Opinion
No. 1635 C.D. 2013
04-07-2014
William Carmack, Petitioner v. Workers' Compensation Appeal Board (PJ Dick, Inc./Trumbull Corporation), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this workers' compensation appeal in which the technical description and long-term effects of a work injury are disputed, William Carmack (Claimant) asks whether the Workers' Compensation Appeal Board erred in affirming a Workers' Compensation Judge's (WCJ) order that granted his claim petition for two closed periods followed by a stipulated suspension and, ultimately, a termination of benefits. Claimant challenges the WCJ's termination of his benefits, asserting several of the WCJ's findings are not supported by substantial, competent evidence. Upon review, we affirm.
In December 2006, Claimant sustained a left shoulder injury while working for PJ Dick, Inc./Trumbull Corporation (Employer), a construction company. Employer subsequently issued a notice of workers' compensation denial accepting a left shoulder strain, but denying Claimant was disabled as a result of the injury.
Several months later, Claimant filed a claim petition alleging he sustained a left shoulder tendon injury with bone spur, a cervical sprain/strain/herniated disc, and a thoracic injury as a result of the 2006 work injury. About a year later, Employer filed a termination petition alleging Claimant fully recovered from his work injury. Hearings on the parties' petitions ensued before a WCJ.
Employer also filed a petition to review medical treatment; however, that petition is not at issue in this appeal.
Before the WCJ, the parties submitted a stipulation of facts. Relevant here, the parties agreed that, although Claimant sought indemnity benefits, at the time Claimant filed his claim petition, the nature and extent of any compensable loss of earnings was unclear because Claimant continued to perform his time-of-injury job after the work injury. The parties also agreed that, at the time of the work injury, Claimant enjoyed concurrent employment with Employer and P.S.S.I. Stadium Corporation. Additionally, the parties agreed on the amount of Claimant's concurrent employment average weekly wage and total disability rate.
Further, the parties agreed that from the date of Claimant's 2006 work injury through July 25, 2010, Claimant had a total, compensable loss of earnings of $1,842, if the WCJ found Claimant was unable to perform his time-of-injury job during this period. Claimant later stipulated that he was limiting his claim for indemnity benefits after July 26, 2010 to the period from July 26 to August 18, 2010, with a suspension sought as of August 19, 2010. Additionally, the parties stipulated that if Claimant succeeded on his claim petition, he would be entitled to indemnity benefits, but Employer would be entitled to a credit or offset for Claimant's earnings from any other employer, including his concurrent employer, as well as Claimant's receipt of unemployment compensation benefits.
For his part, Claimant testified he is a heavy equipment operator. On December 15, 2006, he suffered an injury while working as an outside construction elevator hoist operator for Employer. Claimant worked in the less physically demanding job as an outside hoist elevator operator because a prior, non-work-related low back injury prevented him from operating heavy equipment. Claimant sustained the 2006 work injury when a glove on his left hand became caught on a loose screw on the top of the outside construction elevator door and pulled his left arm backward to waist level. Claimant testified he suffered injuries to his left shoulder, neck and thoracic spine. Several days later, he sought medical treatment at Concentra Medical Center. However, Claimant continued working his time-of-injury job as an outside construction elevator hoist operator until July 2008 when he was removed from the job site after an altercation with a co-worker. After that time, Claimant performed other outside hoist operator work when it became available.
In September 2009, Claimant underwent surgery on his left shoulder, and he remained off work for about a month after the surgery. After his surgery, Claimant returned to work as an inside elevator operator, a less physically demanding position. Claimant described performing different jobs, and he explained that he was not limited in any of the jobs as a result of the 2006 work injury and he did not perform modified duty work as a result of the work injury until after his September 2009 surgery. Claimant testified he did not yet feel capable of returning to work as an outside construction elevator hoist operator. Claimant currently works as an inside elevator operator, which he described as a less-physically demanding job than the outside construction elevator hoist operator job.
Claimant presented the deposition testimony of Dean G. Sotereanos, M.D., who is board-certified in orthopedic surgery (Claimant's Orthopedist). Claimant's Orthopedist began treating Claimant in April 2009 and performed arthroscopic surgery on Claimant's left shoulder in September 2009. Ultimately, Claimant's Orthopedist diagnosed a traumatic left rotator cuff partial thickness tear and aggravation of pre-existing acromioclavicular joint arthritis as a result of the 2006 work injury. Claimant's Orthopedist did not release Claimant to work as an outside construction elevator hoist operator, but he did release Claimant to light duty work with restrictions on lifting and overhead activity.
In addition, Claimant presented the deposition testimony of Edward Snell, M.D., who is board certified in family practice with a special certificate of added qualifications in sports medicine (Claimant's Family Physician), and who began treating Claimant in August 2010. After taking a history, performing an examination, and treating Claimant, Claimant's Family Physician diagnosed a disc bulge/disc herniation at C5-6 that causes outlet stenosis and radiculitis. Claimant's Family Physician related Claimant's diagnosis to the work injury, and he opined Claimant is not able to resume his time-of-injury job, but he is able to perform light duty work.
In response, Employer presented the deposition testimony of Robert Waltrip, M.D., who is board certified in orthopedic surgery (Employer's Orthopedist), and who performed an independent medical evaluation of Claimant in October 2010. After reviewing records, taking a history, and performing an examination, Employer's Orthopedist opined Claimant suffered left trapezius and rhomboid muscle strains and a left shoulder strain and left shoulder impingement as a result of the 2006 work injury. Employer's Orthopedist explained that Claimant's Orthopedist performed surgery to resolve Claimant's left shoulder impingement, which was successful. Employer's Orthopedist opined that Claimant's cervical and thoracic spinal conditions were unrelated to the work injury, but rather were degenerative in nature and were long-standing conditions. Ultimately, Employer's Orthopedist opined Claimant fully recovered from his 2006 work injury and was able to return to work as an outside construction elevator hoist operator as of Employer's Orthopedist's October 2010 independent medical examination.
Employer also presented a narrative report of an independent medical examination performed by Dr. Thomas Kramer, an orthopedic spine surgeon. Because Employer did not present Dr. Kramer's testimony, the WCJ sustained Claimant's hearsay objection to the admission of Dr. Kramer's report, and the WCJ noted he would consider that report only to the extent it corroborated other evidence. The WCJ found Dr. Kramer's opinions, as expressed in his report, corroborated the opinions of Employer's Orthopedist.
Ultimately, the WCJ accepted the testimony of Employer's Orthopedist as credible and rejected the other medical testimony to the extent it was inconsistent with Employer's Orthopedist's opinion. The WCJ noted Employer's Orthopedist's opinion was corroborated by the medical records as well as his examination of Claimant, and Employer's Orthopedist explained Claimant's injuries with a higher degree of specificity than the other medical experts.
Based on these determinations, the WCJ granted Claimant's claim petition, finding Claimant sustained a left shoulder strain with resultant left shoulder impingement, a left rhomboid muscle strain, and a left trapezium muscle strain. The WCJ denied Claimant's claim petition to the extent Claimant asserted he suffered cervical spinal injuries as a result of the December 2006 work incident.
As a result, the WCJ granted Claimant's claim petition seeking indemnity benefits for two closed periods. Specifically, for the period from the date of the work injury until July 25, 2010, the WCJ granted Claimant $1,842 in indemnity benefits, as stipulated to by the parties. For the period from July 26, 2010 through August 18, 2010, the WCJ granted Claimant $3,536.13 in indemnity benefits. As agreed to by Claimant, the WCJ suspended Claimant's indemnity benefits as of August 19, 2010. Additionally, based on the credible testimony of Employer's Orthopedist, the WCJ granted Employer's termination petition as of October 26, 2010, the date of Employer's Orthopedist's independent medical examination. As of that date, the WCJ found Claimant fully recovered from all of his work-related injuries, and Claimant could resume, "without limitation, his time of injury employment as an [o]utside [c]onstruction [e]levator [h]oist [o]perator without limitation or impairment." WCJ Op., 9/23/11, Finding of Fact (F.F.) No. 10(d). As a result, the WCJ concluded:
1. Claimant has met his burden of proving in his [c]laim [p]etition that he sustained a December 15, 2006 injury in the nature of a [l]eft [s]houlder [s]prain with [l]eft [s]houlder [i]mpingement and [l]eft [r]homboid and [l]eft [t]rapezium [m]uscle [s]trains. Claimant's cervical spinal condition (the spinal column and discs and associated structures) did not involve conditions related to any injury of December 15, 2006 but involved degenerative conditions that were pre-existing and/or as asserted by [Claimant's Family Physician] being a C6 [n]erve [r]oot [r]adiculitis that was unrelated to any injury of December 15, 2006.
2. Claimant is entitled to receive the indemnity benefits for total and partial disability as referenced in the prior [f]indings of [f]act and as stipulated to where from December 15, 2006 through July 25, 2010 he is entitled to receive $1,842 effective as of July 26, 2010 .... From July 26, 2010 through 8/15/10 Claimant is entitled to three weeks of benefits at $745 per week with the week from July 26, 2010 through August 1, 2010 being total disability and the two weeks from August 2, 2010 through 8/15/10 being a maximum partial disability at the rate of $745 per week for a total of $2,318.15 .... From August 16, 2010 through August 18, 2010 Claimant is entitled to a net of $83.15 of total disability benefits after credit is given for the [u]nemployment [c]ompensation benefits received. Claimant is entitled to an aggregate total of $4,160.15 ....
3. Effective August 19, 2010 compensation is properly in a [s]uspension status as stipulated to by Claimant until effective October 26, 2010[.] [Employer has] met [its] burden of proving by the most credible evidence of [Employer's Orthopedist] that Claimant had fully and completely recovered from any and all injury of December 15, 2006 as of October 26, 2010 and was
able to resume, without limitation, his time of injury employment as an [o]utside [c]onstruction [e]levator [h]oist [o]perator ... such that compensation should be terminated as of October 26, 2010.WCJ's Op., Concls. of Law Nos. 1-3, 6.
* * * *
6. [Employer] met [its] burden of proof on the [p]etition to [t]erminate [c]ompensation [b]enefits. Therefore, the with[in] [p]etition for [t]ermination of [b]enefits having been granted as of October 26, 2010, and with the aspect of the [c]laim [p]etition having been denied where Claimant has asserted he suffered from a cervical spinal condition and/or C6 [n]erve [r]oot [r]adiculitis related to the injury of December 15, 2006 ....
Claimant appealed, and the Board affirmed. This appeal by Claimant followed.
Initially, we note, it is solely for the WCJ, as fact-finder, to assess credibility and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the WCJ may reject the testimony of any witness, in whole or in part. Id. Further, this Court views the evidence in a light most favorable to the party who prevailed before the fact-finder. Id. Moreover, we draw all reasonable inferences deducible from the evidence in support of the fact-finder's decision in favor of the prevailing party. Id. It does not matter if there is evidence in the record supporting findings contrary to those made by the WCJ; the pertinent inquiry is whether the evidence supports the WCJ's findings. 3D Trucking Co., Inc. v. Workers' Comp. Appeal Bd. (Fine & Anthony Holdings Int'l), 921 A.2d 1281 (Pa. Cmwlth. 2007).
Further, to succeed on a termination petition, an employer bears the burden to establish a claimant's disability no longer exists, and any remaining conditions are unrelated to the work injury. Westmoreland Cnty. v. Workers' Comp. Appeal Bd. (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008). Such burden may be satisfied by presenting unequivocal, competent medical evidence of the claimant's full recovery from the work injury. Id.
On appeal, Claimant argues the WCJ erred in granting Employer's termination petition where several of the WCJ's findings are not supported by substantial, competent evidence. Among other things, Claimant asserts the WCJ misconstrued the testimony of Claimant's medical experts, relied on Employer's Orthopedist's opinion, which was based on false conclusions, and misstated the parties' stipulation regarding the description of the work injury.
Our review is limited to determining whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, and whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
Claimant also argues the WCJ erred in determining he was not entitled to his full bill of costs, specifically the deposition fee for Claimant's Family Physician. The WCJ determined Employer was not required to reimburse Claimant for this deposition fee because the WCJ rejected Claimant's Family Physician's testimony, which Claimant offered in support of his assertion that he suffered C6 nerve root radiculitis related to the 2006 work injury. See F.F. No. 11. Additionally, Claimant contends the WCJ erred in relying on Dr. Thomas Kramer's report where Employer did not present Dr. Kramer's testimony. See F.F. Nos. 9, 10(c). Claimant asserts this constituted an improper reliance on hearsay. Claimant further argues Dr. Kramer's report was "less than corroborative" given the timing of Dr. Kramer's examination of Claimant. Pet'r's Br. at 26. However, Claimant did not raise these issues in his petition for review to this Court. See Reproduced Record at 428a-31a. Thus, these issues are waived. Pa. State Univ. v. Workers' Comp. Appeal Bd. (Sox), 83 A.3d 1081, 1088 n.12 (Pa. Cmwlth. 2013). --------
Claimant first argues the WCJ's Finding of Fact No. 5(g) lacks record support. That finding states (with emphasis added):
[Claimant's Orthopedist] testified (Tr., Pg. 25) that he could not identify any reason why Claimant could not do the tasks of his time of injury position as an [o]utside [c]onstruction [e]levator [h]oist [o]perator using his dominant right upper extremity as necessary instead of his left upper extremity, even with the restrictions [Claimant's Orthopedist] had placed on Claimant's use of his left arm. [Claimant's Orthopedist] identified he did not treat Claimant for any problems with Claimant's right upper extremity nor — with Claimant having no complaints of problems with his right upper extremity — did [Claimant's Orthopedist] even evaluate Claimant's right upper extremity/shoulder.F.F. No. 5(g). Claimant contends that, contrary to the underlined portion of this finding, Claimant's Orthopedist did explain why Claimant could not use his dominant right upper extremity to perform his time-of-injury position. We reject this argument for two reasons.
First, because the WCJ chose to credit Employer's Orthopedist's opinion that Claimant fully recovered from his work injuries over the contrary opinions of Claimant's medical experts, see F.F. No. 10(a)-(d), Claimant's argument on this point is essentially irrelevant. To that end, as explained more fully below, Employer's Orthopedist's credited, competent testimony was sufficient for Employer to satisfy its burden of proving Claimant's disability no longer exists, and any remaining conditions are unrelated to the work injury.
In addition, contrary to Claimant's assertions, as the above finding correctly states, Claimant's Orthopedist did acknowledge that he never evaluated Claimant's right side. Reproduced Record (R.R.) at 114a. Further, while Claimant takes issue with the precise wording of the challenged finding, reading Claimant's Orthopedist's testimony in a light most favorable to Employer as the prevailing party below, the finding is adequately supported. See R.R. at 114a-16a.
Claimant next challenges the WCJ's Finding of Fact No. 6(j), which states, "[Claimant's Family Physician] acknowledged (Tr., Pg. 33) that Claimant did not present complaints of neck pain and if [Claimant's Family Physician] had made any such statements in his testimony that he had misspoken." F.F. No. 6(j). Contrary to this finding, Claimant maintains, Claimant's Family Physician did, in fact, testify that Claimant complained of neck pain.
As with Claimant's challenge to the finding above, because the WCJ chose to credit Employer's Orthopedist's opinion that Claimant fully recovered from his work injuries over the contrary opinions of Claimant's medical experts, Claimant's argument is rendered irrelevant. Further, although contrary to the WCJ's finding Claimant's Family Physician did testify that Claimant presented with complaints of neck pain, see R.R. at 310a, 335a, Employer's Orthopedist credibly opined Claimant fully recovered from his work injuries, F.F. No. 10(d); R.R. at 248a-49a, and Claimant sustained no work-related injury to his neck. F.F. No. 10(c); R.R. at 247a-48a, 250a. Thus, Claimant's argument is unavailing.
Claimant also challenges three of the WCJ's findings relating to the testimony of Employer's Orthopedist. See F.F. Nos. 7(g), (h), 10(d). Claimant asserts that, in these findings, the WCJ found that Employer's Orthopedist testified that Claimant was working in the outside elevator hoist operator position through August 2010. Although Employer's Orthopedist testified to this fact, Claimant contends, this testimony contradicts Claimant's testimony that he actually performed the substantially lighter duty job of inside elevator hoist operator as of January 2010, and he could not return to his time-of-injury job as an outside elevator hoist operator because of his shoulder and back.
Regardless of Employer's Orthopedist's testimony that Claimant performed his time-of-injury job as of August 2010, Employer's Orthopedist opined that Claimant fully recovered from his work injuries and could return to his time-of-injury position as an outside construction elevator hoist operator without restrictions. R.R. at 248a-49a, 252a-55a. Employer's Orthopedist based his opinion on his physical examination, his review of Claimant's medical records and diagnostic studies, and Claimant's history. Thus, Employer's Orthopedist offered competent testimony. Claimant's challenge to Employer's Orthopedist's purported misunderstanding as to which job Claimant felt capable of performing as of August 2010 goes to the weight of Employer's Orthopedist's testimony, not its competency. See DeGraw v. Workers' Comp. Appeal Bd. (Redner's Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007) (rejecting claimant's argument that employer's medical expert's opinion was incompetent where expert admitted he did not review a job description or know the details of the mechanics of the injury as such facts relate to the weight of an expert's opinion, not its competency).
Claimant also takes issue with the WCJ's recitation of the parties' stipulation concerning the accepted description of the injury. See F.F. No. 10(a). Specifically, Claimant argues the WCJ erred in determining that the parties accepted a "left shoulder sprain with resultant left shoulder impingement" as the most credible description of the work injury based on the stipulation. Again, this argument fails.
To that end, as the WCJ recognized in his decision, see F.F. No. 3(h), with regard to the description of Claimant's injury, the parties' stipulation states:
The [c]laim [p]etition asserts Claimant's 12/15/06 injury was in the nature of a 'Left Shoulder Tendon Injury with Bone Spur; Cervical Sprain/Strain/Herniated Disc; Thoracic Injury'. [Employer] ... initially determined — pursuant to the 7/18/08 Notice of Workers' Compensation Denial — that Claimant's 12/15/06 injury was limited to that of a 'Left Shoulder Strain' although Independent Medical Evaluations of Dr. Thomas Kramer and [Employer's Orthopedist] on behalf of [Employer] have included diagnoses related to the 12/15/06 injury of resultant left shoulder impingement and/or strain of the left trapezium and/or left rhomboid muscles as well, albeit [Dr.] Kramer and [Employer's Orthopedist] opining Claimant had fully and completely recovered from any and all injury of 12/15/06. Claimant does not agree he has fully recovered from any or all of his injury of 12/15/06 and intends to present medical evidence, for which he has initially scheduled the testimony of [Claimant's Orthopedist] to currently transpire on 1/6/11. Both parties will be moving forward with presentation of any additional medical or other evidence. Claimant has testified to date by deposition but both counsel wish to have Claimant's deposition testimony of 3/4/10 supplemented by further testimony to bring the case current.Stipulation of the Parties at ¶5; R.R. at 188a.
As to the nature of Claimant's work injury, the WCJ found (with emphasis added):
Claimant's injury of December 15, 2006 was in the nature of a Left Shoulder Strain that resulted in a Left Shoulder Impingement condition for which it was reasonable and necessary for Claimant to receive medical treatment, including the September 8, 2009 surgery on the left shoulder by [Claimant's Orthopedist]. While the parties have [s]tipulated to this diagnostic [d]escription of [i]njury, the opinion of [Employer's Orthopedist] is accepted as credible in this regard and with the exception of small differences in the choice of wording (which [Claimant's Orthopedist] testified all meant the same thing to him), the testimony of [Claimant's Orthopedist] further corroborates this finding. The 'Left Shoulder Strain with Resultant Left Shoulder Impingement' is accepted as the most credible [d]escription of [i]njury involving Claimant's left shoulder for the date of injury of December 15, 2006. ...F.F. No. 10(a), (b).
It is found that the most credible evidence also reflects that the injury of December 15, 2006 resulted in a Left Rhomboid Muscle Strain and Left Trapezium Muscle Strain pursuant to the most credible testimony of [Employer's Orthopedist] along with his entire diagnostic assessment and report. This [f]inding is corroborated by the parties relying upon the report of Dr. Thomas Kramer to stipulate that Claimant's injury of December 15, 2006 involved Cervical and Thoracic Muscular Strain injuries which [Employer's Orthopedist] has defined with a bit more specificity. To the extent Claimant's testimony related his feeling some symptomatology in these areas of his upper back and neck following the injury event of December 15, 2006, that portion of Claimant's testimony is accepted as credibly supporting this [f]inding.
Contrary to the WCJ's determinations, Claimant argues, the parties did not, in fact, stipulate to this description of the work injury, and the parties agreed they were not barred from "asserting and proving other facts, theories and assertions for dates and/or issues other than those addressed in th[e] [s]tipluation." Stipulation of the Parties at ¶2; R.R. at 185a. We agree with Claimant that it is not entirely clear that the parties agreed upon a precise description of the work injury in the above-quoted stipulation. However, regardless of the phrasing of the WCJ's finding regarding the stipulation, the WCJ clearly credited Employer's Orthopedist's diagnosis of a left shoulder sprain with left shoulder impingement and left rhomboid and trapezium muscle strains as a result of the work injury. Although Claimant presented evidence that the nature of the work injury was more expansive, the WCJ rejected this evidence. Thus, no error is apparent.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 7th day of April, 2014, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge