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Hercules Painting Co. v. Workers' Comp. Appeal Bd.

COMMONWEALTH COURT OF PENNSYLVANIA
Apr 10, 2015
No. 1095 C.D. 2014 (Pa. Cmmw. Ct. Apr. 10, 2015)

Opinion

No. 1095 C.D. 2014

04-10-2015

Hercules Painting Company, Inc., and Zurich American Insurance Company Petitioners v. Workers' Compensation Appeal Board (Savakis), 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 BROBSON

Petitioners Hercules Painting Company, Inc., and Zurich American Insurance Company (collectively, Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of Workers' Compensation Judge Alfred Benedict (WCJ), granting Hercules Savakis's (Claimant) petition to reinstate compensation benefits. We now affirm.

On July 23, 2010, while working as a blaster and painter for Employer, Claimant was lifting eighty-nine pound buckets of paint and zinc dust from the ground and immediately began to feel pain in his shoulder. (Reproduced Record (R.R.) at 15-16.) Claimant visited his family doctor, who referred him to an orthopedic surgeon, James Pantelakis, M.D. (Id. at 16.) Dr. Pantelakis diagnosed Claimant's injury as a shoulder sprain and subsequently performed surgery to correct the injury. (Id. at 136.) Claimant received workers' compensation benefits from July 24, 2010 until April 30, 2011. (WCJ Decision at 1.) After Claimant completed physical therapy, Dr. Pantelakis cleared him to return to work on May 1, 2011. (R.R. at 136.) Although Claimant asserted that he still felt significant pain in his shoulder, Claimant began working for Employer again on May 1, 2011, but he did not perform any blasting work. (Id. at 18.)

Claimant's employment with Employer ended in June 2011, and, shortly thereafter, Claimant found new employment with Pantera Painting (Pantera). (Id. at 22-23.) His new job duties included the same sort of work that he performed for Employer—namely, painting and blasting. (Id. at 23.) Claimant continued to feel pain in his shoulder, and he eventually had to stop working for Pantera. (Id. at 88.) Claimant filed a claim petition, later amended to a petition to reinstate compensation benefits, and a WCJ conducted a hearing.

At the hearing before the WCJ, Claimant testified that after his 2010 injury, he continued to experience pain in his right shoulder despite the surgery and physical therapy. (Id. at 18.) He further explained that Dr. Pantelakis cleared him to return to work in May 2011 because Claimant wanted to "try" to begin working again. (Id.) He continued to have shoulder pain after returning to work with Employer. (Id. at 19.) He continued to have varying degrees of pain in the same area, which persisted throughout his employment with Pantera. (Id. at 45, 88.)

Barbara Byrne, Employer's insurance adjuster, testified by deposition. She testified that Claimant did not inform her that he wanted to just try to go back to work for Employer on May 1, 2011, and that he had not told her that he was still having pain in his arm. (Id. at 116.) Rather, Claimant told her that he was to go back to Dr. Pantelakis on an as needed basis. (Id. at 123.) She further testified that on July 21, 2011, Claimant told her that he was having shoulder pain from his painting and blasting work at Pantera. (Id. at 120.)

Claimant submitted a medical report written by Dr. Pantelakis. Dr. Pantelakis opined that Claimant's initial injury in 2010 was a result of his work for Employer. (Id. at 136.) He further noted that Claimant continued to "have issues with his shoulder on/off once he returned to work as a painter." (Id.) These symptoms worsened once Claimant began performing blasting work, and Dr. Pantelakis opined that "[i]t [was] within a reasonable degree of medical possibility that [Claimant] substantially aggravated those diagnoses associated with his initial injury that occurred on July 23, 2010." (Id. at 136-37.)

Employer submitted a medical report written by Robert Waltrip, M.D., and office notes of Robert Cuttica, M.D., and Fletcher Allen Health Care (Fletcher Allen). The WCJ summarized the medical report as providing that

The medical report was not included in the certified record, but it was summarized in the WCJ's Decision.

Dr. Waltrip . . . stated that Claimant's more recent shoulder symptoms are unrelated to the July 23, 2010 work injury and that "the specific cause of Mr. Savakis' new right shoulder symptoms is unclear." Dr. Waltrip opined that any disability suffered since June or July of 2011 is related to a new inflammatory shoulder condition related to his employment with Pantera Painting.
(WCJ Decision at 5.) Dr. Cuttica's office notes indicated that Claimant visited him on July 22, 2011. (R.R. at 138.) The notes provided that Claimant had been back to work for two months at the time of his visit and that he had been blasting for two weeks. (Id.) The notes further provided that Claimant began to experience severe shoulder pain once he started blasting. (Id.) The office notes from Fletcher Allen indicated that Claimant had visited Fletcher Allen on July 16, 2010, roughly a week prior to his work-related accident on July 23, 2010. (Id. at 142-44.) During his visit, Claimant complained of chronic right shoulder pain which had continued for about two years. (Id.)

The WCJ granted Claimant's reinstatement petition on February 4, 2013. In so doing, the WCJ determined that despite various inconsistencies in the evidence, Claimant's testimony was credible, particularly given his rigorous work history. (WCJ Decision at 10.) The WCJ accepted Claimant's testimony as well as those medical records which supported his contentions. (Id.) The WCJ further determined that Dr. Waltrip's report was less credible than Dr. Pantelakis's, again citing Claimant's work history in support of this determination. (Id.) The WCJ accepted Barbara Byrne's testimony to the extent it did not conflict with Claimant's. (Id. at 11.)

Employer appealed to the Board, arguing that the WCJ erred in granting Claimant's reinstatement petition. The Board affirmed the WCJ's order.

On appeal, Employer argues that the Board erred in concluding that (1) substantial evidence of record supports a recurrence of Claimant's shoulder injury rather than an aggravation; (2) Dr. Pantelakis's opinion was unequivocal; and (3) the WCJ issued a reasoned decision. Employer appears to argue that substantial competent evidence does not exist to support the Board's finding that Claimant's injury was a recurrence of the prior injury rather than an aggravation of a pre-existing condition. Essentially, the argument is that in finding that Claimant sustained a recurrence, the WCJ mischaracterized Dr. Pantelakis's report as supporting a recurrence rather than an aggravation. Claimant contends that the report could only support a finding that the injury was an aggravation.

Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

Employer also appears to argue that because Dr. Pantelakis uses the word "aggravation" in his medical report, the Board erred in concluding that Claimant established a recurrence. This Court, however, has held that "[t]he final determination . . . is not based upon specific words used by the doctor, but rather upon a careful review of the medical testimony to determine its substance rather than its form." Reliable Foods, Inc. v. Workmen's Comp. Appeal Bd. (Horrocks), 660 A.2d 162, 166-67 (Pa. Cmwlth. 1995). As noted above, the terms "recurrence" and "aggravation" are legal terms of art, thus it was not necessary for Dr. Pantelakis to use the term recurrence to establish that a recurrence did, in fact, occur. The WCJ properly reviewed the substance of the report to determine that Claimant suffered a recurrence of a prior injury.

"Whether a disability results from an aggravation of a pre-existing condition or is a recurrence of a prior injury is a question of fact to be determined by the WCJ." Reliable Foods, Inc. v. Workmen's Comp. Appeal Bd. (Horrocks), 660 A.2d 162, 166 (Pa. Cmwlth. 1995). The terms "recurrence of a prior injury" and "aggravation of a pre-existing condition" are distinct legal terms of art, which refer to different types of work-related injuries. SKF USA, Inc. v. Workers' Comp. Appeal Bd. (Smalls), 728 A.2d 385, 387 (Pa. Cmwlth.), appeal denied, 747 A.2d 903 (Pa. 1999); Reliable Foods, 660 A.2d at 166. A recurrence suggests an injury that is "directly related to a prior injury," whereas an aggravation refers to a "new work-related injury." SKF USA, 728 A.2d at 387. A recurrence occurs if the "disability results directly from a prior injury but manifests itself on the occasion of an intervening incident which does not contribute materially to the disability." Id. (emphasis in original). In contrast, an aggravation, or new injury, occurs when an intervening incident materially contributes to the compensable disability. Id.

Here, there was sufficient evidence to support the WCJ's finding that Claimant suffered a recurrence. In his report, Dr. Pantelakis indicates that Claimant's shoulder pain persisted even after Employer terminated his employment. Although Claimant injuring himself during blasting may be considered an intervening incident, it is clear from Dr. Pantelakis's report that he believed Claimant's symptoms were related to his original injury in 2010 and not the result of Claimant's return to blasting work. Further, Claimant testified he never fully recovered from his prior injury and that "the pain got worse, but it [was] the same exact spot." (R.R. at 45.) Claimant's credible testimony and Dr. Pantelakis's report support the conclusion that Claimant's return to work did not materially contribute to his disability. See Sharon Steel Corp. v. Workers' Comp. Appeal Bd. (Frantz), 790 A.2d 1084, 1088 n.6 (Pa. Cmwlth. 2002) ("Even though there may be evidence which might indicate a contrary conclusion, the decision of the WCJ must be affirmed if substantial evidence is presented to support the WCJ's finding."). Thus, the Board did not err in concluding that Claimant's injury was a recurrence instead of an aggravation.

We next address Employer's argument that Dr. Pantelakis's report was equivocal and, thus, was not competent to support the WCJ's finding that Claimant sustained a recurrence of his prior injury. The question of whether expert medical testimony is unequivocal and, thus, competent evidence to support factual determinations is a question of law subject to our review. Somerset Welding & Steel v. Workmen's Comp. Appeal Bd. (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994), appeal denied, 659 A.2d 990 (Pa. 1995). In such cases, we review the testimony as a whole and may not base our analysis on a few words taken out of context. Id. "Taking a medical expert's testimony as a whole, it will be found to be equivocal if it is based only upon possibilities, is vague, and leaves doubt." Kurtz v. Workers' Comp. Appeal Bd. (Waynesburg Coll.), 794 A.2d 443, 449 (Pa. Cmwlth. 2002). "[M]edical testimony is unequivocal if a medical expert testifies, after providing foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists." O'Neill v. Workers' Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 58 (Pa. Cmwlth. 2011).

Dr. Pantelakis's report, when viewed as a whole, demonstrates his belief that Claimant suffered a recurrence. Dr. Pantelakis first describes Claimant's 2010 injury and then indicates that "[i]t is within a reasonable degree of medical certainty" that Claimant's 2010 injury was related to his work for Employer. (R.R. at 136.) Next, Dr. Pantelakis explains that Claimant continued to experience problems with his shoulder once he returned to work. Finally, Dr. Pantelakis notes that "[i]t is within a reasonable degree of medical possibility" that Claimant aggravated "those diagnoses associated with his initial injury that occurred on July 23, 2010." (Id. at 137.) Employer takes issue with Dr. Pantelakis's use of the word "possibility," however, it is clear from Dr. Pantelakis's report as a whole that he believed that Claimant suffered a recurrence of his prior injury. See Williams v. Workmen's Comp. Appeal Bd. (Montgomery Ward), 562 A.2d 437, 440 (Pa. Cmwlth. 1989) ("A medical opinion unequivocally rendered is . . . sufficient without resort to 'magic words.'"). Thus, the Board did not err in concluding that Dr. Pantelakis's report was competent to support the WCJ's finding that Claimant sustained a recurrence of his prior injury.

We now address Employer's argument that the WCJ erred by failing to render a reasoned decision as required by Section 422(a) of the Workers' Compensation Act (Act). Employer contends that although the WCJ acknowledged various inconsistencies in the evidence, the WCJ's reason for dismissing the inconsistencies was insufficient to render his opinion "reasoned." In his opinion, the WCJ explained:

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.

It is acknowledged - as argued by counsel for the employer, that the medical records submitted on behalf of the claimant are certainly reflective of discrepancies and inconsistencies, and while these are certainly of concern, they have not served to defeat the claimant's contentions in the context of his Claim Petition given the considerably physically demanding nature of his employment, which he has held since his teenage years. This employment is very rigorous in nature, and the claimant's contention that he has developed the difficulties described by him in his testimony, and as reflected in the medical records submitted on his behalf, has been deemed credible, and accepted, again, notwithstanding the discrepancies and inconsistencies inherent in both his testimony on the medical records, and again, given the very rigorous nature of his employment. His contention that he sustained injuries in the manner described [by] him has been accepted, as has been the medical evidence supportive of his contentions.
(WCJ Decision at 10.) Employer argues that Claimant's work history is not relevant to the resolution of the various inconsistencies Employer identifies—namely, whether Claimant returned to work on a full-time or trial basis and whether Claimant suffered a recurrence or an aggravation. Essentially, Employer takes issue with the WCJ's determination that, despite these inconsistencies, Claimant was credible and Employer's witnesses were only credible to the extent that their testimony did not conflict with Claimant's. As a result of these credibility determinations, the WCJ resolved evidentiary conflicts in Claimant's favor.

To the extent that Employer is arguing that the WCJ is required to provide an explanation for the resolution of inconsistencies in the evidence, we note that inconsistencies go to the weight of the evidence, not to the question of whether the WCJ's decision was reasoned. See Visteon Systems v. Workers' Comp. Appeal Bd. (Steglik), 938 A.2d 547, 554 n.9 (Pa. Cmwlth. 2007) (concluding that assertion that WCJ ignored evidentiary inconsistencies goes to weight to be accorded to evidence). Determinations as to the weight to be given to conflicting medical testimony are solely for the WCJ as factfinder. Cittrich v. Workmen's Comp. Appeal Bd. (Laurel Living Ctr.), 688 A.2d 1258, 1259 (Pa. Cmwlth. 1997). We will not, therefore, disturb these determinations on appeal.

Section 422(a) of the Act requires a WCJ to issue a decision that permits an appellate court to exercise adequate appellate review. Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 635 (Pa. 2007). In order to satisfy this standard, a WCJ does not need to discuss every detail of the evidence in the record. Id. at 194 n.4. Rather, Section 422(a) of the Act requires a WCJ to issue a reasoned decision so that this Court does not have to "imagine" the reasons why a WCJ finds that the conflicting testimony of one witness was more credible than the testimony of another witness. Id. at 196. It is not necessary for the WCJ to observe every witness on the stand; rather, "there are countless objective factors which may support the decision to accept certain evidence while 'rejecting or discrediting competent [conflicting] evidence.'" Daniels v. Workers' Comp. Appeal Bd. (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 2003) (alteration in original) (citation omitted). If, however, a WCJ does observe a witness's testimony, observation of the witness's demeanor could be sufficient to render the WCJ's opinion "reasoned." Id.

The first inconsistency that Employer identifies is the ambiguity concerning Claimant's return to work after his 2010 injury. Claimant testified that he informed Dr. Pantelakis and Barbara Byrne that he was still in pain. (R.R. at 18.) He also testified that he asked if he could try to go back to work. (Id.) Employer contends that Claimant's testimony in this regard is inconsistent with Dr. Pantelakis's report, which does not reflect that Claimant was to return to work on a trial basis. Employer, however, mistakes a minor omission for an inconsistency. Dr. Pantelakis's report simply provided that Claimant was going to return to work full duty and that he continued to experience shoulder pain once he did return to work. (Id. at 136.) The report simply does not inform on the question of whether Claimant asked Dr. Pantelakis if he could return to work on a trial basis. Employer similarly contends that Claimant's testimony in this regard is inconsistent with Barbara Byrne's testimony that Claimant did not tell her he was going to return to work on a trial basis and that Claimant indicated he was excited to return. (Id. at 115.) A review of Claimant's testimony, however, demonstrates that he did not identify who he asked about returning to work. (Id. at 18.) His testimony in this regard could just as easily have referred to Dr. Pantelakis alone, instead of Barbara Byrne as Employer contends. Thus, Claimant's attempt to return to work does not constitute an actual inconsistency.

Employer also appears to argue that Claimant's testimony concerning a voicemail message he left for Barbara Byrne is inconsistent, because Barbara Byrne testified that she never received a voicemail message. Employer, however, fails to explain why the voicemail is in any way relevant to the issue of whether Claimant's injury was a recurrence or an aggravation. Further, there is no explanation as to why such testimony informs on the question of Claimant's credibility. Claimant and Barbara Byrne's testimony simply conflicted and, as noted above, the resolution of such evidentiary conflicts is well within the province of the WCJ as factfinder.

Employer also contends that Dr. Pantelakis's report is inconsistent with the office notes of Dr. Cuttica. Dr. Cuttica's notes, dated July 22, 2011, indicated that Claimant had returned to work and had gone from painting to blasting two weeks prior to his office visit. (Id. at 138.) Dr. Cuttica noted that Claimant began to feel "severe pain in his shoulder" after he started blasting. (Id.) Employer again fails to explain how this note is inconsistent with Dr. Pantelakis's report. The report provides nearly the same information as the note—namely, that Claimant's symptoms became severe when he began blasting. (Id. at 136.) Although Dr. Cuttica made no mention of Claimant's worsening symptoms, he did note that Claimant had surgery on his shoulder. (Id. at 138.) Claimant's failure to inform Dr. Cuttica of symptoms leading up to his severe shoulder pain after blasting or Dr. Cuttica's failure to mention any symptoms does not mean that such symptoms did not exist. As noted above, such an omission does not constitute an inconsistency.

Finally, Employer argues that the WCJ was required to provide a reason for accepting Claimant's inconsistent testimony concerning shoulder symptoms prior to his 2010 injury and that the WCJ's reliance on Claimant's work history as a reason for finding Claimant credible is insufficient. While we agree that inconsistent testimony could be the basis for not finding a claimant to be credible, such testimony does not require a WCJ to find that a claimant was not credible. Credibility determinations are within the exclusive province of the WCJ. City of Philadelphia v. Workers' Comp. Appeal Bd. (Reed), 785 A.2d 1065, 1068 (Pa. Cmwlth. 2001), appeal denied, 820 A.2d 706 (Pa. 2003). The WCJ explained that he found Claimant to be credible due to his long and rigorous work history. The WCJ, however, was not required to provide a reason for this credibility determination. A WCJ's observation of a claimant's demeanor alone is enough to satisfy the reasoned decision requirement. Daniels, 828 A.2d at 1053. The WCJ need only provide an objective basis for his credibility determinations where he has not had the opportunity to assess demeanor. Community Empowerment Ass'n v. Workers' Comp. Appeal Bd. (Porch), 962 A.2d 1, 8-9 (Pa. Cmwlth. 2008) ("In instances where credibility assessments cannot be tied to inherently subjective circumstances, i.e. when a witness appears via deposition, some articulation of an actual objective basis for a credibility determination must be offered for the decision to be considered a 'reasoned' one."). Here, the WCJ observed Claimant's demeanor when he testified, thus, the WCJ's decision was reasoned with respect to his credibility determination.

Claimant initially testified that he had no symptoms in his right shoulder prior to his 2010 injury. (R.R. at 29.) Defendant then produced an office note which provided that Claimant had visited a doctor for right shoulder pain prior to his injury. (Id. at 142.) --------

Accordingly, we affirm the Board's order.

/s/_________

P. KEVIN BROBSON, Judge ORDER

AND NOW, this 10th day of April, 2015, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.

/s/_________

P. KEVIN BROBSON, Judge


Summaries of

Hercules Painting Co. v. Workers' Comp. Appeal Bd.

COMMONWEALTH COURT OF PENNSYLVANIA
Apr 10, 2015
No. 1095 C.D. 2014 (Pa. Cmmw. Ct. Apr. 10, 2015)
Case details for

Hercules Painting Co. v. Workers' Comp. Appeal Bd.

Case Details

Full title:Hercules Painting Company, Inc., and Zurich American Insurance Company…

Court:COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Apr 10, 2015

Citations

No. 1095 C.D. 2014 (Pa. Cmmw. Ct. Apr. 10, 2015)