Opinion
No. 1533 C.D. 2012
03-27-2013
Cardone Industries, Petitioner v. Workers' Compensation Appeal Board (Varghese), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Cardone Industries (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated July 12, 2012. The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which granted the claim petition filed by George Varghese (Claimant) pursuant to the Workers' Compensation Act (Act). For the reasons set forth below, we now vacate and remand.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claimant worked for Employer as an assembler. On August 12, 2009, Claimant fell after he was hit by a forklift while waiting for his job assignment. Claimant filed a claim petition for workers' compensation benefits, alleging that he sustained an injury to his left shoulder, left hand, and left wrist. Claimant sought payment of full disability benefits, medical bills, and counsel fees. Employer filed an answer to the claim petition, and the WCJ held hearings on the matter.
Claimant also filed a petition for penalties against Employer. The WCJ denied the petition for penalties, which is not at issue in this appeal.
By decision and order dated May 27, 2011, the WCJ granted the claim petition. As part of her findings of fact, the WCJ summarized the testimony of Claimant; Claimant's doctor, Neil M. Cohen, D.O.; and Employer's medical expert, William H. Kirkpatrick, M.D.; all of which was presented via deposition. The WCJ found Claimant's testimony to be credible regarding his left wrist injury. (Reproduced Record (R.R.) at 152a.) The WCJ also found Dr. Cohen's testimony to be more credible than Dr. Kirkpatrick's testimony. (Id.) Based upon those findings, the WCJ determined that Claimant sustained a work-related injury on August 12, 2009, in the nature of a left wrist sprain, left distal radius and ulnar styloid fractures, and a triangular fibrocartilage tear while in the course and scope of employment with Employer. (Id.) The WCJ also determined that Claimant was rendered totally disabled by the work injury as of April 19, 2010, onward. (Id.)
Employer appealed the WCJ's decision to the Board, which affirmed. (Id. at 163a.) Employer then petitioned this Court for review.
On appeal, Employer essentially contends that the Board erred in affirming the decision of the WCJ, because the WCJ failed to issue a reasoned decision as required under Section 422(a) of the Act. Specifically, Employer argues that the WCJ merely announced her credibility determinations and, thus, failed to provide reasons for finding Claimant's testimony credible and for finding Dr. Cohen's testimony more credible than Dr. Kirkpatrick's testimony. Employer also argues that the Board erred in affirming the decision of the WCJ because the WCJ's credibility determinations are not supported by substantial evidence. In support of that argument, Employer contends that no record evidence exists to support a finding of ongoing injury and that the Board erred by failing to articulate what evidence of record supports the credibility determinations rendered by the WCJ.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
77 P.S. § 834.
First, we will address Employer's argument that the Board erred in affirming the decision of the WCJ, because the WCJ failed to issue a reasoned decision. Section 422(a) of the Act 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 [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] 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 [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.A decision is reasoned for purposes of Section 422(a) of the Act if it allows for adequate appellate review. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). To meet this standard, a WCJ does not need to discuss all of the evidence presented. Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 n.4 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). Rather, "[t]he WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision." Id.
"[T]he WCJ is the sole arbiter of the credibility and the weight of testimony and other evidence, and he or she is free to reject or accept the testimony of any witness in whole or in part." O'Donnell v. Workers' Comp. Appeal Bd. (United Parcel Serv.), 831 A.2d 784, 789 (Pa. Cmwlth. 2003). The findings of the WCJ are conclusive on appeal so long as they are supported by substantial evidence. Id. Moreover, "Section 422(a) [of the Act] does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations. Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Dorsey, 893 A.2d at 195 (citation omitted).
With regard to a WCJ's credibility determinations, this Court has stated as follows:
Although our Supreme Court has held that a WCJ need not explain credibility determinations relating to a witness who testifies before the WCJ, Section 422(a) of the Act requires some explanation of credibility determinations by a WCJ with regard to conflicting deposition testimony in order to enable this Court to review a WCJ's decision. Under Section 422(a) of the Act, a WCJ must articulate the objective rationale underlying his credibility determinations where the testimony of such witnesses is conflicting. A WCJ may satisfy the reasoned decision requirement if he summarizes the witnesses' testimony 'and adequately explains his credibility determinations.' Thus, while summaries of testimony alone would be insufficient to satisfy the reasoned decision requirement, where a WCJ summarizes testimony and also objectively explains his
credibility determinations, the decision will satisfy the requirement. Further, other evidence in the record may provide the objective support necessary under Section 422(a) of the Act for adequate credibility determinations.Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012) (citations omitted) (quoting Clear Channel Broad. v. Workers' Comp. Appeal Bd. (Perry), 938 A.2d 1150, 1157 (Pa. Cmwlth. 2007), appeal denied, 597 Pa. 722, 951 A.2d 1167 (2008)). Thus, "[w]here the WCJ fails to provide an objective basis for his credibility determinations, effective appellate review is precluded." Dorsey, 893 A.2d at 196.
In rendering her decision, the WCJ summarized Claimant's deposition testimony as follows. Claimant was hit by a forklift on August 12, 2009, causing him to fall onto the left side of his body, hitting his left hand before falling flat. (Finding of Fact (F.F.) no. 5e.) Claimant felt pain in his left hand around his wrist and down to his finger, and it became swollen. (F.F. no. 5f.) Claimant reported the injury to his supervisor and received care from Dr. Axelrod at the company clinic on the date of his injury. (F.F. no. 5g.) Claimant received an x-ray and MRI, and he was eventually referred to Stephanie Sweet, M.D., at the Philadelphia Hand Center. (F.F. no. 5h.) Claimant returned to light duty work on August 13, 2009, but continued to have pain in his wrist and eventually began having symptoms in his left shoulder. (F.F. no. 5i-l.) Claimant told Dr. Axelrod about his shoulder, and Dr. Axelrod told him to see a family doctor for the shoulder. (F.F. no. 5m.) On March 16, 2010, Claimant returned to full duty work, which was difficult because he still had the wrist and shoulder pain as well as swelling in his wrist and fingers. (F.F. no. 5n, p.) On April 19, 2010, Claimant was laid off. (F.F. no. 5o.) Claimant continued to see Dr. Axelrod between March and April, and when he was laid off, he still experienced pain and symptoms in his left shoulder and wrist. (F.F. no. 5o-p.) Claimant also continued to receive care from Dr. Sweet after he was laid off. (F.F. no. 5q.) Claimant had scheduled a date for surgery with Dr. Sweet, but was not able to go through with the surgery because of financial issues. (Id.) At the time of the deposition, Claimant was seeing Dr. Cohen for treatment of his left shoulder and left wrist. (F.F. no. 5s.) Claimant continues to have pain in his left shoulder and left wrist. (F.F. no. 5t.) Claimant did not have any injuries to his left shoulder, left wrist, or left hand before August 12, 2009. (F.F. no. 5u.)
The WCJ summarized Dr. Cohen's deposition testimony as follows. Dr. Cohen, who is board-certified in family practice, examined Claimant on June 4, 2010, when he took a history of Claimant's work injury. (F.F. no. 6a-b.) In performing a physical examination of Claimant, Dr. Cohen found that Claimant had minor limitation of range of motion of the wrist, but significant pain. (F.F. no. 6b.) Additionally, swelling was noted in the hand and wrist. (Id.) Claimant had radiculopathy, "pins and needles," and shooting pain from above the wrist down into the hand, as well as generalized decreased strength. (Id.) Dr. Cohen diagnosed Claimant with an ongoing injury to the wrist, a sprain to the wrist, a fracture at the wrist that had healed in good position, and some possible cartilage damage. (F.F. no. 6c.) Claimant had received injections to the wrist and hand and performed months of physical therapy, which did not work well. (Id.) An MRI dated September 2, 2009, showed that Claimant had fractures of the distal radius and ulna, a triangular fibrocartilage tear, and fluid in the right radial ulnar recess. (F.F. no. 6e.) Dr. Cohen related the MRI findings to Claimant's fall at work. (F.F. no. 6f.) Moreover, Claimant has not fully recovered from the injuries to his left wrist and left shoulder and continues to receive treatment. (F.F. no. 6j.) Claimant is not able to return to full duty work. (Id.) Dr. Cohen agreed that the surgery scheduled to be performed by Dr. Sweet is warranted. (F.F. no. 6k.)
With regard to Claimant's left shoulder, Dr. Cohen testified that Claimant had left shoulder pain when he came to see Dr. Cohen. (F.F. no. 6h.) There was no record of Claimant's left shoulder pain from Dr. Axelrod until February of 2010 or from Dr. Sweet until January of 2010. (F.F. no. 6n.) Furthermore, Dr. Cohen made no positive findings regarding the shoulder when he initially saw Claimant, so Dr. Cohen did not treat the shoulder. (Id.) No studies of Claimant's shoulder have been done. (Id.)
Dr. Cohen further testified that there was no mention of the left shoulder injury in the records of Dr. Stephanie Kao at Jeanes Business Health. (F.F. no. 6n; R.R. at 74a.)
The WCJ summarized the deposition testimony of Employer's medical expert, Dr. Kirkpatrick, as follows. Dr. Kirkpatrick examined Claimant on August 19, 2010. (F.F. no. 7a.) After taking Claimant's history, reviewing the available medical records, and performing a physical examination, Dr. Kirkpatrick diagnosed Claimant with status post left distal radius and ulnar styloid fractures, which were non-displaced with pain complaints. (Id.) Dr. Kirkpatrick did not render a diagnosis of the left shoulder. (Id.) Dr. Kirkpatrick stated that Claimant has recovered from the diagnoses and that additional treatment would not be reasonable or necessary. (F.F. no. 7b.) Dr. Kirkpatrick further stated that Claimant would be able to return to work in a light duty position and that he would impose permanent restrictions on the left wrist and hand as a result of Claimant's subjective complaints. (F.F. no. 7c.)
Dr. Kirkpatrick is board-certified in orthopedic surgery and hand surgery. (R.R. at 106a.)
As to credibility, the WCJ specifically found:
8. Th[e WCJ] has carefully reviewed and considered all of the evidence and finds Claimant's testimony credible and persuasive that he sustained a left wrist injury, from which he continues to have pain. The [WCJ] is not persuaded by Claimant's perception that he sustained a shoulder injury at work. This is due to the lack of credible medical evidence to support a finding that Claimant's shoulder pain is attributed to Claimant's job duties.(R.R. at 152a.)
9. Based upon a review of the evidentiary record as a whole, th[e WCJ] finds the testimony of Dr. Cohen more credible and convincing than the testimony of Dr. Kirkpatrick . . . . Dr. Cohen's testimony is accepted as fact. [The WCJ] finds the medical evidence supportive of Claimant's depiction of ongoing left wrist problems. There is a lack of evidence to support a connection between Claimant's shoulder pain and his work duties. The [WCJ] finds Claimant's report of shoulder pain too remote from the work injury to support a finding that the work injury caused the shoulder pain. The testimony of Dr. Cohen is credible regarding the wrist. To the extent to which the opinions of Dr. Kirkpatrick are not consistent with the opinions of Dr. Cohen, they are rejected as not credible.
The WCJ's decision in the case now before the Court is similar to the decisions of the WCJs in Daniels and Lewis v. Workers' Compensation Appeal Board (Disposable Products), 853 A.2d 424 (Pa. Cmwlth. 2004). In Daniels, the Supreme Court of Pennsylvania "examine[d] the contours of the reasoned decision requirement of Section 422(a)" of the Act for the first time. Daniels, 574 Pa. at 70, 828 A.2d at 1048. In that case, the WCJ summarized the testimony of the claimant, the claimant's medical witness, and the employer's medical witness, and then found the claimant's testimony credible and the testimony of employer's medical witness more credible than the testimony of claimant's medical witness "[b]ased upon a review of the evidentiary record as a whole." Id. at 65-66, 828 A.2d at 1045-46. In vacating and remanding for the WCJ to issue an amended decision under Section 422(a), our Supreme Court stated the following:
[A]lthough the WCJ's summarization of the witnesses' testimony demonstrates her grasp of the whole evidentiary record, the WCJ articulated no objective basis for deeming the deposition opinions of [the employer's medical witness] to be 'more credible and persuasive' than those of [the claimant's medical witness]. Although we can imagine reasons why the WCJ might have been more convinced by [the employer's medical witness's] opinions, there are arguments to be made in favor of [the claimant's medical witness's] opinions as well; more importantly, the reasons we might identify are not necessarily those which were in the mind of the WCJ upon rendering her decision. Absent some articulation of the basis for her conclusion on credibility, . . . the credibility decision does not meet the standard found in Section 422(a).Id. at 79, 828 A.2d at 1054.
Moreover, in Lewis, this Court held that the nine reasons set forth by the WCJ for crediting the deposition testimony of the employer's medical witness over the deposition testimony of the claimant's medical witness were "nothing more than a summation of the evidence" and did not provide an actual objective basis for the WCJ's credibility determinations. Lewis, 853 A.2d at 428-29. In vacating and remanding for the WCJ to issue a reasoned decision, this Court noted that a WCJ fails to satisfy the requirements of Section 422(a) of the Act when he or she "merely summarizes the evidence and then simply announces which evidence he or she accepts and rejects." Id. at 429 n.10. This Court also stated that "[a]lthough the findings point to telling portions of the record and allow one to imagine how the WCJ reached his conclusion, the purpose of a reasoned decision is to spare the reviewing court from having to imagine why the WCJ believed one witness over another." Id. at 429 (emphasis in original).
Here, similar to the WCJs in Daniels and Lewis, the WCJ merely provided summaries of the witnesses' testimony and announced her credibility determinations. In crediting Claimant's testimony regarding Claimant's wrist injury, the WCJ simply stated that she had "reviewed and considered all of the evidence" and found Claimant's testimony to be credible. (R.R. at 152a.) In crediting Dr. Cohen's testimony over Dr. Kirkpatrick's testimony, the WCJ again based her determination on "a review of the evidentiary record as a whole." (Id.) The WCJ additionally indicated that "the medical evidence [was] supportive of Claimant's depiction of ongoing left wrist problems" and that "[t]he testimony of Dr. Cohen is credible regarding the wrist." (Id.) These statements are insufficient to constitute actual objective bases for crediting Claimant's testimony or for crediting Dr. Cohen's testimony over that of Dr. Kirkpatrick, as the WCJ failed to state what specific evidence supported her credibility determinations. Although a review of the record evidence here allows one to imagine how the WCJ reached her conclusions, we must conclude that the WCJ failed to issue a reasoned decision, because she failed to "articulate the objective rationale underlying [her] credibility determinations." Amandeo, 37 A.3d at 76. Thus, we must vacate the Board's order and remand for the WCJ to issue a reasoned decision which sets forth actual objective bases upon which she relied in rendering credibility determinations as required by Section 422 of the Act.
Accordingly, we vacate the Board's order, and we remand this matter to the Board with instructions that the Board remand the matter to the WCJ for the WCJ to issue a new decision and order, which shall include actual objective bases for her credibility determinations pursuant to Section 422(a) of the Act.
As a result of our disposition above, we need not address the remaining issue. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 27th day of March, 2013, the order of the Workers' Compensation Appeal Board (Board) dated July 12, 2012, is hereby VACATED. The above-captioned matter is REMANDED to the Board with instructions that the Board remand the matter to the Workers' Compensation Judge (WCJ) for the WCJ to issue a new decision and order, which shall include actual objective bases for her credibility determinations pursuant to Section 422(a) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge