Opinion
No. 1361 C.D. 2011
03-14-2012
Friendly's Ice Cream, Petitioner v. Workers' Compensation Appeal Board (McDowell), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Friendly's Ice Cream (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) grant of the Claim Petition of Gary McDowell (Claimant). On appeal, Employer raises two issues for our review. First, Employer asserts that the Board erred in affirming the WCJ's decision finding Claimant's medical expert credible and unequivocal regarding causation. Second, Employer asserts the Board erred in finding that the WCJ's decision was a reasoned decision that did not capriciously disregard competent evidence. For the following reasons, we affirm the Board's July 8, 2011 Order.
This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, board procedures violated, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; ICT Group v. Workmen's Comp. Appeal Bd. (Churchray-Woytunick), 995 A.2d 927, 930 n.4 (Pa. Cmwlth. 1995). In addition, when the question has been properly brought before this Court, as it has in the present case, we review for capricious disregard of evidence. Leon E. Wintermyer, Inc., v. Workers' Comp. Appeal Bd. (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). Capricious disregard of evidence is a "deliberate disregard of competent evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Id. at 203 n.12, 812 A.2d at 487 n.12. --------
Claimant alleges a work-related injury occurring on December 14, 2006. Prior to Claimant's work-related injury, he had been diagnosed with peripheral vascular disease, a condition causing blockages within the arteries that occludes blood flow. (WJC Opinion, Findings of Facts (F.F.) ¶¶8b, 12b, Reproduced Record (R.R.) at 345a, 352a.) Due to the nature of Claimant's chronic pre-existing condition, it was clear that at some point his left lower extremity would be lost. (F.F. ¶¶8e, 8f, 12b, R.R. at 346a-347a, 352a.) As early as 1994, Claimant had experienced difficulties with his left lower extremity, and in 2001 Claimant's right lower extremity had been amputated above the knee. (F.F. ¶¶6b, 6i, 12a, R.R. at 342a, 343a-344a, 351a-352a.) However, between September 2000 and the date of Claimant's work-related injury, Claimant did not have problems with his left leg, including a month prior to the alleged injury when, as part of a regular check-up, Claimant was examined by his longstanding family physician, Dr. Mark W. Puffenberger, M.D. (F.F. ¶¶8b, 12a, 12b, R.R. at 342a, 351a-352a.)
Claimant's injury occurred when, as part of his duties as a food prep worker, Claimant was attempting to move a five gallon barrel of pickles and his left foot slipped. (F.F. ¶¶6a, 6c, 12a, R.R. at 342a, 351a-352a.) As he turned, he heard a pop, followed by a burning sensation and then numbing in his foot. (Id.) Claimant reported his injury to his manager, filled out an injury report, and sought the assistance of his family doctor, Dr. Puffenberger. (Id.) Subsequently, Claimant was notified by telephone that he should see a panel physician regarding his injury. (F.F. ¶¶6d, 12a, R.R. at 342a, 351a-352a.) Over the remainder of the month of December, Claimant was referred back and forth among the panel physician, an orthopedist, and a vascular specialist. (Id.) In early January 2007, Claimant was still in pain and his leg started to form blisters, which began to pop open, leading him to visit the emergency room for the first time. (F.F. ¶¶6e, 12a, R.R. at 343a, 351a-352a). On January 20, 2007, Claimant again went to the emergency room, where he was advised that, due to infection, his leg would have to be amputated. (Id.) The amputation took place three or four days later and was performed by Dr. Brian J. Marien, M.D. (Id.)
Claimant filed a Claim Petition on May 21, 2008, alleging the work-related injury discussed above. Claimant supported his petition with the deposition testimony of Dr. Puffenberger, who acted as his medical expert. In opposition to Claimant's petition, expert medical testimony was presented in a deposition given by Dr. Marien. On November 16, 2009, the WCJ issued a final decision and order, concluding Claimant's "work injury caused an aggravation/exacerbation of his pre-existing peripheral vascular disease resulting in the above the knee amputation of the left lower extremity." (WCJ Opinion, Conclusion of Law ¶2, R.R. at 353a.) In regard to the expert medical testimony, the WCJ found Dr. Puffenberger's testimony credible and persuasive, accepting it as fact. (F.F. ¶12b, R.R. at 353a.) In addition, the WCJ found that to the extent the testimony offered by Dr. Marien was inconsistent with Dr. Puffenberger's testimony, it was not accepted as fact. (F.F. ¶12b, R.R. at 353a.)
We first address Employer's claim that the Board erred in affirming the WCJ's decision finding Claimant's medical expert credible and unequivocal regarding causation. The question of whether Dr. Puffenberger's expert medical testimony was equivocal is a question of law subject to our review. Signori v. Workmen's Comp. Appeal Bd. (United Parcel Service), 664 A.2d 672, 676 (Pa. Cmwlth. 1995).
In a claim petition, the claimant bears the burden of establishing that the injury, aggravation, or exacerbation was sustained during the course of employment and that a causal connection exists between his or her work and the disabling injury. Coyne v. Workers' Comp. Appeal Bd. (Villanova University and PMA Group), 942 A.2d 939, 945 (Pa. Cmwlth. 2008), appeal denied, 599 Pa. 683, 960 A.2d 457 (2008). If the causal connection is not obvious, a claimant is required to present unequivocal medical testimony. Povanda v. Workmen's Comp. Appeal Bd. (Giant Eagle Markets, Inc.), 605 A.2d 478, 481 (Pa. Cmwlth. 1992), appeal denied, 533 Pa. 603, 617 A.2d 1276 (1992). For medical testimony to be unequivocal, it is not necessary for the medical expert to say "that is my professional opinion," but is sufficient, after laying an adequate foundation, for the expert to say "I think" or "I believe" or even to admit uncertainty, as long as the expert does not recant the opinion or belief expressed. Philadelphia College of Osteopathic Medicine v. Workmen's Comp. Appeal Bd. (Lucas), 465 A.2d 132, 134-35 (Pa. Cmwlth. 1983).
