Opinion
No. 477 C.D. 2014
10-28-2014
Delaware County, Petitioner v. Workers' Compensation Appeal Board (Kamara), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Delaware County (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of the Workers' Compensation Judge (WCJ) granting the Claim Petition of Nancy Kamara (Claimant) and awarding her total disability benefits. For the reasons set forth below, we affirm.
Claimant worked for Employer as a nursing assistant at Employer's Fair Acres Geriatric Center from 1999 until April 15, 2008. (2012 WCJ Decision Finding of Fact (F.F.) ¶¶1, 9, 12; 2010 WCJ Decision F.F. ¶1; Hearing Transcript (H.T.) at 11, Reproduced Record (R.R.) at 19a; Employer Ex. 9 Kratsa Dep. at 31, R.R. at 158a.) Claimant's duties as a nursing assistant included helping residents transfer in and out of beds and wheelchairs. (2010 WCJ Decision F.F. ¶¶5, 10; Claimant Ex. 1 Claimant Dep. at 4-5, R.R. at 35a-36a; Employer Ex. 9 Kratsa Dep. at 44-45, R.R. at 171a-172a.) On April 11, 2008, Claimant and another nursing assistant were helping a resident who weighed 300 pounds lie down in bed, and Claimant felt a pain in her lower back and legs when she tried to position and pull the resident up in the bed. (2010 WCJ Decision F.F. ¶¶5, 10; Claimant Ex. 1 Claimant Dep. at 5-7, 19-25, 29, R.R. at 36a-38a, 50a-56a, 60a; H.T. at 7, 17-20, R.R. at 15a, 25a-29a.) Claimant, during that same shift, reported orally to her unit manager that she had hurt herself. (2010 WCJ Decision F.F. ¶¶5, 10; Claimant Ex. 1 Claimant Dep. at 7, 31-32, R.R. at 38a, 62a-63a; H.T. at 7, 20, R.R. at 15a, 29a.)
Claimant worked the next day, April 12, 2008, and was not scheduled to work on April 13 or 14, 2008. (Claimant Ex. 1 Claimant Dep. at 37-38, R.R. at 68a-69a.) Claimant went to see her regular primary care doctor, but was told that he did not treat work injuries. (2010 WCJ Decision F.F. ¶¶5, 10; Claimant Ex. 1 Claimant Dep. at 7-8, R.R. at 38a-39a.) When Claimant reported to work on April 15, 2008, she was suspended, pending an investigation of a complaint that she had been rude to the patient whom she had been helping at the time of her April 11, 2008 injury. (2012 WCJ Decision F.F. ¶¶9, 12; Claimant Ex. 1 Claimant Dep. at 38-39, R.R. at 69a-70a; H.T. at 8-9, R.R. at 16a-17a; Employer Ex. 9 Kratsa Dep. at 20, R.R. at 147a.) Following completion of that investigation, Employer concluded that Claimant had told the patient "I'm not going to pull you up and hurt my back" in response to the patient's request for assistance, and terminated Claimant's employment for verbal abuse and neglect of a patient. (2012 WCJ Decision F.F. ¶¶10-12; 2010 WCJ Decision F.F. ¶¶8, 13; Employer Ex. 9 Kratsa Dep. at 19, R.R. at 146a; Employer Ex. 8, R.R. at 209a-213a, 208a, 231a-236a.) Claimant applied for and received unemployment benefits after her discharge. (2010 WCJ Decision F.F. ¶¶5, 10; H.T. at 9-10, R.R. at 17a-18a.)
In June 2008, Claimant came under the care of an orthopedic surgeon, Dr. William Burch. (2010 WCJ Decision F.F. ¶¶6, 11; Claimant Ex. 2 Burch Dep. at 10, R.R. at 83a.) Following an MRI, Dr. Burch diagnosed Claimant as suffering from lumbosacral myofascitis, bulging discs at L4-5 and L5-S1, and an aggravation of bilateral moderate facet arthritis. (2010 WCJ Decision F.F. ¶¶6, 11; Claimant Ex. 2 Burch Dep. at 21, R.R. at 94a.) Dr. Burch prescribed physical therapy and nonsteroidal anti-inflammatory and anti-spasmodic medications and limited Claimant's activities. (Claimant Ex. 2 Burch Dep. at 13-22, R.R. at 86a-95a.)
On June 20, 2008, Claimant filed a Claim Petition seeking total disability benefits from the date of her termination onward and payment of her medical bills. (Claim Petition, R.R. at 4a-5a.) The WCJ held an evidentiary hearing at which Claimant testified and also received testimony by trial deposition of four witnesses: Claimant, Dr. Burch, an orthopedic surgeon who examined Claimant on behalf of Employer, and Employer's director of nursing. In a decision issued in January 2010, the WCJ found the testimony of Claimant and Dr. Burch credible, and concluded that Claimant had "suffered work-related injuries to her back on April 11, 2008 which rendered her disabled from employment from April 15, 2008 into the future." (2010 WCJ Decision F.F. ¶¶10-11, Conclusion of Law (C.L.) ¶2.) The WCJ also found credible Employer's director of nursing's testimony that Claimant was discharged because of the patient's complaint. (Id. F.F. ¶¶8, 13.) The WCJ granted the Claim Petition, ordered that Employer pay Claimant total disability benefits from April 15, 2008 on, subject to offset for unemployment compensation received by Claimant, and ordered that Employer pay Claimant's medical expenses related to her April 11, 2008 injury. (Id. at 5.)
Employer appealed, and the Board affirmed the WCJ's determination that Claimant had sustained a work-related lower back injury, holding that Dr. Burch's testimony was competent and sufficient to show a causal connection between her injury and her attempt to pull up the heavy patient. (2011 Board Opinion at 5-6, 8.) The Board, however, remanded the case to the WCJ to determine whether Claimant's conduct for which she was discharged constituted bad faith conduct that disqualified her from disability benefits. (Id. at 6-8.) On remand, the WCJ found that Claimant's statement that she would not pull the patient up was "just a statement of possible frustration with regard to her limits to aide [sic] the patient" that did not constitute bad faith conduct, and reaffirmed his grant of disability benefits. (2012 WCJ Decision F.F. ¶¶12-13, C.L. ¶¶2-4.) Employer again appealed, and the Board affirmed. This appeal followed.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether constitutional rights were violated. BJ's Wholesale Club v. Workers' Compensation Appeal Board (Pearson), 43 A.3d 559, 562 n.1 (Pa. Cmwlth. 2012).
Employer argues that the award of disability benefits must be reversed because Claimant's loss of earnings was caused by her discharge for misconduct. We do not agree.
Under the Workers' Compensation Act (the Act), a claimant seeking disability benefits must prove that she has suffered a disability caused by a work-related incident. Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800, 802 (Pa. 1985); BJ's Wholesale Club v. Workers' Compensation Appeal Board (Pearson), 43 A.3d 559, 562 (Pa. Cmwlth. 2012); Reyes v. Workers' Compensation Appeal Board (AMTEC), 967 A.2d 1071, 1077 (Pa. Cmwlth. 2009) (en banc); Somerset Welding & Steel v. Workmen's Compensation Appeal Board (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994). Disability, under the Act, requires not merely impairment, but loss of earning power. BJ's Wholesale Club, 43 A.3d at 562-63; Reyes, 967 A.2d at 1077; Albert Einstein Healthcare v. Workers' Compensation Appeal Board (Stanford), 955 A.2d 478, 481 (Pa. Cmwlth. 2008). "[A]lthough a claimant may suffer a work-related physical disability, it is only if that physical disability occasions a loss of earnings that a worker will be 'disabled' under the meaning of the Act and will be entitled to receive compensation." BJ's Wholesale Club, 43 A.3d at 563 (quoting Bissland v. Workmen's Compensation Appeal Board (Boyertown Auto Body Works), 638 A.2d 493 (Pa. Cmwlth. 1994)).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. --------
Because disability requires loss of earnings, a claimant is not entitled to disability benefits where the claimant's loss of earnings is a result of a discharge for bad faith conduct that was committed by the claimant subsequent to the injury or was not known to the employer until after the injury. Vista International Hotel v. Workmen's Compensation Appeal Board (Daniels), 742 A.2d 649, 656-58 (Pa. 1999); BJ's Wholesale Club, 43 A.3d at 563; Reyes, 967 A.2d at 1077-78; Edwards v. Workers' Compensation Appeal Board (Sear's Logistic Services), 770 A.2d 805, 808 (Pa. Cmwlth. 2001). The burden, however, is on the employer to show that the conduct for which claimant's employment was terminated amounts to bad faith on the part of the claimant. Vista International Hotel, 742 A.2d at 657-58; Reyes, 967 A.2d at 1077; Coyne v. Workers' Compensation Appeal Board (Villanova University and PMA Group), 942 A.2d 939, 945-46 (Pa. Cmwlth. 2008); Second Breath v. Workers' Compensation Appeal Board (Gurski), 799 A.2d 892, 900 (Pa. Cmwlth. 2002). Whether the claimant's actions constitute bad faith conduct is a question of fact to be determined by the WCJ. BJ's Wholesale Club, 43 A.3d at 564; Coyne, 942 A.2d at 946; Second Breath, 799 A.2d at 900.
Here, Employer did not show that Claimant's conduct in the incident for which she was discharged rose to the level of bad faith sufficient to bar her claim for disability benefits. The WCJ found that while Employer discharged Claimant for rudeness in her communication with the patient at the time of her injury and that it acted within its rights in doing so, the only conduct that Claimant committed consisted of stating to the patient "I'm not going to pull you up and hurt my back." (2012 WCJ Decision F.F. ¶¶10, 12; 2010 WCJ Decision F.F. ¶¶8, 13.) The WCJ found that this statement, made when Claimant hurt her back trying to assist the patient and was in pain, did not rise to the level of bad faith conduct by Claimant. (2012 WCJ Decision F.F. ¶12; 2010 WCJ Decision F.F. ¶¶5, 10.) There is no error in the WCJ's conclusion that the statement made by Claimant under those surrounding circumstances did not constitute bad faith conduct. See Second Breath, 799 A.2d at 900-01 (affirming WCJ finding that claimant discharged for leaving work after shift before replacement arrived after waiting five to ten minutes for late replacement did not commit bad faith conduct); Champion v. Workers' Compensation Appeal Board (Glasgow, Inc.), 753 A.2d 337, 340-41 (Pa. Cmwlth. 2000) (claimant discharged for adjusting work hours for personal reasons on a single occasion and use of profanity toward supervisor did not commit bad faith conduct where claimant had reason to believe employer permitted hours adjustment and profanity was initiated by supervisor).
Employer also argues that the WCJ did not issue a reasoned decision as required by Section 422(a) of the Act, 77 P.S. §834, and that Dr. Burch's testimony was not competent to prove that Claimant's disability was caused by a work incident. These arguments likewise fail.
A WCJ decision is a reasoned decision in accordance with Section 422(a) of the Act where it sufficiently articulates the basis for its findings and conclusions to permit adequate appellate review. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003); Amandeo v. Workers' Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012); Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 194-96 (Pa. Cmwlth. 2006). In his two decisions in this case, the WCJ thoroughly reviewed and considered the testimony and documentary evidence on the issues before him and explained the bases for his findings and credibility determinations. (2010 WCJ Decision F.F. ¶¶5-12; 2012 WCJ Decision F.F. ¶¶9-12.) Accordingly, the WCJ's decisions are sufficient to permit adequate appellate review and satisfy the requirements of Section 422(a) of the Act. Amandeo, 37 A.3d at 76. The fact that Employer disagrees with the WCJ's credibility determinations does not make the WCJ's decisions unreasoned and does not constitute a basis for reversal. Dorsey, 893 A.2d at 195; Kasper v. Workers' Compensation Appeal Board (Perloff Bros., Inc.), 769 A.2d 1243, 1246 (Pa. Cmwlth. 2001).
Where the connection is not obvious, the claimant must prove by unequivocal medical testimony that her disability was caused by the work incident. Lewis, 498 A.2d at 802; Moyer v. Workers' Compensation Appeal Board (Pocono Mountain School District), 976 A.2d 597, 599 n.3 (Pa. Cmwlth. 2009); Somerset Welding & Steel, 650 A.2d at 117. Although a causal connection can sometimes be obvious where back pain is immediately experienced when lifting a heavy object, see, e.g., Northwest Medical Center v. Workers' Compensation Appeal Board (Cornmesser), 880 A.2d 753, 755 (Pa. Cmwlth. 2005) (no medical testimony concerning causal connection required for back pain that nurse felt immediately when moving a large hospital patient), causation is not obvious and medical testimony is required where the claimant had pre-existing back pain or pre-existing back problems. Moyer, 976 A.2d at 599 n.3; Somerset Welding & Steel, 650 A.2d at 117 n.4. Because Claimant's medical records showed that she had a history of back pain (Employer Ex. 6), Claimant was required to prove causation by unequivocal medical testimony.
Whether expert testimony is equivocal is an issue of competence, not credibility, and is a question of law subject to this Court's plenary, de novo review. Lewis, 498 A.2d at 803; Moyer, 976 A.2d at 599 n.3; Johnson v. Workers' Compensation Appeal Board (Abington Memorial Hospital), 816 A.2d 1262, 1267 (Pa. Cmwlth. 2003). Testimony that merely assumes that an injury is work-related based on temporal proximity to a workplace incident does not constitute competent, unequivocal testimony. Lewis, 498 A.2d at 803; Moyer, 976 A.2d at 599. A medical expert, however, may properly base his causation opinion on the assumption that the claimant's description of the workplace incident and her symptoms is accurate, and such an opinion is competent where WCJ finds the claimant's testimony as to those events and symptoms credible. Moyer, 976 A.2d at 600; Somerset Welding & Steel, 650 A.2d at 118. Whether a medical expert has unequivocally testified that the claimant's injury and disability were caused by the workplace incident must be determined from examination of the medical witness's entire testimony taken as a whole. Lewis, 498 A.2d at 803; Moyer, 976 A.2d at 599 & n.3; Johnson, 816 A.2d at 1268.
Dr. Burch testified that Claimant suffered from a back condition that disabled her from working at her job with Employer. (Claimant Ex. 2 Burch Dep. at 12-22, R.R. at 85a-95a.) Employer does not dispute that this testimony was unequivocal and competent. Rather, Employer contends that Dr. Burch's testimony was insufficient because he allegedly did not give any competent opinion that this back injury was caused by a work incident. We do not agree. Examination of Dr. Burch's testimony in its entirety demonstrates that he testified that, based on the history given to him by Claimant and his physical examination of her, it was his opinion that her back injury was "a direct result" of the April 11, 2008 incident when she attempted to pull up the severely overweight patient. (Claimant Ex. 2 Burch Dep. at 10-13, 22, 27, R.R. at 83a-86a, 95a, 100a.) While Dr. Burch based his causation opinion on Claimant's description of the incident (Claimant Ex. 2 Burch Dep. at 10-13, 29, 35, R.R. at 83a-86a, 102a, 108a), Claimant's testimony was consistent with the history that she gave to Dr. Burch, and the WCJ found Claimant's testimony credible. (Claimant Ex. 1 Claimant Dep. at 5-7, 19-25, R.R. at 36a-38a, 50a-56a; H.T. at 7, 17-20, R.R. at 15a, 25a-29a; 2010 WCJ Decision F.F. ¶¶5, 10.)
For the foregoing reasons, we conclude that the Board did not err in affirming the WCJ's granting of Claimant's Claim Petition in this matter. Accordingly, we affirm the Board's order.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 28th day of October, 2014, the order of the Workers' Compensation Appeal Board in the above matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge