Opinion
No. 1064 C.D. 2014
05-14-2015
Falcon Drilling Company, and Zurich American Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Fisher), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Falcon Drilling Company and Zurich American Insurance Company (collectively, Falcon) ask whether a Workers' Compensation Judge (WCJ) erred in granting Michael Fisher's (Claimant) claim petition. Falcon asserts: (1) the record lacks substantial evidence to support the WCJ's determinations; (2) the WCJ did not issue a reasoned decision; and, (3) the WCJ erred in finding Claimant provided timely notice of his injury. Discerning no merit in these assertions, we affirm.
I. Background
In November 2010, Claimant filed a claim petition against Whipstock Natural Gas Service, LLC (Whipstock), alleging that in November 2007, he suffered work injuries to his left leg and back. He sought ongoing indemnity benefits as well as payment of medical bills and counsel fees. Whipstock denied the material allegations.
During these claim proceedings, testimony was received from a neurosurgeon retained by Whipstock. Within a few weeks of this testimony, in July 2011, Claimant filed another claim petition against Falcon, alleging that in January 2010, he suffered a work-related low back injury. He sought ongoing indemnity benefits from January 11, 2010 as well as payment of medical bills and counsel fees. Falcon denied the material allegations.
Claimant's claim petitions were consolidated. Hearings ensued before the WCJ.
At the hearings, Claimant testified he worked for Whipstock as a bulldozer operator. In November 2007, he stepped onto the bulldozer track while climbing down. He slipped on the track and fell about two feet to the ground, landing on his feet, which jarred his body. Claimant experienced a little burning, but he did not experience pain or numbness that day. However, the next morning, he experienced pain in his lower back. Over the next few weeks, he developed sharp pain running into his left leg.
After Claimant reported the 2007 incident, Whipstock's safety director recommended that he treat at the hospital, where he underwent x-rays and was instructed to follow up with his family physician. Claimant treated with his family physician once or twice. He then treated with a panel physician, who placed him on light duty work. Claimant worked light duty for Whipstock until January 2008, when he returned to regular duty work. He worked his regular duty job until Whipstock laid him off in February 2009 based on lack of work. He continued to experience low back and left leg pain from January 2008 through February 2009.
Of significance, Claimant did not work between February 2009 and January 2010 because he wanted to see if his symptoms would improve. Claimant agreed that between his layoff in February 2009 and January 2010, he did not seek treatment and did not feel he needed treatment. However, he also confirmed that he did not have health insurance at that time, and he was unaware his treatment could be covered by workers' compensation insurance.
In January 2010, he began working for Falcon as a rig hand. In that position, he ran a wrench and hooked 800-pound pieces of pipe onto a 65-pound rod carrier. He had to lift the carrier. Claimant only worked for Falcon for 11 days because each day caused a worsening of his pain and symptoms until he finally ceased working because of his symptoms.
In March 2010, Claimant began treating with Dr. Franklin Bizousky (Claimant's Physician), a primary care physician, who ordered x-rays and an MRI. Claimant's Physician then referred him to a neurosurgeon who performed surgery on his lower back in June 2010. While the surgery helped to alleviate pain and symptoms in Claimant's upper left leg, it did not alleviate his lower back or lower leg pain and symptoms.
Paul Gelles (Falcon's representative), who performs personnel duties for Falcon, also testified. According to Falcon's representative, Claimant spent his first day of work in the office, attending OSHA safety training. Claimant then worked on one of Falcon's drill rigs as rig hand, a job requiring a lot of bending and stooping, some lifting and some hammering. Falcon's representative described it as a "lot of manual labor[.]" WCJ Op., 7/10/12, Finding of Fact (F.F.) No. 10; Certified Record, WCJ's Hearing, 11/3/11, Notes of Testimony (N.T.) at 18. Claimant worked 108 hours during the nine days he worked for Falcon, 36 of which were overtime hours.
In support of his claim petitions, Claimant presented the deposition testimony of his Physician, who is board-certified in family practice. Claimant's Physician first treated Claimant in 2010 and obtained a history of the 2007 work incident. At the appointment, Claimant complained of low back pain radiating down his left leg. Claimant's Physician performed a physical examination. At that time, he diagnosed back pain with radiculitis. He ordered an MRI of Claimant's lumbosacral spine. Based on the results, he referred Claimant to a neurosurgeon, who performed surgery in June 2010.
Claimant's Physician treated Claimant a total of nine times. He last treated Claimant in June 2011. He opined Claimant is only capable of performing light duty work. Ultimately, Claimant's Physician diagnosed low back pain, degenerative joint disease in the low back, neuropathy of the left foot and a repaired disc herniation. He opined the 2007 work incident caused Claimant's neuropathy and left leg symptoms. He opined it was "hard" to relate Claimant's low back symptoms to the 2007 work incident; nevertheless, he believed Claimant still had symptoms secondary to that incident. F.F. No. 12. Claimant's Physician opined the 2007 work incident substantially contributed to Claimant's light duty restrictions.
Whipstock presented the deposition of Dr. John William Bookwalter, III (Whipstock's Physician), who is board-certified in neurosurgery. His testimony was central to the WCJ's resolution of the claims, and it also prompted Claimant's second claim petition against Falcon.
Whipstock's Physician evaluated Claimant in February 2011. He obtained a history of the 2007 work incident, and Claimant's subsequent treatment, reviewed various medical records and diagnostic films, and performed an examination. He noted that after treating with a panel physician, Claimant worked light duty and was then released to full duty. Claimant worked full duty until Whipstock laid him off in February 2009. In early-2010, Claimant began working for Falcon. However, he only worked for Falcon for 11 days because he experienced increased low back pain and pain down his left leg.
On the day of Whipstock's Physician's examination, Claimant complained of pain in his low back, lower left leg and foot. Whipstock's Physician noted that a December 2007 lumbar spine x-ray revealed degenerative changes, and a December 2007 lumbar spine MRI showed some central bulging at L5-S1 that was slightly eccentric to the left. He also noted mild stenosis at L4-L5 and lesser stenosis at L3-L4, as well as a congenitally narrow spinal canal. Whipstock's Physician reviewed the actual MRI study in addition to the report. He later reviewed a March 2010 MRI and noted there was clearly some interval progression of the degenerative change at L5-S1 since the 2007 MRI and there was greater lateral recess and foraminal stenosis at L5-51.
Whipstock's Physician opined that as a result of the 2007 work incident, Claimant sustained an aggravation of his pre-existing degenerative disc disease and he experienced some radiculopathic symptoms. He further opined Claimant recovered from the 2007 work incident. As such, Claimant's current complaints and symptoms were unrelated to the 2007 incident. Whipstock's Physician opined the 2007 work incident was not a substantial, contributing factor in Claimant's need for surgery in June 2010.
Whipstock's Physician explained the surgery was needed as a result of the progression of Claimant's degenerative disc disease over time and the events that transpired when Claimant returned to work for Falcon. Specifically, Whipstock's Physician opined: "[I]t would be my opinion that this was the entity [stenosis] that he aggravated as a consequence of his work activities, those 11 days in 2010." Dep. of John William Bookwalter, III, M.D., 7/7/11, at 42; Supplemental Reproduced Record (S.R.R.) at 313b. Whipstock's Physician testified by deposition for a second time in 2011. He again indicated that working for Falcon for 11 days aggravated Claimant's pre-existing stenosis.
For its part, Falcon presented the deposition testimony of Dr. Jack Wilberger (Falcon's Physician), who is also board-certified in neurosurgery. He performed an independent medical examination of Claimant in 2011. At that time, he obtained a history of the 2007 work incident and Claimant's subsequent treatment and reviewed medical records, including diagnostic studies. During the examination, Claimant complained of leg pain from his knee to his foot and back pain. Falcon's Physician reviewed 2007 and 2010 MRI reports and noted both showed degenerative disc disease at L5-S1, a minimal central protrusion of the L5-S1 disc and some mild left L5-S1 lateral recessed stenosis. Falcon's Physician opined there was no significant progression of Claimant's degenerative disc disease between the two MRIs. He also opined he could find nothing to support a conclusion that Claimant further injured his back when he returned to work with Falcon. Ultimately, Falcon's Physician opined Claimant aggravated his underlying, pre-existing back condition as a result of the 2007 work incident.
The WCJ credited the testimony of Claimant and Falcon's representative. He also credited Whipstock's Physician's testimony, finding the testimony of Claimant's Physician's less credible. Additionally, the WCJ credited Falcon's Physician's testimony to the extent it was consistent with Whipstock's Physician's testimony regarding the demands of the rig hand job with Falcon and Claimant's history of low back problems before 2010. However, as to the cause of Claimant's disability on and after June 7, 2010, the WCJ found Whipstock's Physician's testimony more credible than that of Falcon's Physician.
Based on these credibility determinations, the WCJ made the following pertinent findings:
25. While in the course of his employment by Whipstock on November 19, 2007, [Claimant] sustained an injury to his low
back. The nature of this injury was an aggravation of pre-existing degenerative disc disease with radiculopathy into his left leg.F.F. Nos. 25, 27-30, 33-34 (emphasis added). Based on these determinations, the WCJ granted Claimant's claim petition against Whipstock, in part, finding that while Claimant sustained an injury, he did not suffer any resulting wage loss. The WCJ ordered Whipstock to pay reasonable and necessary medical expenses related to the November 2007 work injury. He terminated Whipstock's liability for this injury as of February 1, 2009.
* * * *
27. [Claimant] continued to work for Whipstock without a loss of earnings from November 19, 2007 through an unspecified date in February 2009.
28. [Claimant] had fully recovered from the November 19, 2007 injury as of the date of his February 2009 layoff.
29. [Claimant] was employed by Falcon as a rig hand from December 27, 2009 through and including January 11, 2010. During that time, he worked the hours described by [Falcon's representative] and performed the rig hand duties described in his own testimony.
30. [Claimant] sustained an injury within the course of his employment by Falcon on January 11, 2010. The nature of this injury was aggravation of pre-existing foraminal stenosis in his lumbar spine.
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33. [Claimant] became totally disabled when he underwent lumbar surgery on June 7, 2010. This surgery was necessitated by interval progression of his degenerative disc disease and foraminal stenosis, as well as the January 11, 2010 injury. Both of these conditions were substantial contributing factors to the surgery and resultant disability.
34. [Claimant] has been disabled from his job with Falcon as a rig hand due to the January 11, 2010 injury since June 7, 2010.
The WCJ also granted Claimant's claim petition against Falcon. He ordered Falcon to pay Claimant total disability benefits from the date of his June 2010 surgery and continuing until Claimant's work-related disability changes or ceases. The WCJ also ordered Falcon to pay all reasonable and necessary medical expenses related to the 2010 work injury.
Claimant and Falcon appealed to the Board, which affirmed. This appeal by Falcon followed. Before this Court, Falcon filed an application for supersedeas. A single judge of this Court denied the application on the ground that Falcon did not make a strong showing that it was likely to prevail on the merits.
II. Discussion
On appeal, Falcon asserts the WCJ erred in: (1) granting Claimant's claim petition against Falcon where the record lacks substantial evidence to support the WCJ's determinations; (2) failing to issue a reasoned decision; and, (3) determining Claimant provided timely notice of his injury.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
As the ultimate fact-finder in workers' compensation cases, the WCJ "has exclusive province over questions of credibility and evidentiary weight A & J Builders, Inc. v. Workers' Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of any witness in whole or in part. Id.
"It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made." Furnari v. Workers' Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation omitted). We examine the entire record to see if it contains evidence a reasonable person might find sufficient to support the WCJ's findings. Id. If the record contains such evidence, the findings must be upheld, even though the record may contain conflicting evidence. Id. Additionally, we must view the evidence in the light most favorable to the prevailing party and give it the benefit of all inferences reasonably deduced from the evidence. Id.
A. WCJ's Determinations
Falcon first argues the WCJ erred in granting the claim petition against it as the record lacks substantial evidence to support the WCJ's determinations. The sole evidence as to any alleged injury with Falcon consists of Claimant's testimony that his low back and left leg complaints, which he developed from the injury with Whipstock, resumed after he began working for Falcon and continued over the next 10 days until he determined he could no longer perform the job. Falcon contends Claimant's testimony as to his employment was limited to a statement of increased symptoms. He made no representation that his 11 days of work resulted in any change in his physical condition beyond a continuance of symptoms in his low back and left leg that were present as a result of his 2007 injury with Whipstock. Claimant provided no testimony that his very brief employment with Falcon brought about any new symptoms. He also offered no testimony of a distinct injury to his low back while working for Falcon. Instead, he testified his symptoms from the injury with Whipstock never resolved, and he believed the resumption of symptoms was from that injury.
Falcon argues the medical expert the WCJ relied on, Whipstock's Physician, provided a conclusory opinion, unfounded by the record and contrary to Claimant's testimony, that Claimant's 11 days of employment at Falcon was a substantial cause of his disability and subsequent need for surgery. Further, Whipstock's Physician provided inconsistent opinions on the primary issue of causation—the source of Claimant's symptoms that necessitated surgery.
Falcon maintains Whipstock's Physician's opinions did not meet Claimant's burden of establishing a cumulative trauma injury or aggravation-type injury by a preponderance of the evidence. Considering the entire record, no reasonable mind could accept as adequate Whipstock's Physician's opinions as a basis to grant Claimant's claim petition. Thus, Falcon asserts, the WCJ's award is not supported by substantial evidence.
In a claim petition proceeding, the burden of proving all necessary elements to support an award rests with the claimant. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592 (Pa. 1993). The claimant must establish his injury was sustained during the course and scope of employment and is causally related thereto. McCabe v. Workers' Comp. Appeal Bd. (Dep't of Revenue), 806 A.2d 512 (Pa. Cmwlth. 2002).
Pursuant to Section 301(c) of the Workers' Compensation Act (Act), a work-related aggravation of a preexisting condition constitutes an injury. The law is clear that aggravation of a preexisting condition is compensable under the Act. Pawlosky v. Workmen's Comp. Appeal Bd., 525 A.2d 1204 (Pa. 1987). Thus, benefits may be awarded where a pre-existing condition is aggravated or accelerated by a work-related injury, even if the underlying disease or condition was not caused by a work-related incident. Lewistown Hosp. v. Workmen's Comp. Appeal Bd. (Kuhns), 683 A.2d 702 (Pa. Cmwlth. 1996); Wynn v. Workmen's Comp. Appeal Bd. (Dep't of Transp.), 466 A.2d 769 (Pa. Cmwlth. 1983). A claimant seeking benefits for the aggravation of a preexisting condition has the burden to show the injury arose in the course of employment and is related to that employment. Pawlosky. Where there is no obvious causal connection between the injury and the work-related cause, unequivocal medical testimony is necessary to establish such a connection. A&J Builders.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
Where an incident materially contributes to a prior work-related injury, a new injury, or aggravation, has occurred. McNulty v. Workers' Comp. Appeal Bd. (McNulty Tool & Die), 804 A.2d 1260 (Pa. Cmwlth. 2002); SKF USA, Inc. v. Workers' Comp. Appeal Bd. (Smalls), 728 A.2d 385 (Pa. Cmwlth. 1999). Thus, the employer at the time of the aggravation is liable for the payment of a claimant's compensation benefits. McNulty. However, if a compensable disability results directly from a prior injury but manifests itself on the occasion of an intervening incident, which does not contribute materially to the disability, the claimant has suffered a recurrence and the employer at the time of the initial injury is responsible for the payment of benefits. Id. If the sequence of events is not sufficient to establish whether a claimant has suffered an aggravation or a recurrence, unequivocal medical testimony is essential. Id.
An aggravation of a preexisting condition occurs when an intervening event materially contributes to a claimant's disability. SKF USA, Inc. v. Workers' Comp. Appeal Bd. (Smalls), 728 A.2d 385 (Pa. Cmwlth. 1999). "[I]t is sufficient in order to establish eligibility for benefits that the medical evidence establish that the injury materially contributed to the disability rather than the disability resulted from the natural progress of a pre-existing condition." Miller v. Workmen's Comp. Appeal Bd. (Pocono Hosp.), 539 A.2d 18, 20-21 (Pa. Cmwlth. 1988) (citing Halaski v. Hilton Hotel, 409 A.2d 367 (Pa. 1979)); see also Knapp v. Workmen's Comp. Appeal Bd. (GTE), 671 A.2d 258 (Pa. Cmwlth. 1996) (aggravation of preexisting condition is compensable where work-related stimuli are a substantial, contributing factor to aggravation). Whether an intervening incident materially contributed to the disability is a factual question determined by the WCJ. SKF USA, Inc.
Here, the WCJ found: "[Claimant] sustained an injury within the course of his employment by Falcon ... [i]n [t]he nature of ... [an] aggravation of pre-existing foraminal stenosis in his lumbar spine." F.F. No. 30. The WCJ determined Claimant became totally disabled when he underwent lumbar surgery on June 7, 2010. F.F. No. 33. The WCJ found this surgery was necessitated by interval progression of Claimant's degenerative disc disease and foraminal stenosis, as well as the January 2010 injury. Id. "Both of these conditions were substantial contributing factors to the surgery and resultant disability." Id. (emphasis added). The WCJ further found "[Claimant] has been disabled from his job with Falcon as a rig hand due to the January 11, 2010 injury since June 7, 2010." Id. (emphasis added).
The WCJ's findings are directly supported by the credible testimony of Whipstock's Physician. See Bookwalter Dep., 7/7/11, at 19, 25-28, 35, 38-40, 42; S.R.R. at 290b, 296b-299b, 306b, 309b-311b, 313b; see also Bookwalter Dep., 10/27/11, at 170, 185, 198, 203; Reproduced Record (R.R.) at 7, 23, 36, 41. Specifically, based on Claimant's history, his examination, and a review of medical records and diagnostic films and studies, Whipstock's Physician credibly opined Claimant suffered an aggravation of pre-existing foraminal stenosis while working for Falcon. Id. He further testified this injury was a substantial contributing factor in Claimant's need for surgery and resultant disability. Id. As a result, Whipstock's Physician opined Claimant could not perform the bulldozer operator job. See S.R.R. at 306b, 309b, 311b. Further, Falcon's Physician credibly explained Claimant's job with Falcon was far more physically demanding than the bulldozer operator job. F.F. Nos. 15, 24; Deposition of Jack Wilberger, M.D., 2/6/12, at 50; R.R. at 252. Thus, the WCJ determined Claimant was disabled from his rig hand job with Falcon. F.F. No. 33.
In light of the WCJ's supported determinations, we discern no error in the WCJ's award of indemnity benefits based on Claimant's aggravation of his pre-existing back condition. See Roberts v. Workmen's Comp. Appeal Bd. (Double R Enters.), 719 A.2d 847 (Pa. Cmwlth. 1998) (where WCJ credited physician's testimony that the claimant's employment caused and continued to aggravate her foot condition and aggravation continued as long as she worked, Board erred in reversing WCJ's grant of ongoing indemnity benefits).
Alternatively, Falcon asserts, even if the WCJ did not err, it was incumbent that he make a finding as to whether each of the 11 days Claimant worked continuously aggravated his condition to the point that the 11 days materially contributed to Claimant's disability. Thus, Falcon argues, at a minimum this Court should remand for further findings.
Contrary to Falcon's assertions, Whipstock's Physician did not diagnose a repetitive trauma injury. Rather, he credibly opined that Claimant's work for Falcon aggravated his preexisting back condition. To that end, as the Board explained:
[Whipstock's Physician] did not testify that each day at work for Falcon aggravated [Claimant's] injury; however, [Whipstock's Physician] credibly explained that Claimant's surgery was needed because of the progression of his degenerative disc disease over time and the events that transpired when he returned to work for Falcon. [Whipstock's Physician] credibly testified: '[I]t would be my opinion that this was the entity [stenosis] that he aggravated as a consequence of his work activities, those 11 days in 2010.' [Whipstock's Physician] also credibly testified that working for Falcon for eleven days aggravated his pre-existing stenosis. [Whipstock's Physician] did not use the magic words or phrase 'each day aggravated Claimant's injuries'; however, (1) pursuant to Roberts [v. Workmen's Compensation Appeal Board (Double R Enterprises), 719 A.2d 847 (Pa. Cmwlth. 1998),] such magic words are not required and the expert's testimony should be taken as a whole; but (2) we do not interpret [Whipstock's Physician's] testimony of an aggravation to have meant that ... Claimant sustained a repetitive use injury. Thus, there was no legal need or requirement for [Whipstock's Physician] to testify to a daily trauma further injuring the Claimant. Thus, we conclude that [Whipstock's Physician's] credible testimony is sufficient, under Roberts, or under a single aggravation or exacerbation of a traumatic injury, to constitute substantial, competent evidence in support of the WCJ's grant of [the claim petition] against Falcon. ...
B. Reasoned Decision
Falcon next asserts the WCJ erred in rejecting its Physician's testimony. As a result of this error, it contends, the WCJ did not articulate a valid, objective basis for his decision in violation of the reasoned decision requirement of Section 422(a) of the Act, 77 P.S. §834.
Falcon argues its Physician testified Claimant did not sustain an injury in the course of his employment with Falcon. The WCJ, however, determined the testimony of Whipstock's Physician was more credible than that of Falcon's Physician as to the cause of Claimant's disability as of June 2010. The WCJ discredited Falcon's Physician's testimony on the basis that he did not explain how Claimant's work at Falcon could have intensified his symptoms without aggravating his underlying condition. Essentially, the WCJ placed the burden on Falcon to establish Claimant did not sustain an injury by discrediting Falcon's Physician's testimony on the ground that he did not explain why an injury did not occur. In a claim petition, however, an employer is never required to prove an injury did not occur; instead, the claimant must prove an injury did occur. Thus, the WCJ erred in discrediting Falcon's Physician's on this basis.
In addition, Falcon contends the WCJ improperly rejected Falcon's Physician's opinion because he admitted it is possible that heavy duty repetitive work can aggravate a pre-existing back condition. The WCJ also violated the reasoned decision requirement by failing to address and resolve conflicts between the testimony of Claimant and Whipstock's Physician. Thus, Falcon argues, the WCJ did not provide the parties with a reasoned decision.
As to the reasoned decision requirement, Section 422(a) of the Act states, as pertinent:
All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence.77 P.S. §834. Section 422(a) facilitates meaningful appellate review by requiring a WCJ to issue a reasoned decision containing findings of fact and conclusions of law based on the evidence as a whole and clearly stating the rationale for the decision. Id.
In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003), our Supreme Court considered the proper construction of Section 422(a)'s reasoned decision requirement in a case with conflicting evidence. In considering what constitutes an adequate explanation for resolving conflicting testimony, the Court distinguished between live testimony and deposition testimony. Specifically, the Court stated:
In a case where the fact-finder has had the advantage of seeing the witnesses testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible, in the absence of some special circumstance, could be sufficient to render the decision adequately reasoned.Id. at 1053. On the other hand, however, where witnesses provide conflicting testimony by way of deposition, a WCJ must articulate some objective basis for his credibility determination. Id.
The Court in Daniels further explained:
[T]here are countless objective factors which may support the decision to accept certain evidence while 'rejecting or discrediting competent conflicting evidence.' For example, an expert witness's opinion may be based upon erroneous factual assumptions; or an expert may have had less interaction with the subject; or the interaction was in a less timely fashion; or the expert may betray a bias or interest in the matter. In addition, an expert witness may be unqualified or less qualified than the opposing party's expert; or may be impeached with inconsistencies or contradictions in his or her testimony or reports; or may be impeached in some other convincing fashion. But these are relevant factors which are readily capable of identification and easy articulation by the WCJ. The point is that, absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstance of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a 'reasoned' one which facilitates effective appellate review.Id. at 1053 (citations omitted).
Nevertheless, Section 422(a)'s reasoned decision requirement "does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations. Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Ace Wire Spring & Form Co. v. Workers' Comp. Appeal Bd. (Walshesky), 93 A.3d 923, 934 (Pa. Cmwlth.), appeal denied, 104 A.3d 6 (Pa. 2014) (citation omitted).
Here, in crediting the testimony of Whipstock's Physician, the WCJ explained, in relevant part:
24. I find the testimony and opinions of [Whipstock's Physician] to be competent and credible. His testimony is sufficiently internally consistent and based upon sufficient foundational information to be competent and credible. ...F.F. No. 24 (emphasis added).
I find [Whipstock's Physician's] testimony and opinions to be more credible than those of [Claimant's Physician]. [Whipstock's Physician's] training and experience in spinal disorders is superior to [Claimant's Physician's]. Also, a critical medical issue in this ease is the interpretation of the various lumbar MRI administered to [Claimant] between 2007 and 2010. [Claimant's Physician] reviewed and relied upon radiological reports, while [Whipstock's Physician] actually reviewed the films. ...
[Falcon's Physician's] testimony is competent and credible insofar as it is consistent with [Whipstock's Physician's] testimony regarding the demands of the rig hand job and the history of [Claimant's] low back problems prior to January 2010. As to the cause of [Claimant's] disability on and after June 7, 2010, [Whipstock's Physician's] testimony is more credible than [Falcon's Physician's]. [Falcon's Physician] acknowledges that [Claimant's] work activities with Falcon would have intensified [Claimant's] symptoms. [Falcon's Physician] did not explain credibly how those work activities would have intensified [Claimant's] symptoms without aggravating his underlying degenerative disc disease. And [Falcon's Physician] agreed that repetitive heavy-duty work can aggravate a pre-existing back problem in the absence of a specific event.
The WCJ gave several bases for its credibility findings of medical testimony. Important here, the WCJ evaluated the internal consistency of the testimony. The WCJ determined that the opinions of Whipstock's Physician were internally consistent. In contrast, the WCJ determined that the testimony of Falcon's Physician lacked internal consistency. Thus, the WCJ observed that Falcon's Physician did not explain credibly how the strenuous work activities at Falcon would have intensified Claimant's symptoms without aggravating his underlying degenerative disc disease. By itself, this explanation is a sufficient basis to reject the testimony of Falcon's Physician. See Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012) (where first reason WCJ provided for rejecting physician's testimony was sufficient, this Court declined to consider party's challenges to other grounds upon which the WCJ based his credibility determination).
Falcon further asserts the WCJ did not resolve the conflict between Claimant's testimony that he did not seek treatment after leaving employment with Whipstock because he did not believe he was entitled to it, and Whipstock's Physician's testimony that Claimant did not seek treatment because he recovered. Contrary to this contention, Whipstock's Physician testified that Claimant informed him "he did not seek any treatment because he did not have any insurance" and "[h]e was not aware at the time that he could have tried to get funding through [w]orkman's [sic] [c]ompensation." Bookwalter Dep., 7/7/11, at 13; S.R.R. at 284b. Claimant acknowledged this testimony was accurate. R.R. at 91. He also explained: "Whenever I took a rest and wasn't out doing nothing [sic], my back didn't bother me that much. That's another reason why I didn't go for treatment because it really wasn't bothering me." Id. Thus, we perceive no conflict in this evidence that demands further proceedings to resolve.
Falcon also contends the WCJ did not resolve the conflict between Claimant's testimony that his symptoms from the 2007 injury with Whipstock never resolved, and Whipstock's Physician's testimony that Claimant did not have ongoing symptoms after his layoff in 2009. Contrary to Falcon's assertions, Whipstock's Physician did not testify that Claimant did not have any ongoing symptoms after the layoff. In fact, Whipstock's Physician related Claimant's history that after the layoff Claimant did not work for the remainder of 2009, hoping his back would heal. Bookwalter Dep., 7/7/11, at 13; S.R.R. at 284b. Claimant confirmed the accuracy of this testimony, and he testified his symptoms improved after the layoff. As a result, he did not feel it necessary to seek treatment at that time. R.R. at 91-92. We discern no conflict in this testimony that requires further proceedings to resolve.
C. Notice
As a final issue, Falcon argues the WCJ erred in finding Claimant provided timely notice of his injury. It asserts in repetitive trauma cases a claimant must give notice of the injury when he knows, or in the exercise of reasonable diligence should know, of the existence of the repetitive trauma injury and the possible relationship to employment. Falcon contends the evidence here showed Claimant gave notice more than 120 days after he knew or should have known of a potential claim against Falcon. Thus, Section 311 of the Act, 77 P.S. §631, bars the claim.
Section 311 of the Act sets forth the time limitation on notice of injury to the employer and when the time for giving notice begins to run. It states, in relevant part:
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf ... shall give notice thereof to the employer ... within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from ... any ... cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. ...77 P.S. §631 (emphasis added).
Interpreting this provision, our Supreme Court explained,
[Section 311] provides that an employee, whose employer is unaware that a work injury has occurred, must notify the employer of the injury within 120 days of its occurrence, or be denied compensation. Section [311]'s 120-day notice period, however, is not absolute; [§311] includes the 'discovery rule.' In the same way that the discovery rule tolls a statute of limitations in a medical malpractice case, the 120-day notice period of [§311] does not begin to run in cases in which the nature of the injury or its causal connection to work is not known, until an employee knows or by the exercise of reasonable diligence, has reason to know of the injury and its possible relationship to her employment.Sell v. Workers' Comp. Appeal Bd. (LNP Eng'g), 771 A.2d 1246, 1251 (Pa. 2001) (citations omitted). In other words, the notice period begins to run when the injury occurs, unless tolled by the discovery rule. See id. Further, "the discovery rule, as incorporated by the legislature in [Section 311], calls for more than an employee's suspicion, intuition or belief; by its terms, the statute's notice period is triggered only by an employee's knowledge that [he] is injured and that [his] injury is possibly related to [his] job." Id. at 1253.
In our view, by incorporating the discovery rule in [§311], the Pennsylvania legislature saw to it that employees who suffer an injury that is not readily and immediately ascertainable have the same rights under the Act as those employees who sustain an injury that is, as long as they proceed with reasonable diligence. ...
Nevertheless, the "'reasonable diligence' mentioned in Section 311 'is an objective, rather than a subjective standard.'" Allegheny Ludlum Corp. v. Workers' Comp. Appeal Bd. (Holmes), 998 A.2d 1030, 1034 (Pa. Cmwlth. 2010) (quoting Sell, 771 A.2d at 1251). As we explained, "[t]he elements of knowledge a claimant must possess in order to trigger the running of the notice period are: '(1) knowledge or constructive knowledge (2) of disability (3) which exists, (4) which results from an occupational disease [or injury], and (5) which has a possible relationship to the employment.'" Id. at 1034 (citation omitted).
A claimant bears the burden of establishing he gave the employer timely notice of the injury under Section 311. City of Phila. v. Workers' Comp. Appeal Bd. (Williams), 851 A.2d 838 (Pa. 2004); A&J Builders. The question of the timeliness of that notice is a factual one. City of Phila.; Sell; Katz v. Evening Bulletin, 403 A.2d 518 (Pa. 1979); A&J Builders. Thus, where a WCJ finds that a claimant gave an employer timely notice, we must determine whether substantial evidence supports that finding. Carrier Coal Enters. v Workmen's Comp. Appeal Bd. (Balla), 544 A.2d 1111 (Pa. Cmwlth. 1988).
Here, the WCJ found:
31. [Claimant] first knew or had reason to know that he sustained a work-related injury on January 11, 2010 when [Whipstock's Physician] testified on July 7, 2011.F.F. Nos. 31-32.
32. [Claimant] gave notice of the January 11, 2010 injury when his counsel served a copy of the Claim Petition on Falcon and its insurer on July 22, 2011. Falcon again received notice when the Bureau assigned the Claim Petition to me on July 28, 2011.
Falcon does not directly challenge these findings. Instead, it asserts the record reveals that at the initial hearing in January 2011, Whipstock's counsel asked Claimant questions about his work at Falcon. Claimant testified his symptoms worsened each day he worked for Falcon. Based on this testimony, at the conclusion of the January 2011 hearing, the WCJ stated:
I would plan for that to be the final hearing with the case being continued for mediation and medical depositions. The only thing that would change that is if [Claimant's counsel] would file any petitions over the 2006 injury ... or if you would end up filing a joinder, because I sense from some of the questions that you are looking at that, so ---. I don't know if you are going to or not, but ---unless other petitions are filed, the February hearing should be the final hearing.R.R. at 45. Falcon argues it is clear from Claimant's testimony and the WCJ's remarks that Claimant, through his attorney, knew or should have known he had a potential claim against Falcon as of the January 2011 hearing. Because Claimant's counsel served a copy of the claim petition on Falcon in July 2011, the notice was more than 120 days after Claimant knew or should have known of a potential claim. Thus, his claim against Falcon is barred.
Contrary to Falcon's assertions, and as the Board stated, the connection between Claimant's injury and the need for surgery (and resultant disability) was not sufficiently clear at the initial hearing. The discovery rule, as incorporated in Section 311 of the Act, calls for more than an employee's suspicion or belief. Sell. The statute's notice period is triggered only by an employee's knowledge that he is injured and that his injury is possibly related to his job. Id. The WCJ found that it was not until Whipstock's Physician's testimony on July 7, 2011, which specifically related Claimant's work for Falcon with his ensuing surgery and disability, that Claimant knew or had reason to know of the connection between his injury and his employment with Falcon. F.F. No. 31. Claimant filed and served his claim petition on Falcon less than three weeks later, well within the 120-day notice period. F.F. No. 32. As such, we reject Falcon's argument that Claimant's claim petition is barred for failure to provide timely notice. See A&J Builders (affirming WCJ's finding that claimant gave employer timely notice of injury when claimant filed claim petition within 120 days of receiving diagnosis that condition was work-related even though claimant may have previously suspected possible relationship between condition and employment; notice period began to run from date claimant was told of the work-related cause of his diagnosis rather than last day of cumulative trauma at work); The Bullen Cos. v. Workers' Comp. Appeal Bd. (Hausmann), 960 A.2d 488 (Pa. Cmwlth. 2008) (affirming WCJ's finding that claimant gave timely notice based on the date claimant received definitive medical diagnosis tying his condition to his employment even though claimant suspected condition was work-related and retained an attorney and medical expert to investigate connection over 18 months before giving notice).
For all the foregoing reasons, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 14th day of May, 2015, the order of the Workers' Compensation Appeal Board is AFFRIMED.
/s/_________
ROBERT SIMPSON, Judge
Bd. Op., 5/27/14, at 11-12 (emphasis added). We agree with the Board's discussion of this issue. Thus, we reject Falcon's argument that a remand is necessary for the WCJ to make findings as to whether the 11 days Claimant worked for Falcon constituted repetitive trauma.
Similarly, we reject Falcon's assertion that, because Claimant only worked for Falcon 11 days, his employment was not of sufficient duration for him to have sustained a cumulative trauma injury. As the Board explained, however, "we ... disagree that [Whipstock's Physician] diagnosed a repetitive trauma injury, but just an aggravation or exacerbation of Cliamant's [sic] preexisting condition. ..." Bd. Op. at 12. Our review of Whipstock's Physician's testimony confirms the Board's determination on this point. Further, contrary to Falcon's suggestions, Owens v. Workmen's Compensation Appeal Board, 395 A.2d 1032 (Pa. Cmwlth. 1979), does not set forth a "minimum length of time" requirement a claimant must work in order to sustain a compensable aggravation.