Opinion
No. 2387 C.D. 2011
05-25-2012
Dominic J. Despirito, Petitioner v. Workers' Compensation Appeal Board (Keystone Area Council BSA), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Dominic J. Despirito (Claimant) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) denying Claimant's Petition to Reinstate Benefits (Petition). Claimant argues that certain of the WCJ's findings of fact were not supported by substantial evidence and, therefore, were not adequate to support the WCJ's conclusion that Claimant was not entitled to the reinstatement of his workers' compensation (WC) benefits. For the following reasons, we affirm.
Claimant sustained work-related injuries to his cervical spine in an April 6, 2004, motor vehicle accident, for which he was awarded WC benefits. Thereafter, Claimant returned to work with no loss of earnings, and his WC benefits were suspended by agreement as of September 27, 2004. On May 7, 2007, Claimant filed the Petition alleging that, as of March 22, 2007, his medical condition had worsened resulting in increased pain and numbness in his neck and left hand. The Petition was assigned to the WCJ, who held hearings.
In support of his Petition, Claimant testified that he worked as a camp director and district executive, which required him to drive up to 1,300 miles per month in multiple counties, including rural Perry County. Claimant stated that he found the driving difficult because of neck pain and, eventually, asked his wife to drive with him to assist in looking for traffic. Claimant explained that he treated with Frederick S. Lieberman, M.D., for his neck and that, although Dr. Lieberman recommended it, he was afraid of having surgery on his neck. Claimant acknowledged that: on March 15, 2007, he submitted a letter to his supervisor, Malcolm J. Carr, Jr., stating that he would be retiring from his position in thirty days; the letter did not refer to his work-related injury or driving difficulties as reasons for his retirement; he did not provide Keystone Area Council BSA (Employer) with a physician's note or other document stating that he was unable to perform his job duties due to medical reasons; he receives retirement benefits from Social Security, Employer, and from the United States Postal Service, his former employer; and he has not looked for work since retiring. Claimant indicated that, although his letter did not refer to his neck pain, he had complained to Mr. Carr about that pain. Claimant also presented the deposition testimony of Dr. Lieberman, who opined, inter alia, that Claimant's symptoms had worsened due to the driving Claimant did for Employer. Dr. Lieberman testified that Claimant's prescriptions, Celebrex and Vicodin, could have a somnolent effect and, therefore, Dr. Lieberman restricted Claimant's driving. Dr. Lieberman acknowledged that he never took Claimant off work due to his work-related injuries. (Findings of Fact (FOF) ¶¶ 2-4; WCJ Hr'g Tr., September 25, 2007, at 5, 19-20.)
Employer presented the deposition testimony of John Kline, M.D., who performed an independent medical examination on Claimant in January 2008. Based on his review of Claimant's medical records and his physical examination of Claimant, Dr. Kline opined, in relevant part, that Claimant suffered an aggravation of pre-existing degenerative osteoarthritis and degenerative disc pathology of the spine. He indicated that Claimant was capable of returning to modified duty with restrictions on lifting, could return to his pre-injury positions, and explained that he would place no restrictions on Claimant's driving. Additionally, Employer offered the deposition testimony of Mr. Carr, who testified, inter alia, that he never received a medical note from Claimant restricting Claimant's ability to drive and that Claimant never indicated that he was experiencing pain when driving. Mr. Carr stated the Claimant did not cite any medical reasons for his retirement. (FOF ¶¶ 5-6; Kline Dep. at 21-22, 29, R.R. at 29a-31a.)
The WCJ found the testimony of Claimant and Dr. Lieberman not credible or persuasive regarding the worsening of Claimant's injury, choosing instead to credit the testimony of Mr. Carr and Dr. Kline. (FOF ¶¶ 7-10.) The WCJ found that Claimant failed to meet his burden of proving that his work-related injury had worsened, forcing him to stop working. Additionally, the WCJ noted that Claimant had voluntarily retired from his position, thereby rendering him ineligible for benefits under the Workers' Compensation Act (Act). Claimant appealed to the Board. The Board affirmed, holding that, because the WCJ rejected Claimant's evidence as not credible, determinations that the Board could not review on appeal, Claimant did not meet his burden of proof in this matter. Claimant now petitions this Court for review.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.
"Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated." Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385, 388 n.1 (Pa. Cmwlth. 2010).
A claimant seeking the reinstatement of WC benefits that have been suspended bears the burden of proving that his "earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim." Bufford v. Workers' Compensation Appeal Board (North American Telecom), 606 Pa. 621, 637, 2 A.3d 548, 558 (2010). The claimant is not always required to produce medical evidence to establish continuing disability; "[r]ather, once a claimant testifies that his prior work-related injury continues, the burden shifts to his employer to prove the contrary," Latta v. Workmen's Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 227, 642 A.2d 1083, 1085 (1994), i.e., to "show that the claimant's loss of earnings is not caused by the disability arising from the work-related injury," Bufford, 606 Pa. at 637, 2 A.3d at 558.
"Where an employer fails to present evidence to the contrary, the claimant's testimony, if believed by the [WCJ], is sufficient to support reinstatement of the suspended benefits." Latta v. Workmen's Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 227, 642 A.2d 1083, 1085 (1994) (emphasis added).
Claimant argues that Findings of Fact 7, 10, and 11 are not supported by substantial, competent evidence and, therefore, the WCJ did not have factual support for Conclusion of Law 2, which states that Claimant did not prove that he was entitled to the reinstatement of his WC benefits. Claimant asserts that he is not challenging the WCJ's credibility determinations; rather, he contends that the testimony relied upon by the WCJ to make these determinations does not constitute substantial evidence.
Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
In Finding of Fact 7, the WCJ rejected Claimant's testimony regarding the worsening of his injury as neither credible nor persuasive because of, inter alia, his demeanor in court and the "lack of documentation as to the medical necessity of [his] retirement." (FOF ¶ 7.) Claimant argues that this finding is not supported by substantial evidence because, despite Claimant's specific testimony regarding his inability to continue the driving required by his position due to his neck pain, Mr. Carr "provided little, if any, evidence relating to the amount of time" Claimant drove for his work-related activities, thereby preventing the WCJ from rendering a reasoned decision on the amount of Claimant's work-related driving. (Claimant's Br. at 10.) Moreover, according to Claimant, Dr. Kline's testimony does not constitute substantial evidence to support discrediting Claimant's testimony because Dr. Kline acknowledged that Claimant had trouble turning his neck, which would support Claimant's contention that he could not do the driving required for his position due to his work-related neck injury.
Despite his assertions, Claimant's arguments on appeal are, essentially, attacks on the WCJ's credibility determinations. Our review over credibility determinations, like the Board's, is restricted, and the WCJ "has exclusive province over questions of credibility and evidentiary weight." Allegheny Ludlum Corporation v. Workers' Compensation Appeal Board (Bascovsky), 977 A.2d 61, 71 (Pa. Cmwlth. 2009). The WCJ, in making his findings of fact, can accept the testimony of a witness in whole or in part. Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385, 388 n.1 (Pa. Cmwlth. 2010). Here, the WCJ had the opportunity to observe Claimant's demeanor as he testified and, based on that demeanor, declined to accept Claimant's testimony as credible or persuasive. (FOF ¶ 7.) It is not within our purview as an appellate court to change this determination. Allegheny Ludlum Corporation, 977 A.2d at 71. Moreover, as additional support for this determination, the WCJ cited the facts that Claimant's retirement letter did not refer to the work-related injury and Claimant did not present any medical documentation showing that retirement was medically necessary. Our review of the record reveals that both statements are supported and weigh against Claimant's assertion that the WCJ's finding was erroneous. (Letter from Claimant to Mr. Carr (March 15, 2007), Employer's Ex. D-1; Lieberman Dep. at 25, R.R. at 64a; WCJ's Hr'g Tr., September 25, 2007, at 15, 17.) Furthermore, Claimant misinterprets Dr. Kline's testimony, which, when taken as a whole, indicates that Dr. Kline did not find it necessary to restrict Claimant's ability to drive. (Kline Dep. at 25-28, 31-33, R.R. at 30a-32a.) Thus, we decline to interfere with the WCJ's credibility determination with respect to Claimant's testimony.
Claimant's retirement letter states:
To: Malcolm J. Carr March 15, 2007
From: Dominic J. De Spirito
Subject: Retirement
Mr. Carr I am sending you this letter to let you know that (30) thirty days from the above date I will be retiring from the Keystone Area Council. If you should have any questions about the camp or the district please let me know. If there are items that [you] need . . . answers for, please let me know as soon as possible so that I may be able to get them for you.
I believe I have 5 days of vacation coming and would like to have these paid for.
My computer, keys and phone will be returned to you on my last day of work unless you would need them sooner than this.
Thank you
/s/
Dominic J. De Spirito
Council Camping Chairman
District Executive Kittatinny District
Keystone Area Council 515
Claimant next challenges Finding of Fact 10, in which the WCJ found Mr. Carr "credible and persuasive as to Claimant's retirement and separation from Employer" because, inter alia, he "prepared the separation documents for Claimant, and was in the position to judge its cause." (FOF ¶ 10.) Claimant asserts that this finding is not supported by substantial evidence because it conflicts with Finding of Fact 6(b), in which the WCJ found that Mr. Carr was unaware that Claimant continued to experience pain because Claimant did not complain of pain to him. Claimant contends, however, that Mr. Carr testified that he was aware that Claimant had problems arising from the work-related injury and often offered him assistance with lifting boxes or strenuous activities. (Carr Dep. at 16, 24, R.R. at 19a, 21a.) This conflict, according to Claimant, establishes that the WCJ did not have substantial evidence to support his decision to credit Mr. Carr's testimony and find that Claimant retired for reasons other than his work-related injury.
After reviewing Mr. Carr's testimony as a whole, we hold that the fact that Mr. Carr indicated that he was aware that Claimant still received treatment for his work-related injuries and offered to assist Claimant with heavy lifting does not contradict Mr. Carr's testimony that Claimant never complained to him of pain, made no reference to his pain or work-related injury when Claimant said that he was retiring, did not inform Mr. Carr that he had problems driving, and did not provide him with a medical note limiting Claimant's ability to drive. (Carr Dep. at 11-13, R.R. at 18a.) Mr. Carr's statements regarding Claimant's failure to link his retirement to his work-related injuries are corroborated by Claimant's own retirement letter, which, as noted above, makes no reference to the work-related injury. (Letter from Claimant to Mr. Carr (March 15, 2007), Employer's Ex. D-1.) Thus, we disagree that the WCJ erred in crediting Mr. Carr's testimony because of alleged inconsistencies in that testimony.
Finally, Claimant also argues that Finding of Fact 11 was not supported by substantial evidence and, therefore, Conclusion of Law 2, which was based on challenged Findings of Fact 7, 10 and 11, is erroneous. Finding of Fact 11 states: "Claimant has failed to meet his burden of showing that his injury worsened . . . forcing him to stop working. This Judge further notes that as Claimant had retired . . . , he is not eligible for benefits under the Act." (FOF ¶ 11.) Conclusion of Law 2 restates Finding of Fact 11 and concludes "[t]herefore, the Petition . . . must be denied and dismissed[.]" (Conclusion of Law ¶ 2.) Claimant asserts that his own testimony and Dr. Lieberman's testimony was the only substantial and competent evidence of record and that, with this evidence of his worsening injury, he met his burden and his benefits should be reinstated. Alternatively, Claimant maintains that Dr. Kline's testimony that Claimant had a limitation on the "active range of motion of [his] cervical spine or of the neck area" and that Claimant should be placed on light duty with no lifting, bending, or twisting of the cervical spine, supports Claimant's claim for the reinstatement of his benefits. (Kline Dep. at 19-21, R.R. at 29a.)
However, Claimant bore the burden of establishing the worsening of his work-related injury, Bufford, 606 Pa. at 637, 2 A.3d at 558, and the WCJ did not find the testimony of Claimant or Dr. Lieberman to be credible or persuasive. (FOF ¶¶ 7, 8.) These are determinations that we cannot revisit on appeal. Allegheny Ludlum Corporation, 977 A.2d at 71. Thus, Claimant could not satisfy his burden of proof based on his evidence. Moreover, although Claimant asserts that Dr. Kline's testimony supports his position, Claimant misinterprets that testimony. Dr. Kline testified that, during his examination of Claimant, Claimant had no restriction on the lateral rotation of his neck, from turning his neck from side to side, and that the only discomfort Claimant experienced was when he brought his ear to his shoulder, a movement that would not be required when driving. (Kline Dep. at 26-27, R.R. at 31a.) Dr. Kline expressly opined that Claimant's injuries would not limit Claimant's performance of his work tasks, including driving. (Kline Dep. at 21-22, 29, R.R. at 29a-31a.) Dr. Kline stated, "It is my opinion that, clearly, he could" drive because Claimant demonstrated good strength, reflexes, and could turn his head from side to side and forward without difficulty. (Kline Dep. at 21-22, R.R. at 29a-30a.) Finally, Dr. Kline more fully explained Claimant's limitations, stating:
In regards to the cervical spine, at this point, looking from side to side or lateral rotation, looking over his shoulder [he] did not demonstrate any restriction from an active standpoint. Nor would a restriction be expected as the disc herniations which he sustained were probably that of lower discs or lower in the cervical spine as opposed to upper in the cervical spine. In regards to his forward flexion or bending his chin more towards his chest, that was restricted and would be expected given the placement of the disc herniations, again, in the lower portion of the cervical spine. However, with the 50 degrees, which is clearly without functional limitation and would pose no restrictions on driving, as was the other limitation he demonstrated, lateral flexion, meaning putting his ear more towards his shoulder, which again, would be expected given the locations of the discs for which he had suffered. However, again, this is not a limitation to driving.(Kline Dep. at 31-32, R.R. at 32a.) Reading Dr. Kline's testimony as a whole, we disagree with Claimant's interpretation and conclude that his testimony fully supports the WCJ's finding that Claimant had no restrictions regarding his driving. Accordingly, that testimony does not satisfy Claimant's burden of proving that his loss of earnings was the consequence of his work-related injuries.
Claimant next argues that the Board erred in determining that his arguments were merely an improper attack on the WCJ's credibility determinations. Claimant maintains that the Board "was nothing more than a rubber stamp for the WCJ's decision" despite the fact that the above-referenced Findings of Fact were not supported by substantial evidence. (Claimant's Br. at 17.) However, having concluded that: (1) many of Claimant's arguments were, essentially, challenges to the WCJ's credibility determinations; and (2) there is substantial evidence to support the WCJ's determination that Claimant did not meet his burden of proof, we hold that the Board did not err in affirming the WCJ's decision.
Claimant finally asserts that, because his work injury forced him to retire, he is entitled to a reinstatement of WC benefits. "[W]here a claimant voluntarily retires" and removes himself from the workforce, "the claimant . . . bears the burden of showing either that [his] work-related injury has forced [him] out of the entire workforce or that [he] is looking for work after retirement." City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130, 1134, (Pa. Cmwlth. 2010) (en banc), appeal granted, ___ Pa. ___, 17 A.3d 917 (2011) (emphasis in original). Claimant's position, however, is based on his own and Dr. Lieberman's testimony that he retired because he could no longer drive, testimony that was not credited. Dr. Kline credibly testified that Claimant could continue to perform his job duties, and Mr. Carr credibly testified that Claimant did not cite his work-related injury as the reason for his retirement. Moreover, Claimant acknowledged that he had not looked for work since retiring from Employer. (WCJ Hr'g Tr., September 25, 2007, at 19-20.) Because Claimant voluntarily retired and did not meet the burden of showing that his work injury had forced him from the entire work force or that he was looking for work, Claimant is ineligible for the reinstatement of his WC benefits. Id.
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 25, 2012, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
(Letter from Claimant to Mr. Carr (March 15, 2007), Employer Ex. D-1.)