Opinion
No. 2170 C.D. 2013
05-01-2014
Peter Horblinski, Petitioner v. Workers' Compensation Appeal Board (Dart Container Corp.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Peter Horblinski (Claimant) petitions for review of the November 21, 2013, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation judge (WCJ) on remand denying Claimant's claim petition. We affirm.
On September 8, 2009, Claimant filed a claim petition alleging that on February 13, 2008, he sustained a work-related injury of bilateral carpal tunnel syndrome in the course and scope of his employment as a shipping laborer with Dart Container Corporation (Employer). Employer did not contest Claimant's condition but denied that it was work-related. (WCJ's Decision, 10/8/10, Findings of Fact, No. 1.)
Before the WCJ, Claimant testified that in March 2006, Timothy Tyman, M.D. performed shoulder surgery on Claimant. Thereafter, on February 13, 2008, Claimant reported to Dr. Tyman with left hand complaints, stating that the symptoms began after the shoulder surgery. Dr. Tyman ordered testing and diagnosed Claimant with bilateral carpal tunnel syndrome. Claimant also testified that he was being treated for bilateral carpal tunnel syndrome and gout. Claimant continued to work for Employer until his discharge for unrelated reasons on June 16, 2008. (Id., No. 2; Exhibit A, §II.A. at 2.)
Claimant submitted the deposition testimony of David J. Bozentka, M.D., who is board-certified in orthopedic surgery. Dr. Bozentka testified that he evaluated Claimant on August 18, 2009, and opined that Claimant suffered from bilateral carpal tunnel syndrome. On September 14, 2009, Dr. Bozentka performed left carpal tunnel release surgery on Claimant. Thereafter, Dr. Bozentka scheduled Claimant for physical therapy and right carpal tunnel release surgery. Dr. Bozentka opined that Claimant's carpal tunnel syndrome was not related to his gout, but was work-related. (WCJ's Decision, 10/8/10, Findings of Fact, No. 2; Exhibit A, §II.B. at 2-3.)
Employer presented the deposition testimony of its human resource manager, Matthew Hess. Hess described Claimant's work assignments and testified that Claimant was dismissed on June 16, 2008, due to his third harassment/conduct- related offense. Claimant did not appeal the termination. (WCJ's Decision, 10/8/10, Findings of Fact, No. 2; Exhibit A, §II.C. at 3-4.)
Employer also presented the deposition testimony of David S. Zelouf, M.D., who is board-certified in orthopedic surgery. Dr. Zelouf examined Claimant on December 1, 2009, and found that Claimant is obese, has diabetes mellitus, and has a long history of gout and pseudo-gout, for which he was prescribed medication. Dr. Zelouf noted that Claimant's pre-injury position with Employer was not highly repetitive. Dr. Zelouf further noted that obesity is the single most significant risk factor for carpal tunnel syndrome. Also, gout and diabetes mellitus are other significant risk factors for carpal tunnel syndrome. Dr. Zelouf opined that Claimant's carpal tunnel syndrome did not result from a work-related injury. (WCJ's Decision, 10/8/10, Findings of Fact, No. 2; Exhibit A, §II.D. at 4.)
The WCJ credited Dr. Zelouf's testimony that Claimant had a number of risk factors for developing carpal tunnel syndrome, including gout, obesity, and diabetes. Further, Claimant's pre-injury position negated Claimant's assertion that his work activities caused the carpal tunnel syndrome. The WCJ found that Hess's testimony supported that of Dr. Zelouf and that Dr. Bozentka's testimony on that issue was not as thorough. The WCJ determined that Dr. Zelouf's testimony on causation was credible and persuasive. (Id., Nos. 4-5.)
After reviewing Claimant's job history and duties Dr. Zelouf testified that Claimant worked as a shipping laborer for roughly three years and that Claimant would lift between 1-10, 11-20, and 21-50 pounds for less than 1 hour in an 8-hour shift. Dr. Zelouf understood that the job required no firm grasping or vibratory tools. Dr. Zelouf further stated that Claimant's work was not highly repetitive. Also, Dr. Zelouf considered that Claimant was off work for 4 ½ months and came back for 1 month as a shuttle loader. A shuttle loader does not require significant lifting on a regular basis and it is operated by hand-controls, like a forklift. After that, for 1 ½ months, Claimant worked as a checker, a non-physical position, which primarily involved writing, with no significant force or repetition. Thereafter, Claimant worked at the shuttle loader position for 2 ½ months, a checker for 1 month, and was then out of work for 8 months with a back injury. Claimant returned to work as a shuttle loader for 8 months before being terminated. (Zelouf Dep., 4/19/10, at 19-22.) Dr. Zelouf opined that Claimant's work duties were neither the type to cause carpal tunnel syndrome because they were not high force nor highly repetitive. (Id. at 28-30, 34.)
On the contrary, Dr. Bozentka opined that Claimant's carpal tunnel syndrome was caused by Claimant's work duties and Claimant was not capable of returning to his preinjury position. (Bozentka Dep., 3/17/10, at 15, 17.) Dr. Bozentka determined that Claimant's work duties required "repetitive work with his hands" but did not involve heavy lifting. (Id. at 23.) Dr. Bozentka testified that he did not solidify his opinion of causation until after he reviewed the records for a "relatively short period of time" right before he testified. (Id. at 2122.) He added that he did not review Claimant's entire transcript prior to testifying. (Id. at 24.)
The WCJ found Employer's evidence credible and persuasive as it negated a causal relationship to the workplace. The WCJ found the testimony of Claimant and Dr. Bozentka not credible on the issue of the causal relationship of the carpal tunnel syndrome to Claimant's work. The WCJ found Dr. Zelouf more credible and persuasive than Dr. Bozentka and resolved all conflicts in favor of Dr. Zelouf. (WCJ's Decision, 10/8/10, Findings of Fact, No. 3.)
Dr. Bozentka testified that Claimant had carpal tunnel syndrome and a history of gout. (Bozentka Dep., 3/17/10, at 7, 15.) Dr. Bozentka stated that diabetes, obesity, and gout are risk factors for carpal tunnel syndrome, but determined that Claimant's carpal tunnel syndrome was not related to these diagnoses. (Id. at 27-29.)
Dr. Zelouf, after reviewing Claimant's work duties, determined that Claimant's carpal tunnel syndrome was not related to his work duties, but was due to Claimant's obesity, gout, and diabetes. (Zelouf Dep., 4/19/10, at 3034.) Dr. Zelouf found all of these diagnoses were risk factors for carpal tunnel syndrome, with obesity being the single most important risk factor because studies indicate a seven or eight times increased incidence of carpal tunnel syndrome in people that were obese, as compared to slender patients. (Id.) Dr. Zelouf noted that Dr. Bozentka failed to biopsy Claimant's tenosynovium to test for gout and, therefore, there is no concrete proof of gout in that tenosynovium. (Id. at 1516, 31.)
On October 8, 2010, the WCJ denied Claimant's claim petition, concluding that Claimant failed to establish a causal relationship between his work and the injury. Claimant appealed to the WCAB.
On June 13, 2011, after determining that the WCJ failed to rule on Claimant's preserved objections to portions of the testimony of Dr. Zelouf and Hess, the WCAB remanded to the WCJ for a ruling on those objections. On remand, the WCJ sustained Claimant's objection to the testimony of Dr. Zelouf on page 47, lines 15-18 and page 48, lines 1-3 on the basis of hearsay and overruled Claimant's objection to the testimony of Hess on page 8, lines 7-10, regarding Claimant's relationship with Employer after February 13, 2008. The WCJ reaffirmed his denial of the claim petition. Claimant appealed to the WCAB.
The WCAB affirmed the WCJ, determining that the WCJ did not err in overruling Claimant's objection regarding the testimony of Hess and that the WCJ's decision was reasoned. Claimant now petitions this court for review.
Our 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.
Claimant contends that the WCAB erred in affirming the WCJ's denial of the claim petition for bilateral carpal tunnel syndrome because it was not supported by substantial evidence. We disagree.
"Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made." Delaware County v. Workers' Compensation Appeal Board (Baxter-Coles), 808 A.2d 965, 969 (Pa. Cmwlth. 2002) (internal citations omitted). In a claim petition, the claimant bears the burden of proving all elements necessary for an award. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). More specifically, a claimant must establish that he sustained an injury during the course and scope of his employment and that the injury was causally related to his employment. Delaware County, 808 A.2d at 967-68.
Here, Claimant testified that he sustained carpal tunnel syndrome in the course and scope of his employment. The WCJ believed that Claimant had carpal tunnel syndrome but did not believe that the carpal tunnel syndrome was work-related. The WCJ credited Dr. Zelouf's testimony that Claimant was obese and had gout and diabetes, all of which independently can cause carpal tunnel syndrome. Further, Dr. Zelouf testified that Claimant's pre-injury work duties were not repetitive and, therefore, were unlikely to be the cause of Claimant's carpal tunnel syndrome. "'The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight.'" Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003) (citation omitted). The WCJ's decision that Claimant failed to prove a causal connection between the carpal tunnel syndrome and his employment is supported by substantial evidence of record.
Next, Claimant contends that the WCAB erred in affirming the WCJ's decision denying Claimant's claim for bilateral carpal tunnel syndrome because it was not well reasoned. We disagree.
Section 422(a) of the Workers' Compensation Act (Act), provides, in pertinent part, that "[a]ll 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" and that "[t]he adjudication shall provide the basis for meaningful appellate review." 77 P.S. §834. Section 422(a) of the Act requires the WCJ to set forth the rationale for the decision by specifying the evidence relied upon and the reasons for accepting it. Daniels, 574 Pa. at 67, 828 A.2d at 1047.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834. --------
For witnesses testifying "before the WCJ, it is appropriate for the [WCJ] to base his or her determination upon the demeanor of the witnesses." Id. at 77, 828 A.2d at 1052-53. Thus, a mere conclusion as to which witnesses were credible is sufficient. Id. at 77, 828 A.2d at 1053. When witnesses testify only by deposition, the WCJ must articulate the actual, objective basis for the credibility determination. Id. at 78, 828 A.2d at 1053.
Here, the WCJ set forth the testimony, made credibility determinations, and explained those determinations in its decision. The WCJ incorporated a summary of the testimony, which was attached to his opinion. He credited the testimony of Dr. Zelouf that Claimant had carpal tunnel syndrome, gout, and obesity. The WCJ also credited Dr. Zelouf's testimony that these conditions, in addition to Claimant's diabetes, are causes of carpal tunnel syndrome.
Further, the WCJ found that Claimant's pre-injury work duties were not repetitive and were unlikely to cause carpal tunnel syndrome. The WCJ reviewed the testimony of Dr. Zelouf, Hess, and Dr. Bozentka and found that Dr. Bozentka's testimony was not as thorough as the other two witnesses. (WCJ's Decision, 10/8/10, Findings of Fact, Nos. 4-5.) In crediting Dr. Zelouf, the WCJ noted that Dr. Bozentka "did not finalize his opinion on causal relationship until the very day of his deposition, when he reviewed additional documents." (Id., No. 4.) The WCJ stated that while Dr. Bozentka "recognize[ed] that Claimant had a history of gout, [he] did not request a biopsy [and] discounted the condition as related to causation." (Id., No. 4.) The WCJ found the testimony of Claimant and Dr. Bozentka not credible regarding causation because it conflicted with Employer's evidence. The WCJ clearly and concisely explained his reasons for making these credibility determinations. Therefore, we conclude that the WCJ issued a reasoned decision.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 1st day of May, 2014, we hereby affirm the November 21, 2013, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge