JOHN R. GERARDY, Employee/Appellant, v. ANAGRAM INT’L and LIBERTY MUT. INS. CO., Employer-Insurer/Respondents, and JOHN STARK, M.D. and BROOKLYN CTR. CHIROPRACTIC, Intervenors.

The pro se employee appeals from the compensation judge’s findings that the employee’s May 30, 2010, work-related injury was temporary in nature and fully resolved by July 13, 2010, and that the May 30, 2010, work injury was not causally related to, or a substantial contributing factor in, the employee’s claimed temporary total disability, permanent total disability, permanent partial disability, need for restrictions, or need for medical treatment after July 13, 2010. Concluding that substantial evidence supports the compensation judge’s determinations, we affirm.

The employee, John Gerardy, has a prior medical history which includes some treatment for low back and neck injuries and pain in the 1980s and 1990s. He underwent a cervical fusion surgery in 1987, which resulted in a permanent lifting restriction. He injured his low back in 1995, after falling eight feet from a scaffold, but records indicate this was a temporary injury with no permanent restrictions needed.

The employee started working for the employer, Anagram International, in June 2007. The employer manufactures products including filled balloons. The employee was a balloon machine operator and had other duties, including disposal of waste from the production lines. On May 30, 2010, the employee fell four feet into a large trash container while trying to help a co-worker empty a garbage can. He felt pain in his back. He immediately reported the injury to a supervisor, and an incident investigation form was completed that day, with a First Report of Injury completed on June 1, 2010. The employer and insurer accepted primary liability for the injury, but paid no wage loss benefits.

On June 1, 2010, the employee was seen by Dr. David Schneider at Nowcare Medical Center.^[1] The employee reported that his low back had been sore since his fall two days earlier. Dr. Schneider noted no weakness or shooting pains relative to either leg, and x-rays of the lumbar spine showed no abnormalities. Dr. Schneider diagnosed the employee with a lumbar strain and gave the employee light duty work restrictions with a ten-pound lifting limitation, which the employer accommodated. Due to the employee reporting difficulty urinating, Dr. Schneider referred him for an MRI, which was performed on June 2, 2010, at West Health.^[2] The radiologist noted mild lumbar disc degeneration, but that there were no acute findings related to the recent fall, and no abnormality of the lower spinal cord. At the employee’s next follow up appointment on June 7, 2010, Dr. Schneider noted that the mild lumbar disc degeneration observed in the MRI “would be typical for a gentleman of his age.” The employee reported that he was still experiencing low back pain and urinary hesitancy. Dr. Schneider continued the employee’s light duty restrictions, which the employer continued to accommodate.

The employee followed up with Dr. Schneider on June 15, 2010. Dr. Schneider indicated that the employee still had back pain, but that his back was making good progress and he had been tolerating light duty. The light duty restrictions continued. At the next follow up on June 29, 2010, Dr. Schneider wrote that the employee reported continued improvement, with some stiffness and pain while bending. The visit note also indicates that the employee told Dr. Schneider that he felt he could perform a lot of his regular duties except for operating a heavy crank on a machine that lifted rolls. Dr. Schneider released the employee to return to his regular job duties, with the exception of lifting rolls.

On July 13, 2010, the employee visited Dr. Schneider, who indicated that the employee had been performing regular work duties except for operating the crank, and that he had been tolerating this well. Dr. Schneider noted that the employee stated he was ready to return to full duty work, and that he had no back pain “other than a very rare mild ache.” The physical exam lacked any positive findings. Dr. Schneider concluded that the employee’s injury was a “resolved lumbar strain,” that he was at maximum medical improvement (MMI) as of July 13, 2010, and that he could resume his full job duties that day. For the remainder of 2010 and during the first week of 2011, the employee performed his regular job duties at Anagram International. The employee did not seek medical treatment again until late January 2011.^[3]

The employer terminated the employee’s employment on January 7, 2011. Seven other employees were terminated on the same day, and one additional employee was terminated a week later.^[4] The company cited slow sales as the reason for instituting the layoff, and indicated that specific employees were chosen to be laid off based on work performance. Specifically, the company indicated that some workers, including the employee, were chosen for the layoff due to their difficulty with mastering the time management skills and “rhythm” that running two balloon machines requires. The employee has not worked from January 8, 2011, up to the date of the hearing.

In February 2011, the employee filed a claim petition alleging that he had injured both his back and neck in the May 30, 2010, work injury. Various workers’ compensation benefits were sought, including temporary total disability benefits from his termination date forward, and claims for indemnity and medical benefits. The employer and insurer denied that the employee sustained a neck injury on May 30, 2010. While the employer and insurer admitted the employee’s low back injury, they contended that the injury was temporary in nature and resolved consistent with the MMI determination of Dr. Schneider.

On March 18, 2011, the employee was examined by Dr. Robert Martin, a chiropractor. Dr. Martin’s chart notes indicate that on June 3, 2010, the employee had fallen four feet and that he had “initially developed severe neck, upper back, mid/low back pain and constant stiffness,” and excruciating headaches. The employee reported persistent and increasing arm and leg pain, numbness, and weakness. Dr. Martin indicated that due to pain, the employee had difficulty walking, standing, sitting, performing his daily routine, and getting out of bed, urinating, and sleeping. Dr. Martin completed a Report of Work Ability in which he indicated that due to the work injury, the employee was unable to work at all until reevaluation. On April 18, 2011, Dr. Martin reevaluated the employee and determined that the employee was able to work on a very light duty basis, lifting no more than 10 to 15 pounds. These restrictions remained in place until late 2011. The employee continued to treat with Dr. Martin approximately twice a week until June of 2012. The treatment included manipulations and mobilization of the cervical, thoracic, and lumbar spine, as well as ultrasound, acupuncture, and strength exercises.

On September 30, 2011, the employee underwent an independent medical examination (IME) with Mark Friedland, M.D, at the request of the employer and insurer. Dr. Friedland opined that the employee’s May 30, 2010, work injury did not result in any injury to his neck or upper extremities. Dr. Friedland’s opinion was that the employee’s May 30, 2010, work-related injury resulted in a minor and temporary low back strain/sprain, and that the employee fully recovered by July 13, 2010, at which point he reached maximum medical improvement with no further need for any work restrictions and no ratable permanent partial disability. Dr. Friedland stated that objective evidence, including his examination of the employee and the imaging reports, was essentially normal for the employee’s age and that there were no objective signs of a continued low back injury. He did not believe that the employee’s chiropractic treatment in 2011 was reasonable, necessary, or causally related to the May 30, 2010, work-related low back injury. On November 23, 2011, Dr. Friedland examined hard copies of the employee’s January 31, 2011, lumbar spine radiographs and indicated in a supplement to the IME report that this information did not change his previously expressed opinions.

Dr. Martin referred the employee to a neurologist, Dr. George Adam, who first saw the employee on November 15, 2011. Dr. Adam noted a history of the employee having fallen at work on May 30, 2010, adding that the employee “had pain in the neck, back, and legs from the beginning.”^[5] Dr. Adam also indicated that the employee was given light duty work but that this “soon proved too much for him, and he has been out of work since June 30, 2010.” Dr. Adam diagnosed mechanical low back pain. He recommended continued care with Dr. Martin as well as a pool based exercise program at the Courage Center. The employee attended physical therapy at the Courage Center from November 30, 2011, to March 2012, and saw Dr. Adam monthly during this time period. Dr. Adam also referred the employee for nerve block injections and radiofrequency facet neurotomy procedures. By March 26, 2012, Dr. Adam noted that the employee experienced excellent results following the lumbar facet procedures, and had full range of motion of his lumbar spine. He next saw Dr. Adam in May of 2012, but the focus of these visits was on the employee’s development of diplopia, with the presumption that he had recently experienced a cerebral stroke unrelated to the May 30, 2010, work injury.^[6]

The last record of the employee treating with Dr. Martin was on June 6, 2012. Dr. Martin indicated that the employee had a permanent injury to his cervical and lumbar spine as a result of his May 30, 2010, work injury, but had not yet reached MMI. Dr. Martin’s diagnoses toward the end of treatment were post traumatic recurrent lumbosacral and cervico-thoracic strain/sprain injuries, due to displacement or bulging of discs. The employee had lower extremity radiculopathy. Dr. Martin noted that the employee had shown a reduction in symptoms but that he had persistent flare-ups.^[7] Dr. Adam referred the employee to an orthopedic surgeon, Dr. John Stark.

On November 15, 2012, the employee was examined by Dr. Stark. Dr. Stark assessed the employee’s lumbar spine MRI as “near normal.” However, Dr. Stark noted that the employee had severe sacroiliac pain, and that further workup of this area was necessary. He ordered a diagnostic injection into the left SI joint, and a CT scan of the left SI joint. At a November 29, 2012, follow up appointment, Dr. Stark wrote that the “sharp mechanical symptoms in the area of the left SI” had resolved, along with the employee’s left leg pain. However, by his next visit on January 10, 2013, the employee had become “severely symptomatic.” The CT scan demonstrated degenerative changes of the SI joint on the left side, with the right side being ankylosed. Dr. Stark diagnosed severe and limiting left sacroiliac pain, and he and the employee discussed the possibility of another injection. However, the employee wanted “definitive” treatment, and Dr. Stark recommended surgical arthrodesis.

On April 2, 2013, the employee underwent a second IME with Dr. Friedland. Dr. Friedland indicated that his opinions had not changed. He agreed with the specific SI joint diagnoses as defined by the November 21, 2012, CT scan of the employee’s SI joints. These included spontaneous ankyloses of the right SI joint due to degenerative joint disease, and left SI joint degenerative joint disease. Dr. Friedland’s previous diagnoses relative to the employee’s low back and neck remained the same. He wrote that there had been no significant change in the employee’s clinical examination since the initial IME, and that the employee “continue[d] to demonstrate evidence of subjective symptomology that does not correspond to objective findings on physical examination.” Dr. Friedland opined that there was “absolutely no evidence in the contemporaneous medical records that [the employee] had sustained an injury of either the right or left sacroiliac joint as a result of the May 30, 2010 work injury,” and that the initial treatment records were “completely consistent” with a temporary lumbosacral strain injury without any symptomatology or physical findings specific to the SI joints. Regardless of causation, it was Dr. Friedland’s opinion that the employee was not a reasonable candidate for the proposed left sacroiliac joint fusion surgery,^[8] but that if he did have the surgery, it would not be causally related to the May 30, 2010, work injury. After January 2013, there was an 18-month break in the employee’s medical treatment.^[9]

The employee returned to see Dr. Stark on June 26, 2014. Dr. Stark noted that the employee had obtained “very brief relief” from an “otherwise very convincing diagnostic injection,” but the pain had returned and become more severe. Dr. Stark noted that “this all” had started in 2010 with the work-related injury, which had included associated “leg numbness and a sensation of cold in the foot.” Dr. Stark’s assessment was osteoarthritis of the left SI joint, and ankylosis of the right SI joint, which was spontaneous and solid. Dr. Stark noted that the employee wanted to consider a left SI arthrodesis, and that he would be a good candidate for this surgery. The record contains no indication of any medical treatment after the June 26, 2014, Dr. Stark visit.^[10]

The employee’s claim petition was dismissed without prejudice on February 24, 2015, and a new claim petition was filed on November 5, 2015. The employee alleged that his May 30, 2010, work injury resulted in injuries to his neck, back, and left SI joint. He claimed entitlement to various benefits, including permanent total disability benefits, as well as approval of the fusion surgery recommended by Dr. Stark.

On October 27, 2015, Dr. Stark issued a narrative report on the employee’s condition at the request of the employee’s attorney. Dr. Stark stated that he had first evaluated the employee in November of 2012, for “severe back and buttock pain.” Dr. Stark described the employee’s reported symptoms as “primarily back pain which presented as bilateral hemipelvic pain,” as well as leg numbness. Dr. Stark noted that before 2012, the employee’s treatment had been focused on his lumbar spine, which Dr. Stark agreed appeared to be normal in various imaging. Dr. Stark explained his opinion that the focus on the low back was “somewhat misdirected” and had “missed the diagnosis.” Dr. Stark indicated that “the patient’s pain is actually very low and primarily on the left,” and that the symptoms “originate at the left sacroiliac joint which is focal. Dr. Stark was of the opinion that Dr. Adam’s diagnosis of pelvic asymmetry was consistent with an SI joint problem.

The employee’s attorney arranged an independent vocational evaluation of the employee by Ken Askew, MA, CRC. Mr. Askew evaluated the employee on March 18, 2016, and issued a report one month later. Based on his interview of the employee, his review of the medical records, and vocational testing results, Mr. Askew opined that the employee was not employable, due to significant barriers to the employee reentering the workforce. These barriers included the employee’s physical limitations resulting from his work injury and from his stroke, the employee’s age, work history, aptitude, and educational history. Mr. Askew opined that the employee was permanently and totally disabled, and that the May 30, 2010, work injury was a substantial contributing factor to his permanent total disability.

Dr. Friedland examined the employee a third time on July 18, 2016. He noted that based on the employee’s indication of what positions and maneuvers caused pain, and what positions and maneuvers helped to ease pain, these were not consistent with left SI joint pathology. Dr. Friedland’s diagnoses and opinions remained the same, that the employee’s May 30, 2010, work injury was correctly treated as a low back strain injury, and there was no evidence in the contemporaneous medical records that the employee had any symptoms associated with SI joint injury.

The case was heard by Compensation Judge Kathleen Behounek on July 27, 2016. In her Findings and Order issued on September 19, 2016, Judge Behounek denied the claims of the employee and intervenors in their entirety. The pro se employee appeals.

The Workers’ Compensation Court of Appeals will uphold the factual findings of the compensation judge if they are supported by substantial evidence and were reached through application of the correct legal standard.^[11] Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.^[12] In reviewing for substantial evidence to support the compensation judge’s findings, we do not make credibility determinations.^[13] The judge’s factual findings, including the weighing of the evidence as it relates to credibility, are reviewed based on a substantial evidence standard. Where evidence allows reasonable minds to differ as to whether the employee’s injury was temporary or permanent in nature, the responsibility for that decision rests with the compensation judge.^[14] With this standard of review in mind, we consider the employee’s argument that the compensation judge erred in denying his claims.

The employee raises a number of arguments in his appeal.^[15] The employee disputes the determinations regarding the nature and extent of his work injuries. The employee alleges negligence by the employer resulting in the May 30, 2010, work injury. The employee also contends that his discharge from employment was a wrongful termination. These issues will be addressed individually.

The compensation judge determined the May 30, 2010, injury was isolated to the low back, temporary in nature, and fully resolved by July 13, 2010. The employee disputes these findings and points to the independent vocational evaluation as evidence of permanent and total disability related to his work injury. He asks this court to reverse the judge and find work-related permanent total disability and award all benefits. We decline to do so.

The independent vocational evaluation was one piece of evidence submitted in support of the employee’s claim. Medical reports from Dr. Stark and Dr. Adam were also submitted in support of the employee’s claims, as well as social security records. The employer and insurer submitted independent medical evaluation reports from Dr. Friedland, a 1996 independent medical evaluation from Dr. Eugene Y. Mar, other medical records created before and after the work injury, as well as business and human resource records from Anagram International.

Determining whether an injury is temporary or permanent in nature is the responsibility of the compensation judge. In making this determination the judge may consider factors including: the nature and severity of any pre-exiting condition and the extent of restrictions and disability resulting from it; the nature of the symptoms and extent of medical treatment prior to the aggravating incident; the nature and severity of the aggravating incident and the extent of restrictions and disability resulting from it; the nature of the symptoms and extent of medical treatment following the aggravating incident; the nature and extent of the employee’s work duties and non-work activities during the relevant period; and medical opinions on the issue.^[16] Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge.^[17]

In this matter, the employee complained only of low back pain after the May 30, 2010, work injury, that pain resolved, and the employee returned to unrestricted work until his termination for economic reasons. Both the employee’s then-treating physician and the IME of Dr. Friedland opined that the effects of the employee’s work injury had resolved and that the employee had reached MMI with no continuing impairment. The medical opinions regarding continued effects of the May 30, 2010, work injury and the treatment asserted to have arisen from that injury all came after the employee’s termination from employment, a gap in treatment, and expanded to other parts of the body not previously affected or treated. The compensation judge could reasonably conclude from this evidence that the employee’s injury arising from the May 30, 2010, work injury was temporary and resolved, and that there was no aggravation of any preexisting condition. Such a finding by the compensation judge, supported by substantial evidence in the record, is not disturbed on appeal.^[18]

The employee contends that the May 30, 2010, work injury arose from the employer’s negligence and that this was not considered by the compensation judge in arriving at her determination. There are two fundamental problems with this contention. First, any issue not presented to the compensation judge for hearing cannot be considered by this court on appeal.^[19] Second, liability for workers’ compensation benefits is determined without regard to negligence, either by the employer or the employee.^[20] Under either analysis, the issue of negligence has no bearing in this matter.

The employee asserts that the compensation judge mischaracterized his termination from employment. The employee described the circumstances of his termination and alleged that this was wrongful conduct on the part of the employer. The employee’s argument is misplaced. The employee had claimed temporary total disability (TTD) and temporary partial disability (TPD) benefits in his claim petition. The purpose of the judge’s finding on termination is not to resolve any employment grievance the employee may have against the employer. Rather, the finding is for the purpose of determining whether the employee is eligible for the TTD or TPD benefits that he claimed. As the employee was physically able to work at the position, and presumably find other employment, the employee was not entitled to those benefits under the circumstances of this case.

While the employee argues that his Social Security Disability Insurance (SSDI) determination is evidence that he could not work, this does not alter the employee’s burden to demonstrate that the effects of the work injury resulted in that inability. Disability determinations under the Social Security system do not meet that burden.^[21] The compensation judge made no error of law in determining the reason for the employee’s termination and that determination is supported by substantial evidence.

The function of the WCCA is to assess whether the determinations of the compensation judge were legally correct and supported by substantial evidence. The issue of whether the employee’s injury was temporary and had resolved or was permanent was a question of fact for the compensation judge. Looking at the totality of the evidence, it was not unreasonable for the judge to rely upon the opinion of Dr. Friedland in making her decision. Substantial evidence supports the compensation judge’s determination that the employee’s May 30, 2010, injury was a low back strain that was temporary in nature and had resolved by July 13, 2010. The findings and order are affirmed.