IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ruthellen Kissinger, : Petitioner : : v. : : Workers’ Compensation Appeal : Board (The Hershey Company), : No. 2299 C.D. 2014 Respondent : Submitted: July 10, 2015 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: July 29, 2015 Ruthellen Kissinger (Claimant) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) affirming the Workers’ Compensation Judge’s (WCJ) decision denying and dismissing her claim petition and petition for penalties. For the reasons that follow, we affirm. I. Claimant filed a claim petition under the Workers’ Compensation Act (Act) 1 asserting that on June 21, 2011, while employed as a coder for The Hershey 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Transcript
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ruthellen Kissinger, : Petitioner : : v. : : Workers’ Compensation Appeal : Board (The Hershey Company), : No. 2299 C.D. 2014 Respondent : Submitted: July 10, 2015 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: July 29, 2015
Ruthellen Kissinger (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) decision denying and dismissing her claim petition
and petition for penalties. For the reasons that follow, we affirm.
I.
Claimant filed a claim petition under the Workers’ Compensation Act
(Act)1 asserting that on June 21, 2011, while employed as a coder for The Hershey
1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
Company (Employer), she sustained a peroneus brevis tendon split in both feet
which rendered her unable to work through November 17, 2011. Employer filed
an answer, denying the allegations in the petition, but it issued neither a notice of
compensation payable nor a notice of compensation denial within 21 days of
receiving notice of Claimant’s injury.
At a hearing before the WCJ regarding the claim petition, Claimant
testified that she had worked as a coder for Employer for ten to eleven years prior
to her date of injury and, in that capacity, she programmed computers to generate,
or manually generated, the code heads bearing products’ best-by dates which were
placed onto products’ packaging. She stated that as one of only two coders at the
time of her injury, she worked between eight and sixteen hours per day and six to
seven days per week. She explained that during a single shift, she was required to
walk throughout the entire plant to examine each of her assigned lines at least
every two hours and that as per a pedometer she wore, she walked over ten miles
per shift, including stairs.
Claimant testified that as a result of the repetitive nature of her work,
she began to experience sharp pains in both feet, shooting up into her legs and hips.
Although the pain began in 2008, it progressively worsened, culminating in intense
pain that radiated up her leg and into her back in January 2011 for which she
sought medical treatment from Lance O. Yarus, D.O (Dr. Yarus). She stated that
she informed her manager and supervisor, Chris Merlina, who offered to provide
Claimant a mechanical scooter to drive around the plant to reduce the amount of
time spent on her feet.
3
Following the performance of an EMG, MRI and bone scans, Dr.
Yarus advised Claimant that she had pinched a nerve in her back, causing the pain
to continue down her leg. To this end, Claimant underwent epidural injections and
sought treatment from a pain-management specialist, but her pain persisted.
Eventually, Dr. Yarus ordered Claimant off work for the period of June 21, 2011,
through November 17, 2011. She received short-term disability benefits during
this time.
Claimant stated that she went back to work, but her problems returned
within a few weeks and, in fact, worsened. In January or February 2012, Claimant
returned to Dr. Yarus with complaints of swelling, particularly in her right foot,
and another MRI was performed, the results of which demonstrated that
Claimant’s pain was actually due to partially torn tendons and muscle in her right
ankle. As a result, Dr. Yarus referred Claimant to Christopher A. Seda, DPM,
FACFAS (Dr. Seda), a foot specialist, for treatment. Claimant explained that in
this regard, she was scheduled for surgery on August 17, 2012, and reported the
need for surgery to Employer’s Medical Department, which advised her that her
claim remained under review. She explained that although Dr. Seda advised that
she could return to work after her post-operational cast was removed, Employer
would not allow her to do so until her boot was removed, which would require an
additional six to eight weeks off work.
On cross-examination, Claimant testified that she used to work out
daily at the gym, play softball and volleyball and bowl, but that she gave up most
of those activities in 2008 when her foot problems began. Claimant conceded that
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she had bilateral bunionectomies in both feet in 2006, as well as tendon-transfer
surgeries on three toes in 2009 and 2010.2 She admitted that as a coder, she was
not constantly on her feet as she had some downtime between inspecting the lines
but reiterated that she was on her feet the majority of the time.
