Opinion
No. 1137 C.D. 2010 No. 2466 C.D. 2010
08-12-2011
Earnest Dille, Petitioner v. Workers' Compensation Appeal Board (Consol PA Coal/Enlow Fork Mine), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Earnest Dille (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) Decision granting Consol PA Coal/Enlow Fork Mine's (Employer) Petition to Terminate Benefits (Petition). For the following reasons, we affirm.
Claimant filed a motion requesting that his two petitions for review be consolidated, which this Court granted by Order dated December 14, 2010.
Claimant was injured on August 3, 2007, while in the course of his employment as a roof bolter with Employer, by a rock that fell out of a rig and onto Claimant, smashing him into the side of the bolter. (WCJ's Decision, Findings of Fact (FOF) ¶¶ 1, 5c.) Employer issued a Notice of Compensation Payable (NCP) accepting liability for injuries described as "'strain/contusions and abrasions' of the 'cervical/lumbar/both lower extremities.'" (Bureau Ex. 1, R.R. at 92; FOF at ¶ 1.) On April 10, 2008, Employer filed the Petition alleging that, as of February 11, 2008, Claimant had fully recovered and could "resume his prior occupation as a coal miner without restrictions" based on the evaluation of Thomas D. Kramer, M.D. (Petition at 2, R.R. at 5; FOF at ¶ 2.) Claimant denied the allegations in the Petition, (Answer to Petition at 1, R.R. at 8), and the case was assigned to the WCJ, who held hearings at which both Employer and Claimant presented evidence.
In support of the Petition, "Employer offered the deposition testimony of Thomas D. Kramer, M.D., who is board certified in orthopedic surgery." (FOF ¶ 6.) Dr. Kramer examined Claimant on February 11, 2008, and "did not find any objective orthopedic abnormalities during his examination" of Claimant. (FOF ¶¶ 6(a), (e).) Dr. Kramer noted during the examination that Claimant exaggerated his pain. (Kramer Dep. at 11-12, R.R. at 265-66.) He opined that Claimant had fully recovered from his injury after viewing two MRI studies from August and September 2007, which did not reveal evidence of a herniated disc, nerve root impingement, annular tear, or other condition that would be causing the complaints compatible with what Claimant alleged. (FOF ¶¶ 6(k), (l); Kramer Dep. at 19-21, R.R. at 273-75.) In addition, "Employer offered the deposition testimony of Paul D. Steinman, Jr., D.O., who practices in occupational medicine." (FOF ¶ 7.) Dr. Steinman began treating Claimant on August 8, 2007, and continued to treat Claimant one or two times per month. (FOF ¶¶ 7(a), (e).) Dr. Steinman stated that as his care for Claimant continued over the months, "he began to question [C]laimant's complaints" because "[C]laimant was not progressing as a normal patient would progress from the injuries that he had." (FOF ¶ 7(h).) Dr. Steinman further testified that, as of January 2008, "[C]laimant started magnifying his complaints." (FOF ¶ 7(h).) Dr. Steinman opined that, at the time Dr. Kramer reviewed Claimant's records, Claimant had recovered from the injuries. (FOF ¶ 7(g).)
In opposition to the Petition, "Claimant offered the deposition testimony of Robert M. Gerbo, M.D., who is board-certified in family medicine." (FOF ¶ 8.) Dr. Gerbo began treating Claimant on September 5, 2008 and found negative straight leg raising, positive hip testing, and positive FABER testing. (FOF ¶ 8(b), (c).) In addition, Dr. Gerbo explained that if FABER testing along with hip testing are both positive, it is difficult to interpret the examination results because the results could be a sign of symptom magnification. (FOF ¶ 8(c).) Dr. Gerbo diagnosed Claimant with chronic low back pain, opined that Claimant had not fully recovered from the work injury of August 3, 2007, and indicated that "symptom amplification does not rule out the existence of genuine symptoms." (FOF ¶ 8(e), (l), (n).)
After the record was closed, Claimant sought to reopen the record to allow Claimant to enter additional medical evidence of Claimant's current treating physician, Dr. Toshok. On April 10, 2009, the WCJ denied Claimant's request to reopen the record in an Interlocutory Order. (Interlocutory Order, April 10, 2009, R.R. at 12.) On August 31, 2009, the WCJ issued a Decision and Order, finding the Claimant's testimony as not credible because of extensive evidence of symptom magnification. (FOF ¶ 11.) The WCJ credited the testimony of Dr. Kramer and Dr. Steinman over that of Dr. Gerbo because of the "complete lack of objective evidence of disability and on the extensive evidence of symptom magnification." (FOF ¶ 12.) The WCJ held that the Petition should be granted because the "Employer has met its burden of proving that [C]laimant had fully recovered from the injury of August 3, 2007, as of February 11, 2008." (WCJ Decision, Conclusions of Law ¶ 1.)
On appeal to the Board, Claimant listed numerous arguments, including that the WCJ's Decision was not supported by competent, substantial evidence and that the WCJ erred in not reopening the record to allow Claimant to enter additional medical evidence of Claimant's current treating physician, Dr. Toshok. (Claimant's Appeal at ¶¶ 3-5, R.R. at 26.) On May 24, 2010, the Board issued an Opinion affirming the WCJ. (Board Op. at 2, R.R. at 43.) The Board found the WCJ's findings were supported by substantial evidence, holding that the WCJ did not commit an error of law. (Board Op. at 4-5, R.R. at 45-46.) However, the Board did not expressly address Claimant's contention that the record should have been reopened to introduce the additional medical evidence of Dr. Toshok.
Claimant now petitions this Court for review. Claimant makes two arguments: (1) that the Board erred in affirming the Decision of the WCJ without addressing whether the record should have been reopened to enter the testimony of Dr. Toshok; and (2) that the WCJ's Decision was not well reasoned because the WCJ's credibility findings were erroneous.
"Our scope of review is limited to a determination of whether constitutional rights have been violated, whether the referee has committed an error of law or whether all of the necessary findings of fact are supported by substantial evidence." Sherrill v. Workmen's Compensation Appeal Board (School District of Philadelphia), 624 A.2d 240, 242 n.3 (Pa. Cmwlth. 1993).
Claimant first argues that the Board erred in affirming the Decision of the WCJ without addressing the issue of the WCJ's refusal to reopen the record. (Claimant's Br. at 15-16.) The WCJ has discretion regarding whether to reopen the record in an appropriate case. Hammerle v. Workmen's Compensation Appeal Board (Department of Agriculture, Bureau of Dog Law Enforcement), 490 A.2d 494, 497 (Pa. Cmwlth. 1985). However, absent an abuse of discretion, this Court will not reverse a WCJ's decision not to reopen the record. Sharkey v. Workers' Compensation Appeal Board (Tempo, Inc.), 739 A.2d 641, 644 (Pa. Cmwlth. 1999); Hammerle, 490 A.2d at 497. Abuse of discretion, as defined by the Pennsylvania Supreme Court, is "not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused." Hainsey v. Pennsylvania Liquor Control Board, 529 Pa. 286, 297, 602 A.2d 1300, 1305 (1992) (quoting Kelly v. County of Allegheny, 519 Pa. 213, 217, 546 A.2d 608, 610 (1988)) (emphasis in original). A claimant should be provided the opportunity to present the evidence he or she needs in order to prove a meritorious case and courts have broad discretion to grant a rehearing. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 557, 539 A.2d 792, 794 (1988). However, "the court's duty does not extend to sending the record back for an opportunity to furnish cumulative evidence to strengthen a weak case." Cudo, 517 Pa. at 558, 539 A.2d at 794 (emphasis removed). Likewise, "[t]he [WCJ's] duty is to resolve the claims before him [or her] in a fair and efficient manner." Sherrill, 624 A.2d at 245.
Here, the WCJ decided that Claimant's motion to reopen the record should not be granted. Examining the timeline of the WCJ's hearings in this case is helpful in illustrating that the WCJ exercised reasonable judgment and there was no bias in that decision, i.e., that there was no abuse of discretion. Section 131.63 of the Pennsylvania Code (Code) specifies a schedule to be followed when taking depositions. 34 Pa. Code § 131.63. Section 131.63 states, in relevant part:
(b) Oral depositions shall be completed so as not to delay unreasonably the conclusion of the proceedings, and within a time schedule agreed upon by the parties and approved by the judge provided that medical depositions shall be completed as specified in subsections (c) . . .34 Pa. Code § 131.63. At the initial hearing on this matter, the WCJ set out a "normal litigation schedule at 90 days for the Employer and 90 days thereafter for the Claimant." (Hr'g Tr. at 29, May 20, 2008, R.R. at 83.) Employer complied with the schedule and submitted the depositions of Dr. Kramer and Dr. Steinman during the second hearing. (Hr'g Tr. at 6-7, Aug. 26, 2008, R.R. at 68.) By the date of the third hearing, the WCJ had already given more time for Claimant to depose witnesses than set out in Section 131.63 of the Code. In addition, Claimant's counsel requested 60 more days to finish his case, acknowledging that Employer "will be prejudiced by this request . . . ." (Hr'g Tr. at 5, Dec. 12, 2008, R.R. at 61.) Employer's counsel expressed dismay but, the WCJ granted Claimant's request for an additional 60 days to complete the deposition of his witness and stated "I don't intend to grant any additional continuances beyond that." (Hr'g Tr. at 6-7, R.R. at 62.) Claimant's counsel then acknowledged that he understood "60 days is an absolute time." (Hr'g Tr. at 7-8, R.R. at 62.) At the fourth and final hearing, the WCJ set the briefing schedule. (Hr'g Tr. at 13-15, Feb. 19, 2009, R.R. at 55-56.) By this time, the WCJ had already granted Claimant additional time to depose witnesses and even granted an additional 60 days beyond the original time extension for Claimant to complete a deposition. After the WCJ had expressly advised Claimant that there would be no additional continuances, Claimant filed the motion to reopen the record.
(c) The deposition of a medical expert testifying for the moving party shall be taken within 90 days of the date of the first hearing scheduled unless the time is extended or shortened by the judge for good cause shown. The deposition of a medical expert testifying for the responding party shall be taken within 90 days of the date of the deposition of the last medical expert testifying on behalf of the moving party.
Upon our review of the record, we do not conclude that the WCJ abused his discretion by denying the request to reopen the record. The WCJ granted the extensions that Claimant requested, giving him additional time to gather his medical evidence, and specifically notified Claimant that there would be no further continuances granted before the final hearing. The WCJ's Decision not to grant Claimant's request to reopen the record after the final hearing to introduce additional medical testimony in this case was not the result of ill-will, prejudice, or bias.
Claimant did not state that he requested the record to be reopened to introduce medical evidence that was novel or not discoverable when the record was previously open. Thus, this matter is unlike Patterson v. Workmen's Compensation Appeal Board (Manpower/Transpersonnel, Inc.), 554 A.2d 614 (Pa. Cmwlth. 1989). The claimant in Patterson was granted a new hearing by this Court because he "utilize[ed] the most recent advances in medical science," specifically an MRI. Id. at 616. Here, Claimant has not introduced evidence that Dr. Toshok would present evidence using a new medical test that was not available when the record was open. It appears that the additional medical testimony would be cumulative because Claimant makes no indication that Dr. Toshok's medical testimony would be different from the testimony already given by Dr. Gerbo. In Crankshaw v. Workmen's Compensation Appeal Board (County of Allegheny), 548 A.2d 368 (Pa. Cmwlth. 1988), the claimant was denied a rehearing because the claimant wanted to introduce additional medical evidence that was proposed to reiterate the already introduced evidence of the claimant's witness, who had previously testified. Id. at 370.
Second, Claimant argues that the WCJ's Decision was not well reasoned because the WCJ's credibility findings were erroneous. Claimant makes two contentions to support this argument: (1) that the WCJ should have credited Dr. Gerbo's testimony; and (2) that the WCJ's credibility findings were based on a misapprehension of facts, particularly the objective evidence to support his complaints of pain and that symptom magnification does not negate genuine symptoms.
Claimant contends that, in granting the Petition, the WCJ erred by discounting the credible testimony of Dr. Gerbo. (Claimant's Br. at 17-18.) Claimant objects to the WCJ's findings and conclusions that Claimant had fully recovered from the work injury as of February 11, 2008, arguing that his medical expert, Dr. Gerbo, should have been found credible that Claimant suffers from chronic low back pain. However, the WCJ expressly credited the medical testimony of Dr. Steinman and Dr. Kramer over the testimony of Dr. Gerbo where the testimony differed, basing the decision "on the complete lack of objective evidence of disability and on the extensive evidence of symptom magnification which was acknowledged even by Dr. Gerbo." (FOF ¶ 12.)
The employer bears the burden, in a termination petition, of proving the claimant's disability has ceased. Visteon Systems v. Workers' Compensation Appeal Board (Steglik), 938 A.2d 547, 551 (Pa. Cmwlth. 2007). "An employer can meet the burden . . . by presenting unequivocal medical evidence of a claimant's full recovery from a work-related injury or that an existing disability is not work-related." Indian Creek Supply v. Workers' Compensation Appeal Board (Anderson), 729 A.2d 157, 160 (Pa. Cmwlth. 1999). "In determining whether medical testimony is unequivocal, the medical witness's entire testimony must be reviewed and taken as a whole." Id.
"It is solely for the WCJ, as the fact[]finder, to assess credibility and to resolve conflicts in the evidence." Hoffmaster v. Workers' Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155-56 (Pa. Cmwlth. 1998) (citing Dana v. Workers' Compensation Appeal Board (Hollywood), 706 A.2d 396 (Pa. Cmwlth. 1998)). The WCJ, as the fact finder, determines how to weigh the evidence presented before it and may "reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted." Hoffmaster, 721 A.2d at 1156. It matters only that there is evidence to support the WCJ's findings of fact, and not that there are contrary findings of fact evidenced in the record. Id. at 1155. "[T]he appellate role is not to reweigh the evidence or to review the credibility of the witnesses." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992). Rather, the "reviewing court must simply determine whether, upon consideration of the evidence as a whole, the [WCJ's] findings have the requisite measure of support in the record." Id. This Court will "overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Casne v. Workers' Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
Dr. Kramer testified that he first saw Claimant on February 11, 2008, and performed a full physical examination in which he prepared a five-page report followed by another two-page report after reviewing Claimant's MRI. (Kramer Dep. at 5-7, R.R. at 259-61.) Dr. Kramer testified that an examination of Claimant's "lumbar spine revealed diffuse tenderness, which [he] felt was greatly exaggerated. . . [and] [t]here was no evidence of spasm or swelling involving [Claimant's] lumbar area." (Kramer Dep. at 11-12, R.R. at 265-66.) Furthermore, Dr. Kramer stated, "[t]here was pain elicited with hyperextension/rotation maneuvers to both the right and left side. Voluntary range of motion measurements could not be recorded since [Claimant] would not even forward flex 20 degrees for me." (Kramer Dep. at 12, R.R. at 266.) Another test, the straight leg raise bilaterally was negative and "produced no complaints of lower extremity radiculopathy." (Kramer Dep. at 12-13, R.R. at 266-67.) The FABER test, which is a subjective maneuver, was positive and Claimant reported lower back pain during the performance. (Kramer Dep. at 13, 15, R.R. at 267, 269.) Despite these tests, when asked if there was any objective orthopedic abnormalities, Dr. Kramer stated, "[n]o, there was not." (Kramer Dep. 13, R.R. at 267.)
Additionally, Dr. Steinman testified that, on his initial examination, Claimant had a positive result on the seated straight leg raising test. (Steinman Dep. at 35, R.R. at 235.) Dr. Steinman was not "ever able to detect any objective abnormalities in the cervical or lumbar spine, such as spasm or swelling or bruising." (Steinman Dep. at 17, R.R. at 217.) On April 17, 2008, Dr. Steinman performed a functional capacity evaluation on Claimant and found Claimant scored positive on four out of five of the Waddell's non-organic signs, but that there was evidence of symptom magnification. (Steinman Dep. at 26-27, R.R. at 226-27.) Dr. Steinman stated that Claimant "was not progressing as the normal patient would progress from the injuries that he had" and that "he started having complaints in areas where there was [not] any reason for him to have complaints." (Steinman Dep. at 21, R.R. at 221.) Dr. Steinman concluded that he agreed with Dr. Kramer's opinion that Claimant required no additional treatment and that he had fully recovered from the work injury. (Steinman Dep. at 29-30, R.R. at 229-30.)
Finally, Dr. Gerbo testified that he also had Claimant perform the straight leg raising test, which "puts tension on a particular nerve [and] helps to test for [a] herniated disc," and that Claimant's results were negative. (Gerbo Dep. at 1, 8-9, R.R. at 102, 109-10.) Dr. Gerbo also performed hip testing and FABER testing, which were positive. (Gerbo Dep. at 9, R.R. at 110.) However, Dr. Gerbo testified that when he performed these tests there was symptom magnification, which does not rule out the existence of genuine symptoms, but "[i]t makes it more of a challenge to interpret the history and physical." (Gerbo Dep. at 12-13, R.R. at 113- 14.) When Dr. Gerbo was asked from an objective orthopedic standpoint, if the first exam was within normal limits, he stated, "it is normal. . . . When you use the term purely objective, so that you and I are using the same definition, those are things in which a patient has absolutely no control over." (Gerbo Dep. at 29, R.R. at 130.) He continued by saying the following:
For example, if we're talking about the spine and bending forward, you can say that that is not purely objective because the patient has some control over that. And therefore, a dishonest person may not give the[ir] maximum effort or somebody who is in a significant amount of pain may not want to give their maximum effort because it hurts when they do that. . . . [W]hen you talk about range of motion and touching something to see if it is tender, those are objective, but they're not purely objective.(Gerbo Dep. at 29-30, R.R. at 130-31.) Dr. Gerbo agreed to the statement that "from a purely objective orthopedic and neurologic standpoint, [Claimant's] evaluation has been normal throughout the course of [his] treatment." (Gerbo Dep. at 31, R.R. at 132.) In addition, Dr. Gerbo acknowledged that he did not order any tests on Claimant from a purely objective standpoint. (Gerbo Dep. at 32, R.R. at 133.) When Dr. Gerbo performed tests on Claimant, he acknowledged Claimant magnified his symptoms and that his opinion that Claimant was not fully recovered was based on Claimant's appearance, complaints about pain, range of motion, and movements. (Gerbo Dep. at 35-37, R.R. at 136-38.)
In reviewing the testimony of the three physicians, we note that they all agreed that Claimant magnified his symptoms and that some of the tests they performed on Claimant were not purely objective, meaning that the validity of the results were questionable because Claimant could affect the results of the test by saying he was in more pain or refusing to move a certain way. Notwithstanding Dr. Gerbo's testimony that symptom magnification does not negate the possibility of pain, he acknowledged that such conduct makes it difficult to interpret some test results. Furthermore, all three doctors agreed that Claimant had no objective orthopedic abnormalities. Thus, the record contains evidence that supports the WCJ's reasons for finding the testimony of Dr. Kramer and Dr. Steinman more credible than Dr. Gerbo's contrary testimony. Accordingly, Claimant's argument that the WCJ's findings are contrary to the evidence fails.
Claimant briefly mentions in his brief that the finding of a full recovery is not supported by substantial evidence. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Pittsburgh v. Workers' Compensation Appeal Board (Wilson), 11 A.3d 1071, 1075 n.4 (Pa. Cmwlth. 2011) (citing Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth 1988)). The credited testimony of Dr. Steinman and Dr. Kramer constitutes substantial evidence that supports the WCJ's decision to grant the Petition.
Claimant also contends that the WCJ's credibility determination was erroneous because it was based on a misapprehension of material facts, specifically that there was objective evidence to support his complaints of pain where his leg raising test results were positive and Dr. Gerbo's testimony that symptom magnification does not negate genuine symptoms. A WCJ is required to adequately explain his or her reasoning for accepting or rejecting certain evidence in order to assure the parties have a fair decision and that "a legally erroneous basis for a finding will not lie undiscovered." PEC Contracting Engineers v. Workers' Compensation Appeal Board (Hutchison), 717 A.2d 1086, 1088 (Pa. Cmwlth. 1998). "[A] judge's expression of the basis for a decision may reveal distinct legal error, as in the misapprehension of a governing standard or a material fact." Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 79, 828 A.2d 1043, 1054 (2003). "For instance, if a WCJ rejects evidence based on an erroneous conclusion that testimony is equivocal, or that the evidence is hearsay or for some other reason incompetent, such legal error will be evident and can be corrected on appeal." PEC Contracting Engineers, 717 A.2d at 1088-89.
It was within this WCJ's province to credit or not to credit Dr. Gerbo's opinion that symptom magnification does not negate signs of genuine pain. Whereas Dr. Steinman, Dr. Kramer, and Dr. Gerbo all acknowledged that Claimant exhibited symptom magnification or symptom modification, Claimant's witness, Dr. Gerbo, admitted that Claimant's symptom magnification "ma[d]e it more of a challenge . . . to interpret the history and physical." (Gerbo Dep. at 12-13, R.R. at 113-14.) In addition, the three doctors agreed that the tests performed on Claimant, such as the straight leg test, were not purely objective. (Kramer Dep. 13, R.R. at 267; Steinman Dep. at 17, R.R. at 217; Gerbo Dep. at 29, 32, R.R. at 130, 133.) Furthermore, Claimant's assertion that his positive straight leg test constituted support for his ongoing pain ignores that Claimant's recent straight leg tests were negative and that the positive result occurred during Dr. Steinman's initial examination of Claimant, only five days after the work incident on August 3, 2007. Thus, although it would not be unusual for Claimant to exhibit a positive straight leg test immediately following the work incident, Claimant's continued reliance on that test was questionable, particularly where Dr. Steinman opined that Claimant had fully recovered from his work-related injuries. For the foregoing reasons, we conclude that the WCJ did not base the credibility determinations on a misapprehension of material fact and they have the requisite measure of support in the record.
In conclusion, the WCJ properly held that the record should not have been reopened and there was evidence to support the WCJ's credibility determinations. For these reasons, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, August 12, 2011, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge