Opinion
No. 1171 C.D. 2014
02-11-2015
James Dershem, Petitioner v. Workers' Compensation Appeal Board (Dean Puderbaugh Trucking), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
James Dershem (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of a Workers' Compensation Judge (WCJ) denying his Claim Petition. We affirm.
From April 2011 through August 26, 2011, Claimant was employed as a water site supervisor by Dean Puderbaugh Trucking (Employer), a company in the business of transporting water used in the natural gas hydraulic fracturing extraction (fracking) process and supervising the water tanks at gas well sites. (WCJ Decision Finding of Fact (F.F.) ¶¶8, 46; 11/21/11 Hearing Transcript (H.T.) at 6-7, 21; 12/12/11 H.T. at 47-49.) On August 26, 2011, Claimant had blurred vision in both eyes and sought treatment in his local hospital emergency room, which, following assessment and physical examination, referred him to an optometrist for evaluation. (WCJ Decision F.F. ¶¶23-24; 11/21/11 H.T. at 15-16, 37; Employer Ex. 5 Jersey Shore Hospital Medical Records.) The optometrist found abnormalities in the back portions of both of Claimant's eyes, which he diagnosed as "retinitis/retinochoroiditis, pigment epitheliopathy," and sent Claimant to be seen by a retina specialist at Geisinger Medical Center (Geisinger). (WCJ Decision F.F. ¶¶25, 27, 83; 11/21/11 H.T. at 16-17, 37; Employer Ex. 6 Brandt Eye Care Records.) Claimant was hospitalized at Geisinger and remained under the care of Geisinger ophthalmologists after his release. (WCJ Decision F.F. ¶27; 11/21/11 H.T. at 17-18, 37-38; 2/6/12 H.T. at 21, 23.) Geisinger also referred Claimant to a specialist at Johns Hopkins Medical Center in Baltimore, Maryland, who saw him once in September 2011. (WCJ Decision F.F. ¶28; 11/21/11 H.T. at 18, 37; 2/6/12 H.T. at 23.)
On September 20, 2011, Claimant filed a Claim Petition seeking total disability benefits and payment of medical bills, asserting that he was blind in both eyes as the result of an alleged work incident on August 24, 2011 in which he contended that his eyes came into contact with water containing chemicals used in the fracking process. (Claim Petition ¶¶1, 3-4, 14.) Employer filed a timely answer to the Claim Petition denying Claimant's allegations.
The WCJ held evidentiary hearings at which Claimant and Employer witnesses testified and documentary evidence was introduced, including some of Claimant's medical records, and received testimony by trial deposition of two medical witnesses on the issue of whether Claimant's vision problems were causally related to his work. At the WCJ hearings, Claimant testified that on the night of August 23-24, 2011, he was working for Employer at the Kinley gas well site in Hepburnville, Pennsylvania and was sprayed in the face from one of the water tanks at the site when he was loosening the cover to attach a fitting to the tank to make it ready for the next water truck. (WCJ Decision F.F. ¶¶8, 11-13; 11/21/11 H.T. at 7-8, 10-12, 27-28.) Claimant testified that he was wearing goggles, but that the water got behind the goggles. (WCJ Decision F.F. ¶¶13-14; 11/21/11 H.T. at 10-11.) Claimant further testified that his eyes felt irritated immediately after this happened and that he flushed his eyes with bottled water, but that his sight in his right eye started to become blurry later in that work shift. (WCJ Decision F.F. ¶¶15-16; 11/21/11 H.T. at 12-13.) According to Claimant, he went to work the next night, but both eyes still felt irritated, his right eye vision remained blurry and he had difficulty driving. (WCJ Decision F.F. ¶¶17-22; 11/21/11 H.T. at 14-15.) Claimant testified that his eyes "were red" and "irritable" for "[p]robably close to a month" after the August 24, 2011 incident. (WCJ Decision F.F. ¶29; 11/21/11 H.T. at 18-19.) Claimant testified that the vision in his right eye has not improved and that he can see nothing at all with his right eye except for a "black blur," but that the blurred vision in his left eye had improved as of February 2012 to the point that he can read print close to his face and walk without assistance. (WCJ Decision F.F. ¶¶29, 58; 11/21/11 H.T. at 46-47; 2/6/12 H.T. at 12, 19-21, 23-24.)