Claimant also submitted the deposition of Dr. Yarus, a physician
board-certified in pain management with emeritus status in orthopedics,3 who
testified that Claimant has been under his care, off and on, for more than 15 years.
Dr. Yarus stated that the first time he treated Claimant with regard to foot or ankle
complaints was on June 24, 2011, when she complained of bilateral foot pain and
indicated a pain level of 7/10 on the analog scale, which she described as
beginning in March 2011, without any particular precipitating event. Prior to that
visit, Dr. Yarus recalled that Claimant had bilateral bunionectomies in 1996 and
hammertoe surgeries in 2009 and 2010. He distinguished these problems from
those involved in her instant claim, explaining:
In the past, the areas that she was having a problem with are in the great toe. It’s the bump on the inside portion of the metatarsal. There were also digits that were in a semi-flexed position which we call
2 Claimant explained that the tendons in her feet had caused her to have hammertoes, for
which she underwent surgery. Even after surgery, she continued to have some pain in her toes
and issues with her balance. However, she differentiated this pain from the pain at issue in her
claim petition, explaining that the instant pain is in her ankles, is more intense, radiates up her
leg, and renders her barely able to walk or climb stairs.
3 Although Dr. Yarus maintains his board certification in orthopedic surgery, he no
longer performs surgery and has been providing only conservative orthopedic treatment since
2010.
5
hammertoes and they had to be straightened. It makes it very difficult for shoe wear in particular and then that’s pretty much the reason we operate to remove those bumps on the great toes on the inside portions. And the hammertoes—again, when the toe is in the cocked up position, it rubs so you have to straighten it so it lays back down and when you put the shoe on it’s not getting irritated by the top portion of the shoe, and this is in the toes particularly. This has nothing to do with the forefoot, certainly isn’t in the ankle area or anywhere in the retroscapular space.
(Certified Record [C.R.], 2/6/13 Deposition of Lance O. Yarus, D.O., at 1516.)
Conversely, when he examined Claimant in June 2011, Dr. Yarus stated that her
complaints were generally related to her ankles.
Dr. Yarus stated that upon performing a physical examination in June
2011, he found no pain areas within the right or left toes but noted tenderness on
the fifth metatarsal of the right foot, as well as intact dorsiflexion and plantar
flexion, no heel-cord tightness, no evidence of contracture in the equines, limited
inversion and eversion, pain over the fifth, right metatarsal upon compression of
the mid tarsal, and an antalgic gait pattern on the right. He further explained that
Claimant’s dorsiflexion strength bilaterally was a 3/5, her plantar flexion was 5/5,
and her inversion and eversion strength was 2/5 with regard to both the right and
left feet. Based upon his physical examination and x-rays he reviewed at that time,
Dr. Yarus diagnosed Claimant with a metatarsal fracture, sprain of the foot,
tendonitis of the foot and ankle, and abnormality gait. He prescribed Percocet for
her pain and recommended mobilization. On July 8, 2011, Claimant again
followed up with Dr. Yarus for bilateral foot pain.
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Regarding the cause of pain in Claimant’s ankles, Dr. Yarus opined
that “based on the amount of activity she was discussing and what was required for
her in the work environment, that that was the cause of her symptomatology and
her complaints.” (Id. at 20.) He further testified that the cause of Claimant’s
disability from June 21 through November 17, 2011, “was directly a result of her
work activities as a coder.” (Id. at 21-22.)
Claimant returned to Dr. Yarus on March 16, 2012, when she
presented with complaints of daily swelling and instability in the right ankle. Dr.
Yarus provided her with medication and scheduled an MRI for the following
month. The MRI revealed a peroneal split, meaning that one of the two tendons on
the outside calf had inserted into the fifth metatarsal and the other had inserted in
the longer tendon on the bottom of the foot. In this case, Dr. Yarus stated that the
split disrupted the peroneus brevis, which sits underneath the longus tendon,
resulting in a tear at the tendon longitudinally. Further, the MRI revealed Achilles
tendonitis and a degree of plantar fasciitis, or inflammation of the cuttings of the
fascia on the bottom of the foot.
According to Dr. Yarus, the tendon tear was a result of the amount of
walking that Claimant was required to do as a coder, which put stress on her
tendons and caused them to split longitudinally. He continued, “This is someone
who’s walking with a fairly average normal gait but doing it for quite a bit of time.
So the tendon takes the stress and fibers start to split from each other, and that’s
how this occurs.” (Id. at 25-26.) Consequently, Dr. Yarus referred Claimant to Dr.
Seda, who ultimately performed a lateral stabilization of the right ankle and
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repaired the peroneal tendon by performing a modified Evan’s procedure in August
2012. Post-surgically, Dr. Yarus continued to provide Claimant some home
modalities such as capsaicin and Methylene creams, electro myo stimulation to the
muscle, and pain medication to enable her to function in daily activities, with the
goal of rehabilitating Claimant so that she may return to work.
Dr. Yarus stated that he last examined Claimant in January 2013,
when he noted the following with regard to her right ankle: inflammation,
localized swelling in the sinus tarsi, lateral malleolus, and anterior ankle,
tenderness over the fibula and the lateral surface of the ankle, range of motion
deficits, limited dorsiflexion and dorsiflexion strength, limited range of motion of
plantar flexion, 2/5 plantar flexion strength, zero inversion and eversion, and no
nerve signs. In this regard, Dr. Yarus testified that Claimant was improving but
had not yet fully recovered from her surgery. He predicted that she would require
an additional four to six months from January 2013 to regain her full function, at
which time some pain and inflammation may still persist.
With respect to the period from August 17, 2012, to February 2013,
Dr. Yarus stated that Claimant’s inability to work was a result of “a direct causal
relationship” between Claimant’s excessive and repetitive activities as a coder,
which caused her tendon to split, resulting in a tear of the internal fibers of the
peroneal brevis tendon. In this way, he related Claimant’s work activities to her
August 2012 surgery and to her disability through the date of his deposition,
explaining “what has been stated is very specifically related to the tearing of the
tendon, the tendonitis itself, and the plantar fascia inflammation. All of that goes
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along with someone who is walking and standing and maneuvering in the way
[Claimant] has described.” (Id. at 36.)
On cross-examination, Dr. Yarus conceded that he did not issue any
of Claimant’s work slips during her course of treatment. He further admitted that
he has never been to the plant where Claimant worked, never viewed her formal
job description, and never observed her performing her job duties. He
acknowledged that in 2006, Claimant advised Dr. Seda that she had multiple foot
injuries, but he was unable to identify what those injuries were.
When Employer’s counsel inquired whether Dr. Yarus’s diagnosis of
an abnormal gait during Claimant’s June 2011 visit was a result of her pre-existing
foot problems and surgeries, Dr. Yarus disagreed, explaining that her gait problems
resulted from her pain, which, in turn, was caused by her work activity at that time:
I can tell you it would make sense to say that from the plantar fasciitis diagnosis, certainly an aggravation of the pre-existing condition. In looking at the hammertoes and all the surgery that was done to correct that, again, that’s the distal portion of the foot itself. The only metatarsal problems she had was a navicular fracture which we got through and that was healed. So now we’re looking at the back portion of the ankle and the tendons that are lateral that are controlled inversion eversion, or stabilized inversion, and those were the specific areas that are most significant abnormalities and that there’s a tear in that brevis tendon. Tendonitis goes along with it. Certainly anybody that walks this much can have that as a pre-existing problem that goes along with just doing it all day. So yes, there are components of pre-existing conditions with aggravation of those conditions. I think that’s reasonable.
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(Id. at 59-61.) Dr. Yarus explained that with a cumulative trauma and repetitive-
activity injury such as the one Claimant sustained, it is difficult to identify the
specific trauma-causing event. Although he agreed that Claimant engaged in
walking and climbing stairs outside of work, he emphasized that Claimant engaged
in the highest degree of this type of activity when she walked, on average, ten
miles per day at work.
Attached to Dr. Yarus’s deposition transcript were Dr. Seda’s office
notes dated March 11, 2011, and August 15, 2011.4 The March 2011 note
concerned Dr. Seda’s 14 week, post-operative follow up of Claimant’s bilateral toe
repair and reported that Claimant still experienced discomfort in the right foot,
primarily in interspaces two and three, with some paresthesias and shooting pain
into toes three and four, caused by irritation of the interdigital nerves. The August
2011 note summarized Claimant’s next follow-up visit to Dr. Seda, where she
presented with pain in her right foot. Specifically, the record states that Claimant’s
post-surgical issues resolved, and that although she had no pain in her toes, she
experienced some new discomfort in the right foot, with shooting pains along the
fourth and fifth metatarsal. The record also indicated that Claimant experienced no
discomfort in her ankle.
In opposition to Claimant’s claim petition, Employer presented the
deposition testimony of Paul Horenstein, M.D. (Dr. Horenstein), a board-certified
4 Also attached were office notes dated May 4, 2012, August 20, 2012, September 7,
2012, October 15, 2012, and November 26, 2012. However, because those notes do not form the
basis of the instant appeal, their contents will not be set forth at length.
10
orthopedic surgeon with a sub-specialty in the treatment of the foot and ankle, who
performs independent medical evaluations (IMEs) on behalf of insurance carriers
and maintains his own practice. He testified that he examined Claimant on
November 1, 2012, at which time she reported her history of left and right foot and
ankle injuries secondary to work, with the left side having fully resolved. She
advised him that her right ankle began swelling in November 2011 after she
returned to work. According to Dr. Horenstein, she also reported pre-operative
numbness on the lateral aspect of her left foot which was worsened by her August
2012 surgery.
In addition to gathering Claimant’s history, Dr. Horenstein reviewed
Claimant’s medical records from Dr. Yarus and Dr. Seda, as well as her surgery
and imaging reports. In this respect, Dr. Horenstein emphasized that other than a
note by Dr. Yarus on August 8, 2012, none of his prior office notes related
Claimant’s injury of her perineal tendon to her work as a coder and did not
specifically evaluate the area. Dr. Horenstein stated that, likewise, Dr. Seda’s
records did not reference any physical-exam findings showing pain to palpitation
along the peroneal tendons, specific, isolated swelling along them, or peroneal
tendon pathology in general, until the April 2012 MRI of the ankle.
He also performed a physical examination of Claimant, through which
he observed decreased sensation over the outside of Claimant’s right foot. He
noted that she had no evidence of radiculopathy, with a negative straight-leg-raise
test on her right leg. She had painless range of motion of her right hip and right
knee, with 5/5 tendon strength throughout the foot and ankle, except for 4/5 tendon
11
strength of the peroneal tendons. He found no evidence of complex-pain syndrome
and no skin color or temperature changes, with equal and symmetrical hair and nail
growth patterns. He did observe some mild calf atrophy on the right compared to
the left secondary to her surgery and post-operative immobilization, but found no
evidence of nerve irritation over the tarsal tunnel or nerve entrapment over her
post-operative incision. He found that her Achilles tendon was intact without
redness or drainage about the incision and with no inflammation along the path of
the peroneal tendons.
Based on this background, Dr. Horenstein opined that Claimant’s
bilateral foot problems are not related to her employment, explaining as follows:
She’s had multiple treatments and multiple surgeries, as documented in the record, on both feet and ankles, pretty much consistently from 2/2/01 through 8/8/12. There has been no documented evidence that the patient had any complaints except for one record, I think, in June of 2011 where Dr. Yarus states that the patient has had foot problems related to her work activities. The patient never specifically complained, and the chief complaints to the doctors in many records that I reviewed prior to her hammertoe surgery or bunion surgery, which she had bilaterally, her toe surgery and scar tissue, which she had removed bilaterally, never once was there an indication that this was related to repetitive issues at work. Moreover, ultimately the patient’s complaint was that she had peroneal tendon surgery, and this was the surgery that was, as per Dr. Yarus’s deposition, related to the work injury.
12
If you had a repetitive problem to those tendons over time, clearly you would expect the physical examinations by Dr. Seda and Dr. Yarus over time to document that specific problem. That would make sense, but that’s not present in those medical records. If you carefully inspect Dr. Seda’s records and Dr. Yarus’s records, the peroneal tendons are not mentioned at all. Ultimately then does the patient have an MRI that shows peroneal tendon pathology that they then decide that that’s the problem related to repetitive work, and they do surgery on that problem. In my practice, and in my training, if you have a problem that’s ongoing, repetitive, and chronic, you would expect to document several physical exams over time, and certainly this patient was seen multiple times over time and has had multiple surgeries over time. You would expect to document a specific problem with these tendons over time and then do surgery on those tendons. That’s not the case at all.
(C.R., 4/1/13 Deposition of Paul Horenstein, M.D., at 20-22.)
Similarly, he stated that the tear in Claimant’s peroneal tendon was
not the cause of her symptoms because the records reflected no evidence of such a
tear developing over time, despite the fact that she was examined and operated on
multiple times. Likewise, he opined that Claimant’s foot problems were not
aggravated in any way by her employment, did not necessitate her August 2012
surgery, and, therefore, that the surgery was unrelated to her work as a coder.
Instead, he testified that there exists no specific reason for the cause of her foot
problems. He found that as of the date of his IME, Claimant would have been
13
capable of working without restriction had she not undergone surgery. Regardless,
he explained that following peroneal surgery, a patient is generally immobilized
for four to six weeks and then begins physical therapy, with full recovery resulting
in three to six months, post-operatively.
On cross-examination, Claimant’s counsel asked the following,
hypothetical question:
Q. Am I correct, Doctor, that if there were a history of notes within the records that you saw where there were treatments and complaints of pain in the peroneal tendon, then you would conclude that there would be a causal relationship?
* * * A. If I saw that this patient was seen by the doctor over time, and over several months, or even years, since this is a chronic aggravation, as per Dr. Yarus—if I had seen in the record that he specifically saw peroneal tendonitis and tendinopathy over time and specifically treated those tendons, and then ultimately had surgery, that would make sense. Based upon my review of the record, I did not see that.
(Id. at 31.)
Continuing, he acknowledged that the record contained references to
Claimant’s persisting right-foot pain but explained that there are “no specific
physical examination findings directed towards these peroneal tendons that
ultimately were the surgical site.” (Id. at 34.) Nonetheless, he agreed that there
was a specific finding of Claimant’s peroneal tendon tears during her surgery.
14
During re-direct examination, Dr. Horenstein distinguished
Claimant’s right-foot complaints regarding pain from her peroneal-tendon pain,
explaining:
This patient never had a physical exam finding of peroneal tendinopathy throughout her records. In fact, if you’re attributing this, as Dr. Yarus does, to a chronic attritional problem, then not only would you like to see at least one physical exam finding of this problem, you would like to see multiple physical exam findings over time demonstrating specific pathology on physical exam to the peroneal tendons. Therefore, you can’t state that her work injury was peroneal tears, and you can’t say that the peroneal tears were related to a chronic problem when it’s not documented.
(Id. at 40-41.) He further testified that he did not believe the type of work
Claimant was doing – walking on flat, even surfaces – would cause this type of
peroneal-tendon pathology, but instead, expected such a result in someone who
regularly works on uneven ground, such as a construction worker.
After filing her claim petition, Claimant also filed a penalty petition,5
alleging that Employer failed to advise her within 21 days of the date she reported
her injury whether Employer was accepting or denying the injury.6
5 Section 435(d)(i) of the Act was added by the act of February 8, 1972, P.L. 25, and
states:
(d) The department, the board, or any court which may hear any
proceedings brought under this act shall have the power to impose
penalties as provided herein for violations of the provisions of this
act or such rules and regulations or rules of procedure:
(Footnote continued on next page…)
15
II.
The WCJ determined that Claimant failed to satisfy her burden of
proving that she sustained a work-related injury regarding both feet on June 21,
2011, or that her August 17, 2012 surgery was causally related to a work injury.
(continued…)
(i) Employers and insurers may be penalized a sum not
exceeding ten per centum of the amount awarded and interest
accrued and payable: Provided, however, That such penalty may
be increased to fifty per centum in cases of unreasonable or
excessive delays. Such penalty shall be payable to the same
persons to whom the compensation is payable.
77 P.S. §991(d)(i).
6 Section 406.1 of the Act was added by the act of February 8, 1972, P.L. 25, and
provides in relevant part:
The employer and insurer shall promptly investigate each injury
reported or known to the employer and shall proceed promptly to
commence the payment of compensation due either pursuant to an
agreement upon the compensation payable or a notice of
compensation payable as provided in section 401 or pursuant to a
notice of temporary compensation payable as set forth in
subsection (d), on forms prescribed by the department and
furnished by the insurer. The first installment of compensation
shall be paid not later than the twenty-first day after the employer
has notice or knowledge of the employe’s disability. Interest shall
accrue on all due and unpaid compensation at the rate of ten per
centum per annum. Any payment of compensation prior or
subsequent to an agreement or notice of compensation payable or a
notice of temporary compensation payable or greater in amount
than provided therein shall, to the extent of the amount of such
payment or payments, discharge the liability of the employer with
respect to such case.
77 P.S. §717.1(a).
16
Specifically, the WCJ credited Claimant’s testimony regarding her work duties and
the onset of complaints in her feet and ankles but rejected her testimony relating
these injuries to the amount of walking she did at work. Instead, the WCJ found
most persuasive Dr. Horenstein’s testimony that Claimant’s bilateral foot problems
and August 2012 surgery were unrelated to her work duties. In this respect, the
WCJ emphasized that Dr. Horenstein has a sub-specialty in foot and ankle surgery,
which Dr. Yarus lacks, and that Dr. Seda and not Dr. Yarus rendered treatment for
Claimant’s foot problems over the years, but that his notes do not address
causation. The WCJ further highlighted Claimant’s “extensive history of non[-
]work-related foot and ankle problems for which she has received treatment” and
the fact that Claimant did not report problems with her peroneal tendons until April
2012, which would have manifested sooner if her work activities chronically
aggravated her tendons as per Dr. Horenstein’s testimony. (11/15/13 WCJ
Decision, ¶46(c)).
With respect to Claimant’s penalty petition, the WCJ likewise found
that Claimant did not meet her burden, determining that “Claimant may have
reported an injury in June of 2011 but no medical opinion regarding causation was
rendered until April of 2012.” (Id. ¶48.) As such, the WCJ denied and dismissed
Claimant’s claim and penalty petitions.
III.
Claimant appealed to the Board, which affirmed the WCJ’s decision,
determining that Dr. Horenstein’s testimony provided substantial evidence for the
conclusion that Claimant failed to demonstrate a causal connection between her
17
medical issues and her employment. It likewise affirmed the WCJ’s ruling with
respect to Claimant’s penalty petition, noting that “while we do not agree that
[Employer] was not required to issue an appropriate Bureau document, the Act
only allows penalties if the claimant is awarded compensation.” (Board Decision,
at 5 (internal footnote omitted)).
IV.
A.
On appeal,7 Claimant contends that the WCJ erred in crediting Dr.
Horenstein’s testimony because it was based upon the faulty premises that
Claimant did not report problems with her peroneal tendons and did not make
ongoing complaints regarding her peroneal tendons before diagnosis of the tear in
7 We review decisions of the Board to determine whether errors of law were made,
constitutional rights were violated, and whether necessary findings of fact are supported by
substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966
