Opinion
No. 828 C.D. 2013
12-09-2013
Harlan Jervis, Petitioner v. Workers' Compensation Appeal Board (Allegheny Energy), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Harlan Jervis (Claimant) petitions for review of the April 16, 2013, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of the workers' compensation judge (WCJ) denying and dismissing Claimant's claim petition for failure to establish that the work-related injury he suffered on July 1, 2008, was the cause of his disc herniation. We affirm.
On or about October 16, 2008, Claimant filed a claim petition alleging that on July 1, 2008, he suffered a low back and right hip injury with lower extremity symptoms while bending over to pick up a broken piece of a lightning arrester in the course and scope of his employment with Allegheny Energy (Employer). Claimant notified Employer of the injury on July 1, 2008. Employer issued a notice of temporary compensation payable on July 25, 2008, and a notice of stopping temporary compensation along with a notice of workers' compensation denial on October 7, 2008. (WCJ's Findings of Fact, Nos. 1, 3-4.)
The WCJ held several hearings on the claim petition. Claimant testified at the hearings and by deposition. Claimant stated that he worked for Employer as a serviceman for 27½ years, installing electric meters and providing electric service to homes, repairing service lines, climbing poles, and replacing transformers. Claimant testified that on July 1, 2008, he was on an emergency service call for Employer when he bent over to pick up broken pieces of a lightning arrester. Claimant immediately felt shooting pain in his back and down his leg. Claimant went to his truck and called his supervisor to report the incident. Claimant did go on another call with his co-worker, but remained in the truck. Claimant reported the incident on a minor injury form once he returned to the office. The following day, Claimant attended a safety meeting to discuss the July 1, 2008, incident. Claimant continued working for approximately one week before seeking medical treatment. (WCJ's Findings of Fact, No. 4.)
Claimant testified that prior to the work injury he had been treating with Barbara Swan, M.D., for an existing low back problem for which Dr. Swan provided pain management, medications, and physical therapy. In the spring of 2008, prior to Claimant's work injury, Dr. Swan referred Claimant to Mark Fye, M.D., for a surgical opinion because of Claimant's continuing back problems. Claimant first met Dr. Fye on July 16, 2008, and Dr. Fye scheduled Claimant for surgery and directed him to stop working until after the surgery. Claimant testified that, following the surgery, he underwent physical therapy and continued to treat with Dr. Fye and Dr. Swan. (Id. at Nos. 4, 7.)
Claimant further testified that he has his own business selling wood stoves and fireplaces. Since his work injury, Claimant has not spent much time at the business and believes that his income has gone down. Claimant stated that he could not return to his time-of-injury position because of the extreme pain in his back and right leg, as well as his inability to bend. As of Claimant's January 9, 2009, deposition testimony, Claimant had not been released to return to work by his treating physician. (Id.)
Claimant also testified on September 28, 2010, that Employer's physician and Timothy Campbell, M.D., Claimant's own physician, released him to return to work in April of 2009, with certain restrictions. Claimant provided the release to Employer, but Employer did not offer Claimant any work within his restrictions. However, Claimant did acknowledge that Employer provided him job descriptions for other positions that he could obtain based upon his seniority. (Id. at No. 6.)
Claimant also testified that, since the surgery, he is walking much better. However, he continues to have low back, buttocks, and leg pain, along with numbness in his toes. Claimant continues to treat with Dr. Campbell and attends physical therapy three days a week. Claimant does not believe he is physically capable of returning to his pre-injury position with Employer. (Id. at Nos. 4-6.)
Claimant presented the deposition testimony of Dr. Fye, who is board-certified in orthopedic surgery. Dr. Fye testified that he initially saw Claimant on July 16, 2008, and sent him for a magnetic resonance imaging (MRI), which was performed that day. After the MRI, on that same date, Claimant returned to see Dr. Fye and was diagnosed with a large disc herniation on the right at L4-5. Dr. Fye noted that this was a new injury, by comparing the 2008 MRI with Claimant's 2007 MRI. Dr. Fye recommended a microdiscectomy on the right at L4-5 and this surgery was performed on July 29, 2008. Dr. Fye saw Claimant after the surgery and noted that Claimant's right leg pain had improved. He further noted that Claimant continued to have some back discomfort and that Claimant continued to see Dr. Swan for rehabilitation. (Id. at No. 7.)
Dr. Fye saw Claimant again on August 6, 2008, September 10, 2008, and October 15, 2008, and reported that Claimant was improving with each visit. Dr. Fye first heard of the July 1, 2008, work injury during Claimant's follow-up examination on October 15, 2008. Dr. Fye opined, based on that history, that Claimant's L4-5 disc herniation was related to the July 1, 2008, incident. Dr. Fye did not release Claimant to return to work because of continued back pain. Dr. Fye, who last saw Claimant on April 1, 2009, opined that no further surgery was necessary and referred Claimant back to Dr. Swan for continued rehabilitation. (Id.)
Employer presented the deposition testimony of Jon Levy, M.D., a board-certified orthopedic surgeon. Dr. Levy examined Claimant on June 5, 2006, and March 25, 2009. Dr. Levy diagnosed Claimant with lumbar degenerative disc disease and lumbar disc herniation. Dr. Levy opined that Claimant's disc herniation was neither caused by nor related to the July 1, 2008, incident. Dr. Levy testified that based on Claimant's medical records, Claimant's back condition had deteriorated as of May 22, 2008, when Dr. Swan recommended a surgical evaluation by Dr. Fye, which was prior to the alleged July 1, 2008, work injury. Claimant saw Dr. Fye on two occasions after the alleged work injury, but did not mention the work injury of July 1, 2008, until the October visit. Dr. Levy opined that Claimant's disc herniation was not the result of a work injury, but the result of degenerative disc disease, which is typical for someone his age. (Id. at No. 8.)
The WCJ found Claimant credible regarding his job duties and the medical treatment he received, but rejected his testimony that he suffered a work-related injury on July 1, 2008, which either caused or aggravated his low back condition. The WCJ noted that both Dr. Fye and Dr. Levy testified regarding Claimant's significant preexisting low back problems and that Dr. Swan found Claimant's deterioration substantial enough to recommend a surgical evaluation on May 22, 2008. The WCJ credited Dr. Levy's testimony that Claimant's lumbar disc herniation was due to his degenerative condition, noting that, as Dr. Levy pointed out, there was nothing in Dr. Fye's records from his initial examination of Claimant or his operative report to indicate a history of a July 1, 2008, work injury. The WCJ accepted Dr. Levy's testimony that Claimant's disc herniation was due to his degenerative condition and was unrelated to the alleged work injury of July 1, 2008. (Id. at No. 12.)
The WCJ concluded that Claimant failed to prove that he suffered a work-related injury to his low back and right hip with lower extremity symptoms on July 1, 2008, during the course and scope of his employment with Employer. (WCJ's Conclusions of Law, No. 2.) The WCJ denied and dismissed Claimant's claim petition, and Claimant appealed to the WCAB, which affirmed. 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.
Initially, Claimant argues that the WCJ failed to render a reasoned decision as required by law. Section 422(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834, provides that:
All 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. The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the [WCJ] must identify that evidence and explain adequately the reasons for its rejection.
In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003), the Pennsylvania Supreme Court determined that the testimony of a medical witness that is based upon erroneous factual assumptions or impeached by inconsistencies or contradictions in evidence or testimony can be considered discredited or not reliable, and "some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a 'reasoned' one." The WCJ is free to accept or reject the testimony of any witness in whole or in part. Alessandro v. Workers' Compensation Appeal Board (Precision Metal Crafters, LLC), 972 A.2d 1245, 1249 n.3 (Pa. Cmwlth. 2009). The WCJ makes the credibility determinations, but still must provide an adequate basis for rejecting or accepting testimony. Id. at 1253 & n.10. However, if a witness testifies live before the WCJ, a demeanor-based assessment of that witness is sufficient for a reasoned decision. Daniels, 574 Pa. at 77, 828 A.2d at 1053.
The WCJ found Claimant's live testimony that he suffered a work-related injury on July 1, 2008, that either caused or aggravated his low back condition not credible. The WCJ submitted a detailed explanation setting forth that Claimant testified that he had preexisting back problems, had been treating for those problems, had been referred for a surgical consultation a month prior to the work injury, and had worked before and after the work injury. The WCJ also found Claimant's testimony not credible that he informed Dr. Fye of the work injury prior to his post-surgery appointment in October of 2008, three months after the surgery. The WCJ's decision was reasoned.
The question is not whether Claimant reported the injury, but whether the injury caused or aggravated his back problems. Here, the WCJ determined that the injury did not cause Claimant's back problems or aggravate the existing problems because he did not miss any work before or after the injury and did not tell Dr. Fye of the July 1, 2008, incident until October 2008. --------
Next, Claimant argues that the WCJ failed to take into account that, even in the presence of long-standing complaints, Claimant's preexisting conditions could be aggravated. We disagree.
The WCJ rejected Claimant's contention that he aggravated his condition as a result of the alleged work injury and credited the testimony of Dr. Levy that Claimant's increase in symptoms was due to a disc herniation caused by normal wear and tear for an individual Claimant's age. The WCJ's finding was supported by both medical experts, who acknowledged Claimant's history of back problems and that a herniation can occur from merely bending over or sneezing. Dr. Fye also acknowledged that an individual with degenerative disc disease can progress to a disc herniation without any trauma. The WCJ's determination that Claimant did not aggravate a preexisting condition is supported by substantial credible evidence.
Finally, Claimant argues that the WCJ erred in relying upon Dr. Levy's testimony, which relied upon a history that was inaccurate and not supported by the evidence. We disagree.
A review of the record as a whole indicates that Dr. Levy had a full and accurate history of Claimant's work injury. Dr. Levy testified that Claimant informed him of the July 1, 2008, work injury and that Claimant had reported the injury to Employer. (Dr. Levy Deposition, 8/17/09, at 9.) Dr. Levy stated that he believed that the herniation "is unrelated to an alleged injury sustained in the work place on July 1, 2008." (Id. at 24.) Dr. Levy set forth multiple factors that helped him reach his conclusion, as follows: (1) Claimant was seen on May 22, 2008, prior to his July 1, 2008, injury, by Dr. Swan because he was having increasing difficulty with a combination of back pain and leg symptoms, and was suffering from right leg pain; (2) Dr. Swan referred Claimant to Dr. Fye for a surgical opinion on May 22, 2008, but Claimant was not seen until after the July 1, 2008, injury; (3) Claimant was seen on two separate occasions by Dr. Fye, following the July 1, 2008, injury and, did not mention the work injury of July 1, 2008; (4) Dr. Fye's operative notes do not mention a work injury of July 1, 2008; (5) Claimant's first mention of the July 1, 2008, injury to Dr. Fye was on October 15, 2008, during an office visit; and (6) Dr. Swan's referral to Dr. Fye was unrelated to anything occurring on July 1, 2008. (Id. at 24-27.) The WCJ did not err in determining that Dr. Levy's testimony was based upon an accurate history and supported by substantial evidence.
It is well settled that 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). 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 v. Workers' Compensation Appeal Board (Baxter-Coles), 808 A.2d 965, 967-68 (Pa. Cmwlth. 2002).
Here, Claimant failed to prove that the work injury of July 1, 2008, was the cause of his herniation, which was diagnosed on July 16, 2008. Employer, however, through Dr. Levy's testimony, demonstrated that Claimant had a history of significant back problems, had been referred to a surgeon prior to the work injury, did not see the surgeon until after the work injury, and did not inform that surgeon of the work injury prior to surgery. Claimant's argument that the WCJ should have believed his version of the events amounts to nothing more than an impermissible attack on the WCJ's credibility determinations. "If supported by substantial evidence, a WCJ's findings are conclusive on appeal, despite the existence of contrary evidence." Watson v. Workers' Compensation Appeal Board (Special People in Northeast), 949 A.2d 949, 953 (Pa. Cmwlth. 2008).
The WCJ clearly explained his reasons for finding Dr. Levy more credible and persuasive than Claimant and Dr. Fye regarding whether the July 1, 2008, injury caused Claimant's herniation and subsequent surgery. The WCJ's determination that Claimant's work injury was not the cause of his herniation is supported by substantial evidence. Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 9th day of December, 2013, we hereby affirm the April 16, 2013, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge