         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hospital of the University of        :
Pennsylvania,                        :
                   Petitioner        :
                                     :
            v.                       : No. 2291 C.D. 2015
                                     : Submitted: April 22, 2016
Workers’ Compensation Appeal         :
Board (Maratea),                     :
                 Respondent          :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: May 13, 2016


            The Hospital of the University of Pennsylvania (Employer) petitions
for review of the Workers’ Compensation Appeal Board’s (Board) decision
reversing a Workers’ Compensation Judge’s (WCJ) order granting Employer’s
termination petition. The Board did so because it found that the WCJ erred in
determining that a corrected Notice of Compensation Payable (NCP) rather than
the original NCP was the controlling document and, because the WCJ did not find
that all of the accepted injuries in the corrected NCP had been addressed, Antonio
Maratea’s (Claimant) benefits had not been terminated.
                                               I.
                Claimant worked as a senior accountant for Employer for over a
decade. In February 2010, Employer issued him a “medical only” Notice of
Temporary Compensation Payable (NTCP) under the Workers’ Compensation Act
(Act)1 for a “right wrist/right shoulder strain/strain” caused from “repetitive motion
typing on computer.” (Reproduced Record (R.R.) at 1a.) The NTCP indicated that
payments to Claimant began as of February 25, 2010, and would end after a 90-day
period on May 25, 2010.


                On July 9, 2010, in accordance with the Act, the NTCP was
automatically converted to an NCP.2 On December 6, 2010, a corrected NCP was
issued changing the description of Claimant’s injury to a “right wrist
strain/tendonitis” and eliminating any mention of any shoulder injury. It also
increased Claimant’s weekly compensation rate and average weekly wage. A
supplemental agreement for compensation for disability or permanent injury was
later issued, restating Claimant’s injury as “right wrist strain/tendonitis” and
establishing that Claimant’s disability recurred on March 23, 2011.




       1
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2708.

       2
         Pursuant to Section 406.1(d)(6) of the Act, “If the employer does not file a notice
[controverting a claimant’s claim] within the ninety-day period during which temporary
compensation is paid or payable, the employer shall be deemed to have admitted liability and the
notice of temporary compensation payable shall be converted to a notice of compensation
payable.” Section 406.1(d)(6) of the Act, added by the Act of February 8, 1972, P.L. 25, as
amended, 77 P.S. §717.1(d)(6).




                                                2
              In October 2012, Employer filed a termination petition alleging that
Claimant fully recovered from his work-related injuries as of September 5, 2012,
and requesting that a special supersedeas hearing be scheduled based upon a
physician’s affidavit. The termination petition averred that Claimant was being
paid pursuant to the original NCP. In March 2013, the parties litigated before the
WCJ three Utilization Review (UR) Petitions filed by Claimant, which the WCJ
denied.    In these Petitions, the WCJ mentioned that she was considering the
corrected NCP the controlling document.3


              In May 2013, Claimant then filed a petition to review compensation
benefits alleging that the description of his injury was incorrect and seeking to
amend the NCP “to include impingement syndrome with rotator cuff tear, right

       3
        The UR Petitions litigated were concerning: 1) treatment by Thomas Kiger, PT (Kiger),
which was deemed reasonable and necessary in part; 2) treatment by Johnmichael Pizzimenti,
D.C. (Pizzimenti), which was deemed not reasonable and not necessary; and 3) treatment by
William Ingram (Dr. Ingram), D.O., which was deemed not reasonable and not necessary.

        After holding three hearings and considering Claimant’s testimony in conjunction with
other evidence (including reports of several medical providers submitted by both parties), the
WCJ denied all three UR Petitions. In making her determination, the WCJ found Claimant’s
testimony regarding his need for physical therapy, chiropractic treatment or other treatment
rendered by Dr. Ingram’s office to be incredible. Based on the reports, the WCJ also found
treatment by a number of the medical professionals to be not reasonable and not necessary.
Finally, the WCJ reasoned that Employer’s contest was reasonable due to the conflicting medical
opinions. Kiger, Pizzimenti and Dr. Ingram (collectively, Providers) appealed, arguing that the
WCJ erred in accepting the “Corrected” NCP.

        The Board dismissed the Providers’ appeal, determining that the Providers were not
parties to the matter below and, thus, have no standing to appeal. Moreover, the Board held that
even if Providers’ limited participation by providing reports in the matter below somehow gave
them party status, the issues they raised on appeal were never raised or addressed before the
WCJ and were thereby waived.




                                               3
shoulder; post traumatic arthropathy of the right acromioclavicular joint and
glenohumeral joint; right biceps tendonitis; right wrist intracapsular ganglion;
flexor and extensor tenosynovitis of both wrists and intracapsular ganglion based
on tenosynovitis of the right radiocarpal joint.”4 (R.R. at 16a.)


                                              II.
                                              A.
              Claimant’s testimony was offered in both his case and Employer’s. In
support of his positions, Claimant testified that he worked as a senior accountant
for Employer for over a decade, during which he worked at a desk, and that the
repetitive nature of his job eventually caused him to experience pain in his right
wrist and right shoulder. He testified that he had two ergonomic evaluations of his
work station but not all of the recommended changes were implemented, and he
eventually underwent medical treatment due to the continuing issues with his wrist
and shoulder. Claimant stated that he then started developing pain in his left wrist.
He testified to reducing the number of days he worked and stated that he
eventually stopped working for Employer on March 23, 2011, because of the pain
in his wrists and right shoulder and has not worked since.


              Claimant testified that he is currently being treated for his pain, takes
Ambien to sleep and Hydrocodone for pain, and also wears wrist braces almost




       4
         Claimant stated in his review petition that compensation benefits were being paid based
on the corrected NCP.




                                               4
every day. Claimant testified that he does not think that he can return to work as
an accountant because he cannot use the keyboard and mouse six hours per day.


             In his deposition testimony that Employer offered, Claimant testified
to continued pain in his right wrist. On a scale of one to ten, Claimant rated the
pain at a two when on therapy and medication, and varying from a six to a nine
without. Claimant again stated that he had not fully recovered from his work
injury because he still experienced pain in both of his wrists and his right shoulder.
He explained that the pain in his left wrist started at the same time as the pain in
his right wrist and shoulder.


             He stated that he has not worked anywhere since working for
Employer. He testified that his daily activities include watching a lot of television,
cooking and doing housework. He testified that although he occasionally goes
grocery shopping, he has problems lifting and can only carry one bag. Claimant
stated that he uses his home computer for approximately half-an-hour per day to
look at e-mails. Claimant admitted taking several vacations since March 2012,
including trips to Orlando, FL, Newport, RI, Las Vegas, NV, and Poconos, PA.
He stated that he had been receiving disability social security since September
2012.


                                         B.
             In support of its termination petition, Employer submitted the
deposition of William Kirkpatrick, M.D. (Dr. Kirkpatrick), a board certified
orthopedic surgeon with an added qualification in hand and upper extremity



                                          5
surgery. Based on his physical examination of Claimant, which focused solely on
Claimant’s hands and wrists, Dr. Kirkpatrick noted that Claimant had some
fullness over both wrists, more on the right, but otherwise no swelling. He testified
that Claimant had full active range of motion of the elbows and no tenderness on
palpation, full active rotation in both forearms, and range of motion in both wrists
of about 50 degrees extension and flexion “which is certainly within a functional
range of motion.” (R.R. at 183a.) He stated that although Claimant complained of
discomfort with palpation over his dorsal radial right wrist and over the
radioscaphoid articulation, he did not find any tenderness with palpation over the
left dorsal radial wrist or first compartment.


              Dr. Kirkpatrick diagnosed Claimant with bilateral wrist osteoarthritis
with right deQuervain’s tenosynovitis.           He opined that the deQuervain’s
tenosynovitis may have been related to his repetitive activities as an accountant,
but that he did not find any evidence of deQuervain’s.               Dr. Kirkpatrick
acknowledged that Claimant had tenderness in the same relative area as his prior
deQuervain’s and that he believes it is related to Claimant’s underlying
osteoarthritic condition. He testified that while a 2013 ultrasound of the right wrist
did not demonstrate evidence of deQuervain’s, it did reveal a small ganglion cyst
in the radial carpal joint, which was aspirated and injected. He explained that
ganglion cysts are typically idiopathic and are seen frequently with osteoarthritic
conditions.


              Dr. Kirkpatrick opined that Claimant had fully recovered from the
work-related injury of right wrist inflammation from repetitive typing, including



                                           6
any deQuervain’s tenosynovitis, which may have been caused or aggravated by his
job duties.    He testified that Claimant’s right wrist pain was related to his
preexisting osteoarthritic condition, especially given that he had not worked as an
accountant for nearly three years and, moreover, “there would be no reason to
expect that he would develop a deQuervain’s tenosynovitis, especially in light of
the more significant condition which is his underlying condition of the wrist.” (Id.
at 191a.)     Dr. Kirkpatrick opined that given the absence of the work injury,
Claimant would be capable of returning to work as an accountant, but because of
the clear arthritis in both of his wrists, it would be reasonable for him to limit his
repetitive activities.   He stated that no further treatment was required for
Claimant’s work-related injury.


              In opposition to Claimant’s review petition, Employer submitted the
deposition of Robert Dalsey, M.D. (Dr. Dalsey), a board certified orthopedic
surgeon with a certificate of qualification in hand surgery who examined Claimant
in October 2013. Dr. Dalsey testified that his physical examination of Claimant
showed that Claimant was 5’1” and 271 pounds; that his right shoulder revealed no
tenderness over the AC joint but pain anteriorly along the glenohumeral joint line;
that he did not have an arc of pain, which is seen in primary rotator cuff problems;
that he had restricted motion internally and externally; that in his left wrist, he had
pain and swelling over the radioscaphoid area; that motion was restricted to 30
degrees of wrist extension and flexion, less than half what would be normal for his
age; that his symptoms were similar in the right wrist; and that sensation was
normal with the exception of tingling in his left fifth finger.




                                           7
             Upon review of several MRIs and ultrasounds, Dr. Dalsey testified
that Claimant’s wrists were affected by arthritis that was worsening over time,
which explained why his wrists have remained problematic even after he stopped
working. He explained that although arthritis can cause swelling and discomfort, it
is not the result of repetitive tasks and there is no evidence of work-related
traumatic arthritis in Claimant’s medical records.        Dr. Dalsey opined that
Claimant’s right shoulder injury was related to degenerative changes and arthritis
and not caused by Claimant’s work duties. He stated that Claimant did not sustain
a right shoulder work-related injury or a left wrist work-related injury. He further
stated that although Claimant may have had tendinitis in his right wrist related to
the repetitive nature of his work, it had resolved.


                                          C.
             In opposition, Claimant submitted the deposition of Scott Jaeger,
M.D. (Dr. Jaeger), a board certified orthopedic surgeon who first saw Claimant in
March 2013. At that time, Claimant told him that he was having issues with his
right shoulder and wrist beginning in February 2010 because of his work as a
senior accountant for Employer. Dr. Jaeger testified that they discussed Claimant’s
work station, noting that Claimant’s printer was above his head, that his feet did
not touch the floor, and that Employer often had him working more than eight
hours a day. Dr. Jaeger opined that Claimant’s symptoms were related to his level
of work and caused the development of his tendinitis.


             Dr. Jaeger testified that he reviewed records from Dr. Behrman, Dr.
Chen, Dr. Osterman, Dr. Ingram and Dr. Kirkpatrick, as well as two ergonomic



                                           8
studies from Mr. Song. Dr. Jaeger testified that he relied on the results of MRIs of
Claimant’s right wrist and shoulder in developing his opinions, and that a right
wrist MRI showed severe tendinosis, particularly in the first distal radioulnar
compartment. A right shoulder MRI showed marked degenerative disease in the
acromioclavicular joint causing a spur that resulted in a very severe tendinopathy
or tendinitis along with tears of the supraspinatus, the infraspinatus and the
subscapularis tendon, indicating that Claimant “had significant rotator cuff
tendinosis or tendinitis as a result of repetitive use of his arm level to the mid[-
]chest level to retrieve the results of the printer.” (Id. at 241a.) With regard to the
ergonomic studies, Dr. Jaeger testified that they were consistent with Claimant’s
depiction of his work station.


               Based on his physical examination of Claimant, Dr. Jaeger testified
that Claimant had a 20 percent loss of grip strength on the right; there was a high
degree of crepitus in his right shoulder, indicating that the AC joint was unstable
and that abduction and flexion were limited; and there was evidence of widespread
tenosynovitis in both the flexor and extensor tendons, as well as instability of the
carpal bones. Dr. Jaeger testified that his diagnosis as to Claimant’s condition was
that Claimant had an intracapsular ganglion in the right wrist and tenosynovitis in
both wrists.      He stated that there was some improvement of Claimant’s
deQuervain’s tenosynovitis since Claimant had stopped working. He opined that
his diagnosis of Claimant was related to the work injury. He also stated that
Claimant had tears of the supraspinatus and infraspinatus of his right shoulder,
which were causally related to the work injury. Dr. Jaeger opined that Claimant
had not fully recovered from his right wrist strain/tendonitis and/or shoulder strain.



                                          9
He concluded that Claimant was not capable of returning to work for Employer as
an accountant.


                                        III.
             Finding Dr. Kirkpatrick’s and Dr. Dalsey’s testimonies that
Claimant’s right wrist did not show signs of tenosynovitis to be the most credible
and concluding that Claimant had fully recovered from his work injury of right
wrist strain/tendonitis as of September 5, 2012, the WCJ granted Employer’s
termination petition and denied Claimant’s petition to review compensation. The
WCJ reasoned that Dr. Kirkpatrick and Dr. Dalsey’s opinions were consistent
internally and with each other, and consistent with the diagnostic studies. She
accepted that Claimant’s job duties may have temporarily aggravated the pre-
existing osteoarthritis in his right wrist, but found incredible Dr. Jaeger’s opinion
that Claimant’s problems in both wrists and right shoulder resulted from repetitive
motions at a job Claimant has not performed since March 2011.


             Claimant appealed to the Board, arguing that the WCJ erred in
granting Employer’s termination petition because she found the corrected NCP, not
the original NCP, to be the operative document and determined Claimant to be
fully recovered from his right wrist strain/tendonitis based on this document.
Claimant argued, however, that the NTCP had already converted to the NCP, and
that Employer did not have the right to “unilaterally change the description of
injury and delete a body part in an injury it had already accepted.” (Board Appeal
at 2.) Moreover, Claimant contended that neither Dr. Kirkpatrick nor Dr. Dalsey
found that Claimant had fully recovered from his accepted right shoulder strain



                                         10
given that Dr. Kirkpatrick failed to render an opinion concerning Claimant’s right
shoulder strain and Dr. Dalsey only opined that Claimant never had a work-related
shoulder injury, not that Claimant had fully recovered from any work-related
shoulder injury.


              The Board reversed with regard to the WCJ’s grant of Employer’s
termination petition, finding that the WCJ erred in determining the operative
document was the corrected NCP and that Claimant’s recognized injury only
included right wrist sprain/tendonitis. As such, the Board found that Employer did
not meet its burden of proving that Claimant was fully recovered from all aspects
of his recognized injury as established by the original NCP.                  In making its
determination, the Board explained:

              [Employer] initially filed an NTCP on March 15, 2010,
              which recognized Claimant’s injury as a right wrist/right
              shoulder strain/sprain.[5] Pursuant to Section 406.1 of the
              Act, 77 P.S. § 717.1, [Employer] had 90 days in which to
              either revoke this NTCP or else it converted by operation
              of law into a fully binding NCP. [Employer] failed to
              issue any document revoking the NTCP within that 90
              day time period, thus, on June 13, 2010 the NTCP
              converted to an NCP and [Employer] became liable for
              Claimant’s right wrist and right shoulder strain/sprain.
              While [Employer] later issued a NCP on July 9, 2010,
              which did not include a right shoulder injury, this was
              issued outside the original 90 day period. Consequently,
              that second NCP did not supersede the converted NCP,
              as [Employer] can not [sic] unilaterally change the

       5
          We note that although the Board repeatedly states that the NTCP classified Claimant’s
injury as a “right wrist/right shoulder strain/sprain,” the NTCP actually refers to it as a
“strain/strain.”




                                              11
              description of an injury it has already accepted.
              Therefore, the accepted description of Claimant’s work
              injury included a right shoulder strain/sprain in addition
              [to] his right wrist injury and [Employer] was required to
              produce an unequivocal medical opinion that Claimant
              was also fully recovered from that right shoulder injury
              to be entitled to a termination of benefits.


(Petitioner’s Brief at App-24) (emphasis in original). The Board agreed with
Claimant that neither of Employer’s medical experts, Dr. Kirkpatrick or Dr.
Dalsey, gave adequate testimony to establish that Claimant had fully recovered
from his entire work-related injury. Employer appealed.6


                                              IV.
                                              A.
              The central issue on appeal is whether the original NCP, which listed
a shoulder strain, or the corrected NCP, which did not, is controlling. Employer
does not contest that if the issue has not been waived, the original NCP is
controlling and benefits should not be terminated. Employer argues, though, that
the issue has been waived and that the corrected NCP controls because Claimant


       6
          In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether there has been a violation of constitutional rights, errors of law committed
or a violation of appeal board procedures, and whether necessary findings of fact are supported
by substantial evidence. Lehigh County Vo-Tech School v. Workmen’s Compensation Appeal
Board (Wolfe), 652 A.2d 797, 799 (Pa. Cmwlth. 1995). “Substantial evidence is such relevant
evidence as a reasonable person might accept as adequate to support a conclusion. . . . In
performing a substantial evidence analysis, this [C]ourt must view the evidence in a light most
favorable to the party who prevailed before the factfinder.” Waldameer Park, Inc. v. Workers’
Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation
omitted).




                                              12
did not appeal the WCJ’s finding that the corrected NCP was the controlling
document after the WCJ’s previous decision concerning the UR Petitions.
Claimant asserts, however, that the WCJ did not make a finding of fact specifically
regarding the effect of the original NCP or that the corrected NCP superseded the
original and was controlling, but only noted “in passing” 7 in a footnote that it
“appeared” that the corrected NCP was controlling.


                 While Employer couches Claimant’s failure to appeal the UR Petition
denials in which the WCJ mentioned “in passing” that the controlling document
was the corrected NCP as one of waiver, waiver is not applicable because the
doctrine involves a failure to raise an issue. In this case, absent the UR Petition
denials, the Claimant could have raised the issue of whether the WCJ improperly
used the corrected NCP to determine the accepted injuries.                         In effect, what
Employer is contending by stating that Claimant cannot raise this issue because he
failed to appeal the UR Petition denials is that the issue is barred by collateral
estoppel.

       7
           In the footnote in question in her previous decision, the WCJ stated:

                 Claimant testified about, and the treatment in question was
                 primarily for, the right wrist and shoulder. Although [UR]
                 petitions address only the reasonableness and necessity of medical
                 treatment and not the nature of the work injury or the causation of
                 the condition at issue. ... I note in passing that the controlling
                 bureau document appear[s] to be a “Corrected” Notice of
                 Compensation Payable issued on December 6, 2010 accepting only
                 a “right wrist strain/tendonitis” ... The Supplemental Agreement
                 for recurrence of total disability contains the same description of
                 the accepted injury.

(R.R. at 29a) (citations omitted).



                                                 13
             Under the doctrine of collateral estoppel, “where particular questions
of fact that are essential to the judgment are actually litigated and determined by a
final valid judgment, the determination is conclusive between the parties in any
subsequent action on a different cause of action.”              Krouse v. Workers’
Compensation Appeal Board (Barrier Enterprises, Inc.), 837 A.2d 671, 675 (Pa.
Cmwlth. 2003) (citation omitted). However, the judgment in the previous action
operates as an estoppel in the second action only as to those matters in issue that
(1) are identical; (2) were actually litigated; (3) were essential to the judgment; and
(4) were material to the adjudication. Id. at 675-76.


             In this case, the comment by the WCJ in a footnote that “I note in
passing that the controlling bureau document appear[s] to be a ‘Corrected’ Notice
of Compensation Payable” is not sufficient for the doctrine of collateral estoppel to
apply because whether the original or corrected NCP applied was not actually
litigated and that determination was not essential or material to the judgment.
(R.R. at 29a.) Accordingly, Claimant did not “waive” this issue, and because the
original NCP controls, the termination petition for the shoulder injury should not
have been granted.


                                          B.
             Employer contends that even if the original NCP controls and benefits
should continue because it failed to establish that work-related injuries to
Claimant’s shoulder had resolved, benefits should be terminated for injuries
relating to his wrist because the WCJ found that Claimant had fully recovered from
his work-related injuries. In establishing its termination petition, the employer



                                          14
bears the burden of proving that the claimant’s work injury has ceased. Udvari v.
Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa.
1997). Where the claimant complains of continuing pain, the employer’s burden is
met when its “medical expert unequivocally testifies that it is his opinion … 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.” Id. In this case, Claimant has not contested
on appeal the WCJ’s finding that those injuries have ceased, only that Employer
has failed to show that the injuries to his shoulder have ceased. Moreover, there is
substantial evidence to support a determination that those injuries have ceased.


             Accordingly, we affirm the Board’s decision to the extent it reversed
the WCJ’s decision terminating benefits for the accepted shoulder injury in the
original NCP, but reverse the Board’s reversal of the WCJ’s decision to terminate
benefits for injuries Claimant sustained to his wrist.



                                        ___________________________________
                                        DAN PELLEGRINI, Senior Judge




                                          15
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hospital of the University of           :
Pennsylvania,                           :
                   Petitioner           :
                                        :
             v.                         : No. 2291 C.D. 2015
                                        :
Workers’ Compensation Appeal            :
Board (Maratea),                        :
                 Respondent             :




                                      ORDER


             AND NOW, this 13th day of May, 2016, the order of the Workers’
Compensation Appeal Board dated October 28, 2015, is affirmed in part and
reversed in part.    We affirm that portion finding that benefits should not be
terminated for Antonio Maratea’s shoulder injury, but reverse that portion finding
that benefits should not be terminated for injuries related to his wrist.



                                        ___________________________________
                                        DAN PELLEGRINI, Senior Judge
