Opinion
No. 1223 C.D. 2011
03-30-2012
Southeastern Pennsylvania Transportation Authority (SEPTA), Petitioner v. Workers' Compensation Appeal Board (Morris), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Southeastern Pennsylvania Transportation Authority (SEPTA) petitions for review from an order of the Workers' Compensation Appeal Board (Board) reversing the decision of the Workers' Compensation Judge (WCJ) terminating Linwood Morris' (Claimant) compensation benefits because he had fully recovered from his work-related injuries. Finding that the WCJ's decision was supported by substantial evidence, we reverse the Board.
On May 2, 2004, Claimant was injured while working as a maintenance manager for SEPTA when he slipped and fell backwards while moving a dumpster. Claimant filed a claim petition for compensation (petition) alleging that he suffered a right wrist and hand injury that resulted in full disability. Before WCJ Stokes, Claimant testified that he experienced pain in his right arm, shoulder and neck as a result of the incident, and that he was incapable of returning to his job as a result of those injuries. Among the evidence presented by Claimant was the expert testimony of Timothy Wong, M.D. (Dr. Wong). Dr. Wong testified that he first treated Claimant for his work-related injuries on March 2, 2005, that he diagnosed Claimant with "right upper extremity weakness and neck pain with cervical radiculopathy," and that Claimant had not fully recovered from those injuries. To counter Dr. Wong's testimony, Armando Mendez, M.D. (Dr. Mendez), testified that Claimant may have sustained a cervical and thoracic strain and sprain, cervical radiculitis of the upper right extremity and a contusion sprain of the right shoulder, but had fully recovered from those injuries as of the date of his evaluation. Finding Dr. Wong credible and convincing and Dr. Mendez neither credible nor convincing, the WCJ concluded that "Claimant has met the burden of proof necessary to establish that he suffered an employment-related injury to his right shoulder and cervical spine as a result of an employment incident that occurred on May 2, 2004." (WCJ's April 7, 2006 Opinion, Conclusion of Law No. 2). Accordingly, the WCJ granted Claimant's petition.
Claimant also filed a petition for penalties alleging that SEPTA violated the terms of the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708, by failing to file a notice of denial of compensation in a timely manner. However, the WCJ found that Claimant failed to meet the burden of proof necessary to establish that SEPTA violated the terms of the Act.
In June 2007, SEPTA filed a termination petition alleging that Claimant had fully recovered from his work-related injuries. Before WCJ Makin, SEPTA presented the testimony of Gene Salkind, M.D. (Dr. Salkind), who testified that during his examination of Claimant, Claimant complained of right shoulder, arm and neck pain. Based on that examination and a review of testimony from the previous litigation, Dr. Salkind opined that Claimant suffered a "neck sprain and strain" as a result of that fall, which was consistent with Dr. Wong's earlier opinion, but that Claimant had fully recovered from those injuries as of January 16, 2007. He also testified that at the time of the fall, Claimant had significant preexisting degenerative joint disease. SEPTA also introduced video surveillance taken on August 18, 2007, showing Claimant reaching above his head, bending over, kneeling down and lifting a number of items, including a 240-pound racing car, without restriction. In response, Claimant presented the testimony of Gerald E. Dworkin, M.D. (Dr. Dworkin), who testified, inter alia, that Claimant had a limited range of motion and continued to have right shoulder, arm and neck pain.
Finding Dr. Salkind's testimony to be credible and persuasive and rejecting Dr. Dworkin's testimony, and finding that the surveillance videos showed Claimant engaged in activities entirely inconsistent with Claimant's reported symptoms and degree of impairment, the WCJ concluded that SEPTA met its burden of proving that Claimant was fully recovered from his employment-related injuries and granted SEPTA's termination petition.
Claimant appealed to the Board, which reversed, finding that:
While the WCJ found credible the testimony and opinions of Dr. Salkind, such appears in conflict with the prior adjudication in this matter. The prior WCJ found that Claimant sustained work-related injuries in the
nature of "right shoulder and spine" injuries...This was based on the WCJ finding credible the diagnosis of Claimant's medical witness, Dr. Timothy Wong, that Claimant sustained "right upper extremity weakness and neck pain with cervical radiculopathy."(May 20, 2009 Board Opinion at 5). The Board remanded to the WCJ to issue additional findings regarding why and how the testimony and opinions of Dr. Salkind addressed the prior injury determination.
Here, Dr. Salkind only opined that Claimant sustained, and was recovered from, a "cervical sprain and strain."...Dr. Salkind's diagnosis, in itself, does not appear to address the previously determined right shoulder injury.
On remand, WCJ DiLorenzo again granted the termination petition, finding that "since Dr. Salkind testified that Dr. Wong's diagnoses of the Claimant's injuries were consistent with Dr. Salkind's diagnoses of the Claimant's injuries, the Claimant made a recovery from the diagnosed conditions." (WCJ's October 4, 2010 Opinion, Finding of Fact No. 30).
Claimant again appealed to the Board, which reversed the WCJ's grant of the termination petition explaining that WCJ Stokes initially found that Claimant sustained "right shoulder and spine" injuries, but Dr. Salkind only opined that Claimant sustained and was recovered from a "cervical sprain and strain." Because the record lacked medical testimony specifically addressing Claimant's recovery from a "right shoulder injury," the Board found that there was not substantial evidence to support the WCJ's finding that Claimant had recovered from all of his work-related injuries. The Board further explained that "simply because one medical witness testifies that the opposing medical witness' diagnoses were consistent with their own, does not automatically prove that such an occurrence existed" [sic]. (June 13, 2011 Board Opinion at 4). This appeal by SEPTA followed.
Our 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. Sysco Food Services of Philadelphia v. Workers' Compensation Appeal Board (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008).
On appeal, SEPTA argues that the Board erred in reversing the decisions of WCJ Makin and WCJ DiLorenzo on the basis that SEPTA failed to prove Claimant's full recovery from all work injuries found compensable by WCJ Stokes. It argues that Dr. Wong's classification of Claimant's injury as "right upper extremity weakness and neck pain with cervical radiculopathy" demonstrates that Claimant's shoulder injury was derived from the cervical spine injury. Dr. Salkind testified that based on his review of the testimony, Dr. Wong's diagnoses were entirely consistent with his own diagnosis of Claimant's original injury. SEPTA argues that based on that testimony, and because there was no finding of fact in the claim petition proceeding that there was a distinct, separate injury to Claimant's right shoulder but WCJ Stokes concluded that Claimant "suffered an employment-related injury to his right shoulder and cervical spine," it was within the authority of the subsequent WCJs to clarify the nature of the injury. We agree.
While SEPTA was required to present unequivocal and competent medical evidence of Claimant's full recovery from his work-related injuries, Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2007), just because Dr. Salkind used different terminology than Dr. Wong in describing Claimant's injuries does not defeat SEPTA's termination petition. In Temple University Hospital v. Workers' Compensation Appeal Board (Sinnott), 866 A.2d 489 (Pa. Cmwlth. 2005), a WCJ accepted testimony of a claimant's medical witness that the claimant suffered "changes in his mental status" and "cognitive dysfunction" as the result of exposure to chemicals while on the job. Id. at 492. During the subsequent termination proceeding, a different medical expert diagnosed "chemically induced persistent dementia." Id. In explaining the apparent discrepancy between his diagnosis and that of the first expert, the expert stated, "that's pretty much what was documented previously, that as a result of his exposure to certain chemicals...there was an effect on his brain functioning that caused deficits in his cognition." Id. This Court found that the subsequent medical expert's testimony adequately addressed the work injury as found by the WCJ.
The facts here are similar, as the initial WCJ found that Claimant "suffered an employment-related injury to his right shoulder and cervical spine" based on the testimony of Dr. Wong, while Dr. Salkind testified that Claimant sustained a cervical sprain and strain. However, when asked whether Dr. Wong's diagnosis of "right upper extremity weakness and neck pain with cervical radiculopathy" was consistent with his diagnosis of Claimant's injuries, Dr. Salkind testified "I believe that it was." (September 27, 2007 Salkind Deposition; Reproduced Record at 56a). Given that the two medical experts' diagnoses were consistent, it follows that Dr. Salkind's finding of a full recovery from injury would include recovery from the injuries diagnosed by Dr. Wong. This competent medical testimony, together with the video surveillance presented by SEPTA, which the WCJ found compelling, constitutes substantial evidence that Claimant had fully recovered from his employment-related injuries.
"It is well-established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Shannopin Mining Company v. Workers' Compensation Appeal Board (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth. 2011). --------
Accordingly, the order of the Board is reversed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of March, 2012, the order of the Workers' Compensation Appeal Board, dated June 13, 2011, at No. A10-1886, is reversed.
/s/_________
DAN PELLEGRINI, President Judge