Opinion
No. 1977 C.D. 2013
05-09-2014
Kamlesh Sharma, Petitioner v. Workers' Compensation Appeal Board (Wawa), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Kamlesh Sharma (Claimant) petitions for review of the October 10, 2013 order of the Workers' Compensation Appeal Board (Board), insofar as it reversed the decision of the Workers' Compensation Judge (WCJ) to grant Claimant's review petition. We reverse.
On June 16, 2009, Claimant slipped and fell during the course and scope of her employment with Wawa (Employer). On July 8, 2009, Employer issued a notice of compensation payable (NCP) accepting liability for contusions on the left side of Claimant's head and on her left shoulder, forearm, and wrist and providing for total disability benefits. On May 19, 2010, Employer filed a termination petition alleging full recovery of the accepted injuries. Claimant filed an answer denying the material allegations and the petition was assigned to a WCJ. (Board's op. at 1.)
In support of the termination petition, Employer presented the August 27, 2010 deposition testimony of Armando Mendez, M.D. (Dr. Mendez), who is board certified in orthopedic surgery. Dr. Mendez testified that he examined Claimant on February 26, 2010, and that she did not bring any assistive devices, such as braces, crutches, or a wheelchair, with her. Dr. Mendez stated that Claimant described her June 2009 work injury and said that she finished her shift with pain, reported this pain to her manager the next day, and was referred to an occupational clinic. Dr. Mendez stated that Claimant did not express any discomfort in her left upper extremity while it rested by her side during the questioning portion of the examination. However, Dr. Mendez testified that, upon physical examination, Claimant developed a spontaneous tremor in her left upper extremity. He stated that there was no anatomical explanation for this tremor and opined that it was under Claimant's subjective control. Dr. Mendez further stated that Claimant complained of severe pain upon light touch from her shoulder to her hand and began crying even before she moved her left upper extremity. He testified that Claimant complained of numbness in her shoulder, wrist, and tips of her two fingers but that there was no dermatomal pattern present to substantiate these complaints. (Reproduced Record (R.R.) at 9a, 13a-14a.)
Dr. Mendez testified that Claimant's reflexes in her left upper extremity were normal and symmetrical with her right side. He also testified that there was no perspiration and no evidence of wasting or atrophy in her left upper extremity, which should occur with non-use. Dr. Mendez described Claimant's range of motion as inconsistent, stating that she displayed almost full range of motion when he distracted her with questions. Dr. Mendez opined that Claimant has fully recovered from her work injuries and could return to work with no restrictions and no further medical treatment. (R.R. at 15a-17a, 20a-22a.)
Dr. Mendez described Claimant's injuries as multiple contusions and sprains of the left upper extremity. He noted that nothing in Claimant's records indicated pain in the left upper extremity prior to her fall at work. He acknowledged that an orthopedic surgeon diagnosed Claimant with probable Reflex Sympathetic Dystrophy (RSD), but he disagreed with that diagnosis. Dr. Mendez admitted that when he sees patients with RSD in his practice, he refers them to an anesthesiologist or a neurologist because RSD is not an orthopedic condition. However, he stated that he felt qualified to diagnose RSD. (R.R. at 23a, 25a-28a.)
In defense of the termination petition, Claimant submitted the November 18, 2010 deposition testimony of Sheng K. Lin, Ph.D., M.D. (Dr. Lin), who is board certified in anesthesiology and pain medicine with a subspecialty in pain management. Dr. Lin stated that he customarily treats patients with RSD and Complex Regional Pain Syndrome (CRPS), which is "a pain syndrome secondary to trauma which leads to reflex mechanism with resultant overactivity of the sympathetic nervous system and the hypersensitivity of usually the limbs but sometimes can be trunk." (R.R. at 42a.) Dr. Lin clarified that the term "CRPS" replaced what used to be called RSD, "because [RSD] did not encompass all the features of [CRPS]." (R.R. at 42a.)
Dr. Lin testified that he first examined Claimant on July 21, 2010. He stated that Claimant reported that she fell at work and thereafter had severe pain in her left upper extremity. Dr. Lin testified that his examination of Claimant revealed edema, diminished motor strength, and increased sensitivity in her left upper extremity. He also found that Claimant had allodynia, meaning that she has a painful response to light stimulation, and hyperthermia, in that her left arm is warmer than her right arm. Dr. Lin testified that Claimant's movements were restricted and that she was guarded with her left arm. (R.R. at 41a-42a.) Based upon the history provided by Claimant and the results of his physical examination, he diagnosed Claimant with probable CRPS I. He stated that a diagnosis of CRPS I does not mean that a patient demonstrates major nerve damage, which would support a diagnosis of CRPS II. Dr. Lin explained that he diagnosed Claimant with "probable" CRPS I because Claimant declined a nerve block test for fear of complications, which prevented Dr. Lin from confirming his diagnosis. (R.R. at 42a-43a.)
Dr. Lin testified that he saw Claimant once every three weeks and that she had not responded favorably to pain medication. Specifically, he stated that Claimant failed trials of Neurontin, Elavil, and Desipramine. Dr. Lin testified that he prescribed Ultram and Darvocet but that she developed side effects such as dizziness and nausea from these medications. Dr. Lin also stated that he prescribed Ketamine and Gabapentin, which are topical creams, but that these medications did not help at all. He further testified that Claimant is currently taking Tylenol with codeine and Celebrex, which provide only partial relief. Dr. Lin stated that at Claimant's last visit, her condition was unchanged and noted that his diagnosis remains probable CRPS I because he did not have results from a nerve block test. Dr. Lin added that he reviewed the treatment record of Claimant's orthopedic surgeon, who likewise diagnosed Claimant with probable RSD/CRPS. Dr. Lin opined that the probable CRPS I directly resulted from Claimant's fall at work and that Claimant had not fully recovered from her work injuries. (R.R. at 43a-44a.)
Dr. Lin acknowledged that Claimant's failure to consent to the nerve block test is impeding her recovery to some extent. He noted that Claimant did not have redness of the skin or hot and cold areas of the skin, which are symptoms of CRPS I. He also noted that Claimant did not have any perspiration, but added that whether a patient does or does not have perspiration depends on the stage of CRPS I. Dr. Lin also explained that Claimant's lack of muscle atrophy did not preclude a diagnosis of CRPS I. Dr. Lin opined that Claimant can do light duty work that does not require the use of her left upper extremity. (R.R. at 46a-48a.)
Claimant testified by way of deposition, stating that she fell on June 16, 2009, and injured her left arm and shoulder and her head. Claimant stated that she first sought treatment from Employer's doctor, who referred her to an orthopedic surgeon for her wrist injury. Claimant stated that the orthopedic surgeon and his partner provided her with therapy and pain medication, including injections, and then referred her to a neck pain specialist. That specialist referred Claimant to Dr. Lin. Claimant testified that Dr. Lin administered pain medication injections in her left shoulder that did not relieve her pain. Claimant stated that Dr. Lin recommended another type of injection, which consisted of four total injections into her neck, but she has refused these injections because she is afraid of the possible side effects. (R.R. at 75a-82a.)
Claimant testified that she has constant pain in her left shoulder that radiates approximately once a day to her left breast area. She stated that she also has pain in her left elbow, wrist, two fingers, and thumb that is constant and radiates throughout her entire left arm. Claimant added that she still has swelling in her left shoulder and fingers. Claimant also testified that her left arm is colder than her right arm and needs to be continually covered to provide warmth. Claimant stated that she has not fully recovered from her work injuries and cannot return to her pre-injury job because she needs to use her left hand to complete the necessary tasks. (R.R. at 83a-91a.)
On December 16, 2010, Claimant filed a review petition pursuant to section 413(a) of the Workers' Compensation Act (Act), seeking to add CRPS to the description of her injuries. Employer filed an answer denying the alleged work-related injury, and the petition was assigned to the same WCJ. (Board's op. at 1.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
The WCJ addressed Employer's termination petition in his decision and order dated July 15, 2011. The WCJ credited Claimant's testimony that she is unable to return to her pre-injury work. The WCJ also credited Dr. Lin's testimony over Dr. Mendez's testimony. The WCJ concluded that Employer failed to meet its burden of proving that Claimant fully recovered from her accepted work injuries and denied Employer's termination petition. Employer filed a timely appeal with the Board.
The WCJ addressed Claimant's review petition in his decision and order dated November 28, 2011. The WCJ credited the testimony of Dr. Lin and Claimant and accepted Dr. Lin's testimony diagnosing Claimant with probable CRPS I over Dr. Mendez's contrary opinion. The WCJ noted Dr. Mendez's admission that Claimant's condition is not an orthopedic condition and that he usually refers a patient with such a condition to an anesthesiologist or a neurologist. The WCJ found that, even if Claimant's condition is not precisely CRPS, it is nevertheless a condition that involves nervous tissue. The WCJ concluded that Claimant met her burden of establishing injuries beyond those initially accepted in the NCP. Thus, the WCJ granted Claimant's review petition. Employer also appealed the November 28, 2011 order to the Board.
The petitions were not consolidated but no additional evidence was presented in the litigation of the review petition.
By decision and order dated October 10, 2013, the Board disposed of both appeals. The Board noted that, while the petitions were never consolidated, no new evidence was introduced in the litigation of the review petition. The Board also noted that the WCJ had the authority to credit Claimant's testimony and Dr. Lin's testimony over Dr. Mendez's testimony. The Board concluded that Employer's reliance on World Kitchen, Inc. v. Workers' Compensation Appeal Board (Rideout), 981 A.2d 342 (Pa. Cmwlth. 2009), was unavailing, because Claimant's testimony was supported by Dr. Lin's expert medical testimony. Accordingly, the Board affirmed the WCJ's denial of Employer's termination petition.
The Board next noted that Claimant bore the burden of proof with regard to the review petition. The Board concluded that, because Dr. Lin testified that Claimant had "probable" CRPS I and would need to administer a nerve block test to Claimant in order to confirm this diagnosis, Dr. Lin's medical testimony was equivocal regarding CRPS I. Thus, the Board held that the WCJ erred in granting Claimant's review petition.
On appeal to this Court, Claimant argues that the Board erred in concluding that Dr. Lin's testimony was equivocal and asserts that the WCJ's finding that Claimant suffers from sympathetic nerve pain syndrome as a result of her work injuries is supported by substantial evidence. We agree.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact were supported by substantial evidence. Bemis v. Workers' Compensation Appeal Board (Perkiomen Grille Corporation), 35 A.3d 69, 71 n.5 (Pa. Cmwlth. 2011).
Initially, we note that a review petition is appropriate when a claimant seeks to amend an NCP to reflect additional injuries, and it functions as a claim petition for that purpose. Westinghouse Electric Corporation/CBS v. Workers' Compensation Appeal Board (Korach), 584 Pa. 411, 432, 883 A.2d 579, 592 (2005). Thus, when the connection between the injury and the alleged work-related cause is not obvious, the claimant must establish the cause by unequivocal medical evidence. Hilton Hotel Corporation v. Workmen's Compensation Appeal Board (Totin), 518 A.2d 1316, 1318 (Pa. Cmwlth. 1986).
Claimant first argues that the Board erred in determining that Dr. Lin's testimony was equivocal. Whether medical testimony is unequivocal is a question of law and therefore subject to this Court's review. Terek v. Workmen's Compensation Appeal Board (Somerset Welding & Steel, Inc.), 542 Pa. 453, 456, 668 A.2d 131, 132 (1995). Medical testimony is equivocal if it is vague, leaves doubt, is less than positive, or is based upon possibilities. Reinforced Molding Corporation v. Workers' Compensation Appeal Board (Haney), 717 A.2d 1096, 1098 (Pa. Cmwlth. 1998), appeal denied, 568 Pa. 652, 794 A.2d 365 (1999). It is well settled that the testimony of a medical witness must be reviewed in its entirety and that the final decision on its certainty should not rest on a few words taken out of context. Wilkes-Barre City v. Workmen's Compensation Appeal Board, 420 A.2d 795, 798 (Pa. Cmwlth. 1980).
In concluding that Dr. Lin's medical testimony was equivocal, the Board stated that:
Dr. Lin testified that he diagnosed Claimant with "probable" CRPS I. He explained that he was waiting to see Claimant's response to a stellate ganglion block to confirm the diagnosis, but that Claimant had not undergone that procedure. When asked again, Dr. Lin confirmed that his diagnosis was "strictly still probable."(Board's op. at 7) (citations omitted).
Contrary to the Board's analysis, a medical witness's use of words such as "probably," "likely," and "somewhat" will not render an opinion equivocal so long as the testimony, read in its entirety, is unequivocal. Deitrich v. Workmen's Compensation Appeal Board (Shamokin Cycle Shop), 584 A.2d 372, 375 (Pa. Cmwlth. 1990). 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 Compensation Appeal Board (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 and scientific details; so long as the witness does not recant the opinion or belief first expressed. Id.
We note that the Board stated as follows:
We acknowledge that in Bemis v. WCAB (Perkiomen Grille Corp.), 35 A.3d 69 (Pa. Cmwlth. 2011), the court held that words such as "probably," "likely," and "somewhat" will not render an opinion equivocal so long as the testimony in its entirety is unequivocal and the witness does not recant the opinion or belief first expressed. However, the issue in Bemis was causation, not the diagnosis.
We conclude that Dr. Lin's testimony, specifically that: his findings upon examination included edema, allodynia, and hyperthermia, (R.R. at 41a); the condition from which Claimant suffers is a pain syndrome "with resultant overactivity of the sympathetic nervous system[,]" (R.R. at 42a); his diagnosis of CRPS I was based on Claimant's history and his examination of Claimant; the treatment he has rendered to Claimant has been reasonable and necessary related to her work injury; and all of his opinions were made with a reasonable degree of medical certainty, (R.R. at 41a-42a, 44a-45a), when considered in its entirety, is not equivocal as to whether Claimant suffers from CRPS I.
Claimant also argues that the WCJ's findings of sympathetic nerve pain syndrome are supported by substantial evidence. We agree. In Meadow Lakes Apartments v. Workers' Compensation Appeal Board (Spencer), 894 A.2d 214, 217 (Pa. Cmwlth. 2006), the claimant filed a review petition to expand the injuries already accepted by the employer in the NCP. At the WCJ's hearing, the claimant and the claimant's doctor testified that the claimant experienced further injuries as a result of the initial work-related injuries and subsequent surgeries. The WCJ found the claimant's testimony credible that he had symptoms of pain from the initial injury but noted that, while the claimant's doctor's testimony supported the claimant's testimony, the doctor never provided a medical diagnosis. Thus, the WCJ determined that the claimant had not established new injuries and denied the review petition. The Board reversed, amending the NCP to include overuse injuries.
On appeal to this Court, we noted that pain itself that is causally related to the employment is compensable under the Act. Citing Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503 (Pa. Cmwlth. 1998), we also noted that a claimant's testimony, even without the support of a medical expert, is sufficient to grant the expansion of an injury. We held that "the presence of a diagnosis may impact the credibility of testimony addressing the existence of pain or its relationship to employment, but it is not a legal precondition." 894 A.2d at 217. Thus, we concluded in Meadow Lakes Apartments that the Board did not err in finding that Claimant's additional pain was compensable.
Like the situation in Meadow Lakes Apartments, Dr. Lin did not offer a conclusive medical diagnosis, but he testified that Claimant suffers additional symptoms of a pain syndrome that are causally related to her initial work injury. The WCJ relied on his testimony to find that:
Complex Regional Pain Syndrome involves "nerve damage" to varying degrees. (Dr. Lin, NT 12-13). Accordingly, even if the condition as opined by Dr. Lin is not precisely Regional Reflex Syndrome, it is clear that Claimant's condition "involves nervous tissue" -- a condition which Dr. Mendez would refer to a specialist such as Dr. Lin as noted above.(WCJ's Finding of Fact No. 5, 11/28/11.) As in Meadow Lakes Apartments, Dr. Lin's testimony does not have to conclusively state a diagnosis for it to be unequivocal medical testimony regarding Claimant's additional symptoms related to her initial work-related injury.
The WCJ has complete authority over questions of credibility, conflicting medical evidence, and evidentiary weight. Sherrod v. Workers' Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to accept or reject the testimony of any witness, in whole or in part. Lombardo v. Workers' Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). In this case, the WCJ credited the testimony of Claimant and Dr. Lin over Dr. Mendez's testimony and these credibility determinations will not be disturbed on appeal. Sherrod; Lombardo.
Thus, we conclude that the Board erred in holding that the testimony of Dr. Lin was equivocal and that the testimony accepted as credible by the WCJ constitutes substantial evidence to support the WCJ's findings and his conclusion that Claimant met her burden of proof on the review petition. Accordingly, we reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 9th day of May, 2014, the October 10, 2013 order of the Workers' Compensation Appeal Board is reversed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
(Board's op. at 7 n.4.) However, we cannot agree with the Board that a determination of whether testimony is equivocal depends on the facts or issue in dispute.