Opinion
No. 1506 C.D. 2012
01-14-2013
Ruth Dupree, Petitioner v. Workers' Compensation Appeal Board (Resources for Human Development), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Ruth Dupree (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's denial of her petition for benefits.
Claimant worked as a residential aide caring for mentally and physically challenged individuals. For approximately six months before she suffered an alleged injury, Claimant worked at the Rockwell site which was operated by Resources for Human Development (Employer). Claimant allegedly suffered a work-related injury on January 12, 2009. On January 19, 2010, Claimant petitioned for benefits and alleged that she suffered an "injury to lower back with pain radiating down both legs, injury to right knee" which occurred when she "was lifting a patient from a wheelchair, the patient fell pulling us both to the floor." Claim Petition, January 19, 2010, at 1. Claimant listed her employer as Delta T Group, Inc. (Delta). Delta asserted that it did not have an employer/employee relationship with Claimant.
At the initial hearing before the WCJ, Delta's counsel, Mark Minicozzi (Attorney Minicozzi), stated that "this is a Delta T case where they sign an independent contract agreement. And I anticipate, just to let Your Honor know, that I do anticipate joining another entity." Notes of Testimony, March 3, 2010, (N.T.) at 3-4. The WCJ decided to bifurcate the matter and initially limited testimony related to whom employed Claimant.
The WCJ explained to counsel:
Judge Melcher: Why don't we limit the testimony to those kind [sic] of questions if we are going to bifurcate and we can make that determination first and then go forward from there.N.T. at 4-5.
Ms. Colton [Claimant's counsel]: Okay. So you want me to limit it to -
Judge Melcher: The employment status issue and who she was employed with.
Ms. Colton: Okay. Not what happened to her.
Judge Melcher: No, because if we are going to have a bifurcated issue anyway we may not ever get to that, or at least we won't get to it with this particular defendant. I don't know that for sure. But until we know which defendant should be involved, it seem [sic] kind of futile because you will be back here taking testimony on the same exact issues all over again with the new defendant.
Claimant testified regarding the status of her employment. She also testified "I got hurt that night. Like 7:00 that night I got hurt. And then the next day I reported it to Delta T. that I got hurt at Rockwell lifting a patient." N.T. at 14.
On March 8, 2010, Delta petitioned to join Employer. Delta and Employer each presented a witness in a subsequent hearing before the WCJ. On August 20, 2010, the WCJ entered an interim/interlocutory order and determined that Claimant was not an independent contractor and was an employee of Employer.
The identity of Claimant's employer is not presently contested.
Claimant presented the deposition testimony of John J. Bowden, Jr., D.O. (Dr. Bowden), board-certified in family medicine and Claimant's treating physician. Dr. Bowden testified that he first examined Claimant on March 2, 2009, when she complained of right knee and back pain. Deposition of John J. Bowden, Jr., D.O., November 30, 2010, (Dr. Bowden Deposition) at 6. Dr. Bowden initially diagnosed Claimant with post-traumatic lumbosacral sprain with strain and posttraumatic right knee strain and sprain. Dr. Bowden Deposition at 8. Dr. Bowden prescribed physical therapy and epidural blocks of the lumbar spine. Dr. Bowden described the results of Claimant's medical testing:
[An EMG] was an abnormal study, and it was positive for an S1 radiculopathy, right slightly worse than the left and also indicating that it was positive on the right as well. She underwent an MRI study, a second MRI study, which was taken on the 16th of September 2010, of the right knee, which revealed a posterior medial meniscus tear.Dr. Bowden Deposition at 9.
Dr. Bowden opined within a reasonable degree of medical certainty that Claimant had a meniscal tear of the right knee, posttraumatic lumbar radiculopathy, a posttraumatic lumbar myoligamentous injury, posttraumatic chronic pain syndrome of the right knee and the lumbar spine caused by the January 12, 2009, incident. Dr. Bowden Deposition at 12. He further opined that Claimant was totally disabled from all work due to pending arthroscopic surgery, the severity of her pain, and narcotic medication. Dr. Bowden Deposition at 12.
Employer presented the deposition testimony of Curt D. Miller, M.D. (Dr. Miller), a board-certified orthopedic surgeon. On December 13, 2010, Dr. Miller examined Claimant, took a history, and reviewed medical records. As part of the history told to him by Claimant, Dr. Miller reported:
On January 12, 2009, she was in a private home helping a patient with cerebral palsy. When the patient went to get out of a chair to the toilet, she started to lose her balance. Ms. Dupree grabbed her, and she states that she fell to the floor and banged her right knee.Deposition of Curt D. Miller, M.D., March 2, 2011, (Dr. Miller Deposition) at 8-9.
Dr. Miller determined that Claimant had sustained a contusion to the patella of the right knee and, based on her history, a low back strain. Dr. Miller opined that both conditions had resolved. Dr. Miller Deposition at 14. He believed that the conditions were caused by the January 12, 2009, incident. Dr. Miller Deposition at 14-15. He believed that Claimant was fully recovered and that any abnormal findings in the examination were due to degenerative changes in the knee and degenerative arthritis in the back. Dr. Miller Deposition at 15, 18-19.
The WCJ denied and dismissed the petition for benefits and dismissed the joinder petition as moot. The WCJ made the following relevant findings of fact:
5. At the hearing on March 3, 2010 it was agreed that the parties were going to limit Claimant's testimony to testimony regarding who the employer was at the time of her injury. It was agreed that any testimony regarding Claimant's alleged injury would be presented at a later time after a determination was made about who employed Claimant. Therefore Claimant did not testify regarding her injury at the March 3, 2010 hearing. On August 20, 2010 this Judge issued an Interlocutory Decision and Order finding that Claimant was not an independent contractor and was an employee of RHD [Employer]. Claimant was given a deadline of October 29, 2010 to complete all evidence and RHD [Employer] was given a deadline of January 27, 2011. Three additional hearings were held in this matter but Claimant did not testify. The parties were also advised that if they chose to do so, they could proceed with testimony by deposition. Claimant never testified via deposition. The final hearing was held on March 30, 2011 and at that time the parties submitted all evidence and rested. Again, no testimony was presented from Claimant.WCJ's Decision, July 2, 2011, Findings of Fact Nos. 5, 11-12 at 4 and 6.
. . . .
11. Based on a review of the evidence as whole, this Judge finds the testimony of Claimant credible but not as persuasive as to whether an injury occurred as Claimant did not testify about that issue. It is impossible to assess Claimant's credibility on an issue about which she did not testify.
12. Based on a review of the evidence as a whole, this Judge finds the testimony of Dr. Miller more credible and persuasive than that of Dr. Bowden. This credibility determination is based, in part, on the fact that the MRI taken only three months after the work injury did not reveal a meniscal tear, yet Dr. Bowden insisted that Claimant's right leg injury consisted of a meniscal tear. Furthermore, Dr. Miller is an orthopedic surgeon whereas Dr. Bowden is not.
Claimant appealed to the Board which affirmed.
Claimant contends that the WCJ's denial of the claim petition was unsupported by substantial competent evidence because Claimant did testify as to the occurrence of her work injury on January 12, 2009, and the medical evidence of record established that Claimant sustained work-related injuries to her right knee and low back on January 12, 2009.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
In a claim petition the claimant bears the burden of proving all elements necessary to support an award. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). To sustain an award, the claimant has the burden of establishing that he suffered a work-related injury and this injury resulted in disability. If the causal relationship between the claimant's work and the injury is not clear, the claimant must provide unequivocal medical testimony to establish a relationship. Holy Family College v. Workmen's Compensation Appeal Board (KYCEJ), 479 A.2d 24 (Pa. Cmwlth. 1984).
For workers' compensation purposes, disability is equated with a loss of earning power. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993).
Here, the WCJ specifically ordered the parties to defer any evidence regarding the nature and extent of Claimant's injury until after the WCJ rendered his decision regarding whether Claimant was an employee or an independent contractor, and, if Claimant were an employee, who was her employer.
A review of the record reveals that Claimant failed to present any evidence as to how she was injured once the WCJ opened the proceedings on the nature and extent of Claimant's injury. This Court agrees with the WCJ and the Board that Claimant failed to establish the elements necessary to support an award.
Claimant argues that while she failed to present personal testimony concerning causation and the injury she allegedly suffered in that phase of the proceedings, she did in the initial hearing when she testified "I got hurt that night. Like 7:00 that night I got hurt. And then the next day I reported it to Delta T. that I got hurt at Rockwell." N.T. at 14.
First, a problem arises if this Court were to accept that this testimony was sufficient for Claimant to meet her burden. When Claimant's counsel questioned her, it was before the WCJ and Attorney Minicozzi, counsel for Delta. At the time Delta had not yet petitioned to join Employer. Therefore, Employer was unable to cross-examine Claimant.
Second, Claimant spoke in very general terms concerning the specifics of her injury. In its opinion, the Board stated:
Although Claimant testified that she reported 'to Delta T. that I got hurt at Rockwell lifting a patient,' this was not
sufficient to satisfy her burden to establish the occurrence of a work-related injury. Claimant failed to testify as to where she was injured, how she was injured, when she was injured, or what type of injury she had sustained. Thus, her testimony that she reported to Delta T that she was hurt lifting a patient is not enough to satisfy her burden.Board Opinion, July 10, 2012, at 3. This Court must agree with the Board.
Claimant also asserts that the medical evidence supports an award of benefits because both medical witnesses referred to Claimant's injury on January 12, 2009, based on the history reported to each of them by Claimant. The testimony of the medical witnesses was based on the history relayed to them by Claimant.
"An expert's opinion based upon assumptions contrary to the established facts is worthless." State Workmen's Insurance Fund v. Workmen's Compensation Appeal Board (Wagner), 677 A.2d 892 (Pa. Cmwlth. 1996). Similarly, in Southeastern Pennsylvania Transportation Authority v. Workers' Compensation Appeal Board (Herder), 765 A.2d 414, 417 (Pa. Cmwlth. 2000), this Court stated, "[w]hile an expert witness may base an opinion on facts of which he has no personal knowledge, those facts must be supported by evidence of record."
Here, while Dr. Miller testified that Claimant suffered a right patella and low back strain on January 12, 2009, when she attempted to lift a patient from a chair to the toilet, this determination was made on the basis of the history relayed to Dr. Miller from Claimant. However, Claimant's reported history to Dr. Miller is unsupported by evidence in the record.
Dr. Bowden's testimony on this issue does not support Claimant's position because the WCJ did not find Dr. Bowden credible. The WCJ, as the ultimate finder of fact in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995). --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of January, 2013, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge