Opinion
No. 1109 C.D. 2013
02-11-2014
The Regional Cancer Center and Highmark Casualty Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Waidley), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
The Regional Cancer Center (Employer) petitions for review of the June 5, 2013 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) granting Christine Waidley's (Claimant) claim petition and awarding Claimant total disability compensation. We affirm.
On October 29, 2008, Claimant felt a pull in her low back when moving a chair while at work. On March 27, 2009, Employer issued a notice of workers' compensation denial. Subsequently, on April 16, 2009, Claimant filed a claim petition against Employer, alleging that she suffered a low back injury on October 29, 2008. Employer filed an answer denying the allegation. (WCJ's Findings of Fact Nos. 1-2, 13c.)
The matter was assigned to a WCJ, who held two hearings. Claimant appeared before the WCJ on May 18, 2009. Claimant testified that she worked forty hours per week and was paid $11.44 per hour as a medical assistant. She testified that, on October 29, 2008, she sustained an injury while lifting and moving a chair that weighed approximately ten pounds in a patient's room that caused pain from her back down through her lower left leg. Claimant further testified that, on the same day as her injury, Employer sent her to Hamot Occupational Health (HCH), where a doctor examined her and allowed her to return to work later that day with job restrictions that included not pushing patients in wheelchairs or assisting with weighing patients. Claimant stated that she continued these job responsibilities for two months while being treated by a Dr. Johnson at HCH. She also stated that she continued physical therapy treatment three times per week until March 2009. Claimant testified that she eventually received a pain management injection from a Dr. Rai that provided no relief from her pain. Claimant also testified that Dr. Johnson referred her to Daniel Muccio, M.D. (Dr. Muccio), a back specialist, who first saw Claimant in January 2009 and examined her twice before he recommended back surgery. She stated that Dr. Muccio advised her to stop working on March 24, 2009, because of the impending surgery, which was scheduled for May 20, 2009. (Reproduced Record (R.R.) at 428-30, 432-41, 447, 460.)
The reproduced record submitted by Claimant does not follow the proper numbering format, i.e., the Arabic figure followed by a lowercase "a," as set forth in Pa.R.A.P. 2173.
On cross-examination, Claimant admitted that she previously sustained a work-related injury in 1997 while working for another employer. She explained that the symptoms of her 1997 work-related injury included low back pain and stated that she underwent two surgeries, one in 1997 and one in 1999, to correct the issue. Claimant testified that she resolved her 1997 workers' compensation claim in 2001 and that she had no problems with her back from 2001 until the October 29, 2008 incident at work. Claimant admitted that she told Dr. Johnson that she felt a pop in her low back that caused pain while standing in a grocery store line on January 6, 2009. She also acknowledged that she slipped and fell on snow in her driveway on January 9, 2009, and that she reported this incident to Dr. Johnson. (R.R. at 448-49, 454, 458, 464-65.)
At the September 9, 2010 hearing, Claimant testified that Dr. Muccio performed back surgery on her in May 2009 that alleviated the pain in her leg and foot. However, Claimant stated that she experienced pain in her left buttock after the surgery. She also stated that she only started to experience this pain when she went back to work on January 4, 2010. Claimant testified that, after a week of working for Employer, Dr. Muccio advised her to stop working because of her pain. Claimant further testified that, per Dr. Muccio's referral, Dr. Jorden, a pain management doctor, examined Claimant. (R.R. at 491-94.) Claimant stated that, under Dr. Jorden's care, she received two steroid injections, one in July 2010 that did not help and one at the end of August 2010 "that helped a lot." (R.R. at 495-96.) She testified that, prior to the injections, she experienced too much pain to sit, walk, or return to work, but, after the injections, she felt that the pain had subsided enough that she could return to normal activities. Claimant testified that she hoped to receive medical clearance to return to work from Dr. Muccio at her next scheduled appointment, which she thought was two weeks after the September 9, 2010 hearing. On cross- examination, Claimant testified that her radicular leg pain resolved after the May 2009 surgery. (R.R. at 496-98, 501-02.)
Claimant presented the deposition testimony of Dr. Muccio. He testified that Claimant informed him that she injured her low back while working in October 2008, causing her to have left low back pain that radiated down her left leg and into her left foot. He also testified that Claimant told him she experienced numbness in her left foot. Dr. Muccio testified that he was provided with a previous MRI of Claimant's back that showed a foraminal disc protrusion. Dr. Muccio stated that, after he finished his first examination of Claimant, he diagnosed Claimant with lumbar radiculopathy. He further stated that, after this initial visit, he had no problem with Claimant continuing light duty work but told her to avoid heavy lifting or repetitive bending. Dr. Muccio believed that lifting the wooden chair on October 29, 2008, caused Claimant's injury. (R.R. at 118-21, 131.)
Dr. Muccio testified that he performed back surgery on Claimant on May 20, 2009. He stated that he next examined Claimant personally on July 6, 2009, at which time Claimant was making progress but still hurting. Dr. Muccio further testified that on September 1, 2009, he examined Claimant and found that, while her radicular leg pain had resolved, she still had some tingling in her left calf at night. Dr. Muccio testified that when he last saw Claimant on October 13, 2009, she had significantly improved and wanted to start physical therapy. However, Dr. Muccio noted that he has not released Claimant for work and explained that it usually takes six to nine months to recover from the type of surgery that he performed on Claimant. (R.R. at 124, 127-29.)
On cross-examination, Dr. Muccio explained that the bony changes in Claimant's back developed over a period of time and were not caused by the work- related injury. He noted that lifting the chair did not cause Claimant's back instability but stated that it did cause Claimant's disc herniation. Dr. Muccio stated that Claimant did not inform him of the incidents that occurred on either January 6, 2009, or January 9, 2009. However, Dr. Muccio clarified that Claimant's disc herniation was present before both of those incidents. (R.R. at 140, 149, 163-64, 166.)
Claimant offered into evidence medical records and notes from Dr. Muccio that postdated his deposition. Specifically, Dr. Muccio's medical records and notes stated that Claimant suffered from bursitis of the hip that was caused by the October 29, 2008 work-related injury and the subsequent May 20, 2009 surgery. However, Dr. Muccio's notes did not explain his opinion any further. Claimant also offered into evidence the medical records from her treatment with Dr. Jorden. (R.R. at 483-88; WCJ's Findings of Fact Nos. 8-9.)
Employer objected to the admission of these exhibits based on hearsay. Claimant explained that the documents would be corroborated by the deposition testimony of Dr. Jorden, which Claimant would submit after the hearing. The WCJ overruled the objections as long as Dr. Jorden's deposition testimony was corroborative of the documents. However, Claimant never submitted the deposition testimony of Dr. Jorden. (R.R. at 483-88.)
Employer presented the deposition testimony of D. Kelly Agnew, M.D. (Dr. Agnew), who testified that he performed an independent medical examination of Claimant on April 2, 2009. According to Dr. Agnew, Claimant indicated that she developed the low back pain in October 2008 when she moved a wooden chair that weighed between six to ten pounds. However, Dr. Agnew testified that, based on the images that he reviewed, he saw no actual evidence of structural damage from her reported October 2008 work-related injury. Dr. Agnew also stated that he would not attribute any of Claimant's problems to the 2008 incident at work and that she was not suffering from any left leg pain at the time of his examination. Dr. Agnew's final evaluation of Claimant was that, because he did not see any structural damage, he thought that Claimant could do anything as of the date of his examination that she could have accomplished before the reported October 29, 2008 incident at work. (R.R. at 297-99, 312, 314-16, 321.)
Employer also presented the deposition testimony of Sarah Kaveney (Kaveney), Employer's director of clinical operations. Kaveney stated that Claimant directly reported to her at work. Kaveney testified that she understood that Claimant hurt herself while moving a chair. She noted that Claimant began working in a modified capacity on October 29, 2008, after the doctor at HCH examined Claimant and released her to work with restrictions. Kaveney further testified that Claimant continued to work until March 23, 2009, when she stopped working because of impending surgery. She stated that Dr. Muccio released Claimant to work with restrictions in December 2009 and that Claimant returned to work on Monday, January 4, 2010, in a new, full-time position that better fit her restrictions at the same rate of pay as Claimant's previous position. Kaveney testified that Claimant worked the entire week but subsequently called Kaveney's office phone and left a voicemail message informing Kaveney that she would not be coming into work on January 11, 2011. Kaveney could not remember if Claimant gave a reason for not being able to come into work. Kaveney testified that Claimant never returned to work after January 8, 2010, and called off every day for a couple of weeks until Employer received Claimant's Family and Medical Leave Act, 29 U.S.C. §§2601-2654, leave paperwork. Kaveney stated that Claimant's position is still available to her. (R.R. at 380-81, 385-86, 388-97, 399-402.)
By decision and order dated May 6, 2011, the WCJ credited Claimant's testimony and found that she sustained a work-related injury on October 29, 2008, when she lifted a wooden chair and felt a pull in her low back. The WCJ credited Dr. Muccio's testimony and also found that Claimant suffered a disc herniation caused by the October 29, 2008 work-related injury. However, the WCJ rejected Dr. Muccio's opinion that the work-related injury and the subsequent May 20, 2009 surgery caused Claimant to suffer from bursitis in her hip. The WCJ also rejected Dr. Agnew's testimony that the October 29, 2008 work-related injury did not result in any structural damage or compression. The WCJ noted that, although Dr. Agnew's and Dr. Muccio's opinions as to the diagnostic findings were similar, Dr. Agnew did not have the advantage of performing the surgery on Claimant's low back. The WCJ concluded that Claimant met her burden of proving that she suffered from a compensable work-related injury and granted Claimant's claim petition. (WCJ's Finding of Fact No. 13c-f; WCJ's Conclusions of Law Nos. 1-3.)
Employer appealed to the Board, arguing that the WCJ's finding of a work-related injury on October 29, 2008, is not supported by substantial, competent evidence. The Board disagreed and found that the credible testimony of Claimant and Dr. Muccio constituted substantial, competent evidence that supported the WCJ's grant of Claimant's claim petition. Employer also argued that the WCJ erred in failing to suspend benefits as of January 2010, where the WCJ found that Claimant's bursitis in her hip was not work-related and the medical records of Dr. Muccio and Dr. Jorden offered into evidence by Claimant reflected that Claimant stopped working in January 2010 due to the bursitis. However, relying on Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), the Board concluded that the medical records of the doctors were objected-to hearsay and cannot be the basis for a finding of fact. (Board op. at 5, 7.) By opinion and order dated June 5, 2013, the Board concluded that there was substantial evidence to support the WCJ's award of total disability benefits and affirmed the WCJ's decision.
On appeal to this Court, Employer argues that the Board erred in finding that the record did not support a suspension of benefits because Claimant failed to establish that her disability continued after January 11, 2010.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704. Substantial evidence is such evidence as a reasonable mind might find adequate to support a conclusion. Bethenergy Mines, Inc. v. Workers' Compensation Appeal Board (Skirpan), 531 Pa. 287, 292, 612 A.2d 434, 436 (1992).
In a claim proceeding, the burden is on the claimant to establish a right to compensation and prove all elements necessary to support an award, including the burden to establish the duration and extent of disability. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994), appeal denied, 541 Pa. 645, 663 A.2d 696 (1995); see also Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). However, it is a fundamental principle of workers' compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight. Hoang v. Workers' Compensation Appeal Board (Howmet Aluminum Casting, Inc.), 51 A.3d 905, 909 n.7 (Pa. Cmwlth. 2012); Vols v. Workmen's Compensation Appeal Board (Alperin, Inc.), 637 A.2d 711, 714 (Pa. Cmwlth. 1994). The WCJ may accept or reject, in whole or in part, the testimony of any witness. Id. Moreover, the WCJ's fact-finding authority includes the authority to draw reasonable inferences from the evidence. General Electric Company v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth. 1991) ("[I]t is clearly within the referee's fact-finding province to draw reasonable inferences from the evidence." (citing Oscar Mayer & Company v. Workmen's Compensation Appeal Board (Manzi), 442 A.2d 1238 (Pa. Cmwlth. 1982))). A WCJ's credibility and evidentiary determinations are binding on appeal unless made arbitrarily and capriciously. Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008). The evidence, and the reasonable inferences deducible therefrom, must be viewed in the light most favorable to the prevailing party below. Glass v. Workers' Compensation Appeal Board (City of Philadelphia), 61 A.3d 318, 325 n.4 (Pa. Cmwlth. 2013). It is also well-settled that a WCJ is free to determine the chronological length of a claimant's disability based not only on the testimony of a claimant's medical witness but also on the testimony of the claimant. See YDC New Castle-PA DPW v. Workers' Compensation Appeal Board, 950 A.2d 1107, 1112 (Pa. Cmwlth. 2008); American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391, 398 (Pa. Cmwlth. 2001); Ricks v. Workers' Compensation Appeal Board (Parkway Corporation), 704 A.2d 716, 719 (Pa. Cmwlth. 1997).
In Vols, the claimant petitioned for reinstatement of her benefits. Following a hearing, the referee found the claimant's testimony and the testimony of her medical experts that she had not fully recovered from her work-related injury not credible and denied her reinstatement petition. The Board affirmed. On appeal to this Court, we noted that the referee is free to accept or reject, in whole or in part, the testimony of any witness, and we agreed with the Board that the claimant failed to meet her burden of proof.
In General Electric, the referee awarded the claimant total disability benefits. The referee accepted as credible the claimant's testimony and the testimony of claimant's medical expert that the claimant could no longer perform his work duties. The Board affirmed. On appeal to this Court, the employer argued that the claimant failed to establish a causal connection between his disability and his inability to continue working. We affirmed the Board's order, noting that the referee is the ultimate arbiter of credibility and is free to draw any reasonable inferences from the evidence.
In Casne, the WCJ credited the testimony of the employer's medical witness over that of the claimant's and found the claimant credible only in part. Thus, the WCJ granted the employer's termination petition, and the Board affirmed. On appeal to this Court, we affirmed the Board's order. We concluded that the credible testimony of the employer's medical expert constituted substantial evidence to support the WCJ's decision, noting that "[a] reviewing court does not reweigh the evidence or determine credibility . . . ." Casne, 962 A.2d at 17. We also concluded that deference was due to the WCJ's finding that the claimant's testimony was not credible in part. We stated that "[w]e must view the reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Id. at 19.
In American Contracting Enterprises, the WCJ credited the testimony of the claimant and his medical witnesses that the claimant had an ongoing disability and found the testimony of the employer's medical witness that the claimant's injury was not work-related less persuasive. The WCJ granted the claimant's claim petition and awarded benefits, and the Board affirmed. On appeal to this Court, citing Ricks v. Workers' Compensation Appeal Board (Parkway Corporation), 704 A.2d 716 (Pa. Cmwlth. 1997), we noted that the WCJ may determine the chronological length of a claimant's disability based on a claimant's testimony. Thus, we concluded that the claimant's testimony constituted substantial evidence to support the Board's finding of ongoing disability and affirmed the Board's order.
In this case, the medical records that Claimant offered into evidence diagnosing her with bursitis related to her work injury were objected-to hearsay, which was never cured through the deposition testimony of Dr. Jorden. In Walker, this Court established the following guidelines: (1) hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board; and (2) hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board if it is corroborated by any competent evidence, but a finding of fact based solely on hearsay will not stand. 367 A.2d at 370. Because Claimant failed to submit Dr. Jorden's deposition testimony to corroborate the medical records related to Claimant's bursitis and Employer properly objected to the medical records during the hearing, this evidence cannot be relied upon to support a finding that Claimant suffers from bursitis. Walker.
Contrary to Employer's assertion, Claimant never testified that she could not work due to bursitis in her hip, only that she could no longer work because of the pain that she experienced. Moreover, Dr. Muccio testified that he never released Claimant back to work as of her last visit with him. (R.R. at 129.) The WCJ specifically credited the testimony of Claimant and Dr. Muccio that Claimant was not capable of working and rejected Dr. Agnew's testimony that Claimant's back pain was not attributable to the October 29, 2008 incident, and these credibility determinations will not be disturbed on appeal. Vols; Casne. Because the testimony of Claimant and Dr. Muccio constitutes substantial evidence to support the WCJ's determination that Claimant's disability was ongoing, the Board did not err in affirming the WCJ's award of total disability benefits.
Specifically, Claimant testified as follows:
[Claimant's attorney]: What were the results of the [May 20, 2009] surgery?
[Claimant]: I think it went well.
[Claimant's attorney]: Okay. Did it change symptoms that you were having before?
[Claimant]: Yes.
[Claimant's attorney]: What symptoms were those?
[Claimant]: Before was the leg and the foot and now -- well, after the surgery, it was the buttocks.
[Claimant's attorney]: Okay. Prior to the surgery, you were having pain in your leg and foot?
[Claimant]: Yes.
[Claimant's attorney]: All right, and the surgery alleviated that?
[Claimant]: Yes.
[Claimant's attorney]: When did you first notice that you were having pain in your butt area?
[Claimant]: When I went back to work.
[Claimant's attorney]: Okay.
[Claimant]: January 2010.
[Claimant's attorney]: And can you describe the pain? Where is it located?
[Claimant]: Center of the buttocks area and --
[Claimant's attorney]: Is it on both sides?
[Claimant]: No, just the left side.
[Claimant's attorney]: In the center of your left buttock?
[Claimant]: Yes.
[Claimant's attorney]: Okay. Were you having any of that pain prior to going back to work?
[Claimant]: I had not noticed it, no.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of February, 2014, the June 5, 2013 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
(R.R. at 491-93.)