Employer disputed that the accident occurred and contended that Claimant would not have been exposed to fracking chemicals even if the accident had occurred as Claimant alleged. Claimant's supervisor and Employer's owner testified that Claimant did not report any water spill or other incident on August 23-24, 2011, although his job duties as site supervisor required him to report all spills and accidents. (WCJ Decision F.F. ¶¶35, 37, 46-50; 12/12/11 H.T. at 12-14, 20-21, 52-55.) Employer's witnesses also testified that because of the stage of the fracking process at the Kinley site, the water in the tanks at the time that Claimant worked at that site was unused fresh water that was being removed to another site, not water containing fracking chemicals. (WCJ Decision F.F. ¶¶38-39, 51; 12/12/11 H.T. at 14-16, 32, 50-51.) Records from the hospital and optometrist from whom Claimant sought treatment on August 26, 2011 stated that Claimant reported that he had had blurred vision and black spots in his right eye for a week and indicated no chemical exposure or incident of any kind. (WCJ Decision F.F. ¶¶69-72, 77-78; Employer Ex. 5 Jersey Shore Hospital Medical Records; Employer Ex. 6 Brandt Eye Care Records.) These medical records also reported no redness of the eyes and described the condition of the cornea, iris, lens and other front parts of both of Claimant's eyes as normal. (WCJ Decision F.F. ¶¶71, 74, 80, 82; Employer Ex. 5 Jersey Shore Hospital Medical Records; Employer Ex. 6 Brandt Eye Care Records.)
On the issue of causation, Claimant did not present testimony from any of his treating ophthalmologists. Claimant's medical expert, Dr. Greenberg, was a family practice physician who had not treated Claimant for any eye condition. (Claimant Ex. 2 Greenberg Dep. at 6-7, 10, Reproduced Record (R.R.) at 39-40, 43.) Dr. Greenberg did not perform a complete eye examination of Claimant and did not observe the condition of the interior portions of Claimant's eyes. (Id. at 16, 25, R.R. at 49, 58.) He testified, based on review of records of Claimant's treating ophthalmologists, that Claimant suffered in both eyes from uveitis, an inflammation of the interior vascular portion of the eye. (Id. at 12-16, R.R. at 45-49.) Dr. Greenberg opined that this condition was caused by the August 24, 2011 work incident to which Claimant testified, basing this opinion on the history that Claimant gave him, on the fact that alkaline chemicals used in fracking "can eat through the anterior chamber basically and get into the middle layer of the eye which is known as the uvea" and damage it, and on the fact that other known causes of uveitis had been ruled out. (Id. at 11-12, 14-15, 17, R.R. at 44-45, 47-48.) Dr. Greenberg admitted that the history that Claimant gave him was inconsistent with the history in the medical records from the hospital where Claimant first sought treatment and that some cases of uveitis have no known cause. (Id. at 22-26, R.R. at 55-59.) Dr. Greenberg did not testify that he or any other medical professional had observed any damage to the anterior, front, portion of either of Claimant's eyes.
Employer presented the testimony of Dr. Rapuano, an ophthalmologist who examined Claimant on its behalf. Dr. Rapuano performed a full eye examination and concluded that Claimant had some very limited vision in his right eye that could not be improved by corrective lenses and poor vision in the left eye that could be improved to 20/80 with a high nearsightedness prescription. (Employer Ex. 10 Rapuano Dep. at 17-20, R.R. at 75-76.) On his examination of the interior of Claimant's eyes, Dr. Rapuano found significant scarring and abnormality of the retina in the right eye, mild retina abnormality in the left eye and evidence of past inflammation of the back portion of the uvea in both eyes. (Id. at 20-22, 24-26, R.R. at 76-78.) Dr. Rapuano opined that this damage could not have been caused by a splash or spraying of fracking chemicals on Claimant's face because such chemicals could not reach the interior of the eye without causing serious damage to the front of the eye and Claimant had no significant injury or damage to the front of his eyes. (Id. at 26-30, R.R. at 78-79.)
On April 4, 2013, the WCJ issued a decision denying Claimant's Claim Petition. The WCJ found the testimony of Dr. Rapuano credible and rejected the testimony of Dr. Greenberg as not credible. (WCJ Decision F.F. ¶¶123-124.) The WCJ concluded that Claimant therefore had not satisfied his burden of proving that his injury was caused by a work incident. (Id. Conclusion of Law (C.L.) ¶¶2-3.) The WCJ did not make findings as to Claimant's credibility or Employer's lay witnesses' credibility, nor did he make any findings as to whether the work place incident alleged by Claimant occurred or whether the water in the tanks where Claimant was working contained any fracking chemicals. Claimant appealed, and on June 16, 2014, 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 Board procedures or constitutional rights were violated. Furnari v. Workers' Compensation Appeal Board (Temple Inland), 90 A.3d 53, 58 n.2 (Pa. Cmwlth. 2014).
Claimant argues that the WCJ did not issue a reasoned decision as required by the Workers' Compensation Act (the Act) because he allegedly did not give an adequate explanation for discrediting Dr. Greenberg's testimony and because he did not make findings of fact on issues other than causation of Claimant's injury. These contentions are without merit.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Section 422(a) of the Act requires that a WCJ issue 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 [its] rationale" and that "the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence." 77 P.S. § 834. A WCJ decision is a reasoned decision in accordance with Section 422(a) where it sufficiently articulates the basis for its findings and conclusions to permit adequate appellate review and sets forth objective reasons for its credibility determinations as to witnesses who testified by deposition rather than in person. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052-53 (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).
Section 422(a), however, does not permit a party to challenge or second-guess the WCJ's reasons for his credibility determinations. Furnari v. Workers' Compensation Appeal Board (Temple Inland), 90 A.3d 53, 70 (Pa. Cmwlth. 2014); Dorsey, 893 A.2d at 195; Kasper v. Workers' Compensation Appeal Board (Perloff Bros., Inc.), 769 A.2d 1243, 1246 (Pa. Cmwlth. 2001). Determination of credibility of witnesses, including medical witnesses, is the prerogative of the WCJ, not the role of the Board or this Court. Furnari, 90 A.3d at 59-60, 70; Minicozzi v. Workers' Compensation Appeal Board (Industrial Metal Plating, Inc.), 873 A.2d 25, 28-29 (Pa. Cmwlth. 2005); Rockwell International v. Workers' Compensation Appeal Board (Sutton), 736 A.2d 742, 743 n.1 (Pa. Cmwlth. 1999). Where the WCJ articulates objective reasons for his credibility findings that are verifiable and supported by the record, the reasoned decision requirement is satisfied and those credibility determinations cannot be overturned on appeal. Dorsey, 893 A.2d at 195-96.
Here, after thoroughly reviewing the testimony and documentary evidence before him (WCJ Decision F.F. ¶¶7-122), the WCJ set forth the basis of his decision, that Claimant failed to prove that his injury was work-related, and the supporting finding, that Claimant's medical testimony on causation was not credible and that there was therefore no evidence by which Claimant could satisfy his burden of proof. (Id. F.F. ¶¶123-124, C.L. ¶¶2-3.) This is clearly sufficient to permit appellate review, as required by Section 422(a). While the WCJ did not make findings of fact on other issues, such as the credibility of Claimant and Employer's non-expert witnesses, and whether the work incident occurred at all and involved exposure to fracking chemicals, that does not make the decision inadequate. Section 422(a) of the Act does not require that the WCJ address all issues raised by the evidence; it requires only that he make findings of fact and conclusions of law on the issues necessary to his decision on the petition before him. Stout v. Workers' Compensation Appeal Board (Pennsbury Excavating, Inc.), 948 A.2d 926, 932 (Pa. Cmwlth. 2008); Pryor v. Workers' Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1202 (Pa. Cmwlth. 2006); Dorsey, 893 A.2d at 194 n.4.
It was Claimant's burden to prove by competent and credible medical testimony that his injury was caused by the work incident that he alleged. Amandeo, 37 A.3d at 75-76 n.4; Rockwell International, 736 A.2d at 744; Taulton v. Workers' Compensation Appeal Board (USX Corp.), 713 A.2d 142, 145 (Pa. Cmwlth. 1998). Given the WCJ's rejection of Claimant's medical expert as not credible, Claimant could not meet his burden of proof and denial of the Claim Petition was required regardless of any other evidence or factual disputes in the case. Stalworth v. Workers' Compensation Appeal Board (County of Delaware), 815 A.2d 23, 29-30 (Pa. Cmwlth. 2002); Rockwell International, 736 A.2d at 745; Taulton, 713 A.2d at 145. Because no findings on any issue other than medical causation were necessary to his decision, the WCJ was not required to make any findings of fact or conclusions of law concerning other issues.
Claimant additionally contends that further findings of fact were required by the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges, which provide that the WCJ "will issue a written decision, which will contain findings of fact, conclusions of law and an appropriate order based upon the entire evidentiary record." 34 Pa. Code § 131.111(a). This argument fails for the same reasons. Section 131.111(a) does not impose any greater or different requirements than Section 422(a) of the Act. Indeed, its language concerning findings of fact and conclusions of law is virtually identical to that of Section 422(a). Because the WCJ's decision here contained the findings of fact and conclusions of law necessary to his ruling and order on the Claim Petition, it satisfied the requirements of Section 131.111(a), as well as Section 422(a) of the Act. --------
Contrary to Claimant's assertions, the WCJ also explained in detail the reasons for his credibility determinations, stating several objective reasons for his rejection of Dr. Greenberg's testimony. Most significantly, the WCJ found Dr. Greenberg's testimony not credible both by itself and in comparison to the testimony of Employer's medical expert, Dr. Rapuano, because Dr. Greenberg provided no explanation for how Claimant's injury could have occurred that was consistent with Claimant's medical records, as he gave no testimony as to how an external chemical exposure could reach and cause damage to the interior of the eye without damage to the parts of the eye that were allegedly splashed with the chemicals. (WCJ Decision F.F. ¶¶123-124.) In addition, the WCJ based his credibility findings on the superior credentials of Dr. Rapuano, an ophthalmologist, and the fact that Dr. Rapuano conducted a complete eye examination and Dr. Greenberg did not. (Id. ¶123.) All of these are objective, verifiable bases for a credibility determination and all are supported by the record. The WCJ decision therefore adequately states the basis for the WCJ's credibility determinations and fully complies with the requirements of Section 422(a) of the Act. Amandeo, 37 A.3d at 78-80; Dorsey, 893 A.2d at 195-96; Minicozzi, 873 A.2d at 30.
Claimant also contends that Dr. Rapuano's testimony was equivocal and that the WCJ imposed a greater burden of proof of medical causation on Claimant than that imposed by the Act. These arguments must likewise be rejected.
Dr. Rapuano's testimony that Claimant's eye damage could not been caused by a water or chemical splash was unequivocal, consistent and unwavering throughout his direct and cross-examination. (Employer Ex. 10 Rapuano Dep. at 26-30, 37-38, 43, 49-50, R.R. at 78-84.) The only alleged equivocation or inconsistency in Dr. Rapuano's testimony to which Claimant points is on the different issue of whether there is some other identifiable cause for Claimant's eye damage. Whether Dr. Rapuano gave an unequivocal opinion on that issue is irrelevant. The burden of proof was on Claimant to show that his injury was caused by the work incident; Employer had no burden to show any cause for Claimant's eye damage. Rockwell International, 736 A.2d at 745; Taulton, 713 A.2d at 145.
Moreover, the WCJ did not base any of his findings or conclusions on the existence of a non-work alternative cause of Claimant's eye damage. Dr. Rapuano's opinion that the injury was not caused by the work incident was based on the lack of damage to the external parts of Claimant's eyes and the physical impossibility of an external chemical exposure damaging the interior portions of the eyes without causing serious damage to the external surfaces, not on an alternative explanation for Claimant's condition. (Employer Ex. 10 Rapuano Dep. at 26-30, 43, 49-50, R.R. at 78-79, 82-84.) Indeed, the opinion that Claimant attacks was not part of Dr. Rapuano's direct testimony at all, but was a subject brought out by Claimant on cross-examination. (Id. at 42-43, 48-49, R.R. at 82-83.) The WCJ based his credibility findings on Dr. Rapuano's unequivocal opinion that work incident could not have caused the injury and on the absence of any explanation by Dr. Greenberg consistent with Claimant's medical records as to how the work incident could have caused the injury, along with Dr. Rapuano's credentials and his thorough examination of Claimant's eyes. (WCJ Decision F.F. ¶¶123-124.) Nothing in the WCJ's opinion indicates any reliance on Dr. Rapuano's testimony as to what he believed is the most likely cause of Claimant's eye condition.
Contrary to Claimant's assertion, the WCJ did not impose an additional or incorrect burden of proof. The only burden of proof imposed on Claimant by the WCJ was his burden under the Act to prove by credible and competent medical testimony that his eye injury was caused by the work incident. (WCJ Decision C.L. ¶2.) Both Employer's and Claimant's medical experts testified that the injury to the uvea from a splash of fracking chemicals would involve significant damage to the front of Claimant's eyes. (Employer Ex. 10 Rapuano Dep. at 26-30, 43, 49-50, R.R. at 78-79, 82-84; Claimant Ex. 2 Greenberg Dep. at 12, R.R. at 45.) As Dr. Greenberg himself testified, such chemicals reach and can cause damage to the interior of the eye because they "eat through" the front of the eye. (Claimant Ex. 2 Greenberg Dep. at 12, R.R. at 45.) Claimant's medical records from the time of his injury and initial diagnosis, however, showed no damage to the front of his eyes. (Employer Ex. 5 Jersey Shore Hospital Medical Records; Employer Ex. 6 Brandt Eye Care Records.) The WCJ's statements concerning the need for explanation as to how an external exposure could reach and cause damage to the interior of the eye without damage to the outer portions were thus a proper and reasonable exercise of his role as fact-finder to explore and evaluate the coherence and credibility of the conflicting expert testimony and the consistency of that testimony with Claimant's medical records.
For the foregoing reasons, we conclude that the WCJ committed no error in denying Claimant's Claim Petition in this matter. Accordingly, the order of the Board is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of February, 2015, the order of the Workers' Compensation Appeal Board in the above matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge