Opinion
No. 66 C.D. 2011
08-18-2011
Elizabeth Equipment Services, Petitioner v. Workers' Compensation Appeal Board (Gardner), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Elizabeth Equipment Services (Employer) petitions for review of the December 17, 2010, Order of the Workers' Compensation Review Board (Board), which affirmed the Workers' Compensation Judge's (WCJ) decision granting the Petition to Review Compensation Benefits and to Reinstate Compensation Benefits (Petition) filed by Dwayne Gardner (Claimant). On appeal, Employer argues that the Board erred in granting the Petition because the credited medical evidence is not substantial, competent evidence supporting the findings of fact and the WCJ left the rationale for her decision unstated or unclear. For the reasons that follow, we affirm.
While laying pipe for Employer on August 31, 2005, Claimant fell and injured himself. The injury was a "strain/sprain" of the right leg, according to the Notice of Temporary Compensation Payable (NTCP) dated October 28, 2005. (NTCP at 1, R.R. at 127.) The NTCP provided for compensation payments beginning on October 11, 2005. Claimant underwent knee surgery on November 11, 2005, with Alan Tissenbaum, M.D. (WCJ's Decision, Findings of Fact (FOF) ¶ 1(e).) A Notice of Compensation Payable (NCP) was issued on December 21, 2005. (NCP at 1, R.R. at 122.) Claimant returned to work on December 26, 2005, and benefits were suspended effective that same day. However, Claimant's knee pain persisted. He found that he could not work, and Employer resumed payments as of January 1, 2006. On June 6, 2006, Employer suspended benefits once again upon Claimant's return to work.
The Reproduced Record also contains an apparently redundant notification of suspension as of November 27, 2006, but it is labeled "claim already suspended." (Notification of Suspension or Modification, November 29, 2006, R.R. at 116.)
On September 22, 2006, Claimant underwent knee surgery for the second time, with Jeffrey Kann, M.D. (FOF ¶ 1(g).) The following summer, Claimant consulted Gerard J. Werries, M.D. about back pain and Dr. Werries performed a lumbar laminectomy and fusion on October 5, 2007. (FOF ¶ 1(h).) On December 28, 2007, Claimant filed the Petition, alleging that his condition had worsened and the original description of the injury was incorrect. Pursuant to Section 413(a) of the Workers' Compensation Act (Act), Claimant petitioned both to amend the description of injury in the NCP "to include aggravation of pre-existing lumbar stenosis," and to reinstate benefits, which at that point had been suspended. (Petition ¶ 17, R.R. at 3.) Employer filed a timely Answer opposing the Petition. The matter was assigned to the WCJ, who held hearings at which Claimant testified. Employer submitted the deposition transcript of its expert witness, J. William Bookwalter, III, M.D., and Claimant submitted the deposition transcript of his expert witness, Dr. Werries.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
In support of the Petition, Claimant testified that he experienced pain in the middle of his back on the day of his work injury. (Hr'g Tr. at 7, R.R. at 129.) Claimant testified that he felt back pain immediately after the injury that was nothing like his previous arthritic back pain. (Hr'g Tr. at 7-8, R.R. at 129.) Claimant further testified that he reported the back pain to the first physician who treated him for the injury and who performed surgery on his knee, Dr. Tissenbaum. (Hr'g Tr. at 9, R.R. at 130.) However, Dr. Tissenbaum did not provide any treatment for Claimant's back complaint, telling him it was caused by arthritis, nor did he enter a notation of it into his records. Claimant also indicated that he did not complain of back pain at his initial hospital visit because his knee pain outweighed the pain he suffered in his back. (Hr'g Tr. at 8, R.R. at 129.) Claimant further testified that he briefly returned to work, but "I worked four days [in late December 2005], and . . . I couldn't even walk. . . . My knee swelled up, and my back started bothering me." (Hr'g Tr. at 10, R.R. at 130.)
In further support of the Petition, Claimant presented the deposition testimony of Dr. Werries. Dr. Werries testified that he began treating Claimant about two years after the work injury, on July 5, 2007, when he learned that Claimant had "low back pain and symptoms going down both legs" as a result of the injury. (Werries Dep. at 6, R.R. at 46.) Dr. Werries obtained a medical history from Claimant, and Claimant reported that he did not have a history of back or leg pain prior to the work injury. (Werries Dep. at 10, R.R. at 50.) Dr. Werries testified that Claimant had decreased sensation in his legs and had difficulty performing certain motions. (Werries Dep. at 7, R.R. at 47.) Dr. Werries testified that the medical history taken from the Claimant was part of the basis for his opinion that the work injury caused the back pain. (Werries Dep. at 14, R.R. at 54.) Dr. Werries also affirmed the opinion he had stated in an earlier report. (Werries Dep. at 11, R.R. at 51.) The report said the following: "Based on [Claimant's] history, MRI findings and physical examination . . . [Claimant] had incurred an aggravation of a preexisting condition." (Letter from Dr. Werries to Claimant's counsel, December 6, 2007, at 2, R.R. at 71.) Therefore, based upon Claimant's history of the absence of back or leg pain before the work injury took place, Dr. Werries opined that Claimant suffered an aggravation of a pre-existing condition as a result of the work injury. (Werries Dep. at 10, R.R. at 50.)
Although, in his testimony, Dr. Werries referred to an October 2005 work injury, the date of Claimant's injury was August 31, 2005, and the Board found that Dr. Werries "simply misspoke." (Board Op. at 9.)
In opposition to the Petition, Employer submitted the deposition testimony of its expert, Dr. Bookwalter. Dr. Bookwalter testified that he found no mention of back pain in Claimant's medical records contemporaneous with the work injury. (Bookwalter Dep. at 14-15, R.R. at 88-89.) Dr. Bookwalter further testified that, in his opinion, "there was no material change in any of the areas in [Claimant's] spine as a consequence of the work event . . . . [C]ontemporaneous medical records do not support the presence of any back related symptoms until a point in time eight months remote from the work event." (Bookwalter Dep. at 13, 15, R.R. at 87, 89.) Dr. Bookwalter testified that he believed degenerative changes caused Claimant's back pain. (Bookwalter Dep. at 13-15, R.R. at 87-89.) Accordingly, Dr. Bookwalter opined that the fall at work did not result in any material change in the spine.
Upon review of the evidence, the WCJ found Claimant and his expert credible. (FOF ¶¶ 4, 5.) Specifically, the WCJ found it credible that Claimant experienced back pain at the time of his work injury and that he had never experienced back pain like that prior to the work injury. (FOF ¶ 4.) The WJC noted that "[t]he record is devoid of any testimony from Dr. Tissenbaum indicating that [C]laimant did not voice these complaints." (FOF ¶ 4.) Additionally, the WCJ credited the testimony of Dr. Werries, who relied on the medical history provided to him by Claimant, over the testimony of Dr. Bookwalter. (FOF ¶ 5.) Claimant's testimony confirmed the medical history that he had given Dr. Werries, on which Dr. Werries based his opinion in part. (FOF ¶¶ 4, 5.) The WCJ noted several points of agreement between the two experts: "the existence and type of the claimant's complaints," the fact "that [C]laimant has work limitations directly related to [his] spinal condition," the fact "that it is not unusual for a person to focus on the body part causing the most pain when two body parts are injured at the same time," and the fact that "an asymptomatic condition can become symptomatic with trauma." (FOF ¶ 5.) The WCJ concluded that "[C]laimant is entitled to payment of temporary total indemnity benefits from October 3, 2007, through July 9, 2008, as well as payment of all reasonable, necessary, and causally related medical treatment related to the claimant's work injury." (WCJ Order at 7.)
Employer appealed to the Board, which affirmed the WCJ's decision. The Board found that the WCJ:
accepted Claimant's testimony as consistent with the histories he provided to his doctors. . . . The WCJ found the testimony of Dr. Werries to be more credible than Dr. Bookwalter, noting that both agreed that a patient will likely focus on the more severe of two injuries first and because an asymptomatic pre-existing condition can become symptomatic due to trauma. . . . [T]he WCJ noted that Dr. Bookwalter admitted that he did not "have the expertise to comment on the orthopedic aspect of things."(Board Op. 7-8) (internal citations omitted.) Employer now petitions this Court for review.
"This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Compensation Appeal Board (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Pittsburgh v. Workers' Compensation Appeal Board (Wilson), 11 A.3d 1071, 1075 n.4 (Pa. Cmwlth. 2011).
On appeal, Employer argues that the Board erred in granting the Petition because: (1) the testimony of Claimant's expert, Dr. Werries, is not competent to support the amendment of the NCP to include Claimant's back condition; and (2) because of the time lapse between the work injury and Petition, Claimant failed to show the back injury was causally related to the work injury. Additionally, Employer contends that the WCJ failed to issue a reasoned decision pursuant to Section 422(a) of the Act, 77 P.S. § 834, because the decision lacked an adequate and reasoned explanation regarding her credibility determinations.
We first address Employer's argument that the testimony of Dr. Werries is not competent to support the amendment of the NCP to include Claimant's back condition. We note initially that, "[a] petition for review is limited to review or modification of a [NCP] which is in some material respect incorrect." Birmingham Fire Insurance Co. v. Workmen's Compensation Appeal Board (Kennedy), 657 A.2d 96, 99 (Pa. Cmwlth. 1995). Section 413(a) of the Act states:
A workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.77 P.S. § 771. "Modification of a compensation agreement is justified where there is a true mistake of fact or law which renders such agreement materially incorrect . . . ." Litton Industries v. Workmen's Compensation Appeal Board (Christner), 466 A.2d 1114, 1116 (Pa. Cmwlth. 1983). In order for the NCP to be amended here, because there is no obvious connection between the accepted knee injury and the subsequently documented back pain, the burden is on Claimant to prove causation with respect to amending the description of the injury contained in the NCP. Huddy v. Workers' Compensation Appeal Board (U.S. Air), 905 A.2d 589, 592 (Pa. Cmwlth. 2006); (Employers' Br. at 16, Claimant's Br. at 11.) To meet that burden, Claimant must present unequivocal medical evidence of causation. City of Pittsburgh, 11 A.3d at 1075.
Employer argues that the testimony of Dr. Werries is not competent to support granting the Petition because he improperly relied on an inaccurate medical history given by Claimant and made "presumptions" that were "inconsistent with . . . records" of earlier treatment by another physician. (Employer's Br. at 20.) In support of this argument, Employer relies on the Pennsylvania Supreme Court's decision in Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking Corporation), 547 Pa. 639, 647-48, 692 A.2d 1062, 1066 (1997) (discrediting expert testimony that relied entirely on a false medical history given by the claimant).
Employer's reliance on Newcomer is misplaced. The Board and our Supreme Court in Newcomer found that the claimant had given a false medical history to his expert witness, which, in turn, discredited the testimony and opinion of the claimant's expert witness. Id. at 643, 692 A.2d at 1064. No such finding was made here. On the contrary, the WCJ found "that [C]laimant has been forthright, credible and honest." (FOF ¶ 4.) Furthermore, "Claimant credibly testified that he had lower back pain immediately after the fall." (FOF ¶ 5.) Unlike Newcomer, where the discredited expert relied on a false medical history, here Dr. Werries relied on a medical history that was essentially identical to the Claimant's credible testimony before the WCJ. The WCJ specifically credited the testimony of Dr. Werries, who based his opinion upon "[C]laimant's history of the absence of back or leg pain before the work injury." (FOF ¶ 2(h).) Claimant testified that although he "did have previous back pain, he never experienced similar pain to this pain." (FOF ¶ 1(c).) Claimant also credibly testified that he described his back pain, early on, to Dr. Tissenbaum, who treated his knee injury, and that back pain was part of the reason why he failed in his attempt to return to work in late 2005 after knee surgery. (FOF ¶¶ 1(e)-(f).) Moreover, unlike the Newcomer expert, Dr. Werries based his opinion on other factors besides the accurate history given to him by Claimant: medical tests and a physical examination. (FOF ¶¶ 2(b)-(c).) Because Claimant's credible testimony before the WCJ corroborated the medical history on which Dr. Werries' opinion was based in part, the opinion of Dr. Werries does not fall short of being competent, substantial evidence.
Employer also challenges the Board's order granting the Petition by arguing that Claimant failed to demonstrate a causal relationship between his fall and the aggravated spinal condition that eventually required surgery. While Employer acknowledges that "a claimant is not required to produce unequivocal medical evidence to establish a continuing disability," it points to the length of time between the fall and any medical record attesting back pain. (Employer's Br. at 23-24.) In support of the significance of a time lapse between the work injury and the petition to reinstate, Employer cites dicta in Latta v. Workmen's Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 227 n.4, 642 A.2d 1083, 1085 n.4 (1994), which noted "the difficulty of establishing that a work-related injury continues in any given case" may increase with "the length of time that has passed since the claimant originally established the existence of the work-related injury."
However, our Supreme Court in Latta held that "[g]iven the nature of suspension status . . . the testimony of a claimant alone could easily satisfy his burden of establishing that his work-related injury continues." Id. at 227, 642 A.2d at 1085. In this case, Claimant credibly testified that there was no appreciable time lapse between the work injury and his complaint of back pain because Claimant credibly testified that he felt back pain immediately, (Hr'g Tr. at 7-8, R.R. at 129), and that he reported his back pain to Dr. Tissenbaum, the physician who initially treated him. (Hr'g Tr. at 9, R.R. at 130.) Eight months elapsed between the work injury and the first mention of back pain in any medical documentation, (Employer's Br. at 17), but Claimant explained why there was a delay. Claimant testified that he described the back pain to Dr. Tissenbaum, the surgeon who initially treated him for his knee injury, but that Dr. Tissenbaum dismissed the back pain as arthritis and declined to treat it. (Hr'g Tr. at 9-10, 17, 19, R.R. at 130, 132.) Employer proffers no other argument besides a time lapse to disprove the causal relationship between Claimant's fall and his back ailment. Moreover, both Claimant's expert and Employer's expert agreed that his back could have become symptomatic because of the trauma. (FOF ¶ 5.) Therefore, the record evidence is sufficient to sustain the presumption of causation between Claimant's injury and the deterioration of the spinal condition.
After Claimant meets the burden of showing causation between the work event and the disabling back problem, he need only demonstrate that he was once again unable to work because of it. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 33, 584 A.2d 301, 304 (1990). A claimant seeking reinstatement has no burden of proof with regard to the causation of the injury described in the NCP. "Should a claimant seek to have a suspension lifted, he is required to demonstrate only that the reasons for the suspension no longer exist." Id. Both experts agreed that Claimant could not return to work without restrictions because of his back pain. (Werries Dep. at 10-11, R.R. at 50-51; Bookwalter Dep. at 17, 21, R.R. at 91, 95.) Claimant, himself, credibly testified that he could not work because his job was physically demanding and he was experiencing knee pain, back pain, and numbness from his back to his feet in both legs. (Hr'g Tr. at 15-16, R.R. at 131.) As such, we conclude that the Board did not err in affirming the decision of the WCJ, which granted the Petition.
Finally, Employer argues that the WCJ's decision was not well reasoned or adequately explained, contrary to the provisions of Section 422(a) of the Act, when the WCJ found Claimant's expert more credible than Employer's expert. Our Supreme Court interpreted Section 422(a) in Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003), which Employer cites. In Daniels, the WCJ gave no explanation for the findings of credibility. Id. at 65-66, 828 A.2d at 1045-46. By contrast, here the WCJ thoroughly explained why Dr. Werries was more credible than Dr. Bookwalter. (FOF ¶ 5.) Thus, the result in Daniels is not controlling.
Here, when the parties' experts differed on the issue of causation between the work injury and the spinal infirmity, the WCJ examined the evidentiary bases for each opinion. Employer's expert, Dr. Bookwalter, found no causation because the first notation of back pain in a medical record occurred about eight months after the work injury. However, that discrepancy is explainable. As already explained, Claimant credibly testified that he had mentioned back pain, but Dr. Tissenbaum did not make a note of it or treat it. There is no contrary evidence because Employer did not produce the testimony of Dr. Tissenbaum. Dr. Werries and Dr. Bookwalter both agree that "it is not unusual for a person to focus on the body part causing the most pain when two body parts are injured at the same time" (FOF ¶ 5), and Claimant landed on his tailbone when he wrenched his knee (Hr'g Tr. at 6, R.R. at 129.)
The WCJ carefully set forth the reasons why she found Dr. Werries' testimony "more credible than that of Dr. Bookwalter." (FOF ¶ 5.) Most weighty among several reasons offered by the WCJ was the fact that the credible testimony of Claimant himself corroborated Dr. Werries' testimony. (FOF ¶¶ 4-5.) Because Claimant testified in person, under Daniels, the WCJ could have credited his testimony on his demeanor alone. Nevertheless, the WCJ also based the credibility finding on the observation that Claimant's testimony was consistent with the medical histories in the dispositions of both Dr. Werries and Dr. Bookwalter. (FOF ¶ 4.) The explanations of the WCJ are objective and adequate under Section 422(a) of the Act. The credibility finding in favor of Dr. Werries was by no means without reason or merit.
We must affirm if competent substantial evidence supports the WCJ's findings and if the WCJ has adequately explained the reasoning that led to the decision. Here, there is no disagreement about the facts that Claimant was injured and subsequently became disabled. Experts of both parties agree that: Claimant had preexisting back infirmity; it was not symptomatic until the work injury; a person could focus initially on the most acute injury; the injury could have aggravated Claimant's preexisting condition; Claimant's low back pain caused him not to be able to work; and he was not magnifying his symptoms. (Werries Dep. at 10, 22-23, R.R. at 50, 62-63; Letter from Dr. Werries to Claimant's counsel, December 6, 2007, R.R. at 70-72; Bookwalter Dep. at 7, 17, 19-23, 27-28, R.R. at 81, 91, 93-97, 101-02.) That is sufficient evidence to support a finding that the NCP was materially incorrect at the time it was issued, and it should be corrected. Because the disability persists, benefits should be reinstated.
Accordingly, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, August 18, 2011, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge