Opinion
No. 210 C.D. 2013
08-28-2013
Sabrina McCaskill, Petitioner v. Workers' Compensation Appeal Board (School District of Philadelphia), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Sabrina McCaskill (Claimant), representing herself, petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that modified the Order of the Workers' Compensation Judge (WCJ) and granted Claimant's benefits for a closed period, suspended her benefits as of June 12, 2009, and terminated those benefits as of May 21, 2010. On appeal, Claimant argues that the WCJ erred in finding that she was fully recovered from her work injury and in crediting the opinions of the School District of Philadelphia's (Employer) expert physician and panel physician. Discerning no error, we affirm.
Claimant was working for Employer as a substitute teacher when, on May 5, 2009, a desk flipped over or fell on Claimant, causing her to fall on her right side. (WCJ Decision, Findings of Fact (FOF) ¶ 1(a).) Claimant sustained injuries to her head, back, knee, arm, and right foot. (FOF ¶ 1(a).) Employer initially provided benefits to Claimant via a Notice of Temporary Compensation Payable, but stopped benefits on June 16, 2009 after Employer's panel physician, Francis Burke, III, M.D., released Claimant to work. (WCJ Decision at 1; FOF ¶ 1(b).) Employer sent Claimant Notices of Ability to Return to Work on June 17, 2009 and May 28, 2010. (FOF ¶ 12.) Claimant filed a Claim Petition on December 28, 2009 alleging a "[l]ow back injury, including herniated disc; sprained elbow and knee; bruised toe." (Claim Petition at 1.) Employer denied the allegations of the Claim Petition and hearings were held before the WCJ.
The WCJ's Decision incorrectly gives the date of the second Notice of Ability to Return to Work as May 27, 2010.
Before the WCJ, Claimant, then represented by counsel, testified on her own behalf by deposition and presented the deposition testimony of her treating physician, Gabriel Dassa, D.O. Employer presented the testimony of its expert physician, David Bosacco, M.D., and the manager of its Substitute Services Unit. Employer also introduced, without objection, the records of its panel physician, Dr. Burke.
The WCJ credited the medical evidence that Claimant suffered a right hip contusion and sprain as a result of her work injury and that she suffered from preexisting degenerative disc disease in her lumbar spine. (FOF ¶ 8.) Based on Dr. Burke's records and Dr. Bosacco's testimony, the WCJ found that Claimant suffered a lumbar sprain and strain as a result of her work injury. (FOF ¶¶ 9, 11.) The WCJ found, based on Dr. Burke's records, that Claimant was capable of returning to work on June 12, 2009. (FOF ¶ 9.) The WCJ rejected Dr. Dassa's testimony that Claimant suffered work-related disc bulges or herniations in her lower back, along with resulting radiculopathy. (FOF ¶ 10.) Instead, the WCJ credited the opinion of Dr. Bosacco that Claimant suffered only soft tissue injuries to her spine, right hip, right forearm, and right great toe, and that she was completely recovered from these injuries. (FOF ¶ 11.) The WCJ also credited Dr. Bosacco's opinion that any restrictions on Claimant's ability to work were caused by preexisting degenerative conditions in her lower back and right hip. (FOF ¶ 11.) The WCJ rejected Claimant's testimony as not credible to the extent that it conflicted with the opinions of Dr. Bosacco and Dr. Burke. (FOF ¶ 14.) The WCJ concluded that Claimant failed to sustain her burden on her Claim Petition and, therefore, denied it. (WCJ Decision, Conclusions of Law ¶ 2.)
Claimant, representing herself, appealed to the Board and argued that Dr. Burke's records were not credible because he failed to provide a deposition and diagnostic tests supported a conclusion that Claimant was not fully recovered. (Appeal from WCJ's Findings of Fact and Conclusions of Law, November 7, 2011.) The Board broadly interpreted these arguments as asserting that the WCJ's findings of fact lacked substantial evidence and that her conclusions of law were erroneous. (Board Op. at 2.) The Board reviewed the evidence presented and held that the WCJ was free to accept or reject the testimony of any witness, to make credibility determinations, and weigh the evidence. However, the Board modified the WCJ's Order and determined that, because the WCJ found that Claimant was able to return to work as of June 12, 2009, she was, by implication, disabled up to that point. (Board Op. at 9 & n.3.) Therefore, the Board granted the Claim Petition up to that date. (Board Op. at 9.) The Board suspended Claimant's benefits as of June 12, 2009, based on the finding that she was able to return to work as of that date. (Board Op. at 9.) Finally, the Board terminated Claimant's benefits as of May 21, 2010, based on the WCJ's finding, per Dr. Bosacco's testimony, that Claimant was fully recovered as of that date. (Board Op. at 9.) Claimant now appeals to this Court.
The Board noted that its modification would likely not result in the payment of any additional indemnity or medical benefits to Claimant because Claimant was paid total disability benefits during the period within which the Board held her to be totally disabled. (Board Op. at 9 n.4.)
This Court's review is "limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated." Degraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 999 n.2 (Pa. Cmwlth. 2007).
Before this Court, Claimant argues that: (1) the WCJ's finding that she is fully recovered from her work-related injuries is not supported by substantial evidence; and (2) the WCJ erred in crediting the testimony of Dr. Bosacco and the opinion of Dr. Burke as expressed in his records.
Claimant first argues that the WCJ's finding that she is fully recovered from her work-related injuries is in error and is not supported by substantial evidence. In order for benefits to be terminated, an employer must show "that the claimant's disability has ceased or that any current disability arises from a cause unrelated to the claimant's work injury." Miller v. Workers' Compensation Appeal Board (Peoplease Corp.), 29 A.3d 869, 871 n.6 (Pa. Cmwlth. 2011). An employer meets this burden with unequivocal medical testimony that, in the medical expert's opinion, "within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury." Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997). An employer may also meet this burden with "unequivocal medical evidence . . . that an[y] existing disability is not work-related." Indian Creek Supply v. Workers' Compensation Appeal Board (Anderson), 729 A.2d 157, 160 (Pa. Cmwlth. 1999).
The Board held that Claimant's benefits were terminated as of May 21, 2010, the date of her examination by Dr. Bosacco. (Board Op. at 9.) Dr. Bosacco testified that his "opinion is [Claimant] was recovered from the injury diagnoses of lumbar sprain and strain, contusion right forearm and knee, contusion and sprain great toe right foot and gluteus minimus sprain or strain right hip," which diagnoses he ascribed to Claimant's work injury. (Bosacco's Dep. at 24.) He testified that he would impose no conditions on Claimant's return to work based on her work-related diagnoses. (Bosacco's Dep. at 26.) Thus, Dr. Bosacco unequivocally opined that Claimant was fully recovered from her work-related injuries. Although Dr. Bosacco also unequivocally opined that Claimant still suffered some disability and he would restrict Claimant to sedentary duty due to a "degenerative change in the lumbar spine," this condition was not work-related. (Bosacco's Dep. at 25.) Thus, Employer sustained its burden of showing that Claimant was fully recovered from her work-related injuries.
Claimant next asserts that the WCJ erred in crediting Dr. Bosacco because Dr. Bosacco did not review all of Claimant's medical records, including the results of EMG testing, and did not order any diagnostic scan, such as an MRI or CAT scan. In workers' compensation matters, "the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Griffiths v. Workers' Compensation Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Thus, the WCJ "is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses." Id. This Court may consider the competency and sufficiency of evidence presented to a WCJ. Davis v. Workers' Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000).
Here, Claimant's argument may be read as meaning that Dr. Bosacco's testimony is not competent because he did not review all of her medical records or order diagnostic scans. However, "[t]he fact that a medical expert does not have all of a claimant's medical records goes to the weight given the expert's testimony, not its competency." Samson Paper Co. v. Workers' Compensation Appeal Board (Digiannantonio), 834 A.2d 1221, 1224 (Pa. Cmwlth. 2003). Moreover, Dr. Bosacco's deposition reveals that he did, in fact, not only review the reports from Claimant's lumbar spine MRI and right hip MRI, which were performed on November 30, 2009, (Bosacco's Dep. at 12), but also viewed the images from the MRIs, (Bosacco's Dep. at 21, 23). That Dr. Bosacco does not appear to have reviewed the EMG study ordered by Dr. Dassa goes to the weight that might be accorded his testimony that Claimant did not have disc herniations or show objective signs of radiculopathy, not to the competence of his testimony. Samson Paper Co., 834 A.2d at 1224. Given that the WCJ chose to credit Dr. Bosacco's testimony over the testimony of Dr. Dassa, and gave her reasons for doing so, (FOF ¶¶ 10-11), we may not now reweigh the credibility of these medical witnesses.
Claimant finally argues that the WCJ erred in crediting the opinion of Dr. Burke as expressed in his medical records because the WCJ ordered Dr. Burke to give a deposition and Dr. Burke failed to do so. (Claimant's Br. at 9.) Claimant does not identify where in the record the WCJ ordered Dr. Burke to give a deposition and our review of the record has uncovered no such order. Therefore, the argument that Dr. Burke's records are not credible because he failed to follow an order directing him to give a deposition is without factual support. Moreover, such a failure would go to the weight to be given his records, not their competence. As explained above, it is not this Court's place to reweigh the evidence or second-guess the WCJ's credibility determinations.
Insofar as Claimant's argument might be read to assert that Dr. Burke's records are inadmissible hearsay, this argument is without merit. Employer introduced Dr. Burke's records without objection from Claimant's counsel. (Hr'g Tr. at 14-15, March 22, 2011.) "[U]nobjected to hearsay evidence will be given its natural probative effect if it is corroborated by any competent evidence in the record." GNB, Inc. v. Workers' Compensation Appeal Board (Korman), 810 A.2d 732, 735 n.9 (Pa. Cmwlth. 2002) (citing Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976)). Here, the WCJ relied on Dr. Burke's records primarily for the conclusion that Claimant was able to return to work as of June 12, 2009. (FOF ¶ 9.) The Board relied upon this finding to infer that Claimant was unable to perform her pre-injury job before that date. (Board Op. at 9 & n.3.) The WCJ's finding that Dr. Burke opined that Claimant was able to return to work on June 12, 2009, is corroborated by the Notice of Ability to Return to Work that states "[p]er your 6/12/09 evaluation at Worknet [Employer's panel physician service] your work related injuries have resolved and you have been released to return to work at a full duty capacity as of that date." (Notice of Ability to Return to Work, May 28, 2010.) Because it was corroborated by the Notice of Ability to Return to Work, the WCJ did not err in relying upon Dr. Burke's records with regard to the issue of Claimant's ability to return to work. --------
For the foregoing reasons, we affirm the Board's Order.
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, August 28, 2013, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge