Opinion
No. 887 C.D. 2014
01-08-2015
Peter Halikias, Petitioner v. Workers' Compensation Appeal Board (Colonial Marble and Granite), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Peter Halikias (Claimant) petitions for review of the May 8, 2014 Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision of April 30, 2012 to deny Claimant's Claim Petition. Claimant contends that the Board erred when it affirmed the WCJ's finding that Claimant did not suffer a work-related disability. Discerning no error, we affirm.
Claimant's name, as reflected in the exhibits and testimony, is actually Pantazis Peter Halikias.
Claimant was involved in an incident at work on January 22, 2011 where, in the course of his employment with Colonial Marble & Granite (Employer), a flash fire occurred in the proximity of Claimant and two co-workers installing a kitchen countertop. (WCJ Decision, Findings of Fact (FOF) ¶ 1.) Claimant and his two co-workers were set on fire in varying degrees. (FOF ¶ 3.) Claimant filed a Claim Petition on February 28, 2011 asserting that he suffered burns and head, cervical and lumbar spine injuries when he fell while attempting to flee the fire. Employer filed an answer on March 28, 2011 denying the material allegations of the Claim Petition. On April 12, 2011, Employer issued a Notice of Compensation Denial. Hearings ensued before the WCJ.
In support of the Claim Petition, Claimant testified on his own behalf and submitted the deposition testimony of Steven Grossinger, D.O. In opposition, Employer presented the testimony before the WCJ of two co-workers who witnessed the event, the testimony of Employer, and the deposition testimony of Christian Fras, M.D.
Claimant testified as follows. He was cleaning a countertop with acetone when his co-worker turned on a torch. (Hr'g Tr. at 10-11, June 15, 2011, R.R. at 12a-13a.) The fire from the torch caused the bottle of acetone to blow up, leading to Claimant catching on fire. (Hr'g Tr. at 11, R.R. at 13a.) Claimant's hands and hair were on fire and he decided to go outside and extinguish the fire by rolling on the ground. (Hr'g Tr. at 11, R.R. at 13a.) While exiting the house, Claimant claimed that he fell on the steps in between the garage and the living room, thereby injuring his head, back, and neck. (Hr'g Tr. at 36, R.R. at 38a.)
Dr. Grossinger testified that he is a board certified physician who specializes in neurology and pain management after trauma. (Grossinger's Dep. at 6, R.R. at 122a.) Dr. Grossinger reviewed the emergency room records and examined Claimant on February 1, 2011. (Grossinger's Dep. at 10, 27, R.R. at 126a, 143a.) He concluded that, as a result of the work-related injury, Claimant suffered from post-concussive syndrome with associated headaches, dizziness, and visual change, as well as cervical and lumbar strains with signs of cervical and lumbar radiculopathy. (Grossinger's Dep. at 14, R.R. at 130a.) In Dr. Grossinger's opinion, Claimant was not able to return to work at the time of his examination. (Grossinger's Dep. at 15, R.R. at 131a.) After reviewing the results of two electromyograms, and finding evidence for lumbar strain and sacroiliac dysfunction, Dr. Grossinger continued to treat Claimant for pain management and lumbar injuries. (Grossinger's Dep. at 18-28, R.R. 134a-144a.) Dr. Grossinger concluded that, throughout his treatment, Claimant was not able to return to work at his pre-injury position. (Grossinger's Dep. at 28, R.R. 144a.)
The WCJ found that Claimant's contention that he was injured during a fall was directly contradicted by the testimony of two co-workers on site during the accident. (FOF ¶ 4.) John Detwiler testified as follows. He was using a blowtorch next to Claimant when Claimant poured acetone on the countertop. (Hr'g Tr. at 64, R.R. at 66a.) The acetone caught on fire and the fire immediately moved from the countertop to the acetone bottle Claimant was holding. (Hr'g Tr. at 65, R.R. at 67a.) The bottle caught on fire, the fire spread to Claimant's hair, and onto the side of his face. (Hr'g Tr. at 65, R.R. at 67a.) Claimant then dropped the bottle onto the ground, causing the fire to spread to Detwiler's pants. (Hr'g Tr. at 65, R.R. at 67a.) The other co-worker on the scene, Oleg Dvorjetski, noticed the fire and put the fire on Claimant out. (Hr'g Tr. at 65, R.R. at 67a.) Both Claimant and Detwiler quickly exited the building through the garage and into the snow. (Hr'g Tr. at 65, R.R. at 67a.) According to Detwiler, there was one step going from the kitchen into the living room and no steps into the garage. (Hr'g Tr. at 65, R.R. at 67a.) Detwiler unequivocally testified that Claimant did not fall. (Hr'g Tr. at 68, R.R at 70a.)
Dvorjetski testified that he saw Claimant leave the kitchen where the flash fire took place, and did not see him slip and fall at any time. (Hr'g Tr. at 79, R.R. at 81a.) Dvorjetski further testified that Claimant never told him that he fell and that Claimant "looked good" after the incident. (Hr'g Tr. at 80-81, R.R. at 82a-83a.)
Employer's medical expert, Dr. Fras, testified that he is a board certified orthopedic surgeon focusing on spinal disorders. (Fras' Dep. at 9, R.R. at 187a.) According to Dr. Fras' testimony, he examined Claimant on July 1, 2011 and reviewed MRI results, which revealed degenerative changes in the Claimant's back consistent with a man of his age. (Fras' Dep. at 13, 28, 39, R.R. 191a, 206a, 217a.) The physical exam revealed that Claimant had full range of motion of the neck, shoulders, rotator cuff, lower back, no evidence of scarring, and full strength in all muscle groups of Claimant's bilateral, upper, and lower extremities. (Fras' Dep. at 29-33, R.R. 207a-211a.) Dr. Fras concluded that if Claimant was, in fact, injured on January 22, 2011, he suffered from cervical or lumbar strain and "had fully and completely recovered from those diagnoses." (Fras' Dep. at 35-36, R.R. 213a-214a.)
After examining the evidence, the WCJ found Dr. Fras' testimony both credible and persuasive and that it served to undermine the testimony of Dr. Grossinger. (FOF ¶ 7.) In light of the testimony of the two co-workers and Dr. Fras, the WCJ concluded that Claimant failed to meet his burden of showing that he suffered a fall or any disability due to a fall on January 22, 2011. (FOF ¶ 8.) The WCJ also noted that Claimant did not present any claims for burns and none were present for viewing at the hearing that took place six months after the incident. (FOF ¶ 6.) Finding no work-related injury and resulting disability, the WCJ denied the Claim Petition. Claimant appealed the WCJ's Decision and the Board affirmed. Claimant now petitions this Court for review.
"Our scope of review in a workers' compensation appeal is limited to determining whether necessary finding of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated." Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
On appeal, Claimant first contends that by requiring him to clearly delineate the injury suffered, the WCJ imposed a new burden that is not required under the Workers' Compensation Act. Claimant argues that, because he proved that he caught on fire at work and was taken to the emergency room as a result, he did not have to prove anything more.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4; 2501 - 2708. --------
In reviewing the record, we find no instance where the WCJ required Claimant to do anything more than establish the necessary elements of his claims. In a workers' compensation case, "the employee bears the burden of establishing a right to compensation and of proving all necessary elements to support an award." Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). As such, the employee must establish that "h[is] injury was sustained during the course and scope of employment and is causally related thereto." Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939, 945 (Pa. Cmwlth. 2008). Thus, Claimant was required to prove that he suffered from a disability that was causally related to a work-related incident. Lebron v. Workers' Compensation Appeal Board (Dominick Serrao General Landscaping), 718 A.2d 870, 871 (Pa. Cmwlth. 1998) (holding that a claimant must prove "a causal connection between the alleged disability and a work-related incident"). Accordingly, by requiring Claimant to present evidence showing that his disability was causally related to a work-related injury, the WCJ did not require Claimant to meet a new burden.
Next, Claimant argues that the WCJ's Decision to deny his Claim Petition was illogical in the face of undisputed medical and factual evidence of record demonstrating that Claimant caught on fire at work and the emergency room doctors diagnosed him with several injuries. Claimant further contends that, because Employer did not introduce evidence to contradict the report of the emergency room or Dr. Grossinger's opinion that Claimant was not capable of returning to his pre-injury job as a result of his work-related injuries, the WCJ erred by not finding a work-related disability from February 1, 2011, the date he was examined by Dr. Grossinger, to July 1, 2011, the date he was examined by Dr. Fras.
"[I]t has long been recognized that the WCJ has the exclusive authority to make findings of fact and credibility determinations." Daniels v. Workers' Compensation Appeal Board (Tristate Transportation), 828 A.2d 1043, 1052 (Pa. 2003). This Court will not reweigh evidence and substitute its judgment for that of the WCJ. Rocco v. Workers' Compensation Appeal Board (Parkside Realty Construction), 725 A.2d 239, 244 (Pa. Cmwlth. 1999). Rather, the "function of our review is to determine, upon consideration of the evidence as a whole, whether the record contains substantial evidence that supports the WCJ's findings." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 29 A.3d 762, 769 (Pa. 2011). If the testimony accepted by the WCJ constitutes substantial evidence, conflicting testimony will not serve as grounds for disturbing the WCJ's findings. Rocco, 725 A.2d at 244.
Here, the WCJ rejected Claimant's testimony that he fell and sustained injuries when he was fleeing from the fire. Rather, the WCJ found, based on the credible testimony of Detwiler and Dvorjetski, that Claimant did not fall during the course of his employment on January 22, 2011. Although it was undisputed that Claimant was set on fire as a result of the work-related incident, Claimant did not present any claim for burns or any evidence of burns for viewing during the hearings before the WCJ. Accordingly, the WCJ's finding that Claimant did not satisfy his burden of proving that he sustained a work injury is supported by substantial evidence.
In addition, the WCJ did not accept the testimony of Claimant's medical expert, Dr. Grossinger, and his conclusion that Claimant suffered a disability as a result of a work injury he incurred on January 22, 2011. Instead, the WCJ accepted the testimony of Employer's medical expert, Dr. Fras, as credible and persuasive. Dr. Fras examined Claimant and his medical history, and concluded that Claimant's back pain was consistent with degenerative changes consistent with a man of his age. (Fras' Dep. at 39, R.R. 217a.) Dr. Fras opined, based on his examination, that Claimant's cervical and lumbar spine was normal. (Fras' Dep. at 33, R.R. 211a.) Finally, Dr. Fras observed that the emergency room records revealed that Claimant complained before the January 22, 2011 work incident of back pain that worsened with lifting. (Fras' Dep. at 40, R.R. 218a.)
Because a reasonable mind could conclude that Claimant suffered no work injury or disability based on the credible testimony of the two fact witnesses and Dr. Fras, we will not disturb the WCJ's findings. Accordingly, we do not find Claimant's arguments persuasive that the WCJ erred by denying his Claim Petition.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 8, 2015, the Order of the Workers' Compensation Appeal Board, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge