Opinion
No. 1731 C.D. 2011
06-04-2012
City Cleaning Co. and Rockwood Casualty Insurance Company, Petitioners v. Workers' Compensation Appeal Board (McMorris), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
City Cleaning Company and Rockwood Casualty Insurance Company (collectively, Employer) petition for review of the August 19, 2011, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the remand decision of a workers' compensation judge (WCJ) granting Vincent McMorris's (Claimant) claim petition for a fixed period of total disability benefits, followed by partial disability benefits as of November 1, 2002. We affirm.
Claimant's benefits were resolved pursuant to a subsequent compromise and release agreement. (WCAB's Order, at 1.)
On August 21, 2000, Claimant filed a claim petition alleging that he suffered a lower abdominal hernia on July 14, 2000, while lifting a bucket out of a four-foot-high tub in the course and scope of his employment as a laborer with Employer. (WCJ's Decision, 5/28/08, Findings of Fact, No. 2.) In November 2001, Claimant had surgery to fix the hernia. (WCJ's Decision, 5/28/08, Findings of Fact, Nos. 2, 4.) Following two decisions by the WCJ, which were both vacated and remanded by the WCAB, the WCJ, on December 20, 2006, issued a third order denying Claimant's claim petition. The WCAB, on August 29, 2007, determined that the WCJ failed to make a necessary credibility determination regarding Claimant's testimony and again remanded the matter back to the WCJ.
On March 30, 2001, the WCJ found that Employer filed a late answer and granted Claimant's claim petition. Employer appealed to the WCAB, which, on December 6, 2001, vacated and remanded to the WCJ after determining Employer's answer was timely. On July 13, 2004, the WCJ issued a second decision denying Claimant's claim petition. Claimant appealed to the WCAB, which, on May 4, 2006, vacated and remanded for new findings of fact and conclusions of law based upon the WCJ misconstruing testimony, taking testimony out of context, and requiring medical testimony when the injury was obvious.
On May 28, 2008, the WCJ issued a fourth decision wherein he found Claimant credible. The WCJ granted Claimant's claim petition, awarding benefits from July 15, 2000, through October 31, 2002, and suspending benefits as of November 1, 2002. On October 20, 2009, the WCAB again remanded the matter to the WCJ for a determination as to whether Employer was entitled to a modification or suspension of Claimant's benefits as of November 1, 2002. On remand, the WCJ made new findings of fact and reaffirmed and incorporated findings of fact from the WCJ's May 28, 2008, decision, which are summarized as follows.
The WCJ reaffirmed and incorporated Findings of Fact Numbers 1-8, 9(a)-9(c), 9(e), the first sentence of 9(d), 10 and 12.
On January 27, 2004, Claimant testified at a hearing held before the WCJ and presented his own deposition testimony, which had been taken on April 18, 2002. (WCJ's Decision, 5/28/08, Findings of Fact, Nos. 2-3.) Claimant testified that two weeks after the surgery, he had nausea and vomiting and that he has not worked since July 14, 2000, because he is "scared this thing might pop out." (WCJ's Decision, 5/28/08, Findings of Fact, No. 2.) Claimant testified that he felt better approximately one month after the surgery, but the pain recurred spontaneously about four months later. (WCJ's Decision, 5/28/08, Findings of Fact, No. 3.) Claimant stated that his doctor and Employer's doctor ordered CT scans, but he was unable to get the scan because he does not have insurance. Claimant stated that he took defense counsel's letter guaranteeing payment to the hospital, but the hospital refused to do the scan. (Id.) Claimant further stated that his doctor, Jimmie J. Sanders, M.D., recommended more surgery. (Id.)
Claimant presented the deposition testimony of Dr. Sanders, who examined Claimant on January 31, 2003. Dr. Sanders determined that Claimant had a hernia that was surgically repaired in November 2001 and found a well-healed surgical scar with tenderness to palpation at the incision site, but no palpable defect or mass. (WCJ's Decision, 5/28/08, Findings of Fact, No. 4.) Dr. Sanders testified that Claimant had an umbilical hernia secondary to lifting a heavy object at work. (WCJ's Decision, 5/28/08, Findings of Fact, No. 4.) Dr. Sanders, however,
could not make a definite diagnosis with regard to Claimant's current condition. He suggested several diagnostic possibilities, as follows: a failed hernia repair, a small recurrent ventral hernia, an evolving recurrent ventral hernia, a small de novo ventral hernia or a small de novo evolving hernia. He opined that if Claimant had a de novo or evolving de novo hernia it might be related to the July 14, 2000 work incident. Claimant's complaints of nausea and vomiting might be associated with a tethering of the omentum at the hernia site. He could not make a definite diagnosis in the absence of a CT scan and/or additional surgery. He restricted lifting to 20 pounds.(Id.)
Employer presented the deposition testimony of Arnold M. Baskies, M.D., who examined Claimant on April 15, 2002, and opined that Claimant had fully recovered from the hernia as of that date and was capable of returning to work without restriction. Dr. Baskies stated that as of his next exam, on September 15, 2003, there was no evidence of a recurrent or new hernia. Dr. Baskies recommended a CT scan to confirm his clinical impressions. (WCJ's Decision, 5/28/08, Findings of Fact, No. 5.)
The WCJ credited Claimant's testimony except for any testimony that would support a finding that Claimant suffered a loss in earnings on and after November 1, 2002, as a result of the work injury. The WCJ found that, since November 1, 2002, Claimant has earned $90.17 per week. (WCJ's Decision, 8/19/10, Findings of Fact No. 4.) The WCJ further credited Claimant's testimony that he could not get the CT scan due to lack of insurance, notwithstanding the letter from defense counsel. (WCJ's Decision, 5/28/08, Findings of Fact, No. 6.)
The WCJ found Dr. Sanders credible. The WCJ found Dr. Baskies credible only to the extent that his testimony is consistent with Dr. Sanders' testimony; in all other respects, the WCJ rejected Dr. Baskies' testimony. (WCJ's Decision, 5/28/08, Findings of Fact, Nos. 7-8.) The WCJ determined that Claimant was totally disabled from July 15, 2000, through October 31, 2002. (WCJ's Decision, 5/28/08, Findings of Fact, No. 9.) By decision dated August 19, 2010, the WCJ granted Claimant's claim petition and ordered Employer to pay Claimant total disability benefits from July 15, 2000, through October 31, 2002, and partial compensation from November 1, 2002, and continuing until otherwise terminated, modified or suspended by agreement, order or by operation of law. (WCJ's Decision, 8/19/10, at 2.) The WCJ further ordered Employer to pay all related, reasonable and necessary healthcare costs along with litigation costs. (Id.) Employer appealed to the WCAB, which affirmed. Employer now petitions 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 the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Initially, Employer contends that the WCAB exceeded its authority when, on August 29, 2007, it remanded the matter to the WCJ because the WCJ failed to make a credibility determination regarding Claimant. Employer argues that, because the WCJ's December 20, 2006, decision denying Claimant's claim petition was a "reasoned" decision, the WCAB should have affirmed the dismissal of Claimant's claim petition. We disagree.
Section 422(a) of the Workers' Compensation Act (Act), 77 P.S. §834, provides that all parties to an adjudicatory proceeding are entitled to a reasoned decision, containing findings of fact and conclusions of law based upon the evidence as a whole, which clearly and concisely state and explain the rationale for the decision. When faced with conflicting evidence, the WCJ must adequately explain his reasons for rejecting or discrediting competent evidence and uncontroverted evidence may not be rejected for no reason or for an irrational reason. 77 P.S. §834. Where the WCJ does not have an opportunity to observe the demeanor of a witness, and his credibility assessment is not tied to the inherently subjective circumstance of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered in order for the decision to meet the requirements of Section 422(a) of the Act. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003). A witness's deposition testimony may be rejected if he relies upon a legally erroneous factual assumption or if he misapprehends a material fact. Id. at 78 n.8, 828 A.2d 1054 n.8. No explanation is required for determinations of credibility for witnesses testifying in person before the WCJ. Id. at 77, 828 A.2d at 1052-53; see also U.S. Steel Mining Company v. Workers' Compensation Appeal Board (Goretsky), 874 A.2d 711, 715 (Pa. Cmwlth. 2005). The WCJ, when reviewing the credibility of a claimant who testifies before him, may state a mere conclusion as to that claimant's credibility and, absent some special circumstance, that decision could be adequately "reasoned." Daniels, 574 Pa. at 77, 828 A.2d at 1053.
Act of June 2, 1915, P.L. 736, as amended. Section 422(a) of the Act provides:
Neither the board nor any of its members nor any workers' compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.
Here, Claimant testified before the WCJ and submitted his own deposition testimony. However, the WCJ, in its December 20, 2006, decision, made no finding of credibility regarding the Claimant. As the WCAB aptly noted, an assessment of Claimant's credibility was necessary because both doctors, in rendering their medical opinions, relied upon the history Claimant provided regarding the occurrence of the work incident. (WCAB's Decision, 8/29/07, at 8-9.) We agree that Claimant's credibility is essential to the central question of work-relatedness and is a necessary component of a reasoned decision. See Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 205, 812 A.2d 478, 488 (2002). Absent a decision on Claimant's credibility, the WCAB was unable to provide a meaningful review. 77 P.S. §834. Therefore, we conclude that the WCAB did not err in remanding the matter to the WCJ to assess Claimant's credibility.
The WCAB explained:
[The WCJ] found that neither doctor considered the mechanism of the injury. However, both doctors agreed that the July 14, 2000 lifting incident caused Claimant to develop an abdominal hernia. In formulating their opinions, they relied on the history Claimant provided, which included lifting a heavy bucket of water and experiencing an immediate onset of abdominal pain as well as a knot in his abdominal wall. Assuming Claimant's testimony is credible, both doctors would have considered the mechanism of the injury, and the WCJ's explanation of his credibility determination would reflect a misapprehension of a material fact.(WCAB's Decision, 8/29/07, at 8-9.)
The WCJ did not make a finding as to Claimant's credibility in his latest Decision. His previous decision found Claimant's testimony credible as to the occurrence of an incident at work, but rejected his testimony that he had not worked since July 14, 2000. . . . However, we vacated his entire decision, which effectively cancelled this finding. Therefore, the WCJ needed to make another credibility finding as to Claimant in his most recent decision. This item apparently was overlooked after our last remand, presumably because we did not include it in our instructions to the WCJ. Consequently, we need to again remand this case for a credibility determination of Claimant, since we cannot simply assume that the WCJ would have made the same finding . . . . If the WCJ finds Claimant's account of his injury credible, he must also reconsider his rejection of the medical testimony that relied on that account.
Next, Employer contends that, assuming Claimant suffered a compensable injury, Claimant's medical evidence on causation is inadequate to support an ongoing award of benefits. We disagree.
In a claim petition, Claimant bears the burden of proving all of the elements necessary to support an award. Berks County Intermediate Unit v. Workmen's Compensation Appeal Board (Rucker), 631 A.2d 801, 803 (Pa. Cmwlth. 1993). Moreover, the Claimant must prove that his disability continues throughout the pendency of the litigation. Potere v. Workers' Compensation Appeal Board (KEMCORP), 21 A.3d 684, 690 (Pa. Cmwlth. 2011). Where medical evidence is required, it must be unequivocal. Haney v. Workmen's Compensation Appeal Board, 442 A.2d 1223, 1225 (Pa. Cmwlth. 1982). Questions of equivocality of an expert's testimony are questions of law fully subject to this court's review. Potere, 21 A.3d at 690. Whether medical evidence is equivocal or not involves a determination of its competency, not its credibility. Id. Medical testimony is equivocal if it is less than positive or merely based upon possibilities. Id.
Here, the WCJ, in his May 28, 2008, decision, suspended Claimant's benefits as of November 1, 2002, because Claimant had started working as of that date. The WCJ did not find that Claimant had recovered from his work injury. In fact, the WCJ actually found Dr. Baskies' testimony that Claimant had recovered from the work injury of July 2002 not credible. (WCJ's Decision, 5/28/08, Findings of Fact, No. 8.) In contrast, Dr. Sanders credibly testified that Claimant had an umbilical hernia that was the result of his work injury. (Sanders Dep., 3/11/03, at 21.) Dr. Sanders further testified that Claimant had tenderness and pain at the site of the surgery that was caused by either a small recurrent ventral hernia, an evolving recurrent ventral hernia, a small de novo ventral hernia or a small evolving de novo ventral hernia. (Id.)
In addition, the nausea and vomiting could be associated to a tethering of the omentum at the hernia site so that when he increases intra-abdominal pressure in lifting. . . [i]t would pull on the stomach and could conceivably cause that, which is a fairly common occurrence in these sort of circumstances. . . . He could have a small recurrent hernia or it could be new. It could be a new hernia. It is not uncommon for people who have defects in that area to have other small areas of weakness above that area. So, he could have an evolving de novo small hernia defect in that same area or just proximal to that area.(Id. at 21-23.) Dr. Sanders recommended a CT scan of the abdomen to show any fascial defects, any small areas of herniation and any tethering of omentum to the intra-abdominal wall. (Id. at 23.) Dr. Sanders also recommended that Claimant's injury be re-explored through surgery and perhaps repair again the previous hernia repair. (Id. at 23-24.)
Dr. Sanders opined that Claimant is disabled and unable to return to his pre-injury position as a result of the work-related injury of July 14, 2000. (Id. at 24, 30.) Although Dr. Sanders may have been unable to determine the exact type of problem Claimant is having with his herniation due to the lack of a CT scan, he was unequivocal in his determination that Claimant did have a problem and that the problem was related to the work injury of July 14, 2000. After a review of Dr. Sanders' testimony as a whole, we believe it to be unequivocal. We, therefore, conclude that the WCJ did not err in determining that Dr. Sanders' testimony supports an ongoing award of benefits.
The WCAB or reviewing court must determine whether, upon consideration of the evidence as a whole, the WCJ's findings are supported by the record. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 140, 634 A.2d 592, 595 (1993). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 4th day of June, 2012, the August 19, 2011, order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
77 P.S. §834.