Opinion
No. 946 C.D. 2012
11-29-2012
Drucella Bell, Petitioner v. Workers' Compensation Appeal Board (School District of Philadelphia), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Drucella Bell (Claimant) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed the Decision and Order of a Workers' Compensation Judge (WCJ) terminating Claimant's workers' compensation (WC) benefits based on her full recovery from work-related injuries in the nature of a left hip contusion, fractured left wrist, and complex regional pain syndrome, which is also known as reflex sympathetic dystrophy (RSD), in her left arm and hand. On appeal, Claimant argues that the WCJ: (1) erred in relying on the medical opinion of the School District of Philadelphia's (Employer) medical expert (Employer's Doctor) because that testimony was not competent and was inconsistent with the WCJ's own observations; (2) did not issue a reasoned decision as required by Section 422(a) of the Pennsylvania Workers' Compensation Act (Act), 77 P.S. § 834, where she failed to address certain conflicts in the evidence and relied upon a diagnostic test that would not show signs of or reveal RSD and was not considered by Employer's Doctor in making her credibility determinations; and (3) abused her discretion by not permitting Claimant to introduce the deposition testimony of a physician regarding her RSD from a prior proceeding during the termination proceedings. Because we conclude that the WCJ did not commit an error of law or abuse her discretion in granting Employer's Petition to Terminate Compensation Benefits (Termination Petition), we affirm the Board's Order.
Act of June 2, 1915, P.L. 736, as amended.
On September 10, 2002, Claimant, who worked as a teacher's assistant for Employer, fell over a tricycle at work and sustained a left wrist distal radius fracture, left hip contusion, and RSD. Employer accepted these injuries pursuant to a notice of compensable payable (NCP) in 2002 and a Corrected NCP on November 6, 2006. On June 4, 2008, Employer's Doctor examined Claimant and, after his physical examination and review of Claimant's medical records, opined that Claimant was fully recovered. Based on that opinion, Employer filed the Termination Petition on August 11, 2008. Claimant filed an answer denying Employer's allegation of full recovery. The Termination Petition was assigned to the WCJ. Employer's Doctor and Claimant's treating physician (Claimant's Doctor) testified by deposition, and Claimant testified before the WCJ at the hearing.
Employer initially accepted Claimant's injuries as a left wrist distal radius fracture and left hip contusion. Employer subsequently issued a Corrected NCP, which added complex regional pain syndrome (RSD) to Claimant's injuries. (Findings of Fact (FOF) ¶¶ 1-2.)
Employer's Doctor, who is board-certified in orthopedic surgery, testified that, at his June 4, 2008 examination, Claimant described the September 2002 work incident and her treatment history. According to Employer's Doctor, Claimant complained of pain in her left arm from her fingers to her neck, with most of the pain centered on her left wrist, and that the pain interfered with her daily activities. Employer's Doctor indicated that he reviewed numerous medical records from Claimant's various treating physicians, as well as x-rays from 2002, MRIs from 2002 and 2003, and a three-phase bone scan from February 5, 2003, which revealed RSD in Claimant's left arm below the elbow joint. Employer's Doctor explained that Claimant's physical examination revealed no abnormal skin color or temperature, no hyperhidrosis (excessive sweating), normal hair distribution, no changes in her nail beds, no swelling, and no atrophy. He acknowledged that Claimant had minor restricted movement in her left wrist when compared with her right, but stated that the remaining physical examination results were normal. Employer's Doctor further agreed that Claimant had RSD in the past, the three-phase bone scan from 2003 revealed RSD, and the symptoms of RSD can vary day-to-day. Employer's Doctor testified that RSD can be cured if the patient receives aggressive treatment, such as stellate ganglion blocks. Based on his examination and the lack of objective signs of RSD, Employer's Doctor opined that Claimant was fully recovered from her work-related injuries, needed no further medical treatment, and could return to her pre-injury position. (Findings of Fact (FOF) ¶ 4; Employer's Doctor's Dep. at 11-37, R.R. at 19a-45a.)
Claimant's Doctor, who is board-certified in physical and rehabilitation medicine, testified that he began treating Claimant in January 2006 and continued to treat her through the date of his February 2, 2009 deposition. According to Claimant's Doctor, his examinations revealed that Claimant experienced: dysesthesias (heightened sensation) on her left arm; tenderness below the elbow and on the back of her left hand; swelling on the back of the left hand resulting in "the loss of the landmarks of her knuckles and bones," (FOF ¶ 5(b)); atrophy in the left arm; decreased range of motion of her left shoulder, elbow, wrist and fingers; darker skin on her left arm, but no nail bed changes. Claimant's Doctor did not identify Claimant as being in a particular stage of RSD because she had characteristics of both stage one and stage two. He explained that RSD symptoms vary and that, at times, Claimant's skin discoloration was less prominent than at other times. Claimant's Doctor indicated that Claimant's left arm is functional, and she is capable of driving an automobile and bathing herself. Claimant's Doctor reviewed the various diagnostic tests and, when questioned whether a 2005 EMG test found RSD, he agreed that it had not, but clarified that "EMG[s] never find[] RSD. It's not something that looks for RSD. It looks for lower motor neuron problem[s], of which [Claimant's] having . . . mild carpal tunnel syndrome," but that problem was "insufficient to explain her symptoms which are consistent with [RSD]." (Claimant's Doctor's Dep. at 36, R.R. at 120a.) Claimant's Doctor stated that "[t]he best test that's out there . . . [for] pointing to [] RSD is [the] triple-phase bone scan" and noted that Claimant's 2003 triple-phase bone scan was positive for RSD. (Claimant's Doctor's Dep. at 38, R.R. at 122a.) He explained that he did not think it was necessary to have a more recent triple-phase bone scan performed because Claimant had already been diagnosed with RSD and he did not want to put Claimant through more examinations than necessary. Claimant's Doctor opined that Claimant was not fully recovered from her work-related RSD and could not return to work. (FOF ¶ 5; Claimant's Doctor's Dep. at 10, 15-18, 22-23, 36-39, R.R. at 94a, 99a-102a, 106a-07a, 120a-23a.)
Claimant testified before the WCJ, describing her pre-injury job, her medical treatment, and her current symptoms. Those symptoms included skin discoloration, swelling, cramping in her left hand, severe pain to the point that she cannot move her hand, and problems with regulating the temperature of her hand and arm. According to Claimant, she cannot perform her former job because it involves a large amount of lifting, changing children's clothing, setting tables, and preparing food. Claimant explained that she treats with her Doctor, who prescribes her medications, and has not had surgery on her left hand, which her physicians have not recommended. Claimant acknowledged that she was fully recovered from her left hip injury. (FOF ¶ 6; Hr'g Tr. at 6-10, 13-16, R.R. at 156a-60a, 163a-66a.)
During the hearing, the WCJ, at Claimant's counsel's request, compared Claimant's left and right hands and arms. The WCJ "note[d] for the record that [she saw] a slightly darker coloration of the left hand as compared to the right [and on] [t]he fingers in particular." (Hr'g Tr. at 9, R.R. 159a.) The WCJ further observed that "[t]here does appear to be a slight degree of swelling in the area of [the] left" hand. (Hr'g Tr. at 10, R.R. at 160a.) Also during the hearing, Claimant sought to offer the deposition testimony of another physician, who had been deposed during prior litigation on a Petition to Review Claimant's NCP, in which she sought to add the RSD to her NCP. Employer objected, questioning the relevancy of the deposition testimony to the present termination proceedings. The WCJ agreed that the deposition was not relevant and excluded it from the record.
The WCJ credited Employer's Doctor's testimony that Claimant was fully recovered from all of her work-related injuries because his "testimony was unequivocal, logical and coherent, and supported by the results of his examination and review of Claimant's medical record. Of note is his testimony that the objective tests do not support Claimant's subjective complaints." (FOF ¶ 7.) The WCJ rejected Claimant's and Claimant's Doctor's testimony that she continues to have disabling work-related pain because that testimony was "not supported by the physical examination performed by [Employer's Doctor] and the diagnostic tests. Specifically, the EMG and Nerve Conduction Study do not support the opinions of Claimant's" Doctor. (FOF ¶ 8.) Based on Employer's Doctor's testimony, the WCJ held that Employer met its burden of proving Claimant's full recovery from her work-related injuries as of June 4, 2008 and granted the Termination Petition. Claimant appealed to the Board, which affirmed. Claimant now petitions this Court for review.
"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." Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385, 388 n.1 (Pa. Cmwlth. 2010).
Claimant first argues that the WCJ erred in granting the Termination Petition based on Employer's Doctor's opinions because his testimony was not competent. Claimant asserts that Employer's Doctor never acknowledged that Claimant had work-related RSD and, therefore, his testimony was not legally competent to support the grant of the Termination Petition pursuant to Miller v. Workers' Compensation Appeal Board (Airborne Freight), 817 A.2d 1200 (Pa. Cmwlth. 2003).
In a termination proceeding, the employer bears the burden of proving "that all disability related to the claimant's work-related injury has ceased." Miller, 817 A.2d at 1203. "When the claimant complains of continuing pain the employer may meet its burden through unequivocal medical testimony that the claimant is fully recovered and that no objective medical findings support the claimant's complaints or connect the complaints to the work-related injury." Id. However, the testimony of a physician who fails to recognize or acknowledge the existence of an accepted or judicially-determined work-related injury is not competent to support the termination of benefits because it is against the established facts of the case. Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213, 219 (Pa. Cmwlth. 2008).
Claimant's argument is based on Employer's Doctor's testimony that he could not recall whether Claimant's medical records revealed that she had eight of the eleven clinical signs necessary to diagnose RSD. However, Employer's Doctor did not dispute that Claimant had RSD at one point in time. Rather, after performing his own physical examination of Claimant on June 4, 2008, which revealed that Claimant was not exhibiting any objective signs of RSD on that day, Employer's Doctor unequivocally opined that Claimant had fully recovered from RSD as of that date. (Employer's Doctor's Dep. at 27-28, R.R. at 35a-36a.) Accordingly, Employer's Doctor's testimony is legally competent to support the termination of Claimant's benefits.
Claimant also argues that the WCJ erred in terminating her benefits because Employer's Doctor's opinion that Claimant had no symptoms of RSD is inconsistent with the WCJ's own observation that Claimant's left hand was discolored and slightly swollen. Claimant contends that, in failing to resolve this conflict, the WCJ capriciously disregarded evidence that establishes that Claimant's RSD was not resolved.
A WCJ does not have the discretion to capriciously disregard competent evidence without a reasonable explanation. Green v. Workers' Compensation Appeal Board (US Airways), 28 A.3d 936, 942 (Pa. Cmwlth. 2011). However, a WCJ is not a qualified medical expert who is competent to observe a claimant's symptoms and opine whether those symptoms are related to a work-related injury or other malady. Thus, we discern no error in the WCJ not reconciling Employer's Doctor's conclusions with her own observations.
"[R]eview for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. As at common law, this review will generally assume a more visible role on consideration of negative findings and conclusions." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). Here, as stated, Claimant argues that the WCJ capriciously disregarded the WCJ's own observations.
Claimant next asserts that the WCJ's decision is not reasoned as required by Section 422(a) of the Act. Claimant maintains that the WCJ abused her discretion when, in crediting Employer's Doctor's testimony of full recovery, the WCJ disregarded her own observations, which conflicted with that testimony, without explanation. She further asserts that the WCJ abused her discretion in rejecting Claimant's Doctor's testimony based upon the results of the 2005 EMG and Nerve Conduction Study that Employer's Doctor did not review and, as Claimant's Doctor indicated, would not show signs of or reveal RSD.
Section 422(a) provides, in relevant part:
All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.77 P.S. § 834 (emphasis added). A decision is reasoned if it allows a reviewing court to perform adequate appellate review. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 194 (Pa. Cmwlth. 2006). In cases where the credibility determination is not tied to the WCJ's actual viewing of a witness's demeanor, such as "[w]here [the] medical experts testify by deposition, the WCJ's resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another." Id. "[S]ome articulation of the actual objective basis for the credibility determination must be offered for the decision to be a 'reasoned' one which facilitates effective appellate review." Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003). Section 422(a) of the Act does not allow a party to challenge the WCJ's credibility determinations, which will be upheld unless they are made arbitrarily or capriciously. Dorsey, 893 A.2d at 195.
In this matter, the WCJ found Employer's Doctor's testimony credible because it was "unequivocal, logical and coherent, and supported by the results of his examination and review of Claimant's medical record. Of note is his testimony that the objective tests do not support Claimant's subjective complaints." (FOF ¶ 7.) The WCJ rejected Claimant's Doctor's testimony because "it is not supported by the physical examination performed by [Employer's Doctor] and the diagnostic tests. Specifically, the EMG and Nerve Conduction Study do not support the opinions of Claimant's medical expert." (FOF ¶ 8 (emphasis added).)
Although Claimant is correct that the WCJ did not "reconcile" Employer's Doctor's opinion with the WCJ's own observation of Claimant's left arm and hand, the WCJ is not a qualified medical expert whose observations would be competent to counter Employer's Doctor's expert opinion. Moreover, even though the WCJ cited the lack of evidence of RSD in the EMG and Nerve Conduction Study as a reason for not crediting Claimant's Doctor, this was only a part of that credibility determination. The WCJ clearly rejected Claimant's Doctor's testimony because it was inconsistent with Employer's Doctor's opinions, which were "unequivocal, logical and coherent, and supported by the results of his examination and review of Claimant's medical record[s]." (FOF ¶ 7.) That Employer's Doctor did not review the 2005 EMG and Nerve Conduction Study had no bearing on his opinion, as his determination of full recovery was based on Claimant's lack of objective clinical signs of RSD during the June 4, 2008 examination. The WCJ's Decision articulates actual objective bases for her credibility determinations, which enable this Court to perform effective appellate review, and, therefore, we conclude that the WCJ's Decision is reasoned under Section 422(a) of the Act.
Claimant also asserts that, in accepting Employer's Doctor's testimony that RSD can be cured as credible, the WCJ did not address the fact that Claimant did not undergo the treatment that Employer's Doctor stated could cure RSD. However, the WCJ did not base her credibility determinations or her legal conclusion of full recovery on Employer's Doctor's testimony regarding "curing" RSD through aggressive medical treatment. We further note that Claimant's Doctor also testified that he had patients whose RSD had resolved after time. (Claimant's Doctor's Dep. at 31, R.R. at 115a.) --------
Finally, Claimant asserts that the WCJ abused her discretion by excluding the deposition testimony of Claimant's other physician. Claimant argues that this testimony was relevant in light of Employer's Doctor's testimony that Claimant did not have the required objective findings to support a diagnosis of RSD because that deposition demonstrated that she had been previously diagnosed with RSD and that her complaints had remained the same since that time.
"[T]he admission of evidence is within the sound discretion of the WCJ," and the WCJ may exclude evidence if it is irrelevant or duplicative. Washington v. Workers' Compensation Appeal Board (Pennsylvania State Police), 11 A.3d 48, 59 (Pa. Cmwlth. 2011). This Court will not overturn a WCJ's determinations regarding the admission of evidence unless there was an abuse of discretion. Id. "An abuse of discretion occurs where the WCJ's judgment is manifestly unreasonable, where the law is not applied or where the record shows that the action is the result of partiality, prejudice, bias or ill will." Allegis Group and Broadspire v. Workers' Compensation Appeal Board (Coughenaur), 7 A.3d 325, 327 n.3 (Pa. Cmwlth. 2010).
Here, Claimant sought to introduce the additional deposition testimony from a 2006 proceeding that addressed Claimant's diagnosis and condition as of that time. The issue in the present matter, however, was Claimant's condition as of the time of the Termination Petition. Employer's Doctor acknowledged that Claimant had been diagnosed with RSD, but opined that she was fully recovered from that condition as of June 4, 2008. Moreover, Claimant's Doctor's testimony, as well as Claimant's medical records, provided ample evidence of Claimant's past complaints and diagnoses. Given Employer's Doctor's acknowledgment of Claimant's RSD, Claimant's Doctor's testimony, and Claimant's medical records, all of which reflected Claimant's prior symptoms and RSD diagnosis, we conclude that the WCJ did not abuse her discretion in excluding the 2006 deposition.
Accordingly, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 29, 2012, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge