conceded that post-concussive symptoms usually resolve after a three to six-week period but stated that it is "not uncommon for people to have persistent symptoms [for] more than six months." Id. at 65; R.R. 363. Dr. Gzesh further explained that if a patient is unable to receive vestibular therapy when it is prescribed, his recovery from post-concussive syndrome will be delayed and his balance and function may be adversely affected.

         Claimant offered the deposition testimony of Dr. Menkowitz, who is board certified in orthopedic surgery. Dr. Menkowitz began treating Claimant in August 2015. Claimant reported pain and limited motion in his right arm and pain in his neck. A physical examination revealed Claimant had full range of cervical motion, but experienced tenderness in his right shoulder and pain during extension and internal rotation of his right arm. Dr. Menkowitz diagnosed Claimant with a cervical sprain and strain, neuralgia, neuritis and radiculitis, all of which were directly related to Claimant's May 15, 2015, injury. Dr. Menkowitz recommended physical therapy and an MRI of Claimant's cervical spine.

         Dr. Menkowitz saw Claimant again in October 2015. Claimant reported pain in his right shoulder. An MRI revealed inflammation in the right rotator cuff and adhesive capsulitis, which occurs when "the covering over the joint has become thickened and tightened down" and "restricts motion." N.T., 11/13/2015, at 20; R.R. 414. This condition is known as an "acquired stiff shoulder," and it remained the same when Dr. Menkowitz saw Claimant in November 2015. Dr. Menkowitz opined that Claimant could not return to his pre-injury job, but that he could work in a sedentary capacity.

         On cross-examination, Dr. Menkowitz conceded that there was no indication that Claimant had been struck in the shoulder, but explained that "in any injury where the side of the head is struck there's going to be motion of the neck. And any motion that is not voluntary has an extremely high incidence of causing tissue damage." Id. at 42-43; R.R. 436-37. This tissue damage limits the motion of the neck and extends to the shoulder, causing adhesive capsulitis. Dr. Menkowitz opined that adhesive capsulitis does not resolve on its own and typically requires physical therapy and anti-inflammatory medications. However, Dr. Menkowitz could not prescribe anti-inflammatory medications because of Claimant's neurological issues.

         Claimant presented the deposition testimony of Jennifer Bertolini, the adjuster who began handling his claim on August 14, 2015. Bertolini testified that the Paoli Hospital Emergency Room records of May 26, 2015, reported that Claimant sustained head and cervical injuries. On June 1, 2015, Employer issued a medical only NTCP stating there was no medical evidence of disability. Employer also received disability notes from Dr. Gzesh and Dr. Menkowitz, but did not pay Claimant because it was waiting for an affidavit of recovery from its own physicians. Bertolini conceded that Claimant had a valid work visa on the date of injury, but Employer investigated Claimant's immigration status in May 2015 to see how it impacted the claim.

         Employer offered the deposition testimony of Dr. Richard Katz, a board-certified neurologist who conducted an independent medical examination (IME) of Claimant on October 8, 2015. Dr. Katz testified that his examination of Claimant was normal, except for findings related to Claimant's nystagmus and the slight deviation of his right eye. Dr. Katz opined that these findings indicated a problem with Claimant's brain stem that could not be attributed to Claimant's May 15, 2015, work injury. Dr. Katz further stated that Claimant sustained a concussion from the work injury and that most patients recover in 6 to 12 weeks. He agreed with Dr. Gzesh's diagnosis of post-concussive syndrome but disagreed that the syndrome continued as of his IME. He did not believe Claimant's complaints were attributable to the work injury. Dr. Katz disagreed with Dr. Gzesh's diagnosis of vestibular dysfunction because Claimant had no symptoms of vertigo.

         Employer also provided the deposition testimony of Dr. Arnold Berman, a board-certified orthopedic surgeon, who did an IME of Claimant on October 13, 2015. Dr. Berman determined Claimant had suffered a neck strain and sprain that radiated to the right shoulder, but it had resolved. Dr. Berman explained that a neck strain and sprain typically resolves itself in two to four weeks, but occasionally resolves in six to eight weeks. Dr. Berman opined that abnormalities found on the MRI were attributable to Claimant's prior unrelated repetitive heavy work and lifting as a landscaper.

         Employer presented the deposition testimony of its president, Thomas Foga, Jr. He testified that Employer sponsored workers every year and that these workers were authorized to work in the United States by an H-2B visa from April to December each year. Foga testified that he did not know about Claimant's immigration status after the date of his injury on May 15, 2015.

         In April 2016, the parties submitted a stipulation of facts to the WCJ, which she accepted. The stipulation read, in pertinent part, as follows:

8. Upon approval of this Stipulation, Employer agreed Claimant will receive [Temporary Total Disability] benefits for the closed period of May 15, 2015 through October 13, 2015 at an average weekly wage of $494.60 ...

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