No. 2210 CD 2013 Petitioner : Submitted: May

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Yvonne Yee Battick (Johnson),
Petitioner
v.
Workers’ Compensation Appeal Board
(UPMC Presbyterian Shadyside PUH),
Respondent
BEFORE:
:
: No. 2210 C.D. 2013
: Submitted: May 9, 2014
:
:
:
:
:
:
:
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN
FILED: July 7, 2014
Yvonne Yee Battick (Claimant) petitions for review of the October 22,
2013, order of the Workers’ Compensation Appeal Board (WCAB), which affirmed
the decision of a workers’ compensation judge (WCJ) granting UPMC Presbyterian
Shadyside
PUH’s
(Employer)
petition
to
terminate
Claimant’s
workers’
compensation benefits (termination petition). We affirm.
On July 11, 2007, Claimant injured her right hand while working for
Employer when a co-worker abruptly entered the room and caused the door to strike
Claimant’s right wrist and hand. (WCJ’s Findings of Fact, No. 3a.) Employer
acknowledged a work-related injury of tenosynovitis and carpal tunnel syndrome via
a notice of compensation payable. (Id., No. 2.) Claimant last worked for Employer
on October 22, 2008. (Id., No. 3e.)
On September 26, 2011, Employer filed the termination petition under
section 413 of the Workers’ Compensation Act (Act),1 alleging that Claimant had
fully recovered from her work-related injury. The WCJ held hearings on November
15, 2011, and November 29, 2012.
Claimant testified that she continues to feel pain in her right wrist and
has trigger finger in several fingers. (Id., Nos. 3d, 6b.) At times, she cannot open her
hand in the morning. (Id.) Claimant indicated that she has never been symptom-free
in the right hand or wrist since the work injury occurred. (Id.) Claimant also noted
that she has a bleeding condition known as Von Willebrand’s disease and
Thrombocytopenia. (Id., No. 3b.)
Claimant presented the deposition testimony of Robert Kaufmann, M.D.,
a board-certified orthopedic surgeon.
(Id., No. 5.)
On October 28, 2007, Dr.
Kaufmann initially examined Claimant and, thereafter, on March 6, 2009, performed
carpal tunnel release surgery on her. (Id., No. 5a.) Dr. Kaufmann last evaluated
Claimant on September 27, 2011, at which time Claimant continued to have
numbness, tingling, and pain in her fingers, inflammation of the small finger, and
triggering of the small finger. (Id., No. 5c.) Dr. Kaufmann believed that Claimant
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §771.
2
could do medium- or heavy-duty work, but Claimant told him that she could not.
(Id., No. 5d.)
Dr. Kaufmann opined that Claimant has not fully recovered from her
work-related injury. (Id.) However, on cross-examination, Dr. Kaufmann admitted
that he could not explain why Claimant continued to experience right upper extremity
symptoms based on the surgeries he performed and agreed that Claimant’s trigger
finger was not causally related to the work incident. (Id., No. 5f.)
In support of its termination petition, Employer presented the deposition
testimony of Steven Kann, M.D., a board-certified orthopedic surgeon. (Id., No. 4.)
Dr. Kann evaluated Claimant on January 24, 2008, and September 15, 2011, and
noted that Claimant had a negative Finkelstein test and no pain in the first dorsal
compartment. (Id., No. 4c.) Moreover, Claimant had negative Tinel’s, Phalen’s, and
median nerve compression tests. (Id.) Dr. Kann opined that Claimant had recovered
from the right carpal tunnel syndrome and tenosynovitis and indicated that Claimant
had no residuals or restrictions from the work-related injury. (Id., No. 4d.)
On April 11, 2013, the WCJ issued an order granting the termination
petition, concluding that “Employer has established that [C]laimant was fully
recovered from her work injury of July 11, 2007, as of September 15, 2011.” (WCJ’s
Conclusions of Law, No. 1.) The WCJ addressed the conflicting medical evidence as
follows:
This [WCJ] finds the medical opinions of Dr. Kann
to be more credible and persuasive than those of Dr.
Kaufmann. In so concluding, this [WCJ] notes that Dr.
3
Kann performed two thorough examinations of [Claimant]
before and after the 2009 surgical procedures. Dr. Kann
noted that the objective findings that existed prior to the
surgeries were negative following the surgery. Dr. Kann
indicated his last examination revealed no objective
findings which would support claimant’s objective pain
complaints. Likewise, this judge notes that Dr. Kaufmann
agreed that [C]laimant had no objective findings on
physical examination to support her continued subjective
complaints of pain.
Therefore, this [WCJ] rejects the opinions of Dr.
Kaufmann to the extent they conflict with the opinion[s] of
Dr. Kann.
(WCJ’s Findings of Fact, No. 6b.)
Claimant appealed to the WCAB. On October 22, 2013, the WCAB
affirmed, and Claimant now petitions this court for review.2
The employer bears the burden of proof in a termination proceeding.
Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1291 (Pa. 1997).
In a case where the claimant complains of continued pain,
this burden is met when an employer’s medical expert
unequivocally testifies that it is his opinion, within a
reasonable degree of medical certainty, that the claimant is
fully recovered, can return to work without restrictions and
that there are no objective medical findings which either
substantiate the claims of pain or connect them to the work
injury.
2
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary factual findings are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
4
Id. at 1293.
Claimant argues that the WCJ erred in determining that she was fully
recovered from the work-related injury based upon Dr. Kann’s medical testimony.
We disagree.
The WCJ is the ultimate factfinder and determines the weight and
credibility of evidence. Lombardo v. Workers’ Compensation Appeal Board (Topps
Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such, the WCJ is free
to accept or reject the testimony of any witness, including medical witnesses, in
whole or in part.” Id. Here, the WCJ specifically found the medical opinion of Dr.
Kann to be more credible and persuasive than Dr. Kaufmann’s and listed the reasons
supporting this determination. (See WCJ’s Findings of Fact, No. 6b.)
Claimant asserts that Dr. Kann’s testimony was incompetent because he
did not view hematologocial medical records or perform the standard EMG testing
procedure when he examined Claimant. However, this argument relates to the weight
of the evidence, not its competency. Huddy v. Workers’ Compensation Appeal Board
(U.S. Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006) (noting that the fact that a
medical expert does not review all of a claimant’s existing medical records goes to
the weight given the expert’s testimony, not its competency). The WCJ determined
that Dr. Kann was more credible than Dr. Kaufmann, and we cannot disturb this
determination on appeal. See O’Rourke v. Workers’ Compensation Appeal Board
(Gartland), 83 A.3d 1125, 1132 (Pa. Cmwlth. 2014).
5
Claimant also argues that her “trigger fingers issue” is currently causing
complex issues in her personal and professional life. (See Claimant’s Reply Br. at 5.)
However, the WCJ specifically found that the trigger fingers were unrelated to the
July 11, 2007, work incident because both Dr. Kaufmann and Dr. Kann testified
thusly. (See WCJ’s Findings of Fact, No. 6b.)
Because the WCJ appropriately determined, based on Dr. Kann’s
credible testimony, that Employer met its burden in the termination petition, we
affirm.3
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
3
Claimant also asserts that her due process rights were violated. (Claimant’s Br. at 21.)
However, Claimant did not raise this claim in her petition for review. Therefore, it is waived. See
Pa. R.A.P. 1513(d); City of Philadelphia v. Workers’ Compensation Appeal Board (Ford–
Tilghman), 996 A.2d 569, 572 (Pa. Cmwlth. 2010).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Yvonne Yee Battick (Johnson),
Petitioner
v.
Workers’ Compensation Appeal Board
(UPMC Presbyterian Shadyside PUH),
Respondent
:
: No. 2210 C.D. 2013
:
:
:
:
:
:
:
:
ORDER
AND NOW, this 7th day of July, 2014, we hereby affirm the October 22,
2013, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge

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