Opinion
No. 1072 C.D. 2013
01-28-2014
Peoplease Corporation, Petitioner v. Workers' Compensation Appeal Board (Sheets), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Peoplease Corporation (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of Workers' Compensation Judge Susan Cercone (WCJ), granting Donn Sheets' (Claimant) claim petition for benefits. We now affirm.
On December 9, 2009, Claimant filed a claim petition, alleging that on October 17, 2008, he suffered a work-related "[r]ight knee injury in the form of a torn ACL and Medial Meniscus." (Reproduced Record (R.R.) at 3a.) As a result, he sought full disability benefits effective July 4, 2009, and payment for attorney's fees and medical bills. (R.R. at 4a.) Employer filed a timely answer, specifically denying all material averments. (Id. at 6a.) On November 11, 2010, Claimant filed a second claim petition, alleging that on July 3, 2009, he suffered another work-related "[r]ight knee injury in the form of a torn ACL and medial meniscus and/or aggravation of a torn ACL and medical meniscus." (Certified Record (C.R.), November 11, 2010 claim petition.) The petitions were consolidated and assigned to the WCJ for disposition.
At the hearing before the WCJ, in addition to offering his own testimony and the testimony of his treating physician, Claimant presented the deposition testimony of Richard S. Gehl, M.D., a board-certified orthopedic surgeon since 1978. (R.R. at 148a.) Dr. Gehl testified that he first met Claimant on August 6, 2009, when Claimant complained of pain in his right knee. (Id. at 150a.) Dr. Gehl testified that he received and reviewed Claimant's medical history and records. (Id. at 151a-52a.) Dr. Gehl further testified that the medical records indicated that Claimant suffered a work-related injury on October 17, 2008, while working as a mechanic on a trailer rig. (Id. at 151a.) As a result, according to Dr. Gehl's testimony, Claimant sought "three or four" treatments by Dr. Scott F. Sheppard (Dr. Sheppard) at WorkWell. (Id. at 151a-52a.) Subsequently, Claimant discontinued treatment and resumed his regular employment duties as a mechanic. (Id. at 152a.)
Based on Claimant's medical records, Dr. Gehl also testified that on July 3, 2009, when Claimant was welding dolly legs onto a trailer in a crouching position, he experienced "increased discomfort in his knee and an exacerbation of [the] effusion [in his knee]." (Id.) Dr. Gehl testified that Claimant subsequently went home and, as he was walking across his porch, "his knee gave way and he fell, and then following that complained of instability in his knee." (Id.) Dr. Gehl testified that an MRI that was performed on Claimant's right knee following the fall demonstrated a "complete anterior cruciate tear as well as a medial meniscus tear." (Id. at 153a.)
Dr. Gehl also testified about his August 6, 2009 examination of Claimant's right knee:
[Claimant] had two plus effusion. Four plus is maximum. So this is medium size effusion. His range of motion was zero to 110 degrees of flexion. He had some varus deformity, meaning he was little bit bowlegged. He had a positive anterior Drawer sign, which means that his anterior cruciate was not functioning. He had a positive Lachman sign which is another test for an anterior cruciate deficient knee. He had a positive - well, he had a painful McMurray, which is usually diagnostic of meniscus pathology.(Id. at 154a.)
Addressing the issue of whether Claimant's injury was work-related, Dr. Gehl opined:
The only way this case makes sense to me is that he had some underlying [preexisting] knee problems. The first injury or the first episode of significant pain and swelling at work was probably an aggravation of an underlying problem which was a meniscus tear. A meniscus tear can cause locking of the knee, meaning that the patient has pain to the point where his knee does not completely straighten out. That was documented early on by one of the physicians at WorkWell. That [is] consistent with a meniscus tear as well as the fluid and the pain over the inside part of his knee.
The fact that you diagnose someone with a medial collateral ligament sprain, which was done by WorkWell, is unreasonable without some significant trauma at that time. So I think what he was looking at, the doctor at Work Well, was essentially an aggravation of an underlying problem. Subsequently, [Claimant] was able to work.
One of the reasons if you have a meniscus tear that you can actually function is the tear moves in and out of the center of the knee. If it moves in towards the center of the knee, it locks the knee and you get pain and swelling and you cannot function. If that cartilage tear then moves back out on the inside part of the knee so that it is no longer catching the knee, you can function.(Id. at 156a-57a (emphasis added).) Finally, Dr. Gehl testified that he had rendered all of his opinions within a reasonable degree of medical certainty. (Id. at 159a.)
Now, the second episode that he had of increasing pain, my thinking is that that meniscus tear came out again and caused a locking of [Claimant's] knee where he couldn't straighten it out, pain. Then, subsequently, walking on the porch, his knee buckled because of the extent of his pain because his cartilage tear got larger and larger as time went on. Then he sustained the ACL rupture and subsequently had now a large cartilage tear and an unstable knee.
On cross-examination, Dr. Gehl acknowledged that Claimant's McMurray test results relating to the October 17, 2008 work incident were equivocal or negative. (Id. at 163a.) He also acknowledged that Claimant had another negative McMurray's test on October 28, 2008. (Id.) Addressing the question of whether swelling could limit the range of motion in Claimant's right knee, Dr. Gehl opined:
McMurray is a diagnostic test used to evaluate meniscal injuries. (R.R. at 153a.)
Swelling can cause pain, but limited motion in extension is usually secondary to other problems; namely, loose bodies, torn menisci. Sometimes you can actually pinch the lining membrane of the knee. It becomes so painful and swollen that you can't extend
your knee. Those are usually the most common reasons for inability to fully extend the knee, not just fluid.(Id. (emphasis added).) Dr. Gehl further acknowledged that, as of October 28, 2008, Claimant had not been diagnosed with a meniscal tear. (Id. at 165a.) Dr. Gehl explained that the lack of such diagnosis solely resulted from the treating physician's decisions to not order an MRI. (Id.) Thus, Dr. Gehl opined that the lack of a meniscal tear diagnosis did not necessarily mean that Claimant did not have a meniscal tear. (Id.) Dr. Gehl admitted that his opinion regarding an underlying, preexisting meniscal tear was predicated on his analysis and review of Claimant's medical records, rather than on any specific document. (Id.) He further acknowledged:
[Employer's attorney:] Doctor, did the Claimant describe for you any preexisting knee problems prior to October of 2008?
[Dr. Gehl:] No, he did not.
[Employer's attorney:] But you are of the opinion that the Claimant had a preexisting meniscal tear?
[Dr. Gehl:] I think that is the only way this whole case makes sense.
[Employer's attorney:] Doctor, is that an assumption because, obviously, we don't have any medical records to base that opinion on -
[Dr. Gehl:] Right, exactly. That is an assumption based on 34 years of practice.
. . . .
[Employer's attorney:] Doctor, just once more, we can agree that after the October 17, 2008 incident and prior to the July 3, 2009 incident, the Claimant had a negative joint line tenderness test, correct?
[Dr. Gehl:] Yes.
[Employer's attorney:] A negative McMurray test, correct?(Id. at 171a-74a (emphasis added).)
[Dr. Gehl:] Yes
[Employer's attorney:] As described by Dr. Sheppard, no locking or catching of the knee, correct?
[Dr. Gehl:] That is correct.
[Employer's attorney:] Are all of those indicative of meniscal pathology?
[Dr. Gehl:] Those are indicative of no meniscal pathology; but I'm looking at his exam and his exam shows an effusion and it shows a knee that doesn't extend fully. Those types of problems do not come from just squatting down for a couple of hours. Those are much more significant physical findings and that would tell you.
On redirect, Dr. Gehl testified:
[Claimant's attorney:] An individual on a clinical exam, could they have no locking or clicking within the knee and a negative McMurray test and still have a torn meniscus?
[Dr. Gehl:] As we were all alluding to, a McMurray test is positive for a bucket/handle tear of the meniscus where the bucket/handle tear is moving in and out of the center of the knee. So you can have a smaller tear where you wouldn't have a McMurray. You can have a larger tear and if you're unable to produce that subluxation, you won't positive test.
[Claimant's attorney:] . . . . Again, Doctor, what is your medical opinion as to the cause of the knee buckling on the porch -
[Dr. Gehl:] I think most likely that his cartilage tear over that period of a year was getting worse; eventually, it essentially locked his knee or caused enough pain that his
knee just buckled. It inhibited his quadriceps from contracting so, therefore, his knee just gave way.(Id. at 174a-75a.)
By decision and order dated July 29, 2011, the WCJ granted Claimant's claim petition filed December 9, 2009, relating to the October 17, 2008 injury. (WCJ's decision at 10.) In so doing, the WCJ issued factual findings largely derived from the testimony of the witnesses. Specifically, the WCJ found:
The WCJ also denied and dismissed Claimant's November 11, 2010, claim petition, because she determined that Claimant's July 3, 2009, injury was a recurrence of his October 17, 2008 work injury and not a new injury. (WCJ's decision at 10.)
Of the doctors who were deposed, I found that overall the testimony of Dr. Gehl was the most fully credible. In making this finding, I noted that Dr. Gehl very thoroughly and convincingly explained and supported the basis for his opinion that the meniscal problems began with the claimant's October 17, 2008 injury and his continuing difficulties with pain and swelling reflected that that injury was continuing and caused claimant to fall on July 3, 2009. All of the physicians agreed that the ACL tear occurred because of that fall, but I specifically find that that fall was the result of the claimant's original injury of October 17, 2008. Dr. Sheppard's testimony does not conflict with that of Dr. Gehl although he provided somewhat less certainty and noted that a number of conclusions could not be reached within a reasonable degree of medical certainty. I find his overall impression, combined with the credible opinion of Dr. Gehl, led me to my conclusion that it was the claimant's injury of October 17, 2008 that caused to this cascade of problems and his subsequent disability.
. . . .
After carefully reviewing all the medical opinion, I found that the most credible conclusion was that the claimant's October 17, 2008 injury caused an initial tear in the meniscus of his right knee that worsened as he continued
to perform his heavy duty work. His subsequent fall on July 3, 2009 was the result of this meniscal tear enlarging, causing increased discomfort and swelling on a consistent basis, and led to his fall when he was walking across his porch at home. That fall was a recurrence of the claimant's original October 17, 2008 work injury.(Id. at 9-10 (emphasis added).)
Based on her findings, the WCJ concluded that Claimant sustained his burden to prove that on October 17, 2008, he suffered a work-related injury to his right knee that caused his subsequent disability.
Employer appealed the WCJ's decision to the Board, challenging the competency of Claimant's medical evidence. In particular, Employer contested that Dr. Gehl's testimony was equivocal and thus incompetent, because it was based on sheer assumption or conjecture. (Id. at 221a.) The Board, however, affirmed the WCJ's decision. (Id. at 234a.) In so doing, it concluded that Dr. Gehl's testimony that "Claimant's meniscal problems were exacerbated by his October 17, 2008 injury which led to his fall on July 3, 2009," was unequivocal. (Id. at 233a (emphasis added).) Employer petitioned this Court for review, raising the same issue it raised before the Board.
Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Employer also appears to argue that the WCJ erred in finding Dr. Gehl's testimony credible. In support of that argument, Employer points to other medical testimony of record, which it contends supports a contrary conclusion. We interpret this argument as nothing more than a challenge to the WCJ's credibility determinations. It is well established that determinations as to weight and credibility are solely for the WCJ as fact-finder. Cittrich v. Workmen's Comp. Appeal Bd. (Laurel Living Ctr.), 688 A.2d 1258, 1259 (Pa. Cmwlth. 1997). Accordingly, this argument is without merit.
At the outset, we note that it is well settled that with respect to a claim petition, the claimant bears the burden of proving all elements necessary for an award. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). Pursuant to Section 301(c)(1) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1), an employee's injuries are compensable if they "(1) arise[] in the course of employment and (2) [are] causally related thereto." ICT Group v. Workers' Comp. Appeal Bd. (Churchray-Woytunick), 995 A.2d 927, 930 (Pa. Cmwlth. 2010). Further, an employee must demonstrate that he is disabled as a consequence of the work-related injury. Cromie v. Workmen's Comp. Appeal Bd. (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). Unequivocal medical evidence is required where it is not obvious that an injury is causally related to the work incident. Id.
The question of whether expert medical testimony is unequivocal and, thus, competent evidence to support factual determinations is a question of law subject to our review. Somerset Welding & Steel v. Workmen's Comp. Appeal Bd. (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994), appeal denied, 540 Pa. 652, 659 A.2d 990 (1995). In such cases, we review the testimony as a whole and may not base our analysis on a few words taken out of context. Id. "Taking a medical expert's testimony as a whole, it will be found to be equivocal if it is based only upon possibilities, is vague, and leaves doubt." Kurtz v. Workers' Comp. Appeal Bd. (Waynesburg College), 794 A.2d 443, 449 (Pa. Cmwlth. 2002). "[M]edical testimony is unequivocal if a medical expert testifies, after providing foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists." O'Neill v. Workers' Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 58 (Pa. Cmwlth. 2011). In other words, the medical witness's testimony must establish more than a mere possibility that the alleged injury arose as a consequence of a work-related cause, but rather demonstrate that, in the medical expert's opinion, to a reasonable degree of medical certainty, a causal connection exists between a claimant's disability and his employment. Sears, Roebuck & Co. v. Workmen's Comp. Appeal Bd., 409 A.2d 486, 488 (Pa. Cmwlth. 1979).
In addition to this requirement that a medical expert's testimony be unequivocal, the medical expert's testimony also must reflect the expert's adequate understanding of the facts to be competent. Id. at 490. In reviewing an expert's testimony on this basis, we must consider whether the expert "had sufficient facts before him upon which to express" his medical opinion. Id. An expert is permitted to express an opinion based upon facts of which he has no personal knowledge so long as those facts are supported elsewhere in the record. Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997). Unless a medical opinion is based upon such personal knowledge or record support, the opinion will be deemed to have no value. Lookout Volunteer Fire Co. v. Workmen's Comp. Appeal Bd. (Savercool), 418 A.2d 802, 805 (Pa. Cmwlth. 1980). Also, the law does not require every utterance which escapes the lips of a medical witness on a medical subject to be certain, positive, and without reservation or exception. Philadelphia College of Osteopathic Medicine v. Workmen's Comp. Appeal Bd. (Lucas), 465 A.2d 132, 134-35 (Pa. Cmwlth. 1983.) Instead, it is sufficient that a medical expert, after providing a foundation, testify that in his or her professional opinion or that he or she believes or that he or she thinks certain facts exist. Id. at 135. Such testimony, if accepted by the fact finder, will support an award, even if the medical witness admits to uncertainty, reservation, doubt or lack of information with respect to medical or scientific details; so long as the witness does not recant the opinion or belief first expressed. Id. Nevertheless, a medical expert's opinion will be held to be incompetent only when the opinion is based solely on inaccurate or false information; when the record as a whole contains factual support for an expert's opinion, the evidence is not incompetent. Am. Contracting Enter., Inc. v. Workers' Comp. Appeal Bd. (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001).
It is also well settled that in a workers' compensation proceeding, answers given during cross-examination do not, as a matter of law, destroy the effectiveness of the previous opinions expressed by a physician. Hannigan v. Workmen's Comp. Appeal Bd. (Asplundh Tree Expert Co.), 616 A.2d 764, 767 (Pa. Cmwlth. 1992), appeal denied, 535 Pa. 670, 634 A.2d 1118 (1993). Instead, such statements go to the weight, not the competency, of the expert's opinion. Corcoran v. Workers' Comp. Appeal Bd. (Capital Cities/Times Leader), 725 A.2d 868, 872 (Pa. Cmwlth. 1999).
To begin, Employer argues that "Dr. Gehl's opinion regarding the preexistence and aggravation of [Claimant's] meniscus tear was equivocal and purely based on an assumption with no objective evidence to support his theory." (Employer's Br. at 16.) Specifically, Employer argues that Dr. Gehl's opinion on the preexisting meniscus tear was contrary to the record evidence, because Claimant testified that, prior to October 17, 2008, "he never had any [] problems with his right knee." Id. at 17. To further buttress its argument, Employer points to Dr. Gehl's admission on cross-examination that "even after the October 17, 2008 injury and prior to the July 3, 2009 incident, [Claimant] had a negative McMurray test, negative joint line tenderness test, and exhibited no locking or catching of the knee, all of which are indicative of no meniscal pathology." Id. at 19. Finally, Employer argues that Dr. Gehl's opinion regarding a preexisting meniscal tear is contrary to his testimony that he had "no documented proof" of Claimant's suffering a preexisting meniscal tear prior to the July 3, 2009 incident. Id.
The core of Employer's argument appears to be that Dr. Gehl's testimony is incompetent to the extent he opined that Claimant suffered from an underlying meniscal problem. Although it is true that Dr. Gehl lacked any personal knowledge or documented proof demonstrating the existence of the underlying knee problem through a medical diagnosis prior to the October 17, 2008, work incident, Dr. Gehl's opinion was not without record support. Indeed, as our review of his entire testimony reveals, Dr. Gehl had an adequate understanding of the facts and, as such, he predicated his opinion regarding the underlying knee problems on Dr. Sheppard's medical testimony and Claimant's medical records related to the motion of and effusion in Claimant's right knee. Specifically, as Claimant's treating physician, Dr. Sheppard testified concerning his October 21, 2008 examination of Claimant:
Basically, he walked with a little bit of what I described an antalgic gait. That's basically a limp. So he had some limping in the right leg. Looking at the knee itself, I said he had a moderate effusion. That's just a doctor term for some swelling in the knee. So he had a little bit of swelling in the knee itself. His range of motion was limited from 10 degrees from full extension to only about
95 degrees of flexion, which is not normal range of motion.(R.R. at 57a (emphasis added).) Moreover, in its brief as well as during Dr. Gehl's deposition, Employer underscores the existence of particular medical tests, such as McMurray, that revealed no meniscal pathology following the October 17, 2008, work incident. It, however, downplays the importance of the lack of extension and effusion in Claimant's right knee that Dr. Gehl, to a reasonable degree of medical certainty, opined were indicative of an underlying meniscal problem. (Id. at 159a.) In fact, Dr. Gehl testified that "those types of problems do not come from just squatting down for a couple of hours." (Id. at 174a.) In other words, Dr. Gehl opined that the October 17, 2008 work injury was an aggravation of a preexisting knee problem.
To the extent it argues that the negative McMurray and joint line tenderness tests or the lack of locking or catching of Claimant's knee demonstrated a lack of underlying knee problem, we must reject Employer's argument as a mere challenge to the WCJ's determination of evidentiary weight. Cittrich, 688 A.2d at 1259. --------
At no point during his deposition did Dr. Gehl alter or recant his opinion regarding the cause of Claimant's injury. Thus, during his deposition, Dr. Gehl firmly maintained that based on the medical evidence of record and his thirty-four years of experience, Claimant must have suffered from an underlying knee problem, which was aggravated during the October 17, 2008 work incident. Therefore, after reviewing Dr. Gehl's testimony in its entirety, we conclude that to the extent Employer argues that Dr. Gehl's opinion is equivocal or incompetent, we must reject its argument.
Accordingly, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 28th day of January, 2014, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge