Opinion
No. 95 C.D. 2014
10-03-2014
Eagleville Hospital, Petitioner v. Workers' Compensation Appeal Board (Marrero), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Eagleville Hospital (Employer) challenges the order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) grant of Juan Marrero's (Claimant) Petition to Review Compensation Benefits (Review Petition) and denial of Employer's three Suspension Petitions and its Petition to Terminate Compensation Benefits.
On March 2, 2010, Claimant was employed as a groundskeeper/housekeeper for Employer when he slipped and fell on ice.
Pursuant to a "Temporary" Notice of Compensation Payable issued on March 22, 2010, Employer acknowledged an employment injury to the right knee and lower back in the form of a torn meniscus of the right knee and a sprain of the lower back. Claimant was paid compensation benefits in the amount of $417.73 based upon an average weekly wage of $464.14.
On September 24, 2010, Employer filed a Petition to Suspend Compensation Benefits and alleged that on September 23, 2010, "Claimant failed to respond in good faith to Defendant's [Employer] job offer that would have provided him earning power equal to his pre-injury average weekly wage." Employer's Petition to Suspend Compensation Benefits, September 24, 2010, at 2.
On April 19, 2011, Employer filed a Petition to Terminate Compensation Benefits (Termination Petition) and alleged that as of April 8, 2010, Claimant was fully recovered.
On June 13, 2011, Employer filed another Petition to Suspend Compensation Benefits and alleged that Claimant failed to respond in good faith to Employer's September 23, 2010, job offer. Employer maintained that following Claimant's surgery, he was again capable of performing that job on April 8, 2011.
On June 16, 2011, Employer filed a third Petition to Suspend Compensation Benefits and alleged that on June 13, 2011, Claimant failed to respond in good faith to Employer's modified job offer.
The WCJ denied Employer's Termination and Suspension Petitions and they are not before this Court.
On October 18, 2010, Claimant filed a Review Petition and alleged there was an:
[I]ncorrect description of injury...[t]he NCP [Notice of Compensation Payable] filed in this case dated 3/22/2010 contains a material mistake of fact. It only described Claimant's low back injury as a sprain. Claimant actually suffered a disc protrusion/bulge/herniation in his lower back in the work accident. Claimant asks the Judge to expand the accepted injury accordingly...Claimant's Petition to Review Compensation Benefits, October 18, 2010, at 1.
On October 22, 2010, Employer filed a response and admitted allegations such as the issuance of a Notice of Compensation Payable but denied other allegations as to the description of the injury.
Claimant testified that on March 2, 2010, he slipped and fell on ice and injured his knee and low back while on his way to work for Employer. Notes of Testimony, June 17, 2011 (N.T. 6/17/11), at 11. Claimant treated with Joseph Bernstein, M.D. (Dr. Bernstein), board-certified in orthopedic surgery, and underwent knee surgery on December 17, 2010, for his right knee. N.T. 6/17/11 at 12. Claimant also treated with John J. Park, M.D., (Dr. Park) board-certified in anesthesia and pain management, for therapy on his back. N.T. 6/17/11 at 12. Claimant could not return to his pre-injury position as a housekeeper because of his knee and lower back injuries. N.T. 6/17/11 at 16. Claimant admitted that he suffered a prior back injury in 2009 which resolved after a few days and didn't prevent him from performing his pre-injury position. N.T. 6/17/11 at 18. Claimant also was involved in a motor vehicle accident in 2005. N.T. 6/17/11 at 23. Claimant's "back is hurting....[m]y knee hurts every once in a while, but I can walk...I can't do much because my back starts to hurt. I get a lot of pain in my lower back." Notes of Testimony, March 8, 2011 (N.T. 3/8/11) at 47.
Dr. Bernstein testified by deposition on behalf of Claimant. Dr. Bernstein first examined Claimant on October 27, 2010, and took Claimant's medical history. Deposition of Joseph Bernstein, M.D., May 18, 2011, (Dr. Bernstein Deposition), at 8; R.R. at 122a. Dr. Bernstein reviewed Claimant's March 4, 2010, MRI films and determined that Claimant suffered a medial and lateral meniscus tear. Dr. Bernstein Deposition at 8 and 14; R.R. at 122a and 128a. Dr. Bernstein recommended that Claimant see Dr. Tjoumakaris who performed knee surgery on December 17, 2010. Dr. Bernstein Deposition at 9; R.R. at 123a. Dr. Bernstein saw Claimant twice after surgery and determined that Claimant was not fully recovered and could not return to his regular full-duty job. Dr. Bernstein Deposition at 11; R.R. at 125a. Dr. Bernstein opined that Claimant could perform a sit-down job or sedentary duty. Dr. Bernstein Deposition at 12; R.R. at 126a.
Claimant also submitted the deposition testimony of Dr. Park. Dr. Park first saw Claimant on January 6, 2011, and took Claimant's medical history. Deposition of John J. Park, M.D., June 8, 2011, (Dr. Park Deposition) at 4; R.R. at 246a. Claimant complained of a "constant aching and throbbing pain across his low back with radiation of that pain into both legs that was greater on the right side. He also had numbness and tingling of the right leg as well as weakness of the right leg." Dr. Park Deposition at 11; R.R. at 249a. Dr. Park performed an examination and diagnosed Claimant with lumbar discogenic pain, lumbar disc displacement, and radiculitis. Dr. Park Deposition at 15; R.R. at 253a. Dr. Park opined that Claimant's conditions were causally related to the March 2, 2010, work-related injury and that Claimant was not able to work in any capacity because of his back injury. Dr. Park Deposition at 16-18; R.R. at 254a-256a. Dr. Park did not believe Claimant recovered from his low back strain as of April 8, 2011. Dr. Park Deposition at 26; R.R. at 264a.
Employer submitted the deposition testimony of John Nolan, M.D., (Dr. Nolan), board-certified in orthopedic surgery. On August 13, 2010, Dr. Nolan performed a physical examination on Claimant, took Claimant's history, and reviewed his medical records. Deposition of John Nolan, M.D., May 31, 2011, (Dr. Nolan Deposition) at 13-14; R.R. at 175a-176a. Dr. Nolan's physical examination revealed that Claimant had "[s]ome soreness of the medial aspect of his knee with an equivocally positive McMurray's test, in that it was symptomatic it's technically McMurray's was negative. There was no locking. He had findings which could possibly be consistent with a meniscal tear." Dr. Nolan Deposition at 17; R.R. at 179a. With regard to Claimant's back, "[h]e had a somewhat diminished range of motion....There was no evidence of any radiculitis or radiculopathy." Dr. Nolan Deposition at 17; R.R. at 179a. Dr. Nolan opined that Claimant "could return to work in a capacity, it's a question of 'what' capacity. And I did fill out some [physical capabilities checklist] which restricted his walking and climbing and things like that." Dr. Nolan Deposition at 19; R.R. at 181a. Dr. Nolan re-examined Claimant on April 8, 2011, and concluded that "[h]is knee exam was essentially normal...he had no evidence of any internal derangement. His back exam was notable for diminished range of motion, which again is hard to say whether that's volitional or not, but he had no evidence of a radiculitis or a radiculopathy." Dr. Nolan Deposition at 26; R.R. at 188a. Dr. Nolan opined:
[Claimant] sustained an injury to his knee, he may have caused or aggravated a meniscal tear, and in the absence of any previous injuries we presume that he may have caused that. I initially recommended surgery. He ended up having surgery. He ended up doing well. His exam is benign following the surgery...my opinion is he has recovered from that injury and he can return to work without any specific restrictions.
As to his back, he had by MRI report evidence of a significant L5-S1 disc herniation, may have been caused or aggravated by the work injury, although there is evidence that he had a herniated disc before that based on the clinical findings back in 2006, had a course of treatment which certainly may have been reasonable. And as of the time when I saw him, he had no evidence of the neck of disc herniation or lumbar radiculitis or
radiculopathy. So it's my impression that he had recovered from the injury and he could also return to work without restrictions.Dr. Nolan Deposition at 31-32; R.R. at 193a-194a.
In further support of the Petition, Employer presented a surveillance DVD of Claimant from August 30, 2010, through October 1, 2010, and again in April 2011, and May 2011. Claimant was observed walking, driving, carrying, and bending during this surveillance.
The WCJ granted Claimant's Review Petition and found:
14. Having heard the Claimant's live testimony and viewed his comportment and demeanor, this Judge finds the Claimant to be credible, convincing and worthy of belief. In coming to this conclusion, this Judge has considered
a) The consistency of the Claimant's complaints since the date of injury to all of the physicians and to This [sic] Judge.
b) The consistent [sic] of Claimant's treating physicians' opinions on his physical condition and his capabilities there from [sic].
c) The consistency of Claimant's testimony as to his physical capabilities and those activities depicted on the DVD surveillance.
15. This Judge finds the deposition testimony of Joseph Bernstein, M.D. to be credible, convincing and worthy of belief. In coming to this conclusion, this Judge considered the following:
a) The opinions of Dr. Bernstein were based upon consistent complaints given by the Claimant and the activities depicted on the DVD surveillance.
b) The opinions of Dr. Bernstein are consistent with the opinions of the other orthopedic surgeons who examined the Claimant, Dr. Tjoumakaris and the Employer's medical expert, John Nolan, M.D. as to the right knee injury.
c) The opinions of Dr. Bernstein were supported by the diagnostic studies performed upon the Claimant.
d) John Nolan, M.D., the Employer's own medical expert acknowledged an injury to Claimant's right knee, recommended arthroscopic surgery to ascertain the extent of the injury and opined the surgery to be reasonable, necessary and related to the incident.
16. This Judge finds the deposition of Claimant's medical expert John J. Park, M.D. to be credible, convincing and worthy of belief. In coming to this conclusion,
a) The opinions of Dr. Parks [sic] were based upon consistent complaints given by the Claimant and the activities depicted on the DVD surveillance.
b) The opinions of Dr. Parks [sic] were supported by the diagnostic studies performed upon the Claimant.
c) John Nolan, M.D., the Employer's own medical expert acknowledged the MRI study showed disc herniation at L5-S1.
WCJ's Decision, April 5, 2012, Findings of Fact (F.F) Nos. 14-17 at 8-9.
17. This Judge finds the description of injury sustained by the Claimant on March 2, 2010 should include a disc herniation at L5-S1 with radiculopathy and medial and lateral meniscus tears of the right knee.
The Board affirmed.
On appeal, Employer contends that the WCJ committed an error of law when it expanded Claimant's work injury description to include a lumbar disc herniation and lumbar radiculopathy, based upon allegedly legally incompetent expert medical opinion. Employer also argues that the WCJ's findings of fact were not supported by substantial evidence.
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).
First, Employer maintains that the WCJ erred when it granted Claimant's Review Petition.
Where a claimant files a Petition to Review Compensation Benefits seeking to amend an NCP to include additional work injuries, the evidentiary burden is on the claimant just as if he filed a Claim Petition. Degraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). A claimant must show that the additional injuries alleged are causally related to the work injury. Id. In cases where the causal relationship is not obvious, a claimant must establish causation with unequivocal medical evidence. Id.
In the present controversy, the WCJ determined that Claimant and his medical experts were "credible, convincing and worthy of belief." WCJ's Decision, Finding of Fact Nos. 14-16. 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, 600 A.2d 541 (Pa. 1991). Claimant described his ongoing pain and inability to perform certain functions. Claimant's medical experts met the burden associated with a Petition to Review Compensation Benefits and established that the description of Claimant's work-related injury should be amended to include a disc herniation at L5-S1 with radiculopathy and medial and lateral meniscus tears of the right knee. WCJ's Decision, F.F. No. 21, at 9. This Court will not disturb a WCJ's finding when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
Employer argues that the record does not support a finding that Claimant's injuries were causally related to the March 2, 2010, injury for four reasons: 1) Claimant provided a false medical history to his doctors; 2) the diagnostic evidence was insufficient to establish medical fact upon which any medical expert could attribute Claimant's back injuries to the work incident; 3) Claimant presented contraindicative clinical findings; and 4) Employer's surveillance evidence confirmed that Claimant did not exhibit any physical deficit that supported a finding that his work injury caused a lumbar disc herniation or radiculopathy.
Contrary to Employer's argument, Claimant did not provide a false medical history to his doctors. Dr. Park indicated that Claimant informed him that he "does have some history of a back problem that...he suffered from...another work injury, but he was out of work for a couple of days and he went back to work. He was not getting active treatment" and Claimant was not under any work restrictions because of a physical problem as of March 2, 2010. Dr. Park Deposition at 10-11; R.R. at 248a-249a.
The diagnostic evidence was sufficient to establish facts upon which medical experts could attribute Claimant's back injuries to the work-related incident. Employer's expert, Dr. Nolan, admitted that the March 2, 2010, injury "may have caused or aggravated" the herniated disc at L5-S1 as seen in the MRI of April 19, 2010. Dr. Nolan Deposition at 44; R.R. at 206a.
Contrary to Employer's assertion, Claimant did not present contraindicative clinical findings. Claimant provided Dr. Bernstein and Dr. Park with a complete medical history and each doctor performed multiple physical examinations on Claimant. The WCJ concluded that the opinions of Dr. Bernstein and Dr. Park were "consistent with the opinions of the other orthopedic surgeons who examined" Claimant and "supported by the diagnostic studies performed upon" Claimant. WCJ's Decision, F.F. Nos. 15-16. Again, Employer is merely attempting to discredit the medical testimony.
Additionally, the WCJ determined that the activities depicted on Employer's DVD surveillance were consistent with Claimant's complaints.
The weight to be accorded the various statements made by Claimant and the medical experts and their credibility is exclusively a function for the finder of fact and not the reviewing Court.
Employer also contends that the WCJ's findings of fact were not supported by substantial evidence.
More specifically, Employer asserts that the WCJ failed to address that Claimant has a history of "crimen falsi" convictions, that Claimant owns and operates a motor vehicle without a driver's license, that Claimant was dishonest on the resume he submitted to Employer, and that Claimant did not provide an accurate medical history to Dr. Park and Dr. Nolan.
Again, Employer appears to be attacking Claimant's credibility. The WCJ did not make any findings with regard to these accusations. This Court will not reweigh evidence or review credibility of witnesses.
Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Bethenergy Mines v. Workmen's Compensation Appeal Board (Skirpan), 612 A.2d 434 (Pa. 1992). Additionally, in performing a substantial evidence analysis, this Court must view the evidence in a light most favorable to the party who prevailed before the factfinder. Birmingham Fire Ins. Co. v. Workmen's Compensation Appeal Board (Kennedy), 657 A.2d 96 (Pa. Cmwlth. 1995). Moreover, the party prevailing before the factfinder is entitled upon appellate review to "have the benefit of the most favorable inferences deducible from the evidence[.]" Flexer v. Workmen's Compensation Appeal Board (Wilson), 317 A.2d 53, 53 (Pa. Cmwlth. 1974). Furthermore, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is any evidence which supports the WCJ's factual finding. Grabish v. Workmen's Compensation Appeal Board (Trueform Foundations), 453 A.2d 710 (Pa. Cmwlth. 1982).
Here, the WCJ explained that she found Claimant to be more credible after viewing Claimant's "comportment and demeanor." The WCJ considered the consistency of Claimant's complaints and the treating physicians' testimony, as well as Claimant's activities that were depicted on the DVD surveillance. WCJ's Decision, F.F. No. 14, at 8. The WCJ's credibility determinations of Dr. Bernstein and Dr. Park were supported by substantial evidence and their opinions were consistent with the opinions of other orthopedic surgeons who examined Claimant and by diagnostic studies performed upon Claimant. WCJ's Decision, F.F. Nos. 15-16, at 8. Further, the WCJ noted that Employer's own medical witness admitted that the work injury of March 2, 2010, could have caused or aggravated Claimant's herniated disc shown in the MRI study. WCJ's Decision, F.F. No. 16, at 8. This Court is satisfied that there was substantial evidence to support the WCJ's grant of Claimant's Review Petition.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 3rd day of October, 2014, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge