Opinion
No. 2375 C.D. 2013
09-25-2014
John Berry, Petitioner v. Workers' Compensation Appeal Board (Harrah's Chester Casino), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, John Berry (Claimant), representing himself, asks whether the Workers' Compensation Appeal Board (Board) erred in affirming a Workers' Compensation Judge's (WCJ) decision granting his claim petition for a closed period followed by termination. Claimant contends substantial evidence does not support the termination of benefits. In addition, he claims the evidence was not handled or submitted in compliance with the law. Upon review, we affirm.
I. Factual and Procedural Background
Claimant filed a claim petition against his employer, Harrah's Chester Casino (Employer), alleging he sustained a low-back injury on June 24, 2008, in the course and scope of his duties when he was struck by a coworker. Employer denied the averments of the claim petition. Hearings before a WCJ ensued. We summarize the relevant evidence.
Claimant was represented by counsel before the WCJ and Board.
In support of his claim petition, Claimant recounted the events leading to the injury. Claimant, a sous chef, asked his subordinate, Larry Turner (Coworker), to put away an order before his shift ended. Coworker refused. Claimant directed Coworker to clock out. An argument ensued. As Claimant turned to walk away, Coworker "ran up from behind and ... checked [him] in the middle of [his] back," propelling him through the kitchen's swinging doors. WCJ's Hr'g, Notes of Testimony (N.T.), 8/26/08, at 8. Claimant testified he struck a cement wall about six feet from the other side of the doors, hitting his right shoulder, arm, hip and head. Claimant sought medical treatment from a panel physician, who placed Claimant on work restrictions. Unsatisfied with the care he received from the panel physician, Claimant sought medical treatment from James Bonner, M.D., (Claimant's Physician), who removed Claimant from work and did not release him to return. Claimant testified he continues to have problems with his neck and back and does not believe he is capable of performing the duties of his pre-injury job.
In addition, Claimant presented the deposition testimony of his Physician. Claimant's Physician, who is board certified in physical medicine and rehabilitation, first examined Claimant on July 2, 2008. He received a medical history from Claimant that he was "hockey check[ed]" by another employee and developed significant lumbar pain, a feeling like his kidneys had been traumatized, and significant scapular and cervical pain. Certified Record (C.R.), Ex. C-2, Dep. of James Bonner, M.D., 1/8/09, at 12. Claimant's Physician testified a July 3, 2008 cervical MRI showed degenerative changes, a herniated disc at C6-7, and hypertrophy of the facets at other levels. A lumbar MRI taken the same date showed degenerative changes and an annular tear at L5-S1. He diagnosed Claimant with an acute cervical strain and sprain, an acute lumbosacral strain and sprain with an aggravation of a pre-existing degenerative condition, a herniated cervical disc at C6-7, an annular tear at L5-S1, and mild S-1 radiculopathy. He testified Claimant's condition is work-related. Id. at 24. He further testified Claimant is not capable of performing his pre-injury job. Id.
In opposition, Employer presented the testimony of Coworker. Coworker testified he worked as a line cook for Employer and that Claimant was his supervisor. He corroborated Claimant's account to the extent that the men exchanged words when Coworker refused to unload the pallet before his shift ended. Coworker testified Claimant approached him, so close their knees were touching, and mocked him. At that point, Coworker pushed Claimant through the swinging doors by placing his hands on Claimant's shoulders. Coworker described the swinging doors as lightweight doors that easily open when pushed. The doors contain a window through which Coworker observed Claimant did not hit the wall on the other side, but rather traveled three feet into the hallway.
Employer also presented the deposition testimony of Ira C. Sachs, D.O. (Employer's Physician), a board-certified orthopedic surgeon, who examined Claimant on November 12, 2008. He testified he received a history from Claimant that another employee "checked him in the back and he shot out of the doors and hit a wall five to six feet from the door with his arms outstretched." C.R., Ex. D-15, Dep. of Ira C. Sachs, D.O., 3/11/09, at 27. After hitting the wall, Claimant's right arm folded back, which allowed his right shoulder to hit the wall. Based on his examination of Claimant and review of his medical records, Employer's Physician diagnosed Claimant with resolved work-related cervical and lumbosacral sprains and strains. He found no objective evidence for residual cervical or lumbar disc syndrome or cervical or lumbar radiculopathy. He opined, even if the work injury aggravated pre-existing degenerative disc disease and stenosis, Claimant fully recovered from any aggravation as of the date of his examination.
Employer's Physician further testified he reviewed a video surveillance tape. He observed Claimant's version of events was not entirely consistent with the events on tape. Notwithstanding, he testified his opinion concerning the nature of Claimant's injuries and his recovery did not change after reviewing the surveillance tape. In fact, he believed the tape corroborated his opinions.
Employer also presented the testimony of David Baden, Employer's Risk Control Manager. He testified the surveillance office prepared a videotape depicting footage taken by a surveillance camera located in the service hallway in the back of the kitchen on June 24, 2008. He testified the video shows Claimant entering the hallway with a "kind of a stumble." N.T., 10/28/08, at 14. Employer offered the video surveillance tape into evidence, which the WCJ admitted without objection. Id. at 13; C.R., Ex. No. D-2. Employer also entered into evidence without objection picture exhibits depicting the incident area and the swinging doors. N.T., 10/28/08, at 14; C.R., Ex. Nos. D-3 - D-9.
The WCJ concluded Claimant met his burden of proving he sustained a disabling work injury on June 24, 2008. However, the WCJ determined Claimant fully recovered from the work injury as of November 12, 2008. Thus, the WCJ granted the claim petition for the closed period followed by a termination. WCJ's Op., 9/22/09, at 18-19.
Both parties appealed to the Board. Claimant asserted the WCJ did not render a reasoned decision. The Board agreed, and it vacated in part and remanded on the existing record. The Board directed the WCJ to issue new findings, conclusions of law and credibility determinations concerning the nature of the work incident as well as credibility determinations, including supporting objective reasons, findings of fact and conclusions of law concerning whether Claimant's work injury ceased as of November 12, 2008.
On remand, the WCJ made additional findings, including extensive credibility determinations. Specifically, the WCJ accepted Claimant's version of the events leading to his injury as credible. She found the mechanism of injury was a blow to the middle of Claimant's back in the nature of a hockey "check," and the resultant impact of Claimant's right shoulder, arm, hip and head with a wall. WCJ's Op., 8/19/11, Finding of Fact (F.F.) No. 13. The WCJ found the surveillance video showed Claimant "after an apparent push" "with a stumbling gait." F.F. No. 17.
In addition, the WCJ accepted Claimant's Physician's testimony "to an extent," but ultimately credited Employer's Physician's testimony over Claimant's Physician's testimony regarding Claimant's condition and recovery. F.F. No. 8. The WCJ specifically rejected Claimant's Physician's testimony that Claimant sustained a work-related herniated disc at C6-7, an annular tear, or radiculopathy. F.F. Nos. 70-72. Significantly, the WCJ credited Employer's Physician's opinion that Claimant fully recovered as of November 12, 2008. F.F. Nos. 8, 75, 81. The WCJ explained she credited Employer's Physician's testimony because: he provided greater explanations for his contrasting opinions; his examination of Claimant was more extensive; and, he performed more tests. F.F. No. 8.
Ultimately, the WCJ found Claimant sustained work-related acute cervical, thoracolumbar, and lumbosacral strains and sprains, and an aggravation of pre-existing asymptomatic degenerative condition. F.F. No. 69. The WCJ accepted the evidence establishing Claimant's medical restrictions as a result of his work injury and partial loss of earning power. F.F. Nos. 22, 67, 83. However, the WCJ found Claimant fully recovered from the injury as of November 12, 2008. F.F. No. 81. Thus, the WCJ again granted the claim petition for a closed period followed by termination.
Both parties appealed to the Board, which affirmed. The Board determined the WCJ's decision was well-reasoned and provided objective reasons for finding Employer's Physician more credible than Claimant's Physician on the issue of Claimant's full recovery. Claimant's appeal to this Court followed.
II. Issues
On appeal, Claimant contends substantial evidence does not support the termination of benefits. In addition, Claimant contends Employer's evidence was not handled or submitted in compliance with the law.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
III. Discussion
A. Substantial Evidence - Credibility Determinations
First, Claimant contends substantial evidence does not support the termination of benefits on November 12, 2008. Specifically, he argues the WCJ erred by crediting the medical opinions of Employer's Physician over those of Claimant's Physician. He claims his evidence outweighed the evidence presented by Employer and clearly supports a finding of continuing disability.
In a claim proceeding, the claimant bears the burden of proving he suffered a work-related injury that occurred in the course and scope of his employment and the injury results in a loss of earning power. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592 (Pa. 1993); Morrison v. Workers' Comp. Appeal Bd. (Rothman Inst.), 15 A.3d 93 (Pa. Cmwlth. 2010). The claimant also has the burden of proving the duration of disability throughout the pendency of the claim petition. Teter v. Workers' Comp. Appeal Bd. (Pinnacle Health Sys.), 886 A.2d 721 (Pa. Cmwlth. 2005). Further, in cases where the causal relationship between the injury and the employment is not obvious, unequivocal medical testimony is required to establish this causal relationship. Lynch v. Workmen's Comp. Appeal Bd. (Teledyne Vasco), 680 A.2d 847 (Pa. 1996); Sw. Airlines/Cambridge Integrated Serv. v. Workers' Comp. Appeal Bd. (King), 985 A.2d 280 (Pa. Cmwlth. 2009).
The 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' Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013) (quoting Anderson v. Workers' Comp. Appeal Bd. (Penn Ctr. for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010)). The WCJ's authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. A & J. The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part. Id. We are bound by the WCJ's credibility determinations. Id.
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." Id. at 1238 (quoting Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)). We examine the entire record to see if it contains evidence a reasonable person might find sufficient to support the WCJ's findings. Id. If the record contains such evidence, the findings must be upheld, even though the record may contain conflicting evidence. Id. Additionally, we must view the evidence in the light most favorable to the prevailing party and give it the benefit of all inferences reasonably deduced from the evidence. Id. (citing Wagner v. Workers' Comp. Appeal Bd. (Anthony Wagner Auto Repairs & Sales, Inc.), 45 A.3d 461 (Pa. Cmwlth. 2012)).
Further, to satisfy the reasoned decision requirements of Section 422(a) of the Workers' Compensation Act (Act), a WCJ must set forth the rationale for the decision by specifying the evidence relied upon and reasons for accepting it. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003); A & J. "Where medical experts testify by deposition, a WCJ's resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another." A & J, 78 A.3d at 1243 (quoting Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 194 (Pa. Cmwlth. 2006)). To allow for effective appellate review, the WCJ must articulate an objective basis for the credibility determination. Id.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
Here, in accordance with the reasoned decision requirements of Section 422(a) of the Act, the WCJ properly considered the evidence before her, made all necessary findings and conclusions, and clearly articulated her reasons for accepting and rejecting the testimony. The WCJ found Claimant fully recovered from his work injury as of November 12, 2008. F.F. Nos. 75, 81. In reaching this finding, the WCJ relied on the testimony of Employer's Physician. F.F. No. 75.
Employer's Physician examined Claimant on November 12, 2008. Based on his examination of Claimant and review of his medical records, Employer's Physician testified Claimant fully recovered from his work injury. Dep. of Dr. Sachs at 22. The doctor "found no objective evidence for residual cervical, lumbar strain/sprain or residual cervical, lumbar disc syndrome and/or cervical, lumbar radiculopathy" at the time of his examination of Claimant on November 12, 2008. Dep. of Dr. Sachs at 22; accord F.F. No. 75. Moreover, he testified, even if Claimant sustained an aggravation of the pre-existing degenerative disc disease and stenosis, he fully recovered. Dep. of Dr. Sachs at 56; F.F. No. 81. Employer's Physician opined Claimant was capable of performing his pre-injury job without any restrictions as of the date of his examination. Dep. of Dr. Sachs at 22, 57.
Although Claimant's Physician testified Claimant's work disability continued and he could not perform his pre-injury job on a full-time basis and without restrictions, the WCJ did not credit this testimony. F.F. No. 75. The WCJ found Employer's Physician "more credible and persuasive than that of [Claimant's Physician] with respect to ... Claimant's diagnosed work injuries and recovery from them." F.F. No. 8; see also F.F. No. 75. The WCJ explained: "[Employer's Physician] provided greater explanations for his contrasting opinions ... than [Claimant's Physician] and because [Employer's Physician's] examination of ... Claimant was more comprehensive and with more tests of ... Claimant than those delineated examinations and tests ... by [Claimant's Physician]." F.F. No. 8.
Nevertheless, Claimant argues the WCJ should have found his expert's opinions more credible than Employer's Physician's. He maintains his evidence outweighed Employer's evidence. However, Claimant's argument invites this Court to reconsider the WCJ's determinations on matters of credibility and evidentiary weight, which we may not do. A & J. The WCJ clearly articulated objective bases for her credibility determinations and issued a reasoned decision in accordance with Section 422(a) of the Act. Consequently, we are bound by the WCJ's credibility determinations. Id.
Upon review, substantial evidence supports the WCJ's finding of fact that Claimant fully recovered from his work injury as of November 12, 2008. Thus, we discern no error in the WCJ's grant of Claimant's claim petition for a closed period followed by termination.
B. Mishandled Evidence
Next, Claimant argues the evidence was not handled or submitted in compliance with the law. He contends Employer withheld evidence from Claimant's attorney and did not provide a summary of evidence. Specifically, he asserts his attorney did not receive Coworker's employment file as requested or a full version of the surveillance tape. According to Claimant, his attorney received "an eight second dubbed video tape," Pet'r's Br. at 10; the videotape in the record, marked as Exhibit D-2, is 39 seconds long. He argues Employer's Physician improperly based his opinions of injuries and recovery on the videotape. Additionally, Claimant asserts he was never called to rebut any testimony or evidence.
The certified record contains a videotape and a DVD, both identified as Exhibit D-2. The videotape and the DVD contain identical footage, without sound. The recording is 38 seconds in length, but only 30 seconds contain actual footage. The incident between Claimant and Coworker is approximately eight seconds long. The first 15 seconds of the footage shows surveillance from four camera angles, including camera no. 2, which captured the eight-second incident. The second 15 seconds replays the incident on the full screen.
Employer responds Claimant did not preserve this issue for appeal. Alternatively, Employer contends the issue has no bearing on the outcome of this case. Specifically, Employer asserts the evidence is irrelevant because the WCJ credited Claimant's account of the incident and found Claimant's testimony more credible than Coworker's testimony. Therefore, any information in Coworker's file that would potentially undermine his credibility is irrelevant. In addition, the WCJ did not rely on the videotape in determining Claimant fully recovered from his injury.
"It is well established that an issue is waived unless it is preserved at every stage of the proceeding. The strict doctrine of waiver applies to a workers' compensation proceeding." Wheeler v. Workers' Comp. Appeal Bd. (Reading Hosp. & Med. Ctr.), 829 A.2d 730, 734 (Pa. Cmwlth. 2003); see Harvey v. Workers' Comp. Appeal Bd. (Monongahela Valley Hosp.), 983 A.2d 1254 (Pa. Cmwlth. 2009) (issues not raised before WCJ are waived).
On appeal, Claimant does not reference any objection to the evidence before the WCJ, and our review of the record reveals none. Furthermore, Claimant did not raise any issue regarding the handling and submission of evidence before the Board. See Pet'r's Appeal to Bd., 9/21/11. In addition, Claimant did not raise the issue in his petition for review. See Pet'r's Pet. for Review. Instead, Claimant raised two issues: (1) whether the WCJ erred in finding Employer's evidence more persuasive and complete than Claimant's evidence; and, (2) whether the WCJ failed to identify physical medical evidence supporting a change in Claimant's injury as of November 12, 2008, supporting termination. See id. at 1, 3. Having failed to preserve the issue at any stage of the proceeding, the issue is waived. See Wheeler.
Claimant did not include this issue in his statement of questions presented or otherwise develop the issue in the argument section of his brief.
Notwithstanding, we agree with Employer that Claimant's arguments regarding the handling or submission of evidence are irrelevant. To the extent Claimant requested Coworker's employment file to discredit him, the WCJ did not find Coworker's testimony credible without the file. The WCJ specifically credited Claimant's version of events regarding the incident and the mechanism of injury, not Coworker's version. As for the videotape, the WCJ found no inconsistencies between Claimant's account of the incident and the videotape. F.F. Nos. 17, 82. In fact, she found the videotape corroborated Claimant's testimony noting the tape "showed Claimant with a stumbling gait after the work injury[,] and [it] negated ... [Coworker]'s [t]estimony about the mechanism and extent of the work injury ...." F.F. No. 17. Further, the WCJ did not rely on the videotape in finding Claimant fully recovered from his work injury.
Moreover, neither expert based his opinion on the videotape. Employer's Physician testified he based his opinion on the history he received from Claimant, his physical examination, and review of medical records. Dep. of Dr. Sachs at 11. Although Employer's Physician later reviewed the videotape and completed an addendum report, he testified the surveillance evidence did not alter his initial opinion regarding the nature of Claimant's injuries and his recovery. Id. at 27. In fact, he testified his review of the tape corroborated his opinions. Id. Although Claimant's Physician did not view the surveillance evidence, he testified his opinion as to causation would not change if the videotape did not show Claimant striking the wall on the far side of the hallway. Dep. of Dr. Bonner at 36.
Employer marked the videotape reviewed by Employer's Physician as Sach's Ex.-4 during the deposition, but it did not include this marked exhibit in the record. See Dep. of Dr. Sachs at 45. However, Employer's Physician's description of the videotape he viewed clearly corresponds with the videotape marked and admitted into evidence as Ex. D-2. See id. Counsel stipulated this is the only tape Employer's Physician reviewed. Id. --------
Upon review, we conclude the videotape and Coworker's employment file did not have any bearing on the issue of Claimant's full recovery. Therefore, any alleged error regarding the submission or handling of this evidence is harmless. As for Claimant's arguments that he was never called to rebut any testimony or evidence, that is an issue Claimant should direct to his former attorney, not this Court.
IV. Conclusion
For these reasons, we conclude the WCJ properly granted Claimant's claim petition for a closed period of disability followed by termination. Accordingly, we affirm the order of the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 25th day of September, 2014, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge