Opinion
No. 1842 C.D. 2014
07-24-2015
Biofab Products, Inc., Petitioner v. Workers' Compensation Appeal Board (Delker), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Biofab Products, Inc. (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that granted James Delker's (Claimant) claim petition and ordered Employer to pay his medical expenses for an injury he sustained at work. In so doing, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant sustained an aggravation of a pre-existing headache condition. We reverse.
Claimant worked for Employer part-time as a maintenance worker. On January 14, 2009, Claimant was working on his hands and knees picking up small pieces of steel and placing them in a wheelbarrow. The wheelbarrow tipped over and struck Claimant in the left temple. Claimant continued to work after the injury until he was laid off due to lack of work on April 27, 2009. On May 11, 2009, Claimant notified Employer of his work injury. Employer issued a Notice of Workers' Compensation Denial.
There was a dispute between the parties regarding when Employer first received notice of the injury. However, the parties did not litigate that issue before the WCJ. Instead, they reached a Compromise and Release Agreement regarding Claimant's wage loss benefits.
Claimant filed a claim petition on December 10, 2009, alleging a "Head/Brain Injury." Certified Record, Claim Petition at 1. On January 27, 2011, the WCJ approved two Compromise and Release Agreements; one settled Claimant's indemnity benefits and the other settled his wife's potential fatal claim benefits. Employer continued to deny medical liability for Claimant's medical expenses. The parties agreed that the WCJ would render a decision on the merits of the claim and Employer would be liable for medical benefits only if the claim was determined to be compensable.
At the hearing before the WCJ, Claimant testified that he was 69 years old and had retired from a maintenance worker position at a school district in 2002. In 2006, he began working part-time for Employer.
Regarding the injury, Claimant recalled that when the wheelbarrow tipped over and struck him in the left temple, he saw "stars" and remained on the ground for a minute or two. He did not lose consciousness. Claimant testified that the injury occurred at 9:30 a.m. and that he was able to resume working through the end of his shift at 1:00 p.m. in spite of a headache and dizziness. Claimant did not report the injury to management but mentioned it to his co-workers. Approximately three weeks after the injury, Claimant saw his family doctor because of headaches and dizzy spells. One month later he reported the wheelbarrow incident to his supervisor. Claimant testified that he did not experience headaches or dizziness prior to the work injury. He has been unable to work since April 2009.
Claimant submitted a hospital emergency room report dated March 13, 2009, stating that his chief complaint was a severe headache that had lasted for one month and was worsening. Claimant also provided hospital records dated April 27 to May 3, 2009, and July 4 to July 7, 2009, showing that Claimant complained of headache, dizziness and memory loss due to a January 2009 work injury. A neuropsychological impression by Michael Franzen, Ph.D., indicated post-traumatic brain injury with amnesia. David Okonkwo, M.D., a neurosurgeon, performed three surgical procedures on Claimant. Claimant testified that he was scheduled to undergo another surgery to drain fluid from his brain and that he continues to suffer from headaches, dizziness, memory loss and fatigue as a result of the work injury.
Claimant submitted a medical report authored by Dr. Okonkwo on January 27, 2010. The report noted that Claimant sustained a work injury in January 2009, causing a significant headache that worsened over time. Following Claimant's hospital admissions, Dr. Okonkwo performed a lumbar puncture in July 2009. Claimant's radiographic studies indicated an enlargement of bilateral subdural hygromas. In November 2009, Claimant underwent a right frontal burr hole with implantation of an intracranial monitor and a right frontal burr hole with evacuation of chronic subdural hematomas. The following month, Claimant's frontal fluid increased and he underwent a right craniotomy with evacuation of subdural hematoma. When the fluid again increased, Claimant underwent a right-sided subdural peritoneal shunt placement to treat his persistent subdural hygromas and external hydrocephalus. In his report, Dr. Okonkwo opined that Claimant's medical condition was the result of his work injury because Claimant was
emphatic that he never had symptoms of this nature prior to the injury and his symptoms never abated from January 2009 until a temporary improvement following surgery on November 23, 2009.Reproduced Record at 138a (R.R. ___).
Employer offered the testimony of two of Claimant's co-workers, Daniel Ekis and Greg Snyder. Ekis did not witness Claimant's work injury but remembered Claimant telling him about an accident at work. Ekis testified that Claimant had complained of headaches prior to January 2009 but did not discuss the cause of those headaches. Ekis recalled Claimant telling him he is diabetic, which occasionally required Claimant to consume sugar and rest for short periods of time. Snyder testified that Claimant did not mention the wheelbarrow incident to him until June 2009. Although Claimant never complained to Snyder of headaches, he did sometimes complain of dizziness. Snyder attributed the dizziness to Claimant's diabetic condition.
Melissa Snyder, a secretary for Employer, testified that her job duties include handling unemployment and workers' compensation claim forms. She stated that Claimant was laid off due to lack of work on April 27, 2009. When she discussed the layoff with Claimant, he did not mention a work injury. On May 1, 2009, Claimant applied for unemployment compensation benefits. On May 11, 2009, Claimant returned to the office and informed Snyder he was going to file a workers' compensation claim. This was when she first learned of the January 2009 wheelbarrow injury.
Dennis Barnhart, Employer's general manager, testified that Claimant informed him in May 2009 that he was no longer seeking unemployment compensation benefits because his chiropractor had advised him to file for workers' compensation benefits. Barnhart stated this was the first time Claimant mentioned a work injury. On cross-examination, Barnhart testified that he believed Claimant's account of the injury.
Employer presented the deposition testimony of Raymond Sekula, Jr., M.D., a neurosurgeon who reviewed Claimant's medical records in 2010 at Employer's request. Dr. Sekula found a history of headaches from 2006 onward. Notably, Claimant sought treatment from his primary care physician, Michael Trotta, M.D., on February 23, 2006, for headaches. A computed tomography (CT) scan of the brain done at that time showed mild cortical atrophy. Dr. Sekula estimated the subdural fluid shown on the CT scan was between five and six millimeters in size. A second CT scan performed on August 30, 2006, showed similar results. On January 15, 2007, Claimant presented to Dr. Trotta with a complaint of a two-week long sinus headache and upset stomach. Dr. Trotta ordered magnetic resonance imaging (MRI) of Claimant's brain, which revealed a subdural fluid collection five to six millimeters in size. On December 2, 2008, about six weeks before the work injury, Claimant again visited Dr. Trotta with complaints of sinus congestion, headache and nausea. On February 3, 2009, a few weeks after the work injury, Claimant saw Dr. Trotta for sinus congestion, drainage, cough and sore throat. The work injury was not mentioned in Dr. Trotta's report.
Dr. Sekula testified that the first time Claimant's headaches were attributed to a work injury was in a March 20, 2009, hospital report. That report diagnosed Claimant with probable post-concussive headache based on his statement that he had hit his head in January. Regarding Claimant's subdural fluid collections, Dr. Sekula explained that they can be caused by the loss of brain mass that occurs as part of the normal aging process. Dr. Sekula opined that because there was no change in the size of Claimant's subdural fluid collection from 2006 through 2009, his records did not establish a head trauma. Dr. Sekula agreed with Dr. Okonkwo's treatment of Claimant, but disagreed with his conclusion that the subdural fluid collections were hygromas caused by a work injury. Dr. Sekula based his opinion on Claimant's significant medical history of headaches and consistency in the size of his subdural fluid collections from 2006 to 2009. In sum, Dr. Sekula opined that Claimant's condition was not work-related.
The WCJ credited Claimant's testimony and the medical evidence offered by his treating physician Dr. Okonkwo. The WCJ acknowledged that Dr. Okonkwo did not have Claimant's full medical history, but considered this a matter of weight and not competency of the evidence. The WCJ rejected "any contrary or conflicting deposition testimony of Dr. Sekula" because he never examined Claimant. WCJ Opinion, Finding of Fact No. 21. Regarding Claimant's complaints of headaches in 2006, the WCJ noted that there was no evidence of the type and severity of those headaches or that they ever prevented Claimant from working. The WCJ found Claimant's failure to mention his prior headaches was not intentionally misleading and was attributable to Claimant's memory loss caused by the work injury. Similarly, Claimant's statement that he had never experienced symptoms similar to those caused by the work injury may have meant that his prior headaches were not in the same location or of the same severity. The WCJ held that Claimant sustained an aggravation of a pre-existing headache condition that resulted in severe headaches, dizziness, memory loss and chronic fatigue, as diagnosed by Dr. Okonkwo.
Employer appealed to the Board, arguing, inter alia, that the WCJ erred in accepting Dr. Okonkwo's medical report over Dr. Sekula's testimony. The Board found no such error, noting that even though Dr. Okonkwo did not have all of Claimant's medical history, his medical report was competent. The Board agreed with the WCJ's conclusion that even if Claimant had pre-existing headaches, there was no evidence as to the type, location and severity of those headaches. Accordingly, the Board affirmed, and Employer petitioned for this Court's review.
On appeal, Employer raises two issues. First, Employer argues that Dr. Okonkwo's testimony was incompetent because it was based on an inaccurate and incomplete medical history. Second, Employer contends that the WCJ's conclusion that Claimant sustained an aggravation of a pre-existing headache condition is not supported by substantial evidence.
Our scope of review of an order of the Board is to determine whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). --------
It is well-established that a claimant has the burden of establishing his right to compensation and all of the elements necessary to support an award of benefits, including a causal relationship between a work-related incident and the alleged disability. Rife v. Workers' Compensation Appeal Board (Whitetail Ski Co.), 812 A.2d 750 (Pa. Cmwlth. 2002). Where "the causal connection between the employment and the injury is not obvious, the claimant must present unequivocal medical testimony to establish the connection." Id. at 754. The fact that a medical expert does not have all of a claimant's medical records goes to the weight of the expert's opinion, not its competency. Marriott Corporation v. Workers' Compensation Appeal Board (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003). However, an opinion of a medical expert that relies upon inaccurate facts is incompetent as a matter of law. Casne v. Workers' Compensation Appeal Board (Stat Courtiers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008). Although a medical expert may assume the truthfulness of the information provided to him, "the supposed facts forming the basis of that determination must be proven by competent evidence and accepted as true by the [WCJ]." Somerset Welding and Steel v. Workers' Compensation Appeal Board (Lee), 650 A.2d 114, 118 (Pa. Cmwlth. 1994).
Employer first argues that Dr. Okonkwo's opinion was incompetent because it was based solely on Claimant's inaccurate statement that he did not have a history of headaches. In support, Employer cites to the evidence of record establishing that prior to the work injury Claimant suffered from headaches and underwent numerous diagnostic studies, the results of which were identical to the results of diagnostic studies done after the work incident. Although the WCJ found Claimant did have a history of headaches, he still credited Dr. Okonkwo's opinion that Claimant's condition was work-related because Claimant told Dr. Okonkwo he had no headaches before the wheelbarrow incident. Claimant counters that Dr. Okonkwo's report was not dependent on the absence of headaches prior to the date of injury. Rather, Dr. Okonkwo noted Claimant's statement that he never had headaches "of this nature" prior to the injury, which suggests that Claimant experienced a different type of headache after the work injury. R.R. 138a.
Employer cites to Southwest Airlines/Cambridge Integrated Service v. Workers' Compensation Appeal Board (King), 985 A.2d 280 (Pa. Cmwlth. 2009), a factually similar case that is instructive on the issue of competency of medical evidence. The claimant in Southwest Airlines worked as an operations agent on an aircraft, which required her to operate the metal doors between the aircraft and the terminal. She claimed that she was hit in the face with a metal door as she walked into the terminal, causing her to experience headaches, dizziness, blurred vision, head and neck pain, blackouts and faulty memory. The claimant's medical expert opined that she suffered a concussion and cervical sprain from the work injury, as well as post-concussive syndrome, which can be manifested by headaches, dizziness, blurred vision and cognitive disturbance. The medical expert testified that he had no personal knowledge of the claimant's medical history prior to the work injury.
The claimant testified that she had no prior head injuries and had never experienced symptoms like those she was experiencing. On cross-examination, she admitted being struck in the head by a truck door two years prior to the work incident. Additionally, the employer established that the claimant had filed several prior workers' compensation claims reporting headaches, blurred vision and dizziness. Nevertheless, the WCJ found in favor of the claimant, and the Board affirmed. On appeal to this Court, the employer argued that the claimant's medical expert was not competent because his testimony was not supported by the evidence of record. We agreed and reversed the Board.
This Court explained that the claimant's medical expert diagnosed her with post-concussive syndrome caused by a work injury without any personal knowledge of her physical condition prior to his examination. Also, the claimant inaccurately reported that she had no prior injuries or problems. As such, the expert's medical opinion was based "on an incomplete and inaccurate medical history, as well as [the claimant's] personal opinion of causation. Thus, as a matter of law, [the] medical opinion was not competent to establish a causative link between the work injury and [the claimant's] disability." Id. at 287.
In Southwest Airlines, we cited to Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002), another instructive case. There, the claimant asserted that she had sustained a work-related back injury and admitted to injuring her back two years earlier. The claimant's medical expert's opinion was based upon this medical history. However, the employer established that the claimant had been in treatment for back pain for eight years. Despite this inconsistency the WCJ granted benefits and the Board affirmed, noting that the medical expert's lack of knowledge of the claimant's full medical history went to the weight of the evidence, not its competency. This Court disagreed. We held that the expert's opinion was based on an incomplete and inaccurate medical history and, thus, was not competent to establish causation. We explained that where an expert has no knowledge of relevant medical records and treatment, or any previous diagnostic test results, his testimony on causation is not competent.
Southwest Airlines and Chik-Fil-A are directly on point. Here, Dr. Okonkwo's singular reason for finding Claimant's injury was work-related was Claimant's "emphatic" statement that he "never had symptoms of this nature prior to the injury and his symptoms never abated from [the date of the injury, onward]." R.R. 138a. Dr. Okonkwo's conclusion is belied by Claimant's medical history of headaches caused by subdural fluid collection. The only reason Dr. Okonkwo specified for finding the injury was work-related was Claimant's assertion that he did not have a pre-existing condition. The WCJ was forced to reject Dr. Okonkwo's conclusion that Claimant did not have a pre-existing condition. The WCJ found, accordingly, that Claimant sustained an aggravation of a pre-existing condition, despite the fact that Claimant and his medical expert denied any such condition.
The WCJ found that even if Claimant had pre-existing headaches, "there is no evidence as to the type, location and severity of such headaches or that Claimant missed any work as a result." WCJ Finding of Fact No. 21. This statement is correct, but it favors Employer's argument. Claimant bore the burden of proving causation, not Employer. The record is replete with evidence of Claimant's history of headaches, and the WCJ accepted them as fact. It was Claimant's burden to prove that his current condition, unlike his earlier condition, is work-related. Simply, Claimant failed to establish causation.
Employer next argues that there is no evidentiary support for the WCJ's finding that Claimant sustained an aggravation of a pre-existing condition. Claimant and Dr. Okonkwo, both credited by the WCJ, stated that Claimant did not have a pre-existing condition. Claimant acknowledges this record evidence but counters that Employer's medical witness, Dr. Sekula, established Claimant's pre-existing headache condition. The WCJ rejected Dr. Sekula's ultimate opinion that Claimant's symptoms were not work-related but accepted Dr. Sekula's testimony that Claimant had an underlying pre-existing condition. Therefore, Claimant contends that he proved an aggravation.
To establish a work-related aggravation of a pre-existing condition, Claimant "must show a causal connection between work and the aggravation." Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Company), 893 A.2d 191, 195 n.5 (Pa. Cmwlth. 2006). "Where there is no obvious connection between work and the aggravation, unequivocal medical evidence is required." Id.
The only evidence of a pre-existing condition came from Employer's expert, Dr. Sekula. Dr. Sekula explained that Claimant's pre-existing condition, i.e., accumulation of subdural fluid in the brain, was identical to the condition he now claimed to be work-related. When asked whether Claimant's work injury could have aggravated this pre-existing condition, Dr. Sekula testified that it could not. He based this opinion on Claimant's history of severe headaches, brain atrophy and subdural fluid collections, all dating back to 2006.
The WCJ found Claimant and Dr. Okonkwo credible, and both stated Claimant did not have a pre-existing condition. By finding a pre-existing condition, the WCJ, in actuality, accepted the contrary testimony of Dr. Sekula that he expressly rejected. The WCJ found not only that a pre-existing condition existed, but also that it was aggravated by the work injury.
There is no evidence to support an aggravation. Dr. Sekula, Employer's expert, testified that the work injury did not aggravate Claimant's pre-existing condition because Claimant's current medical condition was identical to his pre-existing medical condition. See R.R. 61a-71a. Likewise, Dr. Okonkwo, Claimant's expert, did not opine that Claimant's work incident aggravated Claimant's pre-existing condition. Indeed, because Dr. Okonkwo was not aware of Claimant's pre-existing condition of subdural fluid accumulation, he could not have offered a competent opinion that his surgeries addressed an aggravation of a pre-existing condition.
In sum, Claimant did not establish an aggravation of a pre-existing condition by unequivocal medical evidence. Accordingly, the order of the Board is reversed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 24th day of July, 2015, the order of the Workers' Compensation Appeal Board in the above-captioned matter, dated September 15, 2014, is hereby REVERSED.
/s/_________
MARY HANNAH LEAVITT, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE COLINS
I must respectfully disagree with the conclusions of the majority. The majority is reevaluating the testimony that was heard by the WCJ and reaching a different conclusion as to the weight and sufficiency of the evidence.
Therefore, I must dissent.
/s/ _________
JAMES GARDNER COLINS, Senior Judge