Opinion
No. 1614 C.D. 2014
01-16-2015
Andre Butler, Petitioner v. Workers' Compensation Appeal Board (The Home Depot U.S.A., Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Andre Butler (Claimant) petitions for review, pro se, of the August 4, 2014, order of the Workers' Compensation Appeal Board (WCAB), affirming the decision of a workers' compensation judge (WCJ) to deny Claimant's claim petition. We affirm.
On September 19, 2011, Claimant filed a claim petition, alleging that he suffered a work-related herniated disc with right-sided radiculopathy on June 8, 2011, in the course and scope of his employment with The Home Depot, U.S.A., Inc. (Employer). Claimant sought partial disability benefits from June 21, 2011, through July 19, 2011, and total disability benefits ongoing from July 20, 2011. Claimant also requested payment of his medical bills and counsel fees. Employer filed an answer to the claim petition, denying the allegations therein.
At the WCJ's hearing, Claimant testified that his duties for Employer included unloading freight from delivery trucks and stocking it. Claimant stated that on June 8, 2011, a pallet of doors struck him in the back of the neck, causing injuries to his neck and right arm. Claimant reported the incident to his supervisor and continued to work. (WCJ's Findings of Fact, Nos. 1-2, 6.a-b.) Four days later, on June 12, 2011, Claimant sought treatment for his neck at Albert Einstein Medical Center. Claimant was treated, released, and instructed to take Motrin as needed. (Id., No. 6.c.)
Claimant continued to perform his regular job duties until June 21, 2011, when he sought treatment with Eric Williams, M.D. Dr. Williams performed an x-ray and released Claimant to work a light-duty position. Claimant performed light-duty work, then returned to his regular-duty position. Claimant worked until July 20, 2011, at which time Dr. Williams took him out of work, due to numbness in his legs and an inability to lift. Claimant stopped treating with Dr. Williams on September 27, 2011. (Id., No. 6.d-f.)
On October 28, 2011, Claimant started treating with Althea Hankins, M.D. In her deposition, Dr. Hankins testified that she reviewed Claimant's magnetic resonance imaging (MRI) report, not the MRI itself, and concluded that Claimant has a broad-based, lateral disc bulge and stenosis caused by the alleged work-related trauma. Dr. Hankins based her opinion on the MRI report, electromyography results, and the fact that Claimant walks like a "duck." (Id., No. 7.c.) Dr. Hankins acknowledged that the MRI indicated that Claimant suffered from "osteophyte complex," which is a degeneration of the spine. In addition, the diagnosis of a broad-based, lateral disc bulge could be classified as a common degenerative finding. (Id., No. 7.g.) Dr. Hankins' focus is on preserving muscles and preventing atrophy. Dr. Hankins provides massage and heat therapy, and ultrasounds to Claimant.
Dr. Hankins did not conclude that Claimant was unable to work. Rather, Dr. Hankins stated that she would not release Claimant to return to work until he undergoes a neurosurgery consultation, which would determine the condition of Claimant's spinal column. (Id., No. 7.d.)
In opposition to the claim petition, Employer presented the deposition testimony of Stanley Askin, M.D., a board-certified orthopedic surgeon. Dr. Askin examined Claimant on December 14, 2011, after obtaining a history from Claimant and noting his complaints. Dr. Askin opined that there was no objective evidence that Claimant sustained an injury and that Claimant's subjective complaints did not correlate with the objective findings. (Id., No. 8.d., f.)
Dr. Askin also reviewed Claimant's MRI films, which revealed no fracture, no soft tissue tear, no hemorrhage, no edema, no bone bruising, and no trauma upon the C5-6 disc. Dr. Askin opined that Claimant's diagnosis of "stenosis" in the MRI report is a degenerative change, which would have been present before the alleged work-related injury. (Id., No. 8.e.) Dr. Askin opined that Claimant had fully recovered from any alleged work injury as of the date of his exam, and that Claimant was capable of returning to his pre-injury position with Employer.
The WCJ found Claimant's testimony regarding the June 8, 2011, injury, and his claimed resulting symptoms and disability, unreliable and not credible. The WCJ also found the opinions of Dr. Askin more credible than those of Dr. Hankins. Dr. Askin's opinions were corroborated by Claimant's medical records, his diagnostic exams, and the physical examination. The WCJ determined that Claimant did not meet his burden of proving that he suffered a work-related injury. As such, the WCJ denied Claimant's claim petition. On appeal, the WCAB affirmed and, thereafter, Claimant petitioned this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Law, 2 Pa. C.S. §704.
Claimant initially argues that the WCJ's determination that he did not suffer a work-related injury is not supported by substantial evidence. We disagree. "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. 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." Delaware County v. Workers' Compensation Appeal Board (Baxter-Coles), 808 A.2d 965, 969 (Pa. Cmwlth. 2002) (internal citation omitted). In a claim petition, the claimant bears the burden of proving that he sustained a work-related injury in the scope of his employment. Milner v. Workers' Compensation Appeal Board (Main Line Endoscopy Center), 995 A.2d 492, 496 (Pa. Cmwlth. 2010).
Here, the WCJ's determination that Claimant did not suffer a work-related injury is supported by Dr. Askin's testimony. Dr. Askin, after performing a physical examination and reviewing the MRI, concluded that there was no objective evidence that Claimant sustained an injury. Moreover, Claimant had recovered from the injury, if any, as of the date of his examination. As such, substantial evidence supports the determination that Claimant did not suffer a work-related injury.
Claimant next argues that Employer's medical expert, Dr. Askin, agreed with Claimant's medical expert that Claimant suffered a work-related injury in the form of an exacerbation of cervical spondylosis. We disagree.
As to whether Claimant suffered a work-related injury, the following exchange with Dr. Askin occurred:
Q: So, Doctor, based upon the records you reviewed, the history you took, and your own physical exam, do you have an opinion within a reasonable degree of medical certainty as to whether or not [Claimant] sustained any injury on June 8, 2011?
A: I cannot specifically corroborate that he sustained an injury. I accept such, just for the sake of discussion, because he asserts that he did, and to get hit with doors as he described is certainly and potentially a cause of discomfort, but as of the time I saw him, half a year later, I did not find any lingering effect of that event.
Q: So, if there was an injury, what would you classify the injury as, diagnose it?(Dr. Askin Dep., 4/26/12, at 13-14.) Thus, contrary to Claimant's contention, Dr. Askin did not agree that Claimant suffered a work-related injury. Dr. Askin only assumed a work-related injury for purposes of discussion.
A: I described it in the affidavit of recovery. It's an exacerbation of cervical spondylosis. That means that he had a preexisting condition, and like moving a door with a rusty hinge, you make it squeak but without changing its underlying nature. The exacerbation resolves and the person is back to baseline, which in [Claimant's] case, is a person in the middle years of life.
Next, Claimant alleges that the WCJ erred in discrediting Claimant's and Dr. Hankins' testimony, and crediting the testimony of Dr. Askin. The WCJ, however, is free to accept or reject the testimony of any witness in whole or in part. Rissi v. Workers' Compensation Appeal Board (Tony DePaul & Son), 808 A.2d 274, 279 (Pa. Cmwlth. 2002) (stating that the WCJ determines credibility and this court will not substitute its judgment for that of the WCJ). Thus, it was within the WCJ's discretion to accept Dr. Askin's opinion that Claimant did not suffer a work-related injury.
Claimant also argues that the WCJ should have credited the diagnosis of Dr. Williams. Dr. Williams, however, did not testify before the WCJ.
Claimant also argues that the WCJ failed to issue a reasoned decision required by section 422(a) of the Act, 77 P.S. §834. A decision is "reasoned" if it allows for adequate appellate review without the need for further explanation. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Company), 893 A.2d 191, 194 (Pa. Cmwlth. 2006).
Here, the WCJ set forth concise findings of fact and adequately explained the basis for his credibility determinations. The WCJ rejected Claimant's testimony as not credible. Because Claimant testified live before the WCJ, the WCJ was permitted to conclude that his testimony was not credible based upon his demeanor. See Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052-53 (Pa. 2003).
The WCJ also found Dr. Askin's deposition testimony credible and persuasive, noting that Dr. Askin's qualifications were superior to those of Dr. Hankins' in the field of orthopedic medicine. Moreover, Dr. Askin's opinions were corroborated by Claimant's medical records, diagnostic studies, and physical examination. (WCJ's Findings of Fact, No. 10.) Because the WCJ set forth objective reasons for his credibility determination, the WCJ's decision is reasoned.
Finally, Claimant argues that Employer violated section 406.1 of the Act, 77 P.S. §717.1, by failing to promptly investigate his injury within 21 days. This issue, however, was not raised previously and is, therefore, waived. See Pa. R.A.P. 1551(a) ("No question shall be heard or considered by the court which was not raised before the government unit . . . .").
Section 406.1 was added by the Act of February 8, 1972, P.L. 25. --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 16th day of January, 2015, we hereby affirm the August 4, 2014, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge