Opinion
No. 2238 C.D. 2013 No. 2274 C.D. 2013
09-12-2014
Gail Callender, Petitioner v. Workers' Compensation Appeal Board (Allegheny Ludlum, LLC and Healthsmart Casualty Solutions), Respondents Allegheny Ludlum Corporation, Petitioner v. Workers' Compensation Appeal Board (Callender) Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
In these consolidated cross-appeals, Gail Callender (Claimant) and Allegheny Ludlum Corporation (Employer) petition for review of the November 18, 2013 order of the Workers' Compensation Appeal Board (Board) affirming a decision of a workers' compensation judge (WCJ), which denied Employer's modification petition, denied Claimant's reinstatement petition, and ordered Employer to reimburse Claimant's litigation costs, excluding attorney's fees. We affirm in part and reverse and remand in part.
By order dated February 21, 2014, this Court consolidated the cross-appeals and designated Gail Callender as the petitioner pursuant to Pennsylvania Rule of Appellate Procedure 2136.
On December 18, 2005, Claimant sustained a work injury to his left hand, which Employer accepted through a notice of compensation payable. Employer filed an amended notice of compensation payable recognizing the injury as a "left hand de-gloving." Subsequently, Claimant filed a petition for review seeking to add post-traumatic stress disorder (PTSD) to the description of his work injury. A WCJ issued a decision on November 6, 2008, determining that PTSD should be added to the description of Claimant's work injury and that Claimant had fully recovered from PTSD as of October 11, 2007. (WCJ's Findings of Fact Nos. 2-4; Board's op. at 1.)
Employer filed a modification petition on July 9, 2009, seeking to modify Claimant's status to partial disability as of November 17, 2008, based upon an impairment rating evaluation (IRE) report that determined that Claimant had a 40% whole body impairment. On July 2, 2010, Claimant filed a reinstatement petition asserting that his benefits should be reinstated as of December 14, 2009, due to a worsening of PTSD. (WCJ's Findings of Fact Nos. 2-3; Board's op. at 1.) The petitions were assigned to a WCJ.
Claimant testified at hearings on December 29, 2009, and October 5, 2010. Claimant stated that his injury occurred when his left hand was caught in a machine while at work. Claimant testified that Frederick R. Heckler, M.D., (Dr. Heckler) performed surgery on his injured left hand that involved removing muscle from his left forearm to the bottom of his left hand, taking skin from his left thigh to cover his left hand, and taking skin from an area of his back into his groin to cover the back of his left hand. Claimant said that he visits Dr. Heckler every six months so that Dr. Heckler can check the physical condition of his hand, arm, back, and groin. Claimant testified that he has a constant tingling sensation in his back and pain where his skin was drawn together at his hip. He stated that his skin is tight, that he cannot straighten up perfectly, and that he uses a walking stick for balance and support for his left arm. (Reproduced Record (R.R.) at 105a-06a, 114a-16a, 124a-25a.)
Claimant further testified that he thinks about the accident every day and that he has nausea, diarrhea, and headaches when he discusses his work injury. He also stated that he does not sleep well because he dreads the next day and experiences bad dreams. Claimant said that he cannot engage in regular hobbies and chores and that he becomes frustrated thinking that he will fail when he tries to accomplish these tasks. Claimant added that his fear of losing his right hand prohibits him from trying to complete any difficult task. Claimant testified that he consistently treats with Bruce A. Sorkin, Ph.D., (Dr. Sorkin) one to two times per month to help him cope with his mental problems. Claimant stated that it had been almost three years since he last received treatment for his PTSD prior to seeing Dr. Sorkin. (R.R. at 92a-94a, 96a, 100a-01a, 118a-19a.)
Claimant submitted the September 9, 2010 deposition testimony of Anna Mathew, M.D., (Dr. Mathew), board certified in internal medicine and occupational medicine. Dr. Mathew testified that she performed an IRE on Claimant on December 14, 2009. (R.R. at 291a.) Based on the history given by Claimant of his work injury during his IRE, Dr. Mathew described Claimant's incident at work and subsequent injury as follows:
[Claimant] gave a history of a work injury on December 18th, 2005. He said that he had just completed a routine greasing job at his place of employment as a millwright. The glove on his left hand got caught in some rolls and this drew his left hand pulling the glove off causing a crushing injury to the left hand.(R.R. at 291a-92a.)
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X-rays of the left hand showed amputation of the distal index, ring and small digits in combination with a massive degloving injury and he had extensive soft tissue changes. The tip of the middle finger was amputated at the first joint.
After reviewing Claimant's medical records and performing a physical examination, Dr. Mathew's diagnosis of Claimant was status post de-gloving injury with surgeries. Based on the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition (Guides), Dr. Mathew gave Claimant a 51% impairment rating of the whole person. Dr. Mathew explained that the whole body impairment rating had to be done without using any diagnosis because Claimant's injury did not fit within any diagnosis found in the Guides. Dr. Mathew determined that Claimant had a 40% impairment rating due to his upper left extremity injury and combined that rating with a 19% impairment rating due to skin problems in order to find Claimant's whole body impairment rating. (R.R. at 291a, 302a-04a, 306a-07a.)
Dr. Mathew testified that Claimant already had a PTSD diagnosis when she examined him. She concurred that Claimant had all of the findings that supported this diagnosis, and agreed that Claimant suffers from PTSD. Dr. Mathew noted that the 51% impairment rating does not include PTSD and said that she requested that it be included at a later date after a psychiatrist examines Claimant. She stated that an IRE previously performed by Victoria Langa, M.D., (Dr. Langa) provided essentially the same analysis and result as hers, except that Dr. Langa did not include the additional impairment rating for Claimant's skin problems. (R.R. at 304a, 309a, 316a-17a.)
Dr. Mathew testified that Claimant has reached maximum medical improvement (MMI) for his hand injury, but she could not state whether he had reached MMI for the psychological injury. Dr. Mathew noted that an IRE is only to be completed when a patient has reached MMI and that she only performed the IRE with respect to Claimant's hand injury. She stated that she included all of the scars on Claimant's body that are related to the work injury in her whole body impairment rating, explaining that location of scars under the Guides is not relevant if they are related to the same injury. Dr. Mathew explained that she can still add an impairment rating for Claimant's skin problems even though she gave Claimant the full amputation impairment value for his fingers. She noted that Claimant's surgery was not an amputation per se, because the skin is still involved in the flap that covers Claimant's hand. (R.R. at 331a-35a, 341a-42a.)
Claimant also submitted the March 23, 2011 deposition testimony of Dr. Sorkin. Dr. Sorkin testified that he first evaluated Claimant on January 13, 2010, after Claimant was referred to him by Dr. Mathew. He stated that Claimant was experiencing symptoms consistent with PTSD, including avoidance, intrusive symptoms, and hyperarousal. He also stated that Claimant experienced "flashback phenomena," which he described as re-experiencing the workplace accident. Dr. Sorkin added that Claimant had the "jump sign" or "exaggerated startle" where he would jump if a loud noise occurred and that Claimant did so whenever Dr. Sorkin's cell phone rang during the evaluation. Dr. Sorkin also testified that Claimant experiences pain in his left hand and forearm that increases with stress or when Claimant is upset. Dr. Sorkin stated that after his initial evaluation he diagnosed Claimant with chronic immediate PTSD and pain disorder associated with psychological factors and a medical condition, and he opined that both of these conditions related to Claimant's work injury. Dr. Sorkin noted that PTSD that occurs for three months is labeled chronic and that Claimant's PTSD has occurred for longer than three months. (R.R. at 134a-40a, 147a-48a.)
Dr. Sorkin testified that, when he discussed a treatment plan with Claimant, he noted the recurring nature of PTSD:
We talked about the importance of having reasonable expectations of how these [PTSD] symptoms tend to wax and wane. So that even from the very beginning, he understood that the treatment that I was proposing could substantially decrease the symptoms, but I wasn't proposing to him that I can make the symptoms completely alleviate or even be so low that they wouldn't be a problem to him even again in his life.(R.R. at 141a) (emphasis added).
Dr. Sorkin elaborated on the recurring nature of PTSD as follows:
[I]t's always surprising to people when they will spontaneously develop either a panic symptom or a post-traumatic symptom when they had been doing well with it for a couple of weeks or even months.
Whenever things like this would come up, and specifically they came up when he was involved in a deposition, and there was one time where they really came up in force when he was out, and he was shooting trap, and his hand got cold, and he just had a panic attack and left. But we were able to utilize that to show him the ebb and flow of symptoms, to show him the necessity of continuing to apply psychologically-based coping techniques when symptoms would come up . . . .
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It is not however at all uncommon for patients to call me any time from six months to there have been some patients that have called me after a decade to say that they
were re-experiencing some symptoms. I would get together with them, and usually treatment would go extremely quickly because we've already laid the groundwork. It's more a matter of reminding them that things like this occur, and they need to go through a desensitization process again.(R.R. at 143a-44a, 149a) (emphasis added). Dr. Sorkin added that the intrinsic nature of PTSD means that Claimant at times can have increases in his symptoms. Dr. Sorkin was aware that Claimant initially had seen a different counselor after the accident occurred. (R.R. at 148a, 161a.)
Dr. Sorkin testified that he has completed twenty sessions of individual therapy with Claimant since January 26, 2010. He stated that Claimant still has the same diagnosis but that it is at a stable and manageable level, adding that he saw no signs of symptom magnification or malingering in Claimant. Dr. Sorkin believed that Claimant is able to resume normal activities and duties without substantial impairment but that he will never return to his pre-injury status. Dr. Sorkin acknowledged that he was unaware of the prior 2008 determination by a WCJ that Claimant had fully recovered from his PTSD. (R.R. at 141a, 147a, 149a-51a, 155a.)
Employer submitted the June 30, 2010 deposition testimony of Dr. Langa, who is board certified in orthopedic surgery. Dr. Langa testified that she performed an IRE on Claimant on November 17, 2008. Dr. Langa's diagnosis of Claimant is status post extensive de-gloving injury with surgeries, and she opined that Claimant has reached MMI. Dr. Langa gave Claimant a whole body impairment rating of 40%. She explained that she gave Claimant the full amputation impairment rating for his fingers and that no higher value than the full amputation rating could be given to Claimant for that injury according to the Guides. Dr. Langa testified that she does not agree with Dr. Mathew's rating for significant skin problems, scars, and skin grafts, because amputation is the full value that can be given. (R.R. at 222a, 234a-38a, 240a-41a.)
Dr. Langa stated that, unlike Dr. Mathew, she did not consider PTSD because she was not asked to do so, although she noted that a finding of PTSD can be added to the whole body impairment rating. Dr. Langa testified that if an impairment rating value is to be added for skin problems, then the amputation value cannot be used. Dr. Langa acknowledged that her IRE report did not address the area of Claimant's hip where skin was taken for the skin graft. (R.R. at 241a, 251a-52a, 255a-56a, 260a.)
By decision and order dated April 11, 2012, the WCJ first noted that Claimant's reinstatement petition was barred as a matter of law, because Claimant failed to present any competent evidence to support it. The WCJ determined that Dr. Sorkin's testimony, although credible, was not legally competent, because he was unaware of the prior determination that Claimant's PTSD had terminated, and, therefore, Claimant did not meet his burden of proving that his condition has worsened since 2008. The WCJ found that Claimant has a whole body impairment rating of 51%, crediting Dr. Mathew's testimony and not finding Dr. Langa's testimony persuasive. Thus, the WCJ denied Employer's modification petition, denied Claimant's reinstatement petition, and awarded Claimant reimbursement of his litigation costs. However, the WCJ did not award Claimant attorney's fees, because the WCJ found that Employer's contest was reasonable. Both parties appealed to the Board.
By opinion and order dated November 18, 2013, the Board determined that the WCJ did not err in finding that Dr. Sorkin's testimony was legally incompetent because he was unaware of the prior 2008 decision that Claimant's PTSD had terminated. The Board also determined that there is substantial evidence in the record to support the WCJ's denial of Employer's modification petition. Lastly, the Board determined that, based on the evidence presented, the WCJ did not err in determining that Employer's contest was reasonable. Thus, the Board affirmed the WCJ's order.
On appeal to this Court, Claimant argues that: (1) the WCJ erred in determining that Dr. Sorkin's medical testimony is legally incompetent; (2) the WCJ erred in not finding a worsening of Claimant's PTSD, because Employer incorporated such worsening into its impairment rating; (3) the WCJ erred in not finding a worsening of Claimant's PTSD because Employer successfully argued in the 2008 proceeding that Claimant's PTSD was in full remission and judicial estoppel now prevents Employer from arguing to the contrary that Claimant was not in full remission in 2008 and that Claimant's present symptoms are not a worsening of the fully subsided PTSD; and (4) the WCJ erred in not awarding Claimant attorney's fees.
Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
In its cross-appeal, Employer argues that the WCJ erred in relying on the incompetent medical testimony of Dr. Mathew in denying Employer's modification petition.
Dr. Sorkin's Medical Testimony
First, Claimant contends that Dr. Sorkin's medical testimony is legally competent. Although the WCJ solely determines credibility and resolves conflicts in the evidence, whether evidence is competent is a question of law fully subject to our review. Cerro Metal Products Company v. Workers' Compensation Appeal Board (PLEWA), 855 A.2d 932, 937 (Pa. Cmwlth. 2004). A medical witness's opinion is competent when it "is sufficiently definite and unequivocal to render it admissible." Id. (citation and quotations omitted). An expert's opinion is worthless when it is based upon an assumption contrary to the established facts of record. Williams v. Workers' Compensation Appeal Board (Hahnemann University Hospital), 834 A.2d 679, 684 (Pa. Cmwlth. 2003).
A claimant who seeks reinstatement after a termination of benefits must establish a causal connection between the current injury and the prior work injury. Taylor v. Workers' Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). "Because the termination order effectively establishes that the claimant has fully recovered from the work injury, the claimant must prove that her disability has increased or recurred since the prior decision and that her physical condition has changed in some manner." Id. "[A] claimant seeking a reinstatement of benefits must prove this change in physical condition by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based." National Fiberstock Corporation (Greater New York Mutual Insurance Company) v. Workers' Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008). A claimant must demonstrate that the change in physical condition occurred after the date of the total physical recovery. Id.
Claimant persuasively cites Taylor in support of his position that Dr. Sorkin's medical testimony is competent regarding his recurring PTSD related to his work injury. In Taylor, the claimant sustained a work injury and received benefits pursuant to a notice of compensation payable that described the injury as plantar fasciitis. Subsequently, a WCJ granted the employer's termination petition that terminated the claimant's benefits as of July 11, 2000. The claimant stopped treatment for the work injury in 1997 but resumed treatment with her doctor in September of 2000 and again in April of 2002. The claimant filed a reinstatement petition in April of 2003 alleging that her work injury recurred in April of 2002. The WCJ rejected the claimant's doctor's testimony because his opinion that the claimant never fully recovered from the work injury contradicted the 2000 decision granting the employer's termination petition. Thus, the WCJ denied the reinstatement petition. The Board affirmed, stating that the relitigation of whether the claimant fully recovered from her work injury was barred by collateral estoppel.
On appeal to this Court, the claimant argued that she met her burden of introducing unequivocal medical evidence that showed her work injury had recurred. We determined that the claimant's doctor's testimony that the claimant's work injury had recurred was not contradictory to the 2000 decision stating that the claimant had fully recovered from the work injury. We stated that the claimant's doctor explained that the claimant's plantar fasciitis is a chronic injury that recurs and that the claimant's doctor noted that a 2002 surgery on the claimant's foot revealed a worsening of the condition. We further stated that a recurrence of this type of injury is entirely consistent with the 2000 decision that the claimant's work injury had ceased, as the claimant's work injury was in remission at the time of the 2000 decision. Thus, we reversed the Board's order and remanded for a calculation of benefits and a determination of the responsible employer.
Similar to the situation in Taylor, Dr. Sorkin diagnosed Claimant with PTSD and explained that the injury is one that will exacerbate and remit over time. Although he acknowledged that he had not reviewed the 2008 decision determining that Claimant had fully recovered from PTSD, Dr. Sorkin explained that Claimant's PTSD is an injury with symptoms that "ebb and flow" and that it is not uncommon for patients to contact him years later for treatment due to a recurrence of PTSD symptoms. (R.R. at 144a, 149a.) Dr. Sorkin testified that Claimant started treating with him on January 13, 2010, and diagnosed him as suffering from PTSD based on the initial evaluation. Given Dr. Sorkin's testimony as a whole, the fact that Dr. Sorkin did not consider the 2008 decision in rendering his opinion is a matter that goes to the credibility and weight of his opinion, as opposed to its competency or admissibility. See Degraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 1001 (Pa. Cmwlth. 2007) ("The fact that a medical expert does not have all of the claimant's medical information goes to the weight to be given to that individual's testimony, not its competency.").
In this case, Dr. Sorkin's testimony was not based on an assumption contrary to the 2008 decision. Although the WCJ did not find Dr. Sorkin's testimony legally competent to meet Claimant's burden on the reinstatement petition, the WCJ still found Dr. Sorkin credible. The WCJ in the 2008 decision determined that Claimant did suffer from PTSD but that he had fully recovered as of October 11, 2007. Instead, Dr. Sorkin credibly testified that Claimant currently suffers from PTSD and that this injury is one that recurs. Dr. Sorkin's PTSD diagnosis of Claimant signifies a recurrence of Claimant's PTSD related to his work injury that is entirely consistent with the WCJ's 2008 decision, "as a remission is characterized by an abatement or cessation of symptoms." Taylor, 883 A.2d at 713. We agree with Claimant that Dr. Sorkin's credible testimony constitutes competent, substantial evidence to meet Claimant's burden of proving that his PTSD recurred and that his condition changed subsequent to the 2008 decision. Thus, we conclude that the WCJ erred in denying Claimant's reinstatement petition. Having so concluded, and because Employer presented no contrary evidence, we must remand the case to the WCJ to determine whether Employer reasonably contested Claimant's reinstatement petition and whether attorney's fees should be awarded for an unreasonable contest. See Pennsylvania State University v. Workers' Compensation Appeal Board (Sox), 83 A.3d 1081, 1090 (Pa. Cmwlth. 2013) ("In an instance such as this, wherein an employer unreasonably contested a particular issue, attorney's fees are assessed in an amount attributable to the litigation of that issue, and not the entire claim.").
Because we have determined that Dr. Sorkin's testimony constitutes competent, substantial evidence that meets Claimant's burden of proof for a reinstatement petition, we need not address Claimant's arguments that: (1) the WCJ erred in not finding a worsening of Claimant's PTSD, because Employer incorporated such worsening into its impairment rating, and (2) the WCJ erred in not finding a worsening of Claimant's PTSD because judicial estoppel prevented such a determination.
Section 440(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, as amended, 77 P.S. §996(a), provides:
(a) In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.
Dr. Mathew's Medical Testimony
Employer contends that the WCJ erred in relying on Dr. Mathew's testimony to deny its modification petition. Specifically, Employer asserts that Dr. Mathew's testimony is not competent, because she inappropriately assigned Claimant a higher impairment rating for the left extremity than the amputation value. However, as our Supreme Court stated in Diehl v. Workers' Compensation Appeal Board (I.A. Construction), 5 A.3d 230 (Pa. 2010):
If, however, the employer requests the IRE outside of the 60-day window and claims that the claimant's impairment rating is less than 50 percent, the IRE merely serves as evidence that the employer may use at a hearing before a WCJ on the employer's modification petition to establish that the claimant's disability status should be changed from total to partial. In that event, the IRE becomes an item of evidence just as would the results of any medical examination the claimant submitted to at the request of his employer. It is entitled to no more or less weight than the results of any other examination. The physician who performed the IRE is subject to cross-examination, and the
WCJ must make appropriate credibility findings related to the IRE and the performing physician. The claimant, obviously, may introduce his own evidence regarding his degree of impairment to rebut the IRE findings.Id. at 245 (emphasis added).
Section 306(a.2)(1) of the Act, 77 P.S. §511.2(1), provides:
(1) When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment."--------
Dr. Langa testified that Claimant has a whole body impairment rating of 40%. Dr. Mathew agreed with Dr. Langa's analysis and result but also included an impairment rating for Claimant's skin problems, giving Claimant a whole body impairment rating of 51%. In determining Claimant's impairment rating, both medical experts relied upon the rating system found in the Guides. The WCJ credited Dr. Mathew's testimony over the testimony of Dr. Langa. In this case, because both of the medical experts used the Guides in evaluating Claimant, the issue is whether the testimony of the medical experts' regarding the IREs is credible and deserving of evidentiary weight, not whether the testimony is legally competent and admissible as evidence. It is a fundamental principle of workers' compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight. Hoang v. Workers' Compensation Appeal Board (Howmet Aluminum Casting, Inc.), 51 A.3d 905, 909 n.7 (Pa. Cmwlth. 2012). The WCJ may accept or reject, in whole or in part, the testimony of any witness. Id. A WCJ's credibility and evidentiary determinations are binding on appeal unless made arbitrarily and capriciously. Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
We will not disturb the WCJ's credibility determination that Dr. Mathew's testimony was more persuasive than that of Dr. Langa. Nor will we disturb the WCJ's finding that Claimant's whole body impairment rating is 51%, which is supported by the expert testimony of Dr. Mathew. Having discredited Dr. Langa's testimony, the WCJ did not err in denying Employer's modification petition. However, as the WCJ properly noted, Employer presented evidence that, if believed, would have resulted in a grant of the modification petition, and, thus, the WCJ did not err in determining that Employer's contest was reasonable in this regard. Costa v. Workers' Compensation Appeal Board (Carlisle Corporation), 958 A.2d 596, 602 (Pa. Cmwlth. 2008) (holding that an employer's contest is reasonable where "medical evidence is conflicting or susceptible to contrary inferences.").
Based on the foregoing, we reverse the Board's order insofar as it affirms the WCJ's denial of Claimant's reinstatement petition, and we remand for a determination of whether Employer's contest of Claimant's reinstatement petition was reasonable. We affirm the Board's order that affirmed the WCJ's decision to deny Employer's modification petition.
Accordingly, we affirm in part and reverse and remand in part.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of September, 2014, the November 18, 2013 order of the Workers' Compensation Appeal Board is affirmed in part and reversed in part and this matter is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge