Opinion
No. 1355 C.D. 2013
05-14-2014
Kelli Laureano, Petitioner v. Workers' Compensation Appeal Board (Delaware County Housing Authority), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Kelli Laureano (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) affirming a remand decision of a Workers' Compensation Judge (WCJ) to deny Claimant's claim petition. Claimant contends that the WCJ exceeded the scope of the Board's remand order by changing her original credibility determinations and rejecting testimony she had previously accepted. Concluding that the WCJ was directed to take another look at her earlier credibility determinations, we conclude that the WCJ did not exceed the scope of the remand and, thus, affirm the Board.
Claimant worked as an admissions compliance specialist for the Delaware County Housing Authority (Employer). Her job included tenant selection and the delivery of mail. On June 26, 2008, while delivering mail, Claimant helped a tenant who had fallen to the ground. Claimant asserted that lifting the tenant from the ground caused an injury to her back and left leg, leaving her totally disabled. Claimant filed a claim petition pursuant to the Pennsylvania Workers' Compensation Act (Act), and Employer denied the allegations.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
At the hearing before the WCJ, Claimant testified that she was exhausted after lifting the tenant, but her back did not begin hurting immediately. However, the next day, she began to develop back pain. On July 9, 2008, she sought medical treatment. When pain medication and an epidural did not relieve her symptoms, Claimant underwent low back surgery in September of 2008. Claimant testified that the surgery has alleviated her symptoms, but she continues to have residual pain and numbness in her left leg and foot. As such, she is not capable of returning to her pre-injury position, which requires extensive walking.
In support of her claim petition, Claimant submitted the deposition testimony of Angelo Karakasis, D.C. Claimant began treating with Dr. Karakasis on October 17, 2008. Dr. Karakasis diagnosed Claimant with lumbar radiculopathy at S1; lumbar facet syndrome; lumbar myofascitis; lumbar segmental dysfunction and gait ataxia. Dr. Karakasis opined that all of these injuries were work-related. Claimant suffered a back injury in 2004 in an automobile accident, which was treated by a discectomy. However, by the time of her 2008 work injury, her back was asymptomatic and she was able to work without restrictions and without pain medication. Dr. Karakasis opined that Claimant's current back problem stemmed from the 2008 work injury.
Claimant also submitted the deposition testimony of Bruce H. Grossinger, D.O. He diagnosed Claimant with a disc herniation at L5-S1 and lumbar radiculopathy with lumbar facet syndrome. He concluded that Claimant's 2008 work injury aggravated her 2004 back injury, causing a recurrence of a herniated disc. He opined that Claimant was unable to return to her pre-injury position.
Employer presented the deposition testimony of Noubar A. Didizian, M.D. He conducted an independent medical examination (IME) of Claimant on February 2, 2009. He concluded that her current medical status could not be related to the June 26, 2008, work incident. Claimant reported no pain on the day of the incident, and she did not seek medical attention until July 9, 2008, at which point the medical tests showed no evidence of a sprain or strain. Simply, there was no evidence that the work incident caused a new injury or an aggravation of Claimant's 2004 back injury.
Employer also presented the deposition testimony of Christine Butakis, Claimant's supervisor. She was aware that Claimant had helped a tenant who fell on the sidewalk on June 26, 2008. However, Claimant did not report pain on that day or in the days following.
Employer also presented the deposition testimony of Pamela Haines, its executive assistant for human resources and person in charge of processing workers' compensation claims. Claimant did not file an incident report until July 22, 2008.
The WCJ credited Claimant and her medical experts over Employer's witnesses and medical expert. The WCJ found that Claimant sustained a lumbar intervertebral disc disorder, recurrent L5-S1 disc herniation with left-sided lumbosacral radiculopathy and lumbar facet syndrome as a result of her work injury. The WCJ awarded Claimant benefits in the amount of $412.85 per week, based on an average weekly wage in the amount of $619.80.
Employer appealed to the Board raising several issues. First, Employer contended that the WCJ did not issue a reasoned decision because she did not consider Claimant's delay in reporting the work injury. Second, Employer argued that the WCJ mischaracterized Dr. Didizian's testimony as opining that Claimant did not suffer a work injury when the real import of his testimony was that Claimant's current condition was not work-related. Third, Employer argued that the WCJ erred in finding Claimant sustained anything other than a left-sided injury, the focus of Claimant's complaints. Fourth, Employer argued that the WCJ's credibility determinations of the medical experts did not satisfy the standards for a reasoned decision.
The Board rejected Employer's first two issues. It affirmed the WCJ's decision that Claimant reported the work incident in a timely manner and, second, that Dr. Didizian's opinion had been properly characterized by the WCJ. However, the Board found in favor of Employer on the other two issues. The Board reversed the WCJ's finding that Claimant sustained a lumbar intervertebral disc disorder because that disorder was not supported by any of Claimant's medical evidence. It also set aside the WCJ's credibility determinations with respect to Dr. Didizian, Dr. Grossinger and Dr. Karakasis because they were not explained, as is required for a reasoned decision. Accordingly, the Board remanded the matter to the WCJ to provide explanations for her credibility determinations.
On remand, the WCJ found Dr. Didizian to be the most persuasive medical expert because his examination was the most thorough and complete. Pointedly, Dr. Didizian was the only expert to review all of Claimant's medical records, including her prior history of low back problems. He noted that the magnetic resonance imaging (MRI) study done in 2006 was similar to that done in 2008 after the work incident. This supported Dr. Didizian's conclusion that Claimant did not suffer an aggravation of her 2004 back injury or a new injury in 2008. The WCJ noted Dr. Didizian's observation that a new injury would have produced immediate acute pain symptoms on the day the injury was purported to have occurred, i.e., June 26, 2008. For these reasons, the WCJ credited the opinion of Dr. Didizian.
The WCJ rejected the testimony of Dr. Karakasis because he stated that Claimant showed drop foot on both sides, even though Claimant has never reported any right-sided complaints. Unlike Dr. Didizian, Dr. Karakasis did not review or consider any of Claimant's MRI film studies. The WCJ rejected the testimony of Dr. Grossinger, who opined that Claimant could not return to her pre-injury position despite having no knowledge of Claimant's job duties; this lack of knowledge rendered his opinion incompetent.
Based on her revised credibility determinations, the WCJ denied Claimant's claim petition. Claimant appealed to the Board, arguing that the WCJ exceeded the scope of the remand order by changing her original credibility determinations and by rejecting the testimony she had previously accepted. The Board rejected this argument, explaining that on remand the WCJ had to revisit her earlier credibility determinations by reviewing the evidence of record. Claimant also argued that the WCJ exceeded the scope of remand because the Board did not specifically vacate the original credibility determinations. The Board also rejected this claim.
Claimant now petitions for review to this Court, raising one issue. Claimant argues that the WCJ exceeded the scope of the remand order by changing her credibility determinations and, on that basis, denying benefits.
Our scope of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). --------
We begin with a review of the law. If the Board determines that the WCJ has not adequately explained the rationale for her decision, a remand may be ordered. Reinert v. Workers' Compensation Appeal Board (Stroh Companies), 816 A.2d 403, 407 (Pa. Cmwlth. 2003). Remand proceedings are restricted to the "purpose" identified in the Board's remand order, and "the WCJ must confine the proceedings on remand solely to the issues specified [by the Board]." Clark v. Workers' Compensation Appeal Board (Wonder Bread Company), 703 A.2d 740, 743 (Pa. Cmwlth. 1997). To determine whether a WCJ has exceeded the scope of a remand order, we examine the contents of the remand order. Riley v. Workers' Compensation Appeal Board (DPW/Norristown State Hospital), 997 A.2d 382, 389 (Pa. Cmwlth. 2010).
Claimant contends that the WCJ exceeded the scope of the Board's remand order in two ways. First, the WCJ effectively reversed her determination of Claimant's credibility, which was not to be revisited. Second, the WCJ found Claimant did not suffer a work injury, an issue not subject to remand.
Employer counters that the WCJ did not revise her earlier determination that Claimant testified credibly about why she did not report the work incident when it occurred, i.e., because she did not have pain for several weeks. However, that determination was not material to the remand. Likewise, the WCJ's remand did not revise her earlier characterization of Dr. Didizian's opinion, i.e., as stating that Claimant did not have a "work injury." WCJ Decision, June 2, 2010, Finding of Fact No. 6. In sum, Employer argues that the WCJ did not stray outside the bounds of the Board's remand order by revisiting the record and making new and different credibility determinations.
The Board cited to Teter v. Workers' Compensation Appeal Board (Pinnacle Health System), 886 A.2d 721 (Pa. Cmwlth. 2005), in support of its conclusion that the WCJ properly followed the remand instructions. In Teter, the WCJ granted the claimant's claim petition, finding the deposition testimony of the claimant's two medical experts credible and rejecting the testimony of the employer's medical expert. The employer appealed to the Board. The Board remanded, ordering the WCJ to "summarize [employer's medical expert's] testimony and explain the basis for his credibility determinations with regard to the medical expert testimony." Id. at 723.
On remand, the WCJ credited the employer's medical expert and discredited the claimant's medical experts. As such, the WCJ found the claimant had sustained a work injury from which she had recovered and terminated benefits. The claimant then appealed to the Board, arguing that the WCJ exceeded the scope of the remand order by accepting testimony that had previously been rejected. The Board rejected this argument, and this Court affirmed the Board.
This Court explained that the WCJ is not required to produce the same outcome on remand, as long as he stays within the boundaries of the remand order. Id. On remand, the WCJ reviewed and summarized the medical experts' testimony; made new credibility determinations; and explained the basis for the new credibility determinations. This produced a different outcome. We concluded this was appropriate because the WCJ "was not required to produce the same result as the initial decision." Id.
Teter is dispositive. Here, as in Teter, the WCJ was ordered to review the testimony of the medical experts and provide an explanation for the credibility determinations made. This produced different credibility determinations and, thus, a different outcome. The WCJ acted within the scope of the remand order, and Claimant has not established error.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 14th day of May, 2014, the order of the Workers' Compensation Appeal Board, dated July 23, 2013, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge