Opinion
No. 1442 C.D. 2014
03-26-2015
Cornelius Berry, Petitioner v. Workers' Compensation Appeal Board (Kimberly-Clark Pennsylvania), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Cornelius Berry (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision granting the Termination, Suspension, and Modification Petitions (Employer's Petitions) of Kimberly-Clark Pennsylvania (Employer), and denying Claimant's Petition to Review Medical Treatment (Petition to Review). The WCJ found, inter alia, that Employer sustained its burden of proof that Claimant was fully recovered from his work-related injuries and that Claimant failed to prove any additional injuries should be added to the Notice of Compensation Payable (NCP). On appeal, Claimant argues that the WCJ erred by terminating Claimant's benefits for his accepted head injury when Employer's Independent Medical Exam (IME) physician never examined Claimant's head. Claimant further contends that it was not reasoned for the WCJ to reject his testimony with regard to his head injury when the WCJ never personally heard Claimant testify and Employer acknowledged Claimant's head injury in the NCP. Discerning no error, we affirm.
Claimant was injured in the course and scope of his employment as a power plant operator with Employer on October 9, 2011. (WCJ Decision, Findings of Fact (FOF) ¶ 1.) Claimant was sitting in his vehicle when it was struck by a Caterpillar front-end loader. (FOF ¶ 1.) Employer issued a Notice of Temporary Compensation Payable (NTCP) on November 4, 2011 accepting injuries described as "left shoulder sprain and head contusion." (NTCP, R.R. at 3a.) The NTCP was converted into a NCP on January 11, 2012. (FOF ¶ 2.)
On May 14, 2012, Employer filed its Petitions alleging that Claimant's benefits should be terminated because Claimant fully recovered from his injury as of February 28, 2012 or that Claimant's benefits should be modified because Employer offered Claimant a job on May 7, 2012. (FOF ¶ 3; Employer's Petitions, R.R. at 7a.) On June 21, 2012, Claimant filed a Petition to Review alleging an incorrect description of his injury. (FOF ¶ 4.) Claimant contended that the description of his injuries should be amended to include:
acute cervical concussion with post concussive syndrome, acute cervical strain and sprain with aggravation of already existing degenerative condition, development of cervical radicular symptoms,
left shoulder strain and sprain with aggravation of already existing degenerative condition and lumbo-sacral strain and sprain with acute lumbar radiculopathy and aggravation of pre-existing condition and development of subligamentous cysts and bulge.(FOF ¶ 4.) Employer's Petitions and Claimant's Petition to Review were consolidated and a hearing was held before WCJ Makin on March 11, 2013.
In support of his Petition to Review, Claimant testified on his own behalf and presented the deposition testimony of James F. Bonner, M.D. In support of Employer's Petitions, the deposition testimonies of Claimant and Arnold T. Berman, M.D. were presented, and Claimant's emergency room and hospital records were submitted into evidence.
Claimant was deposed by Employer on August 16, 2012 and testified as follows. On the evening of October 9, 2011, Claimant was in his truck on the premises of Employer's coal plant when he spotted a front-end loader approaching. (Claimant's Dep. at 18, R.R. at 252a.) Claimant pulled to the side of the road and began to sound his car horn and flash his lights in an effort to alert the driver of the front-end loader to his presence. (Claimant's Dep. at 18, R.R. at 252a.) As the front end-loader approached, Claimant removed his seat belt and tried to lie down on the truck's floor. (Claimant's Dep. at 18, R.R. at 252a.) The bucket of the front-end loader went through the window of the truck and Claimant felt something hit him from the side. (Claimant's Dep. at 18-19, R.R. at 252a.) Claimant lost consciousness and did not remember much thereafter. (Claimant's Dep. at 19, R.R. at 252a.)
As a result of the incident Claimant experienced pain in his left shoulder, headaches, blurred vision, and was taken to the hospital. (Claimant's Dep. at 20, R.R. at 252a.) Once at the hospital, Claimant was given morphine and began to exhibit spasms in his back and neck. (Claimant's Dep. at 20, R.R. at 252a.) He does not remember telling the hospital staff that he did not hit his head or lose consciousness. (Claimant's Dep. at 22-23, R.R. at 253a.) Claimant stated that prior to the incident he never had any problems with his back or neck. (Claimant's Dep. at 10-11, R.R. at 250a.) He may have injured his left shoulder in a previous incident during his employment with Employer, but could not remember. (Claimant's Dep. at 10, R.R. at 250a.)
Claimant testified before WCJ Makin at the March 11, 2013 hearing. Claimant testified that, as a result of his injury, he continued to experience five to six severe headaches per week, dizziness, pain in his back and left shoulder, and pain and cracking in his neck. (Hr'g Tr. at 16-21, R.R. at 275a-80a.) Claimant stated that he never experienced any difficulty doing his job for any reasons prior to the incident and never had migraines or back or neck injuries before the incident. (Hr'g Tr. at 13, 27, R.R. at 272a, 286a.) When asked about a specific occurrence listed in his hospital records from October of 2009, Claimant stated that it was his son, and not himself, who was treated for a migraine. (Hr'g Tr. at 27, R.R. at 286a.)
Claimant was asked at the hearing to recount his trip to the emergency room after the work incident and, in response, testified as follows. He was taken to the hospital by a security guard working for Employer. (Hr'g Tr. at 28, R.R. at 287a.) Claimant was immediately taken back by a nurse upon his arrival and the security guard filled out the initial paperwork. (Hr'g Tr. at 30, R.R. at 289a.) He remembers feeling pain in his neck and left arm upon his arrival, although he could not remember the details of what he told the emergency room staff as he was on morphine at the time. (Hr'g Tr. at 24-25, R.R. at 283a-84a.) Claimant had a difficult time remembering details, but stated that he was at the emergency room for maybe fifteen minutes to a half-hour before receiving morphine for his pain. (Hr'g Tr. at 30, R.R. at 289a.)
Claimant's medical expert, Dr. Bonner, testified by way of deposition that he is board certified in physical medicine and rehabilitation and completed one year of training in neurosurgery at the University of Pittsburgh. (Bonner's Dep. at 5, R.R. at 156a.) Dr. Bonner first saw Claimant on February 29, 2012, where Claimant complained "of ongoing pain involving his neck, low back, left shoulder and left lower extremity." (Bonner's Dep. at 8, 10, R.R. at 159a, 161a.) Dr. Bonner observed that Claimant was limping, had pain with palpation in the spine and left shoulder, exhibited decreased range of motion in his left lower extremity and left leg, and exhibited weakness in his left upper and lower extremities. (Bonner's Dep. at 17-18, R.R. at 168a-69a.)
Dr. Bonner testified that he reviewed reports from other doctors, including the hospital's in-house neurologist, Pasquale Brancazio, D.O., and Claimant's MRI and EMG results. (Bonner's Dep. at 10, 14, 19, R.R. at 161a, 165a, 170a.) Dr. Bonner also conducted a second physical examination of Claimant on March 15, 2012. (Bonner's Dep. at 18, R.R. at 169a.) Additionally, Dr. Bonner testified to having learned shortly before his deposition that Claimant was treated for a car accident which occurred two years and three months prior to Claimant's work injuries. (Bonner's Dep. at 28-29, R.R. at 179a-80a.) Having reviewed the records, Claimant's history, and conducting two physical exams, Dr. Bonner opined:
That as the result of the work-related accident of October 9th, 2011, [Claimant] sustained acute cerebral concussion with post-concussive syndrome, acute cervical sprain and strain with aggravation of a preexisting degenerative condition, with development of cervical radicular symptoms, left shoulder strain and sprain with aggravation of preexisting degenerative condition, as well as a lumbosacral strain and sprain with development of acute lumbar radiculopathy and aggravation of preexisting condition and development of subligamentous cysts and bulge.(Bonner's Dep. at 22, R.R. at 173a.) Dr. Bonner continued to treat Claimant and testified that Claimant was not fully recovered from his work-related injuries; that he cannot go back to his pre-injury job; and that Claimant's headaches, post-concussive syndrome, and back and neck problems remain. (Bonner's Dep. at 25, R.R. at 176a.)
Dr. Berman, Employer's medical expert, testified by way of deposition as follows. Dr. Berman is a board certified orthopedic surgeon and conducted an IME on Claimant on two occasions. (Berman's Dep. at 8, R.R. at 49a; FOF ¶ 6.) When Dr. Berman first saw Claimant on December 27, 2011, Claimant initially complained of pain of the lower back, neck, left shoulder, left arm, left leg and left foot, and headaches with dizziness and occasional nausea. (Berman's Dep. at 10, R.R. at 51a.) Dr. Berman took Claimant's medical history and Claimant denied any previous injuries that resulted in similar symptoms. (Berman's Dep. at 10-11, R.R. at 51a-52a.) Dr. Berman performed a physical examination of Claimant, reviewed Claimant's test results and records, and found no evidence of traumatic injury. (Berman's Dep. at 12-18, R.R. at 53a-59a.) Dr. Berman's working diagnosis after this examination was "left shoulder contusion with some symptom magnification and cervical strain" and a "head contusion that was resolved." (Berman's Dep. at 18, R.R. at 59a.) Because Claimant's history showed some trauma to his left arm and Claimant did exhibit subjective pain, Dr. Berman recommended after his first examination that Claimant should receive physical therapy three times per week for four weeks. (Berman's Dep. at 19, R.R at 60a.)
Dr. Berman examined Claimant a second time on February 28, 2012. (Berman's Dep. at 20, R.R at 61a.) Dr. Berman opined that Claimant's cervical and thoracolumbar spine was normal with a normal range of motion; his left shoulder showed a slight reduction in range of motion, but was nevertheless within a functional range; and that Claimant exhibited no other abnormalities. (Berman's Dep. at 22-26, R.R. at 63a-67a.) Although Dr. Berman did not examine Claimant's head, other than in connection with his spinal exam, Dr. Berman concluded, based on the records he reviewed from his previous examination, Dr. Brancazio's report, and the emergency room records, that Claimant's head contusion was resolved and that there was "no evidence of a concussion or any neurologic abnormality." (Berman's Dep. at 26, 29, R.R. at 67a, 70a.) Dr. Berman's diagnosis, based on his examination and review of the medical records and tests, was that Claimant's injuries were resolved and that Claimant could return to his regular employment as a full-time power plant operator without restriction. (Berman's Dep. at 26, 30, R.R. at 67a, 71a.) Dr. Berman reviewed Dr. Bonner's report that lists contrary findings and opined
I read his report and do not believe that any of his diagnoses would apply to this patient. He provided no evidence in his report based on any abnormal physical examinations. In fact, he did not mention any objective findings on examination that would support any of his diagnoses.(Berman's Dep. at 32, R.R. at 73a.)
Employer also submitted reports from the Crozer Chester Medical Center Emergency Room from November 20, 2009 and October 9, 2011. The November 2009 report shows Claimant reporting to the emergency room with a migraine headache. (November 20, 2009 Crozer Chester Medical Center Emergency Record, R.R. at 231.) According to this medical record, Claimant told his treating physician that the headache began five days earlier and that he had headaches like this on and off for eighteen years. (November 20, 2009 Crozer Chester Medical Center Emergency Record, R.R. at 231.)
The October 9, 2011 emergency room report states that Claimant complained of shoulder pain and headache after his work-related accident, but denied that he was unconscious. (October 9, 2011 Crozer Chester Medical Center Medical Record, R.R. at 233a.) A physical exam by an emergency room doctor revealed a left shoulder abrasion, but otherwise normal functioning of Claimant's head, back, neck, and lower extremities. (October 9, 2011 Crozer Chester Medical Center Medical Record, R.R. at 235a.) Claimant was diagnosed with musculoskeletal shoulder pain and discharged with directions to follow up with his doctor. (October 9, 2011 Crozer Chester Medical Center Medical Record, R.R. at 241a.)
Subsequent to accepting all the evidence WCJ Makin recused herself due to a personal connection with Claimant's medical expert; therefore, adjudication of Employer's Petitions and Claimant's Petition to Review was assigned to WCJ Hagan. (FOF ¶ 5.) Neither party objected to the reassignment, nor did either party request an additional hearing so that WCJ Hagan could hear evidence in person. (FOF ¶ 5.) After reviewing the evidence, WCJ Hagan made the following relevant findings of fact:
26. The parties stipulated that a witness for the employer, Mr. Kevin Kocsi, would testify that a job was offered to claimant on 18 April 2012, that the job was then available and continues to be available. The job title was Utilities Level 1, Coal Yard Operator. This job would have paid $21.66 an hour. Claimant confirmed that this was his pre-injury job.
27. The job description was provided to Dr. Berman for his review and he stated that [C]laimant could perform that job in his present condition. Since I have not had the opportunity to observe the [C]laimant in open court, I have very carefully reviewed his deposition testimony and his testimony on 11 March 2013 before Judge Makin. I have compared his testimony with that of the two medical experts. He is not credible. He did not claim a head injury in the Crozer ER. He asserted that he was kept waiting in the hospital for 15 or 30 minutes before being given Morphine, yet he then says they took him right in. He thought he told a nurse what happened to him and that a security person filled out his paperwork. However, records indicate triage [was] performed and that the history was obtained from the patient. This is repeated under the heading of present shoulder.
28. I find that the impetus on the part of hospital personnel to accurately complete the history of the patient as given to them since
the history will be the basis for immediate treatment. [sic] Claimant took no action to correct the supposed hospital errors.
29. [Claimant] changed his history to assert a head injury when he originally had denied it. He later asserted other conditions which he also had not done in the beginning. He several times denied any previous pain or treatment for his head, neck and back, when he had had substantial treatment after a motor vehicle accident. He denied migraine headaches, when the medical records from his treating physicians refer to a long, long history of migraines. He claimed the patient was his son, but records indicate his birth date and no one else's repeatedly.
30. Claimant did not provide his medical expert and treating physician with a complete and accurate medical history. Dr. Bonner did not undertake to obtain this information on his own.
31. I cannot accept the testimony of Dr. Bonner as credible. Inter alia it is remarkable that his findings on physical examination were not corroborated by Dr. Brancusi [sic] two weeks before or by Dr. Berman the very next day. Both Brancusi [sic] and Berman found a lack of objective findings, while Dr. Bonner produced a laundry list. What's more the records directly contradict [Dr.] Bonner's findings and testimony.
32. Dr. Berman on the other hand performed two detailed examinations and reviewed extensive medical records. He determined most diagnoses were based on history only and not supported by any objective diagnostics. He analyzed the evidence and set forth his conclusions clearly and concisely. He constantly looked for objective, diagnostic evidence rather than [C]laimant's history and complaints of pain. He clearly explained how his admission that [C]laimant complained of pain (subjective) was belied by the complete lack of objective findings. Such, I note, is ordinary diagnostic or forensic reasoning.
33. I find that [C]laimant was offered an available job by the employer, which job had been cleared by the defense medical expert for him, and he failed to attempt it or even to report. This fact is not contradicted convincingly by either [C]laimant or his medical expert.
34. I find that there was no material mistake of fact and there is no evidence of injuries in addition to those accepted by [the] NTCP/NCP.
35. [Claimant] had indeed fully recovered . . . and was able to return to work at no loss of earning power by 28 February 2012.(FOF ¶¶ 26-35.)
Based on the evidence and his credibility determinations, WCJ Hagan concluded: (1) Employer sustained its burden to prove that Claimant was fully recovered and that Employer offered Claimant a position within his physical capacities (WCJ Decision, Conclusion of Law (COL) ¶¶ 1, 2); (2) Claimant failed to prove that any additional injuries should be added to the NCP (COL ¶ 3); and (3) Employer's Modification and Suspension Petitions were moot as a result of the granting of the Termination Petition. (COL ¶ 5.) Accordingly, WCJ Hagan granted Employer's Termination Petition, denied Claimant's Petition to Review, and terminated Claimant's benefits as of February 28, 2012.
Although WCJ Hagan stated in his Conclusions of Law that Employer's Suspension and Modification Petitions were moot, the Decision granted these Petitions.
Claimant appealed to the Board, which affirmed. Claimant now petitions this Court for review.
"Our scope of review in a workers' compensation appeal is limited to determining whether necessary finding of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated." Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
On appeal, Claimant argues: (1) WCJ Hagan erred by terminating Claimant's benefits when Employer's medical expert, Dr. Berman, never examined Claimant's head to determine whether Claimant recovered from his accepted head injury; and (2) it was not reasoned for WCJ Hagan, who never witnessed Claimant testify, to reject Claimant's testimony regarding his head injury; and (3) it was not reasoned for WCJ Hagan to reject his testimony concerning his head injury when the injury was accepted by Employer in the NCP.
First, Claimant contends that WCJ Hagan erred by terminating his benefits when Employer acknowledged a head injury in the NCP and Employer failed to meet its burden to prove that Claimant has recovered from all the accepted injuries. Claimant argues that Dr. Berman never examined his head and, thus, failed to offer any evidence that Claimant has recovered from his post-concussive syndrome that was diagnosed by Dr. Brancazio. (Medical Report at 4, February 14, 2012, R.R. at 229a.) In short, Claimant is arguing that Dr. Berman's opinions of full recovery were incompetent.
As a primary matter, WCJ Hagan found that Claimant did not meet his burden of proof to expand the injuries listed on the NCP to include post-concussive syndrome. (COL ¶ 3). Although Claimant's arguments conflate his alleged post-concussive syndrome with the recognized injury, the recognized injury is a "head contusion" and whether Claimant recovered from his alleged post-concussive syndrome is not at issue.
Claimant's Petition to Review seeking to enlarge the description of the injuries in the NCP "functions as a claim petition for the purpose of adding additional injuries." Jeanes Hospital v. Workers' Compensation Appeal Board (Hass), 872 A.2d 159, 167 (Pa. 2005). A claimant bears the burden in a claim petition proceeding "of establishing a work-related injury and its causal effect on wage earning capacity." Gibson v. Workers' Compensation Appeal Board (Armco Stainless & Alloy Products), 861 A.2d 938, 943 (Pa. 2004).
To succeed in a termination petition, the employer bears the burden of proving that the claimant has recovered from his injury. GA & FC Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087, 1091 (Pa. Cmwlth. 2001). An employer meets this burden by "presenting unequivocal and competent medical evidence of the claimant's full recovery from his/her work-related injuries." Visteon Systems v. Workers' Compensation Appeal Board (Steglik), 938 A.2d 547, 551 (Pa. Cmwlth. 2007).
WCJ Hagan found that Employer met its burden to show Claimant fully recovered from his accepted injuries to a large extent based on the testimony of Dr. Berman, which the WCJ viewed as thorough, objective, and credible. (FOF ¶¶ 32, 35.) The question presented is whether Dr. Berman's testimony with regard to Claimant's accepted injury of a "head contusion" is competent and, therefore, sufficient to sustain the finding that Claimant has fully recovered from the injuries as accepted in the NCP.
The question of the competency of the evidence is one of law and fully subject to our review. Cramer v. Workmen's Compensation Appeal Board (Uni-Marts and the PMA Group), 627 A.2d 231, 233 (Pa. Cmwlth. 1993). "Competency[,] when applied to medical evidence, is merely a question of whether the witnesses' opinion is sufficiently definite and unequivocal to render it admissible." Id. Medical evidence is unequivocal so long as "the medical expert, after providing a foundation, testifies that in his professional opinion he believes or thinks the facts exist." Cerro Metal Products Company v. Workers' Compensation Appeal Board (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004). An expert medical witness may rely upon the reports of others if the report is of the type customarily relied upon in the expert's profession. City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 29 A.3d 762, 770 (Pa. 2011). "[A]n expert witness may base an opinion on facts of which he has no personal knowledge" so long as those facts are "supported by evidence of record." Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking Corp.), 692 A.2d 1062, 1066 (Pa. 1997).
We must review Dr. Berman's testimony as a whole and not focus solely on the fact that he did not conduct a detailed examination of Claimant's head during his second examination. See Farquhar v. Workmen's Compensation Appeal Board (Corning Glass Works), 528 A.2d 580, 586 (Pa. 1987) (stating "the medical witness's entire testimony must be reviewed and taken as a whole and a final decision should not rest upon a few words taken out of context of the entire testimony" (internal quotation omitted) (emphasis in original)). In conducting such a review we conclude that Dr. Berman's testimony was unequivocal and, coupled with the other evidence, was sufficient to support a finding that Claimant was fully recovered from his head contusion and other accepted injuries. In rendering his opinion that Claimant had fully recovered from his work-related injuries, Dr. Berman was entitled to rely upon not only his two examinations of Claimant, but also Claimant's history and his understanding of the diagnoses and opinions of other doctors who examined Claimant. Dr. Berman examined Claimant's head during his first examination and determined that Claimant's head contusion was resolved, but acknowledged that he did not personally examine Claimant's head for a contusion other than in connection to Claimant's spinal exam during the second examination. (Berman's Dep. at 12, 18, 29, R.R. at 53a, 59a, 70a.) Instead, with respect to his second examination, Dr. Berman reviewed various medical reports, including the record of his first examination, and unequivocally opined that Claimant had fully recovered from his head contusion. (Berman's Dep. at 26, 33, R.R. at 67a, 74a.)
Next, Claimant contends that it was not reasoned for WCJ Hagan, who never witnessed Claimant testify, to reject Claimant's testimony regarding his head injury because WCJ Hagan failed to make a personal demeanor-based assessment of Claimant's testimony and Claimant's testimony was consistent with the NCP accepted by Employer.
Section 422(a) of the Workers' Compensation Act (Act) provides in relevant part:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. --------
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. . . . 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. The Supreme Court interpreted this provision in Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003) and held "that a decision is 'reasoned' for purposes of Section 422(a) if it allows for adequate review by the [Board] without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards." Daniels, 828 A.2d at 1052. In situations, such as the instant matter, where the WCJ did not have the advantage of making demeanor-based credibility assessments through viewing the live testimony of witnesses, Daniels requires a WCJ to provide "some articulation of the actual objective basis for the credibility determination." Id. at 1053. A WCJ may look at "countless objective factors" when assessing a witness's credibility. Daniels, 828 A.2d at 1053. One factor a WCJ may assess is whether Claimant's statements have been inconsistent. Marazas v. Workers' Compensation Appeal Board (Vitas Healthcare Corporation), 97 A.3d 854, 859 (Pa. Cmwlth. 2014). The factors relied upon must be identified and articulated in the WCJ's findings. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Company), 893 A.2d 191, 195 (Pa. Cmwlth. 2006).
First, Claimant argues that WCJ Hagan's Decision is not reasoned within the meaning of Section 422(a) of the Act because he failed to make a personal demeanor-based assessment of Claimant's testimony. Contrary to Claimant's contention, a demeanor-based assessment is not required if the WCJ articulates objective bases for his credibility determination. See Daniels, 828 A.2d at 1053 (holding that a WCJ need not "actually observe competing witnesses on the stand in order to assess their relative credibility" if "some articulation of the actual objective basis for the credibility determination" is offered).
Here, WCJ Hagan appeared to recognize that because he did not personally observe Claimant's testimony, his opinion will only be reasoned if he met the heightened requirements under Daniels. Id. at 1053. WCJ Hagan began his credibility determination of Claimant by stating:
Since I have not had the opportunity to observe the claimant in open court, I have very carefully reviewed his deposition testimony and his testimony on 11 March 2013 before Judge Makin. I have compared his testimony with that of the two medical experts. He is not credible.(FOF ¶ 27.) WCJ Hagan then comprehensively listed the objective reasons underpinning his credibility determination, including, inter alia:
1) Claimant "did not claim a head injury in the Crozer ER" (FOF ¶ 27) and "changed his history to assert a head injury when he originally had denied it." (FOF ¶ 29);
2) "[Claimant] asserted that he was kept waiting in the hospital for 15 or 30 minutes before being given [m]orphine, yet he then says they took him right in." (FOF ¶ 27);
3) "[Claimant] thought he told a nurse what happened to him and that a security person filled out his paperwork. However, records indicate triage (was) performed and that the history was obtained from the patient." (FOF ¶ 27);
4) "[Claimant] several times denied any previous pain or treatment for his head, neck and back, when he had had substantial treatment after a motor vehicle accident." (FOF ¶ 29); and
5) "[Claimant] denied migraine headaches, when the medical records from his treating physicians refer to a long, long history of migraines. He claimed the patient was his son, but records indicate his birth date and no one else's repeatedly." (FOF ¶ 29.)
The list above sufficiently articulates the objective factors used to determine Claimant's credibility. Because WCJ Hagan justifiably relied upon the inconsistencies in Claimant's testimony and met his obligation under Daniels to identify and provide an objective basis of his credibility determination, we conclude that WCJ Hagan's failure to make a personal demeanor-based assessment does not render his Decision not well-reasoned within the meaning of Section 422(a) of the Act. Daniels, 828 A.2d at 1052.
Third, Claimant contends that it was not reasoned for WCJ Hagan to reject his testimony concerning his head injury when the injury was accepted by Employer in the NCP. Again, Claimant is starting from the premise that the accepted injury to his head was in the nature of a cerebral concussion when the actual accepted injury was a contusion. In denying Claimant's Petition to Review to expand the injuries accepted in the NCP, WCJ Hagan did not find either Claimant's testimony or his medical evidence credible that he suffered a cerebral concussion as a result of the work-related accident. The WCJ is the "exclusive arbiter of credibility." Department of Public Welfare v. Workers' Compensation Appeal Board (Harvey), 960 A.2d 957, 963 (Pa. Cmwlth. 2008) (internal quotation omitted). "Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Dorsey, 893 A.2d at 195. As stated above, WCJ Hagan justifiably relied upon inconsistencies in Claimant's testimony and detailed the objective reasons for the credibility determination; therefore, WCJ Hagan's determination that Claimant was not credible was not arbitrary or capricious. Accordingly, we will not disturb the credibility determination and conclude that the WCJ Hagan's Decision was well reasoned.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 26, 2015, the Order of the Workers' Compensation Appeal Board, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge