Opinion
No. 2249 C.D. 2014
07-22-2015
Tracy Houston, Petitioner v. Workers' Compensation Appeal Board (Raymour & Flanigan), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Tracy Houston (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that amended and reversed in part the decision and order of a Workers' Compensation Judge (WCJ) granting her claim petition with respect to an injury to her right knee and awarding her total disability benefits and payment of medical expenses related to that injury under the Workers' Compensation Act. For the reasons set forth below, we reverse the Board and reinstate the WCJ's decision.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
In 2012, Claimant was employed as a salesperson by Raymour & Flanigan (Employer) in its Abington, Pennsylvania area furniture store. (WCJ Decision Findings of Fact (F.F.) ¶¶3a, 8a-b, 9, 11, Reproduced Record (R.R.) at 373a, 377a-378a; 8/17/12 Hearing Transcript (H.T.) at 5-7, 19-20, R.R. at 14a-16a, 28a-29a.) On May 3, 2012, Claimant fell on her knees getting up from a chair in the sales office at Employer's store, tearing the skin on her left knee and twisting her right knee. (WCJ Decision F.F. ¶¶3b-c, 9, R.R. at 373a-374a, 377a; 8/17/12 H.T. at 8-9, 31, R.R. at 17a-18a, 40a; Claimant Ex. 2, Muller Dep. at 9, R.R. at 67a; Employer Ex. 2, Kucher Dep. Ex. 2, R.R. at 340a.) Claimant had degenerative arthritis in both knees prior to this accident and had undergone bone-graft surgery approximately 13 years earlier on her right knee to reduce bone-against-bone rubbing of the knee joint. (WCJ Decision F.F. ¶¶3e, 9, R.R. at 374a, 377a; 8/17/12 H.T. at 13-14, 22-23, R.R. at 22a-23a, 31a-32a; Claimant Ex. 2, Muller Dep. at 9-12, 30-33, R.R. at 67a-70a, 88a-91a.)
Claimant felt pain in both of her knees when she fell and reported the accident to Employer, but continued to work and did not seek medical attention at that time. (WCJ Decision F.F. ¶¶3c, 8c, 9, 11, 12, R.R. at 374a, 377a-378a; 8/17/12 H.T. at 8-10, R.R. at 17a-19a.) When her pain did not improve over the next several weeks, Claimant sought medical treatment on May 25, 2012. (WCJ Decision F.F. ¶¶3c, 9, R.R. at 374a, 377a; 8/17/12 H.T. at 10-11, R.R. at 19a-20a; Employer Ex. 1, Didizian Dep. Employer Ex. 3, R.R. at 203a.) Claimant used over-the-counter pain medications and received physical therapy, but her knee pain continued. (8/17/12 H.T. at 11-17, R.R. at 20a-26a; Employer Ex. 2, Kucher Dep. Ex. 2, R.R. at 340a-341a; Employer Ex. 1, Didizian Dep. Claimant Ex. 1, R.R. at 213a.) On June 29, 2012, MRIs were taken of both knees, which showed medial meniscus and lateral meniscus tears in the right knee and a possible medial meniscus tear in the left knee. (WCJ Decision F.F. ¶¶6c, 10, R.R. at 375a, 378a; Claimant Ex. 2, Muller Dep. at 10-12 & Muller Dep. Claimant Exs. 2 & 3, R.R. at 68a-70a, 126a-127a.) Claimant continued to work full time, with some adjustments, such as taking more breaks, sitting down more and wearing soft-soled shoes. (WCJ Decision F.F. ¶¶3d, 9, R.R. at 374a, 377a; 8/17/12 H.T. at 13, 35-37, R.R. at 22a, 44a-46a; Employer Ex. 3, Houston Dep. at 19-23, R.R. at 233a-237a.)
On July 20, 2012, Claimant filed a claim petition seeking disability benefits and payment of medical expenses and a penalty petition based on Employer's failure to file any Notice of Compensation Payable, Temporary Notice of Compensation Payable or Notice of Compensation Denial. (WCJ Decision at 1, R.R. at 373a; Claim Petition; Penalty Petition.) Employer filed answers to both petitions generally denying Claimant's allegations. (WCJ Decision at 1, R.R. at 373a; Answer to Claim Petition; Answer to Penalty Petition.) On November 16, 2012, Claimant underwent arthroscopic surgery to repair the medial meniscus tear in her right knee. (WCJ Decision F.F. ¶¶4a, 6e, 9, 10, R.R. at 374a-375a, 377a-378a; Claimant Ex. 2, Muller Dep. at 18-21 & Muller Dep. Claimant Ex. 4, R.R. at 76a-79a, 128a-129a; Employer Ex. 3, Houston Dep. at 6-7, 19, R.R. at 220a-221a, 233a.) Claimant stopped working when she had this surgery and was restricted from working by the orthopedic surgeon who performed the operation, Dr. Muller, while she recovered from that operation. (WCJ Decision F.F. ¶¶4a, 9, R.R. at 374a, 377a; Claimant Ex. 2, Muller Dep. at 21-24, R.R. at 79a-82a; Employer Ex. 3, Houston Dep. at 6-7, 19, R.R. at 220a-221a, 233a.) On February 8, 2013, Claimant underwent arthroscopic surgery on her left knee. (WCJ Decision F.F. ¶¶5c, 9, R.R. at 375a, 377a; Employer Ex. 3, Houston Dep. at 26-27, R.R. at 240a-241a.)
Two hearings were held before a WCJ at which Claimant testified. The medical evidence submitted to the WCJ consisted of the deposition of Dr. Muller, taken on December 7, 2012, three weeks after Claimant's surgery, and the February 2013 deposition of Dr. Didizian, an orthopedic surgeon who examined Claimant on behalf of Employer in September 2012, before her surgery. In addition, depositions of Claimant and Employer's store manager were submitted by Employer. The record on the petitions was closed on May 13, 2013.
The hearings were held before two different WCJs, because the first WCJ retired during the pendency of these proceedings and the case was reassigned to the WCJ who held the second hearing and ruled on the petitions.
Dr. Muller opined that Claimant's right knee medial meniscus tear was caused by her May 3, 2012 work accident, not by her preexisting arthritis, explaining that the nature of the tear was consistent with an acute injury and did not have the frayed appearance that a tear caused by degenerative disease would have. (Claimant Ex. 2, Muller Dep. at 11, 15-16, 20-21, R.R. at 69a, 73a-74a, 78a-79a.) He testified that Claimant's complaints of pain related primarily to the right knee and that she had not reported any pain in the left knee to him after his initial examination in August 2012. (Id. at 23, R.R. at 81a.) Dr. Muller further opined that, as of the date of his deposition, Claimant had not recovered from her May 3, 2012 injury to her right knee and could not yet return to work. (Id. at 21-23, R.R. at 79a-81a.) At that time, Dr. Muller had just removed Claimant's sutures and prescribed physical therapy for her the week before. (Id. at 21-22, 46, R.R. at 79a-80a, 104a.) Dr. Muller testified that patients usually need four to eight weeks of physical therapy and a total of eight to ten weeks recovery time for the type of arthroscopic surgery he performed on Claimant before they can return to work, and that Claimant might take "a bit longer to recover" because of her preexisting knee condition. (Id. at 23-24, 47, 49-50, R.R. at 81a-82a, 105a, 107a-108a.)
Dr. Didizian opined that Claimant's meniscal tear was caused by her preexisting degenerative knee condition, not by her May 3, 2012 fall. (Employer Ex. 1, Didizian Dep. at 14-15, 44-46, R.R. at 148a-149a, 178a-180a.) Dr. Didizian asserted that the only injury that Claimant suffered in her work accident consisted of knee contusions, and that she had recovered from those contusions as of September 25, 2012 and was able to work without limitations as of that date. (Employer Ex. 1, Didizian Dep. at 8-10 & Didizian Dep. Employer Ex. 2, R.R. at 142a-144a, 202a.) He did not, however, testify that Claimant had recovered from her November 16, 2012 arthroscopic surgery or that she was able to return to work after that surgery. Dr. Didizian further opined that, given her preexisting knee problems, Claimant should not have undergone arthroscopic surgery for her meniscal tear because arthroscopic surgery causes degenerative disease to worsen more quickly. (Employer Ex. 1, Didizian Dep. at 23-24, R.R. at 157a-158a.)
Claimant testified in her March 2013 deposition and at the final May 13, 2013 WCJ hearing that her right knee pain had decreased after the November 2012 surgery, but that she continued to have pain in that knee and was still doing physical therapy for the right knee and did not feel fully recovered. (Employer Ex. 3, Houston Dep. at 25-26, 29, R.R. at 239a-240a, 243a; 5/13/13 H.T. at 9, 12-13, R.R. at 363a, 366a-367a.) Claimant and Employer's store manager both testified that Claimant had called him on January 10, 2013 and indicated that she might return to work if surgery was not done on her left knee. (Employer Ex. 3, Houston Dep. at 24-25, R.R. at 238a-239a; Employer Ex. 2, Kucher Dep. at 42-43, R.R. at 308a-309a.) Employer's Store manager told Claimant that she needed a doctor's note releasing her to go back to work. (Employer Ex. 2, Kucher Dep. at 43, R.R. at 309a.) Claimant testified in her March 2013 deposition and at the final May 13, 2013 WCJ hearing that she had not returned to work for Employer or any other employer and had not been released by Dr. Muller to return to work. (Employer Ex. 3, Houston Dep. at 19, 27-28, R.R. at 233a, 241a-242a; 5/13/13 H.T. at 12-13, R.R. at 366a-367a.) Claimant further testified that she was scheduled to have total knee replacement surgery on her right knee on May 15, 2013. (5/13/13 H.T. at 7-8, R.R. at 361a-362a.)
With respect to the period prior to Claimant's November 2012 surgery, Claimant testified that although she was working her same job, she believed that she was not able to make as many sales because of her knee pain and that her income, which was based on commissions, was therefore reduced. (8/17/12 H.T. at 14-15, 35-37, R.R. at 23a-24a, 44a-46a.) Employer's store manager testified that Claimant's knee pain and restrictions did not reduce her opportunity and ability to earn commissions during the period between her May 3, 2012 injury and her surgery. (Employer Ex. 2, Kucher Dep. at 25-31, R.R. at 291a-297a.) Employer also introduced in evidence records of Claimant's earnings in support of its contention that Claimant did not suffer reduced earning power from her injury during the pre-November 16, 2012 period that she continued working. (Employer Ex. 2, Kucher Dep. Ex. 7, R.R. at 351a-352a.)
On October 23, 2013, the WCJ issued a decision granting Claimant's claim petition in part. The WCJ found Claimant's testimony credible, except to the extent that she claimed that her earning power was reduced prior to November 16, 2012 and asserted that her left knee pain was caused by the May 3, 2012 fall, and also found Employer's store manager credible. (WCJ Decision F.F. ¶¶9, 11, R.R. at 377a-378a.) The WCJ found credible the testimony of Dr. Muller that the medial meniscus tear in Claimant's right knee was caused by her May 3, 2012 workplace fall, and rejected the testimony of Dr. Didizian as less credible to the extent that it conflicted with Dr. Muller's opinion. (WCJ Decision F.F. ¶10, R.R. at 378a.) The WCJ concluded, however, that Dr. Muller's testimony was insufficient to show that Claimant's left knee problems were caused by the workplace accident. (Id.) The WCJ found that Claimant's right knee medial meniscus tear was work-related, that she did not suffer any decrease in earning power while she continued to work, and that she became disabled as of November 16, 2012 and had not fully recovered from her right knee injury. (WCJ Decision F.F. ¶¶13-15, Conclusions of Law (C.L.) ¶¶2-3 and Order, R.R. at 378a-380a.) The WCJ described the work injury as "a tear of the medial meniscus of the right knee superimposed on preexisting degenerative disease," and ordered Employer to pay Claimant "total disability benefits ... commencing on November 16, 2012 and ongoing" and "to pay all reasonable and necessary medical expenses related to the Claimant's work injury." (WCJ Decision F.F. ¶13 and Order, R.R. at 378a, 381a.) The WCJ also granted Claimant's penalty petition and awarded a penalty of $1,000. (WCJ Decision F.F. ¶22, C.L. ¶4 and Order, R.R. at 380a-381a.)
Employer appealed the WCJ's grant of the claim petition to the Board. On November 13, 2014, the Board affirmed the WCJ's grant of the claim petition, but reversed the WCJ's decision and order insofar as it awarded Claimant disability benefits for periods after February 8, 2013, concluding that Claimant had fully recovered from her November 16, 2012 right knee surgery and characterizing Claimant's disability after that date as due solely to her non-work-related left knee surgery. (Board Opinion at 6-8.) The Board also amended the WCJ's decision and order to provide that Claimant's work injury was "a tear of the medial meniscus of the right knee" and that Claimant's disability benefits were suspended as of February 8, 2013. (Id.)
Employer did not appeal the WCJ's grant of the penalty petition and it therefore is not at issue in this appeal.
Claimant timely appealed the Board's order to this Court. Claimant argues that the Board erred in suspending her disability benefits as of February 8, 2013 and in amending the description of her work injury. We agree.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether constitutional rights were violated. American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391, 395 (Pa. Cmwlth. 2001). --------
On a claim petition, the burden is on the claimant to prove both that she has suffered a work-related injury and that the injury caused the disability for which she seeks compensation, including the extent and duration of that disability. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993); Pennsylvania Uninsured Employers Guaranty Fund v. Workers' Compensation Appeal Board (Bonner), 85 A.3d 1109, 1114-15 (Pa. Cmwlth. 2014); Reyes v. Workers' Compensation Appeal Board (AMTEC), 967 A.2d 1071, 1077 (Pa. Cmwlth. 2009) (en banc). "A claimant has the burden of proving a continuing disability throughout the pendency of the claim petition." American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391, 397 (Pa. Cmwlth. 2001). Claimant therefore had the burden to prove the duration of her disability. Inglis House, 634 A.2d at 595; Bonner, 85 A.3d at 1114-15; American Contracting Enterprises, Inc., 789 A.2d at 397; Ricks v. Workers' Compensation Appeal Board (Parkway Corp.), 704 A.2d 716, 719 (Pa. Cmwlth. 1997); Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994).
Whether a claimant's disability is ongoing is an issue of fact for the WCJ to determine. Inglis House, 634 A.2d at 595; Bonner, 85 A.3d at 1115-17; Innovative Spaces, 646 A.2d at 55. "[I]t is a fundamental principle of workers' compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight." Bonner, 85 A.3d at 1115. The WCJ's findings, if supported by substantial evidence, are binding on appeal and neither the Board nor this Court may substitute different findings based on its own view of the evidence. Inglis House, 634 A.2d at 595; Furnari v. Workers' Compensation Appeal Board (Temple Inland), 90 A.3d 53, 59-60, 70 (Pa. Cmwlth. 2014); Bonner, 85 A.3d at 1115.
Unless the causal connection is obvious, unequivocal medical evidence is needed to establish the connection between a workplace accident and the claimant's injury and disability. Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800, 802 (Pa. 1985); Reyes, 967 A.2d at 1077. Once the claimant has demonstrated a work-related injury and disability by credible and unequivocal medical evidence, however, the claimant is not required to prove the duration of the disability by medical evidence and the WCJ may rely on the claimant's testimony to prove that the disability continues. Bonner, 85 A.3d at 1116; American Contracting Enterprises, Inc., 789 A.2d at 397-98; Ricks, 704 A.2d at 719. "[A] claimant's medical expert is not required to be an eyewitness to the claimant's disability throughout the pendency of a claim petition." Bonner, 85 A.3d at 1115 (quoting YDC New Castle-PA DPW v. Workers' Compensation Appeal Board (Hedland), 950 A.2d 1107 (Pa. Cmwlth. 2008)). Where there is competent medical testimony that the claimant was unable to work as a result of the work injury and no evidence that the claimant has been released to work or has in fact worked, the WCJ may properly find that the claimant's disability continues based on testimony by the claimant, even if the last medical evidence is from months before the claim petition record closed and did not opine that the claimant's disability was permanent. Bonner, 85 A.3d at 1112-17 (upholding WCJ finding of ongoing disability even though medical witness last saw claimant a year and one-half before the WCJ ruled on the claim petition and testified that he anticipated that the claimant would be able to return to work in six weeks); American Contracting Enterprises, Inc., 789 A.2d at 397-98 (upholding WCJ finding of ongoing disability even though medical witnesses opined as to claimant's disability only as of their examination of claimant).
Here, the WCJ found that Claimant had not fully recovered from her right knee injury and remained unable to work due to her right knee injury. (WCJ Decision F.F. ¶14, R.R. at 379a.) Those findings are supported by the competent testimony of Dr. Muller, found credible by the WCJ, that Claimant's right knee meniscus tear was caused by the workplace fall, that she needed surgery for that injury, and that she was unable to work while she underwent physical therapy and recovered from the surgery. (Claimant Ex. 2, Muller Dep. at 15-16, 20-23, R.R. at 73a-74a, 78a-81a.) Although this medical testimony was given in December 2012 and there was no later medical evidence concerning her recovery, Claimant, also found credible by the WCJ, testified that the physical therapy for her right knee was still ongoing in March 2013, and that she continued to have pain in the right knee and had not been discharged by Dr. Muller to return to work at the time the record closed on May 13, 2013. (Employer Ex. 3, Houston Dep. at 27-29, R.R. at 241a-243a; 5/13/13 H.T. at 9, 12-13, R.R. at 363a, 366a-367a.) This evidence, in the absence of any evidence that any physician had concluded that Claimant had recovered from her right knee surgery or could be released to return to work with respect to her right knee, was sufficient to support the WCJ's finding that Claimant's disability from her right knee injury had not ended. Bonner, 85 A.3d at 1116-17; American Contracting Enterprises, Inc., 789 A.2d at 397-98.
Dr. Muller did testify that patients usually recover from the type of knee surgery he performed on Claimant in eight to ten weeks, after four to eight weeks of physical therapy, and that he expected that Claimant would be able to return to work after she recovered from the surgery. (Claimant Ex. 2, Muller Dep. at 23-24, 47, R.R. at 81a-82a, 105a.) That testimony as to possible future events did not, however, require the WCJ to find that Claimant did recover within that time period or require him to suspend Claimant's benefits. Bonner, 85 A.3d at 1116-17. Indeed, Dr. Muller did not even testify that he anticipated that Claimant was likely to recover and be able to work within ten weeks after her surgery, as he also testified that her recovery could take longer than usual because of her preexisting degenerative disease. (Claimant Ex. 2, Muller Dep. at 49-50, R.R. at 107a-108a.)
Because the WCJ's findings of fact concerning Claimant's recovery from her right knee surgery and continuing disability with respect to her right knee are supported by substantial evidence, the Board was not free to substitute its own, different findings as to the length of Claimant's disability. Scher v. Workers' Compensation Appeal Board (City of Philadelphia), 740 A.2d 741, 746 (Pa. Cmwlth. 1999); Morey v. Workmen's Compensation Appeal Board (Bethenergy Mines, Inc.), 684 A.2d 673, 676-78 (Pa. Cmwlth. 1996). The Board therefore exceeded its authority in ruling that Claimant's right knee disability ceased by February 8, 2013, and its suspension of Claimant's disability benefits must be reversed.
The Board committed the same error of substituting its own view of the evidence in amending the WCJ's description of Claimant's work injury. The WCJ's determination that Claimant's work injury was "a tear of the medial meniscus of the right knee superimposed on preexisting degenerative disease" was also supported by substantial evidence. Dr. Muller testified that Claimant sustained a right knee medial meniscus tear as a result of her workplace fall, and that she had preexisting degenerative disease in that same knee, and that preexisting degenerative disease can both affect recovery from surgery for a meniscus tear and be affected by such surgery. (Claimant Ex. 2, Muller Dep. at 10-11, 15, 19-20, 22-23, 31-33, 42-44, 49-50, R.R. at 68a-69a, 73a, 77a-78a, 80a-81a, 89a-91a, 100a-102a, 107a-108a.) Employer and the Board are correct that Dr. Muller did not opine that the meniscus tear or workplace accident aggravated Claimant's degenerative disease and that a finding that Claimant's degenerative disease was aggravated by the workplace accident would not be supported by substantial evidence. The WCJ, however, did not describe Claimant's work injury as including aggravation of Claimant's preexisting degenerative disease, and the description of Claimant's work injury as "a tear of the medial meniscus of the right knee superimposed on preexisting degenerative disease" does not make Employer responsible for disability or medical treatment merely because it was caused by or related to Claimant's preexisting degenerative disease. Rather, the WCJ's description of Claimant's injury only encompasses disability and conditions caused by the meniscus tear or the interaction of that tear or its treatment with Claimant's preexisting degenerative disease.
Employer and the Board are also correct that there was no evidence that Claimant's total knee replacement surgery was a result of her work injury. This fact likewise does not require modification or amendment of the WCJ's decision. The WCJ made no finding that Claimant's total right knee replacement was or was not a result of her work injury and did not order Employer to pay disability benefits or medical expenses related to this surgery. Moreover, the total knee replacement surgery, scheduled to occur after the record closed on Claimant's claim petition, had not been recommended at the time of Claimant's medical witness testified. Whether the total knee replacement surgery was a reasonable and necessary expense related to Claimant's right knee medial meniscus tear or the interaction of that tear or its treatment with her preexisting degenerative disease was neither litigated nor resolved before the WCJ. Therefore the issue of whether Employer is responsible for payment for this surgery and for disability benefits for periods of disability caused by recovery from this surgery remains open to determination in further litigation if the parties dispute that Claimant's need for total right knee replacement is related to her work injury.
For the foregoing reasons, the Board's order is reversed insofar as it reversed and amended the WCJ's decision and order, and the decision and order of the WCJ is reinstated.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 22nd day of July, 2015, the order of the Workers' Compensation Appeal Board (Board) in the above matter is reversed insofar as it reversed and amended the decision and order of the Workers' Compensation Judge (WCJ), and the decision and order of the WCJ is reinstated.
/s/_________
JAMES GARDNER COLINS, Senior Judge