IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Messina, :

Petitioner :

:

v. : No. 1111 C.D. 2017

: Submitted: December 15, 2017

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: January 8, 2018

Joseph Messina (Claimant) petitions for review of the order of the 

Workers’ Compensation Appeal Board (Board) affirming the Workers’ 

Compensation Judge’s (WCJ) decision denying Claimant’s Review Petition to add 

cervical injuries to the description of his work injury and denying his Petition for 

Review of Utilization Review Determination (UR Petition) regarding treatment 

provided by Dr. Saied Talaie (Dr. Talaie) as of November 11, 2014. For the 

reasons that follow, we affirm.
2

I.

Claimant was employed by the City of Philadelphia (Employer) as 

crew chief in the vacant lot department. On August 26, 2011, he sustained an 

injury while operating a mower. Employer then issued a Notice of Compensation 

Payable (NCP) recognizing that Claimant suffered a work-related strain/sprain of 

the right shoulder and right elbow.

Over three years later, in November 2014, Claimant filed a Review 

Petition1seeking to expand the description of his work injury to incorporate a 

cervical injury, including disc herniations at multiple levels. Employer filed an 

Answer denying all material averments in the Review Petition.2 Employer also 

 

1 Section 413(a) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, 

as amended, 77 P.S. § 771, allows a WCJ to amend an NCP that is incorrect in some material 

aspect. That section provides, in relevant part, as follows:

A workers’ compensation judge of the department may, at any 

time, review and modify or set aside a notice of compensation 

payable and an original or supplemental agreement or upon 

petition filed by either party with the department, or in the course 

of the proceedings under any petition pending before such 

workers’ compensation judge, if it be proved that such notice of 

compensation payable or agreement was in any material respect 

incorrect.

Id. The party seeking to amend the NCP has the burden of proving that the NCP is materially 

incorrect. Namani v. Workers’ Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 856 

n.4 (Pa. Cmwlth. 2011).

2 Claimant also filed a separate Review Petition seeking to amend the description of his 

work injury to include psychological injuries and a Penalty Petition alleging that Employer failed 

to pay all reasonable and necessary medical bills. The WCJ granted those petitions and they are 

not at issue on appeal.
3

requested Utilization Review (UR) alleging that a surgical procedure performed on 

Claimant’s right elbow was unreasonable and unnecessary.

3

 Claimant 

 

3 Section 306(f.1)(1)(i) of the Act obligates the employer to pay “for reasonable surgical 

and medical services, services rendered by physicians or other health care providers . . . 

medicines and supplies, as and when needed.” 77 P.S. § 531(1)(i). Section 306(f.1)(6) of the 

Act, 77 P.S. § 531(6), sets forth the procedure to be followed regarding disputes as to the 

reasonableness or necessity of treatment by a health care provider, stating that:

(i) The reasonableness or necessity of all treatment provided by a 

health care provider under this act may be subject to prospective, 

concurrent or retrospective utilization review at the request of an 

employe, employer or insurer. The department shall authorize 

utilization review organizations to perform utilization review under 

this act. Utilization review of all treatment rendered by a health 

care provider shall be performed by a provider licensed in the same 

profession and having the same or similar specialty as that of the 

provider of the treatment under review. Organizations not 

authorized by the department may not engage in such utilization 

review.

(ii) The utilization review organization shall issue a written report 

of its findings and conclusions within thirty (30) days of a request.

(iii) The employer or the insurer shall pay the cost of the utilization 

review.

(iv) If the provider, employer, employe or insurer disagrees with 

the finding of the utilization review organization, a petition for 

review by the department must be filed within thirty (30) days after 

receipt of the report. The department shall assign the petition to a 

workers’ compensation judge for a hearing or for an informal 

conference under section 402.1. The utilization review report shall 

be part of the record before the workers’ compensation judge. The 

workers’ compensation judge shall consider the utilization review 

report as evidence but shall not be bound by the report.

77 P.S. § 531(6)(i)-(iv). “[A]n employer seeking to avoid payment for medical services in a UR 

proceeding has a never-shifting burden to prove that the treatments in question are unnecessary 

(Footnote continued on next page...)
4

subsequently filed a UR Petition and the matters were consolidated for hearing and 

determination.

II.

A.

Before the WCJ, Claimant testified that on August 26, 2011, he was 

running a mower in a vacant lot with high weeds when it got stuck and when he 

tried to free it, he felt a shooting pain that went from the right side of his neck

down his right shoulder to his elbow and hand. He also stated that after the 

incident, he started experiencing numbness in his right hand.

Claimant testified that he began treating for his right shoulder and 

elbow and underwent multiple surgeries on those areas between 2011 and 2014,

but his symptoms persisted. He stated that he informed the doctors he saw during

this time period that he was experiencing pain from the right side of his neck down 

to his fingers. He stated that none of those doctors ordered any tests on his neck

until 2014 which he believed was because the doctors were dealing first with his 

elbow and then his shoulder before they would move on to something else like his 

neck. Claimant testified that the right side of his neck hurts every day; he uses a 

neck brace and hopes to see a neck specialist.

 

(continued...)

or are unreasonable.” Cruz v. Workers’ Compensation Appeal Board (Philadelphia Club), 728 

A.2d 413, 417 (Pa. Cmwlth. 1999).
5

Claimant also submitted the deposition testimony of Vincent E. 

Baldino, D.O. (Dr. Baldino), a board certified family practitioner who treated

Claimant for his work injury from December 2011 through August 2014. Dr. 

Baldino testified that he was under the impression that Claimant’s injuries were to 

his right shoulder and elbow, but that Claimant’s records also showed that he 

complained at times of neck pain to other doctors beginning in 2012. After 

surgeries and treatment of Claimant’s elbow and shoulder did not bring results, Dr. 

Baldino testified that in September 2013, he evaluated Claimant’s neck and found

paravertebral rigidity and reduced rotation to the right and ordered a cervical spine 

magnetic resonance imaging study (MRI). The MRI, conducted in July 2014, 

showed multilevel disc herniations, some of which were in contact with the spinal 

cord, including at the C6-7 level. He testified that he then ordered an 

electromyography (EMG), performed in September 2014, that showed evidence of 

a chronic C7-8 radiculopathy on the right which correlated with the MRI results 

and Claimant’s symptoms. Dr. Baldino diagnosed Claimant with cervical disc 

herniations and radiculopathy and opined that these conditions were caused by the 

August 2011 work incident.

Regarding the UR Petition, Claimant presented Dr. Talaie’s May 12, 

2015 medical report which stated that he first saw Claimant on September 9, 2014,

for complaints of weakness, pain, numbness and inability to use his right hand. He 

noted that his physical examination of Claimant showed that he was positive for a 

problem with the ulnar nerve, and this was consistent with the September 2014 

EMG study that showed evidence of ulnar nerve entrapment at the right elbow and 

C7-8 radiculopathy. When Claimant’s symptoms worsened, he stated that on 
6

November 11, 2014, he performed a surgical re-exploration of the right elbow 

which showed massive very hard scar tissue compressing the ulnar nerve. Dr. 

Talaie released the ulnar nerve and transposed it to a different area. Dr. Talaie 

opined that Claimant’s injuries are “work-related and aggravated,” and that the 

surgery was reasonable and necessary treatment for Claimant’s work injury.

4

B.

In opposition, Employer presented the deposition testimony and 

medical report of Armando A. Mendez, M.D. (Dr. Mendez), a licensed physician 

Board certified in orthopedic surgery. Dr. Mendez testified that he performed an 

independent medical examination (IME) of Claimant on July 22, 2015, during 

which he obtained a history from Claimant of his work-related injury, surgeries 

and treatment. During that examination, Claimant told Dr. Mendez that he had not 

received any relief from his right upper extremity symptoms and characterized his 

pain as a 10 on a scale of 0 to 10. Dr. Mendez testified that his examination of 

Claimant’s cervical spine revealed no objective abnormalities or evidence of 

radiculopathy. Claimant had full range of motion in his neck and a Spurling’s test 

to detect compressed nerve roots was negative.

Dr. Mendez reviewed Claimant’s medical records and noted a lack of 

any significant complaints or treatment of his cervical spine despite the fact that 

many doctors saw Claimant. He also found it significant that Claimant’s cervical 

 

4 Claimant also testified that three months after Dr. Talaie performed the surgery, he 

continued to have severe pain from his elbow down to his fingers and had difficulty grasping 

things with his right hand.
7

MRI and EMG were not performed until 2014, three years after his work injury. 

Dr. Mendez testified that the MRI and EMG do not correlate with each other or 

with Claimant’s symptoms or physical examination because the EMG indicates an 

abnormality at the C7-8 level, which is shown to be normal on the MRI. Dr. 

Mendez felt that Claimant’s symptoms were attributable to an elbow problem, not 

his neck. Dr. Mendez found nothing to suggest that Claimant sustained his five 

minor neck herniations in one work incident in 2011 or that he had any cervical 

injury. Dr. Mendez explained that if Claimant had sustained multiple neck 

herniations in the work injury, his treating physicians would have identified them 

as a major problem from the beginning and they would not have been masked by 

his elbow and shoulder injuries.

Regarding the treatment provided by Dr. Talaie, Employer submitted 

the April 14, 2015 UR report of Francis Collini, M.D. (Dr. Collini). Dr. Collini’s

report stated that Claimant’s records showed that he underwent surgeries to his 

right elbow in November 2011, February 2013 and March 2014, with the latter two 

surgeries being explorations of the ulnar nerve. Dr. Talaie began treating Claimant 

in September 2014 and diagnosed ulnar nerve compressive neuropathy at the 

elbow. Dr. Collini noted that Claimant’s September 2014 EMG showed no 

evidence of significant brachial plexopathy, myopathy, peripheral neuropathy or 

nerve entrapment syndrome, but it did show a neuropraxic lesion of the ulnar nerve 

across the elbow.

Dr. Collini explained in his report that the appropriate treatment for 

Dr. Talaie’s diagnosis of ulnar nerve compressive neuropathy is non-surgical 
8

intervention for 8 to 12 months, including nonsteroidal anti-inflammatory 

medication, steroid injections, bracing/splinting and/or occupational therapy. 

Surgery is then recommended if the condition is not improved with these nonsurgical treatments, the ulnar nerve is proven to be compressed by diagnostic 

studies and there is muscle wasting. Dr. Collini opined that the November 2014 

surgery was not reasonable or necessary because Dr. Talaie did not first attempt 8 

to 12 months of non-surgical intervention. Dr. Collini further opined that the 

presence of the neuropraxic lesion of the ulnar nerve was insufficient to justify a 

third exploratory surgery, especially since the first two surgeries were 

unsuccessful.

III.

The WCJ denied both Petitions. With regard to the Review Petition, 

the WCJ found Claimant’s testimony regarding his pain and disability to be largely 

credible. However, she did not find credible Claimant’s testimony that he 

complained of neck pain immediately after his August 2011 work injury because 

this claim was not supported by his medical records and no doctor diagnosed or 

treated him for a neck injury until 2014. The WCJ found the testimony of Dr. 

Mendez to be more credible and persuasive than Dr. Baldino’s because he is Board 

certified in orthopedic surgery, whereas Dr. Baldino is only certified in family 

practice. In addition, the WCJ noted that Dr. Mendez’s opinions are supported by 

Claimant’s normal cervical spine examination and the fact that the MRI and EMG 

studies do not correlate. Therefore, the WCJ found that Claimant’s August 26, 

2011 work injury did not include any cervical injuries and she denied Claimant’s 

Review Petition.
9

As for the UR Petition, the WCJ found Dr. Collini to be more credible 

than Dr. Talaie and, therefore, found that Dr. Talaie’s treatment was not reasonable 

or necessary.

Claimant appealed to the Board, arguing that the WCJ’s decision is 

not well reasoned and not supported by sufficient competent evidence because the 

medical evidence overwhelmingly supports the fact that he suffered cervical 

injuries because of the August 26, 2011 work incident. He also argued that the 

WCJ erred in not finding him to be credible regarding his neck pain, in finding Dr. 

Mendez to be more credible than Claimant’s treating physician, and in finding Dr. 

Talaie’s November 11, 2014 surgery was not reasonable or necessary. The Board 

affirmed the decision of the WCJ and this appeal followed.5

IV.

A. 

Regarding his Review Petition, Claimant argues the WCJ’s finding 

that he did not sustain cervical injuries because of the August 26, 2011 work 

incident is not supported by the medical evidence. Claimant argues that he 

presented evidence that he felt pain down the right side of his neck at the time of 

 

5

In a workers’ compensation proceeding, this Court’s scope of review is limited to 

determining whether errors of law were committed, whether constitutional rights were violated, 

and whether necessary findings of fact are supported by substantial evidence. Roundtree v. 

Workers’ Compensation Appeal Board (City of Philadelphia), 116 A.3d 140, 143 n.4 (Pa. 

Cmwlth. 2015). Substantial evidence has been defined as “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.” Waldemeer Park, Inc. v. Workers’ Compensation 

Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation omitted).
10

the injury, he continued to experience neck pain over the next several years and he 

complained of this neck pain to numerous physicians. According to Claimant, 

medical records reveal that his elbow injury was the most serious, requiring 

immediate attention, and the only logical view is that his providers had to focus on 

his elbow injury before addressing his other complaints. Claimant argues that the 

WCJ erred in not considering these facts and in denying his request to expand the 

description of his work injury to include cervical injuries.

Essentially, Claimant asks this Court to accept the evidence he 

presented and to overturn the credibility determinations of the WCJ. As we have 

stated over and over again, “[t]he WCJ, as the ultimate fact-finder in workers’

compensation cases, ‘has exclusive province over questions of credibility and 

evidentiary weight.’” A & J Builders, Inc. v. Workers’ Compensation Appeal 

Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013) (quoting Anderson v. 

Workers’ Compensation Appeal Board (Penn Center for Rehab), 15 A.3d 944, 949 

(Pa. Cmwlth. 2010)). We are bound by these credibility determinations and cannot 

overturn them on appeal. “Moreover, it is irrelevant whether the record contains 

evidence to support findings other than those made by the WCJ; the critical inquiry 

is whether there is evidence to support the findings actually made.” A & J 

Builders, Inc., 78 A.3d at 1238.

Here, the WCJ gave an extensive summary of both medical experts’ 

testimony and provided explanations as to why she found Dr. Mendez to be more 

credible and persuasive than Dr. Baldino. The WCJ found it significant that Dr. 

Mendez is Board certified in orthopedic surgery, and his opinions are supported by 
11

the fact that Claimant’s cervical spine examination was normal, there are no 

objective findings to support his claim regarding a cervical injury, and his MRI and 

EMG studies do not correlate. The WCJ did not find Claimant’s assertions about 

his neck pain to be credible, especially since none of his doctors performed any 

testing on his neck until three years after the work incident. Moreover, there is no 

evidence in the record to support Claimant’s theory that his doctors had to address 

his elbow injury before they could move on to his neck complaints.

There is ample evidence in the record to support the WCJ’s findings 

with respect to the description of Claimant’s injury, and we discern no error in the 

WCJ’s determination that Claimant failed to meet his burden of proving that his 

2011 work injury included cervical injuries.

B.

Claimant also argues that Dr. Talaie’s November 11, 2014 surgery 

provided him with a measure of relief from his ongoing symptoms, and “treatment 

may be reasonable and necessary even if it is designed to manage the claimant’s 

symptoms rather than cure or permanently improve the underlying condition.” 

Cruz v. Workers’ Compensation Appeal Board (Philadelphia Club), 728 A.2d 413, 

417 (Pa. Cmwlth. 1999).

Again, this comes down to a credibility determination. The WCJ 

accepted the findings in Dr. Collini’s report, finding him to be more credible than 

Dr. Talaie. In his findings, Dr. Collini opined that surgery for Claimant’s 

diagnosed elbow condition is only recommended if the condition has not improved 
12

after 8 to 12 months of nonsurgical intervention, the ulnar nerve is proven to be 

compressed by diagnostic studies and there is muscle wasting. None of that 

occurred in this case. Moreover, the WCJ credited Dr. Collini’s opinion that the 

presence of the neuropraxic lesion of the ulnar nerve was insufficient to justify a 

third exploratory surgery of Claimant’s elbow, especially since the first two 

exploratory surgeries were unsuccessful.

Finally, Claimant’s reliance upon Cruz is misplaced because there is 

no evidence that the surgery Dr. Talaie performed in November 2014 brought any 

relief of Claimant’s symptoms. To the contrary, three months after the surgery,

Claimant testified that he continued to have severe pain in his elbow, radiating 

down to his fingers, and had trouble grasping things. During his IME on July 22, 

2015, Claimant told Dr. Mendez that he had not gotten any relief from his right 

upper extremity symptoms and his pain level was still at a 10 on a scale of 0 to 10. 

Given all of the above, we discern no error in the WCJ’s denial of Claimant’s UR 

Petition.

Accordingly, the order of the Board is affirmed.

 

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Messina, :

Petitioner :

:

v. : No. 1111 C.D. 2017

:

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

O R D E R

AND NOW, this 8

th day of January, 2018, the order of the Workers’ 

Compensation Appeal Board dated July 12, 2017, at No. A16-0569, is affirmed.

 

DAN PELLEGRINI, Senior Judge