Opinion
No. 1388 C.D. 2013
01-15-2014
Elliot-Lewis Corporation and Zurich American Insurance Co., Petitioners v. Workers' Compensation Appeal Board (Danser), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Elliot-Lewis Corporation (Employer) challenges the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) denial of Employer's termination petition.
Dale Danser (Claimant) was a union carpenter and, as part of her job, would assemble and dismantle displays, booths, and kiosks at the Philadelphia Convention Center. On May 3, 2009, while in the employ of Employer, Claimant was pushing a heavy cart filled with drapes and poles when the wheels came in contact with two-sided tape on the floor which caused both of Claimant's knees to strike the back of the cart. On May 18, 2009, Employer issued a notice of temporary compensation payable and identified the compensable injury as a left knee sprain which occurred "while pushing cart twisted knee & hit it on her cart." Notice of Temporary Compensation Payable, May 18, 2009, at 1; Reproduced Record (R.R.) at RR-32a. Under the terms of the Notice of Temporary Compensation Payable Claimant was to receive weekly compensation benefits of $519.17 based on an average weekly wage of $778.76 for a maximum of ninety days.
On September 30, 2009, Claimant petitioned for benefits and alleged additional compensable injuries to her "bilateral lower extremities and hips and low back" as a result of the May 3, 2009, incident. Claim Petition, September 30, 2009, at 1; R.R. at RR-6a. Also, on September 30, 2009, Claimant petitioned to review compensation benefits and alleged that her injuries included "bilateral lower extremities and hips and low back as additional compensable injuries." Petition to Review Compensation Benefits, September 30, 2009, at 1; R.R. at RR-10a.
On April 14, 2010, Employer petitioned to terminate benefits and alleged that Claimant fully recovered from her work-related injury as of October 26, 2009. The WCJ consolidated the three petitions.
Claimant described how she was injured: when she pushed her cart "it caught onto something and it stopped dead in front of me." Deposition of Dale Danser, March 26, 2010, (Danser Deposition) at 6; R.R. at RR-213a. Claimant testified that both of her knees impacted the cart. Danser Deposition at 6; R.R. at RR-213a. Claimant's left knee was swollen immediately after the incident. Danser Deposition at 7; R.R. at RR-213a. At the time of the deposition, Claimant had "pain down either side" of her right knee, shooting pain down her left leg and low back pain, and pain in the left side of her hip. Claimant attributed these conditions to the incident with the cart in part because the pain in her left knee forced her to change the way she walked. Danser Deposition at 8-9; R.R. at RR-213a. Claimant did not have these problems prior to the May 3, 2009, incident. Danser Deposition at 11; R.R. at RR-214a. On cross-examination, Claimant stated that her left knee had not improved since she began treatment with Richard H. Kaplan, M.D. (Dr. Kaplan). Danser Deposition at 43-44; R.R. at RR-223a.
Claimant presented the deposition testimony of Dr. Kaplan, board-certified in physical medicine and rehabilitation and Claimant's treating physician since August of 2009. When Claimant initially treated with Dr. Kaplan, she was focused completely on her left knee. However, Dr. Kaplan explained:
[I]t was clear that the knee was causing - you know, the left knee was clearly identified as the problem, the right knee was also hurting off and on, she had banged that, and she was having trouble walking.Deposition of Richard H. Kaplan, M.D., March 10, 2010, (Dr. Kaplan Deposition) at 14-15; R.R. at RR-46a-RR-47a.
As noted just on the first visit, she was really asymptomatic at all when she would lay in bed and rest, but as she started moving around, everything she did would hurt. She developed pain throughout the left thigh, the hip and into the back.
When you have a knee problem, you will develop back pain as secondary abnormal mechanics. If you have one bolt missing on your wheel in a car . . . five bolts, and drive around that way, eventually the other ones are going to get loose.
Dr. Kaplan commented on whether the description of Claimant's left knee injury as a left knee sprain in the notice of compensation payable was correct:
Well, it's accurate in what it says. It's inaccurate inasmuch as it's incomplete. She did in fact sprain her knee. She did have a contusion of her knee. She has an internal derangement of the knee. She has a popliteal cyst and a knee effusion. So overall it's a joint - an internal derangement of the knee. We can cover them all in one diagnosis. If you want to have many, you can identify three different areas where there's swelling and, you know, a bone contusion.Dr. Kaplan Deposition at 30; R.R. at RR-62a.
Dr. Kaplan also diagnosed Claimant with a right knee contusion. Dr. Kaplan Deposition at 31; R.R. at RR-63a. With respect to Claimant's back and hip, Dr. Kaplan made the following diagnosis:
She refers to the hip. I would say she has mechanical low back pain. It's musculoskeletal pain from poor mechanics related to her abnormal gait. You know, the muscles of the back and hip are all connected. If you imagine we're anatomically the same as dogs and cats and horses, the buttock muscles, the hip muscles attach to the spine and are part of how we walk. So it's not hip joint pain as much as it is the muscles that are involved in walking that go from the spine to the thigh.Dr. Kaplan Deposition at 32; R.R. at RR-64a. Dr. Kaplan opined that all of Claimant's injuries were caused by the May 3, 2009, work injury. Dr. Kaplan Deposition at 32; R.R. at RR-64a.
Employer presented the deposition testimony of Alexander A. Sapega, M.D. (Dr. Sapega), a board-certified orthopedic surgeon. Dr. Sapega examined Claimant on October 20, 2009, took a history, and reviewed medical records. In his examination, Dr. Sapega found no sign of any instability in Claimant's left knee. He also determined that "[t]here was nothing either objectively or subjectively abnormal about the right knee." Deposition of Alexander A. Sapega, M.D., March 30, 2010, (Dr. Sapega Deposition) at 23; R.R. at RR-168a. Dr. Sapega testified that "mechanically speaking the [left] knee just looked fine." Dr. Sapega Deposition at 24; R.R. at RR-168a. Although Dr. Sapega noted the presence of fluid in her knee in a May 12, 2009, MRI, he believed that the fluid was present prior to the May 3, 2009, work incident. Dr. Sapega Deposition at 35; R.R. at RR-171a. Dr. Sapega testified within a reasonable degree of medical certainty that Claimant's right knee "may have been bumped in a minor fashion, did not sustain a clinically consequential injury and at this time and at the time I examined her, if there is a problem with the right knee [it] has nothing to do with that work incident." Dr. Sapega Deposition at 40; R.R. at RR-172a. With respect to Claimant's left leg and other associated injuries asserted by Claimant, Dr. Sapega opined:
Now let's move to the leg and the left leg being the radiating pain, the leg weakness, the functional instability, the lack of confidence in the leg, the buckling, that is a leg issue. That is not a knee joint issue and I think there is good clinical evidence to indicate that she had a lumbar condition totally unrelated to anything that went on in her knee and unrelated to the incident in question. She has sciatica. She may have a herniated disc. She may have a stenotic spinal notch here or there, who knows. That's never been investigated, never been worked up, but it is a totally separate and unrelated issue to her knee joint and the only thing, the so-called core that may relate to her work incident is the knee joint and the orthopedic aspects of that.
Now, you take the sciatica, you take the leg, the general leg and push that off the table. So now we come down to the left knee which is the core. All right, the MRI provides us an indication that there was a modest contusion bump to the frontal aspect of the left knee. Nothing that would be of any long term consequence. It would hurt at the time, but a minor bruise that didn't cause bursitis, didn't cause patellar bruising, didn't cause internal derangement, none of that sort of stuff.Dr. Sapega Deposition at 40-42; R.R. at RR-172a-RR-173a.
Then you have the issue of the knee effusion, which as I said could not have been caused that quickly by the incident in question. It had to have been preexisting.
. . . .
So that was not acute and that cannot be related to the incident, however, the edema surrounding the popliteal cyst in my opinion could have been related to the event. As she fell over to the side trying to prevent herself from falling in a very awkward kind of body contorting sort of way, you can violently contract your muscles in a reflexive fashion and bending your knee, and so forth, you can easily pop a popliteal cyst that way. I think there is some possibility that the event may have been associated with a rupture of a preexisting popliteal cyst.
Dr. Sapega noted that the only finding of any ongoing problems of the ruptured popliteal cyst was a subjective finding "when I pressed in with my finger in the area where the popliteal cyst had been seen on MRI. There was some mild tenderness, again, subjective not . . . objective, but at least it was in the area where they [sic] cyst was." Dr. Sapega Deposition at 44; R.R. at RR-173a. Dr. Sapega admitted that there "might be something else that just hasn't come up yet of a minor nature that might be playing some minor role in her ongoing knee symptoms. . . ." Dr. Sapega Deposition at 49; R.R. at RR-174a. Dr. Sapega called Dr. Kaplan's theory that Claimant suffered injuries to her hip and low back as a result of changing her walking gait after the knee injury "basically nonsense." Dr. Sapega Deposition at 51; R.R. at RR-175a. Dr. Sapega testified that based on the contusion to the left knee and the ruptured popliteal cyst, Claimant could return to work even though there was a "little soreness left over on the popliteal cyst." Dr. Sapega Deposition at 66-67; R.R. at RR-179a. He opined that the two conditions had resolved from an objective point of view. Dr. Sapega Deposition at 67-68; R.R. at RR-179a.
The WCJ granted the review petition and amended Claimant's work-related injuries to include a left knee contusion, right knee contusion, and ruptured left popliteal cyst. The WCJ dismissed the claim petition as moot because of the grant of the review petition. The WCJ denied and dismissed the termination petition. The WCJ found Claimant credible. The WCJ made the following relevant findings of fact:
7. This Judge finds the testimony of Dr. Sapega to be credible and persuasive based upon his considerable prior experience in knee disorders, the fact that his conclusions were supported by specialized imaging views of the knee, as well as by his clinical observations. Therefore, the testimony of Dr. Sapega is generally accepted as fact. However, this Judge specifically rejects a conclusion that Claimant was fully recovered from her work-related injuries, based on Dr. Sapega's credible statement that there is a remote possibility that Claimant has something else going on in her left knee that could only be found with direct visualization either by arthroscopy or open knee surgery.
8. This Judge rejects the testimony of Dr. Kaplan where it conflicts with that of Dr. Sapega, based on the fact that Dr. Kaplan is not a knee specialist, did not refer Claimant to any specialist who would have had a greater
familiarity with the knee than he did, and on whose conclusions he could rely with confidence, and on the fact that Dr. Kaplan's conclusions are not supported by objective diagnostic or imaging studies.WCJ's Decision, February 15, 2011, Findings of Fact Nos. 7-10 at 5-6.
9. This Judge finds that Claimant is not recovered from her work-related injuries in that she still experiences pain in the knee, and still reports symptoms that were not discounted by Dr. Sapega, who has been deemed credible.
10. Dr. Sapega ultimately did not provide an opinion of full recovery.
Employer appealed the denial of the termination petition to the Board which affirmed.
Employer did not appeal the grant of the review petition.
Employer contends that Dr. Sapega's testimony was legally sufficient to support a termination of benefits.
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). --------
The employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met if an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997).
Here, Claimant credibly testified of continued pain. 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).
Under Udvari, Employer was required to prove through Dr. Sapega's testimony that Claimant was fully recovered from her work-related injury in order to terminate benefits. The WCJ found Dr. Sapega credible but found as fact that Dr. Sapega did not issue an opinion that Claimant was fully recovered. A review of Dr. Sapega's testimony provides substantial evidence to support this finding. Dr. Sapega testified that Claimant could return to work despite the probable ruptured popliteal cyst which still led to subject complaints of soreness. He further attributed the ruptured cyst to the work incident. Dr. Sapega further stated that he "might even suggest for that little soreness left over on the popliteal cyst would be a simple injection like a tennis elbow injection. . . . [I]f that doesn't work so you have a little discomfort back there. It's not the end of the world. It's not something that would stop her from working." Dr. Sapega Deposition at 66; R.R. at RR-179a. While Dr. Sapega testified that Claimant could return to work, he did not provide evidence that Claimant was fully recovered. Dr. Sapega's testimony supports the WCJ's finding that Dr. Sapega failed to provide an opinion that Claimant was fully recovered.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 15th day of January, 2014, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge