Opinion
No. 215 C.D. 2012
08-17-2012
Bonnie Maillie, Petitioner v. Workers' Compensation Appeal Board (Hamburg Center), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Bonnie Maillie (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) denial of Claimant's claim petition. Claimant contends the WCJ's decision, which denied Claimant's petition in its entirety, is not a "reasoned decision" under the Workers' Compensation Act (Act). In addition, Claimant contends the WCJ erred in not awarding litigation costs where the medical evidence credited by the WCJ established Claimant sustained a work injury and wage loss. Upon review, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708
I. Background
Claimant worked as a licensed practical nurse (LPN) for the Hamburg Center (Employer), an intermediate care facility. In July 2009, while at work, Claimant tripped over a mat on the floor, twisted her body and landed on her left knee. Claimant immediately felt a burning pain in her left shoulder. She reported the incident to Employer the same day. Employer's panel physicians treated Claimant following the incident.
In January 2010, Claimant filed a claim petition seeking partial disability benefits as of the date of injury. Claimant averred that as a result of her tripping on the mat, she sustained injuries to her neck, left shoulder, left knee and back. Claimant further averred these injuries resulted in a wage loss. In addition, Claimant sought counsel fees to be paid by Employer. Employer filed a timely answer denying Claimant's material allegations.
At the first hearing, the WCJ observed that, other than the pleadings, there were no documents on file with the Workers' Compensation Bureau (Bureau). Employer's counsel indicated it was his understanding that Employer issued a medical only notice of compensation payable (NCP) "with respect to the shoulder and knee but not the back because there were pre-existing back problems." Notes of Testimony (N.T.), 3/9/10, at 4; Reproduced Record (R.R.) at 8a. Claimant also testified she received a "white piece of paper" accepting a neck and shoulder injury. Id. at 18-19; R.R. at 22a-23a.
Before the WCJ, Claimant testified on her own behalf. Claimant also submitted deposition testimony from her treating chiropractor, Dr. Donna Kulp (Chiropractor) and Dr. Steven B. Schwartz (Neurosurgeon), who is "board eligible" in neurosurgery.
In opposition, Employer presented testimony from Dr. William H. Spellman (IME Physician), a board certified orthopedic surgeon. IME Physician examined Claimant in April 2010 and reviewed her medical records. He opined Claimant fully recovered from any injuries she may have sustained in July 2009.
Claimant testified that when she tripped over the mat, she began falling forward and attempted to thrust herself backward in an attempt not to fall. However, she landed on her left knee. She felt a warm pain, like a burn, in her left shoulder and neck.
Claimant initially received treatment from Employer's panel physicians. Claimant testified Employer's physicians issued work restrictions and recommended physical therapy. Claimant further testified she treated with other physicians, including Dr. Corey Troxell, an orthopedic surgeon. Claimant continued to work for Employer at light duty.
In addition, Claimant acknowledged medical problems with her neck and back prior to her July 2009 work injury. As part of her treatment for these problems, Claimant received epidural injections.
Chiropractor testified Dr. Troxell referred Claimant to her for treatment in December 2009. Chiropractor examined Claimant and reviewed her medical records. Chiropractor found Claimant had lumbar and neck problems; Chiropractor acknowledged evidence of pre-existing degenerative changes in Claimant's lumbar spine in her diagnostic films.
Chiropractor opined Claimant has lots of positive findings and symptoms. Claimant's current conditions were caused or aggravated by the July 2009 work incident. Further, Chiropractor opined Claimant cannot perform her normal job; she needs restrictions on her ability to work. Chiropractor referred Claimant to Neurosurgeon.
Neurosurgeon testified he first examined Claimant in June 2010 for lumbar complaints. In reviewing Claimant's 2009 MRI films, Neurosurgeon found Claimant suffered from spondylolisthesis and degenerative changes at L5-S1. Neurosurgeon ordered an updated MRI, which showed no significant changes. Other diagnostic tests indicated degenerative changes, lumbar instability and radiculopathy. Neurosurgeon believed Claimant would benefit from a surgical lumbar stabilization.
In sum, Neurosurgeon opined Claimant had pre-existing spondylolisthesis and that jarring from the work incident set in motion Claimant's current clinical condition, including debilitating pain, which prevented Claimant from returning to work in her usual capacity.
In opposition, Employer submitted testimony from IME Physician, who took Claimant's history and examined her in April 2010. IME Physician also reviewed Claimant's medical records, including her diagnostic films and reports. Claimant informed IME Physician that when she tripped on the mat, she injured her neck, left shoulder blade area and low back. She indicated she had a problem ever since.
Regarding her past medical history, Claimant informed IME Physician she last treated for her neck and low back in 2008. She further stated that in the months prior to the July 2009 work incident, she had no low back symptoms.
Upon a review of Claimant's medical records IME Physician opined that Claimant suffered from longstanding degenerative changes to the cervical and lumbar areas of the spine. Regarding Claimant's lumbar spine, IME Physician observed moderately severe multi-level changes, which are most pronounced at L4-5. He diagnosed Claimant's degenerative lumbar condition as grade one (out of four) anterolisthesis. This condition is a forward shift of one vertebrae relative to the other. Grade one is the least amount of shift. IME Physician opined that Claimant's lumbar condition long predated the July 2009 work incident. See Dep. of Dr. William H. Spellman (Spellman Dep.), 7/27/10, at 35-38, R.R. at 74a-75a.
IME Physician's examination of Claimant, which included various physical tests, revealed no problems with her neck, upper back, shoulder area or low back. Therefore, from an objective standpoint, IME Physician found Claimant's examination to be normal. See id. at 26-27; R.R. at 72a. However, IME Physician found Claimant's examination "abnormal in terms of it being replete with theatrical behavior, behavior that doesn't make any sense in terms of how the body works." Id. at 27; R.R. at 72a. IME Physician explained that Claimant's pain responses upon palpation were inconsistent. In response to obvious, but light palpation, Claimant behaved as though in pain. However, more vigorous, but non-obvious palpation did not produce the same reaction. IME Physician thus considered Claimant's pain responses theatrical.
IME Physician ultimately opined that Claimant's diagnostic studies were not consistent with post-traumatic changes attributable to the July 2009 incident. Claimant's physical examination did not indicate a problem with her neck, shoulder girdle area, upper back, mid back, or low back. Claimant needed no further treatment. She could work full time without restrictions. Based on Claimant's records, IME Physician opined that at the most, Claimant possibly sustained a soft-tissue injury to her neck, upper back and low back. Id. at 39-40; R.R. at 75a.
IME Physician further testified he found no evidence of a soft-tissue strain or sprain at the time of his April 2010 examination. Id. at 40; R.R. at 75a. Assuming Claimant did sustain a sprain or strain as a result of the work incident, IME Physician opined Claimant fully recovered from those injuries at the time of his examination and needed no work restrictions. Id.
In his decision, the WCJ rejected Claimant's live testimony as not credible. WCJ Op., 3/29/11, Finding of Fact (F.F.) No. 7a. The WCJ also rejected the deposition testimony of Chiropractor and Neurosurgeon because it was "based on tainted information from Claimant that is ... inconsistent with the content of past medical records and Claimant's own testimony on two separate occasions." F.F. No. 7b.
The WCJ further found neither Chiropractor nor Neurosurgeon addressed Claimant's assertion of a left knee injury "or explained how the July 18, 2009 incident aggravated such extensive pre-existing conditions in Claimant's lumbar spine." Id. (emphasis added). Thus, the WCJ determined:
9. Claimant failed to offer credible evidence of an incident occurring July 18, 2009 that resulted in injury to her neck, left shoulder, or lower back.WCJ Op., F.F. Nos. 9-10.
10. Claimant failed to offer any evidence of an injury to her left knee as alleged in her Claim Petition.
Accordingly, the WCJ concluded Claimant failed to meet her burden of proving a work-related injury resulting in her inability to perform her time-of-injury job. WCJ Op., Concl. of Law Nos. 3-4.
On appeal, the Board affirmed. Claimant petitions for review.
This Court's review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
II. Issues
Claimant contends the Board erred in affirming the WCJ's decision for two reasons. First, Claimant asserts the WCJ, in denying her claim petition in its entirety, failed to issue a reasoned decision as required by Section 422(a) of the Act. In addition, Claimant asserts the WCJ erred by not awarding litigation costs, including counsel fees, for an unreasonable contest where the record established Claimant sustained a work injury and wage loss up to the date of IME Physician's examination.
III. Discussion
A. Denial of Claim Petition; Reasoned Decision
1. Denial of Claim Petition
Claimant first argues the Board erred in affirming the WCJ's denial of her claim petition in its entirety where the WCJ's finding that no injury occurred is contrary to the record. To that end, Claimant asserts, IME Physician testified that he believed Claimant sustained soft-tissue injuries to her neck, upper back and lower back as a result of the July 2009 work incident. See Spellman Dep. at 40; R.R. at 75a. Further, Employer presented no evidence that Claimant's injury did not occur. In addition, Claimant asserts Employer's counsel indicated to the WCJ that Employer issued a medical-only NCP. See N.T., 3/9/10, at 3; R.R. at 7a. Therefore, Claimant urges, the WCJ's finding that Claimant did not sustain an injury is contrary to the record.
Also, Claimant contends the WCJ erred in denying wage loss benefits. Claimant asserts she did suffer a wage loss following her injury as indicated by a summary of her post injury wages. See Ex. D-2 (Claimant's Wage Summary); R.R. at 143a-61a. Further, Claimant asserts Employer presented no evidence that Claimant's wage loss was unrelated to her injury.
We first examine Claimant's contention that IME Physician's testimony, which the WCJ accepted as credible, required the WCJ to find an injury and disability at least to the date of IME Physician's examination. In a claim petition, a claimant bears the burden of establishing all the elements necessary to support an award of benefits. Potere v. Workers' Comp. Appeal Bd. (Kemcorp), 21 A.3d 684 (Pa. Cmwlth. 2011). Therefore, she must show she sustained an injury during the course of employment and that she is disabled as a result. Id. For purposes of workers' compensation benefits, disability is synonymous with a loss of earning power. Id. A party may meet its burden of proof through evidence introduced by an adversary. Hall v. Workers' Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734 (Pa. Cmwlth. 2010).
On direct examination, IME Physician testified as follows:
Q. Doctor, you then addressed various issues in your assessment section. I'm just going to have you summarize that, go through that as to what your conclusions were following your examination, the history you took and the medical records and films you reviewed.
A. Yes. [Claimant's] diagnostic studies are not consistent with post-traumatic changes attributable to the reported event of 7/18/09. Her physical examination is not consistent with a physical problem with her neck, shoulder girdle area, upper back, mid back, or low back. Neither further treatment nor restrictions are indicated. She may work full time without restrictions. The records I have reviewed are not consistent with her having sustained any more than a soft tissue injury to her neck, upper back and low back.
Q. Okay. You indicated you felt that she sustained soft tissue injuries to the neck, upper back and lower back as a result of this work incident on July 18th, 2009; correct?
A. Yes.
Q. And by that we are talking about a sprain, strain, that type of thing?Spellman Dep. at 39-41; R.R. at 75a.
A. Yes.
Q. And did you find any evidence of those conditions at the time you examined her?
A. No.
Q. And do you have an opinion as to, assuming she did sustain sprains or strains, what her degree of recovery from those were at the time you examined her?
A. By the time I saw her, she had fully recovered.
Q. Okay. Did you feel she needed any further treatment for those conditions, either medical or chiropractic?
A. No.
Q. Did she need any work conditions --- I'm sorry, work restrictions for those conditions at the time of the exam?
A. No.
Essentially, Claimant asserts the above testimony established that Claimant sustained a work injury in the nature of a soft tissue sprain or strain of her neck and back. We disagree.
When asked to summarize Claimant's medical records and examination, IME Physician testified, "[t]he records I reviewed are not consistent with her having sustained any more than a soft tissue injury to her neck, upper back and low back." Id. at 39-40; R.R. at 75a. IME Physician further opined, based upon a review of a 2003 MRI and a post-incident 2009 MRI, that the 2009 work incident did not in any way materially worsen Claimant's pre-existing condition. Id. at 43-46; R.R. at 76a-77a. IME Physician's testimony rebuts Claimant's medical and chiropractic evidence that the 2009 work incident aggravated Claimant's pre-existing anterolisthesis or other degenerative conditions of her neck or back. See id. at 42-46; R.R. at 75a-76a.
In short, IME Physician's testified that Claimant's medical records following the incident were consistent, at most, with a soft-tissue sprain or strain that resolved. Given the context of IME Physician's testimony, however, we believe it is too much of a stretch to construe his testimony as sufficient to establish with the required medical certainty that Claimant sustained a work injury. Moreover, and importantly, IME Physician did not attribute any disability to a soft-tissue sprain or sprain. Where the causal connection between a work incident and a disabling injury is not obvious, unequivocal medical evidence is required. Povanda v. Workmen's Comp. Appeal Bd. (Giant Eagle Mkts.), 605 A.2d 478 (Pa. Cmwlth. 1992). A medical opinion based upon possibilities is equivocal; it is vague and leaves doubt. Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012). Here, IME Physician never unequivocally testified Claimant sustained a work-related soft-tissue injury and disability as a result of the July 2009 work incident.
"In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder." Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). Viewing IME Physician's testimony in a light most favorable to Employer as the prevailing party, we reject Claimant's contention that IME Physician's testimony of a possible soft-tissue injury required the WCJ to find an injury and disability from the date of the work incident to the date of IME Physician's examination. Therefore, we discern no error in the WCJ's complete denial of Claimant's claim petition.
2. Reasoned Decision; Credibility Determinations
Claimant also contends the WCJ's decision fails the reasoned decision requirement in Section 422(a) of the Act because he did not provide objective reasons for his credibility determinations. In particular, Claimant asserts the WCJ gave no reasons for rejecting her testimony at hearing as not credible. Claimant did not deny having prior problems with her neck and back; she candidly discussed her lumbar problems and her epidural shots prior to the work incident. Thus, Claimant argues, the case must be remanded for the WCJ to explain why he rejected her testimony.
In addition, Claimant urges the WCJ improperly rejected the testimony of Chiropractor and Neurosurgeon based on his rejection of Claimant's testimony. Again, Claimant asserts, the WCJ failed to explain why he rejected her testimony and therefore the case must be remanded.
Section 422(a) of the Act requires a WCJ to issue 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 ...." 77 P.S. §834. "A decision is 'reasoned' if it allows for adequate review by the appellate courts under the applicable review standards." Pryor v. Workers' Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1202 (Pa. Cmwlth. 2006).
Initially, we recognize that a WCJ's rejection of a live witness based on his or her demeanor alone is sufficient to satisfy the reasoned decision requirement. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003); Amandeo. In his opinion, the WCJ likewise noted, "If a witness testifies live before the [WCJ], credibility may be determined on the witness's demeanor requiring no explanation." F.F. No. 7. The WCJ further found, "Claimant's live testimony at the 9/2/2010 and 10/28/2010 hearings is not credible." F.F. No. 7a. This credibility finding meets the reasoned decision requirements of the Act. Daniels; Amandeo.
With respect to Claimant's medical evidence, the WCJ rejected the deposition testimony of Chiropractor and Neurosurgeon because they were "based on tainted information from Claimant that is ... inconsistent with the content of past medical records and Claimant's own testimony on two separate occasions." F.F. No. 7b.
The WCJ also found that neither Chiropractor nor Neurosurgeon explained how the work incident aggravated Claimant's extensive pre-existing lumbar conditions. Id. The WCJ further explained that he accepted IME Physician's testimony as credible because he best explained the relationship among the various pre-existing conditions in Claimant's medical records. F.F. No. 7c.
Contrary to Claimant's contentions, the WCJ clearly articulated objective bases for his credibility determinations. The WCJ found Claimant's version of her medical history changed from hearing to hearing and differed from her medical records. Also, the WCJ found that Chiropractor and Neurosurgeon failed to explain how the work incident aggravated Claimant's pre-existing conditions. In addition, the WCJ found IME Physician best explained the relationship between Claimant's various pre-existing conditions. The WCJ's credibility determinations satisfy the reasoned decision requirements of Section 442(a) of the Act. Daniels; Amandeo; Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006).
A review of the record indicates Claimant gave different accounts of her treatment for her neck and back problems prior to the June 2009 work incident. At the March 2010 hearing, Claimant testified she had an epidural injection in September 2008 and had no problems thereafter until the work incident. See N.T., 3/9/10 at 18; R.R. at 22a. However, at the October 2010 hearing, Claimant testified she continued to have substantial pain and received trigger point injections through April 2009. See N.T., 10/28/10, at 12-14; R.R. at 130a-32a.
B. Reasonable Contest
Finally, Claimant contends the WCJ erred in finding a reasonable contest and excluding litigation costs, including counsel fees, under Section 440(a) of the Act, 77 P.S. §996(a), where Claimant prevailed in part on her claim petition. Claimant's argument is dependent upon a determination by this Court that IME Physician's testimony, which the WCJ credited, required the WCJ to find an injury and disability up to the date of IME Physician's examination.
Added by the Act of February 8, 1972, P.L. 25, as amended. --------
However, as discussed above, we conclude that IME Physician's testimony was insufficient to establish a compensable injury. Therefore, the WCJ did not err in denying Claimant's claim petition in its entirety. Having failed to prevail, either in whole or in part on her claim petition, Claimant is not entitled to an award of litigation costs or counsel fees. Jones v. Workers' Comp. Appeal Bd. (Steris Corp.), 874 A.2d 717 (Pa. Cmwlth. 2005).
IV. Conclusion
For the above reasons, we discern no error in the Board's order upholding the WCJ's decision. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 17th day of August, 2012, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge