Submitted: February 22, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, PATRICIA A.
McCULLOUGH, ELLEN CEISLER, Judges.
HANNAH LEAVITT, PRESIDENT JUDGE
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). 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.
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.
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.
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
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.
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.
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,
post-concussive headaches, nystagmus and vestibular
dysfunction, all of which he attributed to the May 15, 2015,
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...