In Southwest Airlines v. Workers' Compensation Appeal Board (King), 985 A.2d 280, 286 (Pa. Cmwlth. 2009), this Court discussed examples of the type of evidence that a medical expert may point to when laying an adequate foundation to support his or her opinion, including review of a claimant's medical records, and knowledge of a prior condition and corresponding treatment.
Claimant's medical expert, Dr. Puffenberger, testified that he had been Claimant's primary care physician since January 2000 and that, from late 2000 or early 2001 until the date of Claimant's injury, including a month prior when Claimant visited him for a check-up, Claimant did not have complaints attributable to his peripheral vascular disease. (Puffenberger Deposition September 16, 2008 (Puffenberger Dep.) at 8, 14, 15, 32, R.R., at 48a, 54a, 55a, 72a.) Dr. Puffenberger testified on direct and cross-examination as to Claimant's medical history from 1994 going forward, including his treatment by the three physicians and Dr. Marien in the period between his injury and amputation. (Puffenberger Dep. at 10-12, 18-20, 30-35, R.R. at 50a-52a, 58a-60a, 70a-75a.) He explained that "[i]n order to fully understand Gary's injury, it is necessary to review his prior history with regard to peripheral vascular disease. With that in mind, I reviewed this chart extensively going back to records that dated as far back as 1998." (Puffenberger Dep. at 10, R.R. at 50a.)
Having laid a foundation, Dr. Puffenberger opined that, to a reasonable degree of medical certainty, Claimant's attempt to move the pickle barrel "set into effect the cascade of events which led to the amputation." (Puffenberger Dep. at 21-22, 40, R.R. at 61a-62a, 80a.) Dr. Puffenberger explained that Claimant sustained a soft-tissue injury to his left foot, that this injury caused swelling in Claimant's ankle, that due to Claimant's compromised vascular system this swelling further compromised the blood supply to Claimant's left foot, and finally that the deficient supply of blood subsequently required an above the knee amputation. (Puffenberger Dep. at 19, 21-22, R.R. at 59a, 61a-62a.) We find that Dr. Puffenberger's testimony as a whole makes clear that he unequivocally stated his opinion regarding causation, at no point retreating from or recanting his belief. While Employer may disagree with Dr. Puffenberger's opinion that the work-related injury caused the Claimant's left lower extremity to be amputated, such disagreement does not render a medical expert's testimony equivocal. The Board did not err in affirming the WCJ's decision finding Dr. Puffenberger's testimony was credible and unequivocal regarding causation.
Employer next asserts that the Board erred in finding the WCJ's decision was a reasoned decision that did not capriciously disregard competent evidence.
Section 422(a) of the Workers' Compensation Act (Act) aids meaningful appellate review by requiring the WCJ to issue a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole and clearly stating the rationale for the decision. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. When the WCJ is faced with conflicting evidence, Section 422(a) of the Act further requires that his or her reasons for rejecting or discrediting competent evidence be explained. Id. This does not mean that the requirement of a reasoned decision permits a party to challenge or second-guess the WCJ's reasons for credibility determinations; determining the credibility of the witnesses remains the quintessential function of the fact finder. Dorsey v. Workers' Comp. Appeal Bd. (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). The WCJ is free to accept, in whole or in part, the testimony of any witness, including expert medical witnesses. Remaley v. Workers' Comp. Appeal Bd. (Turner Dairy Farms, Inc.), 861 A.2d 405, 409 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 720, 872 A.2d 1200 (2005). However, the WCJ's findings of fact and conclusions of law must be supported by "substantial evidence" or "such relevant evidence as a reasonable mind might accept to support a conclusion." Ryan v. Workmen's Comp. Appeal Bd. (Community Health Services), 550 Pa. 550, 559, 707 A.2d 1130, 1134 (1998). If instead, the WCJ's reasoning and credibility determinations reveal a deliberate disregard of competent relevant evidence, we will overturn the WCJ's decision. Wintermyer, 571 Pa. at 203 n.12, 812 A.2d at 487 n.12.
The WCJ found that Dr. Puffenberger's testimony offered a credible explanation for how Claimant's work related injury led to the amputation of his lower left extremity. (F.F. at ¶12b, R.R. at 352a.) The WCJ also found that Dr. Puffenberger's testimony was the most persuasive of the three doctors. (Id.) In support of his findings, the WCJ explained that his finding was based on Dr. Puffenberger's extensive prior contact with Claimant, his examination of Claimant a month prior to and on the day of the incident, and his review of Claimant's history and records dating back to the 1990s. (Id.) In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), our Supreme Court identified examples of the type of explanations supporting a WCJ's credibility determinations that satisfied the reasoned decision requirement. 574 Pa. 61, 72, 828 A.2d 1043, 1052 (2003). These examples included the relative timeliness of examinations and familiarity with the patient. Id. Here, the WCJ has identified both the relative timeliness of examination and the familiarity with the patient, as well as the extensive review of medical records, in his reasoning for crediting Claimant's expert.
In discrediting the medical testimony of Dr. Marien, the WCJ articulated his reasoning with equal clarity. (F.F. ¶12b, R.R. at 352a-53a.) The WCJ stated "this Judge cannot ignore Dr. Marien's own acknowledgments, at various points during his testimony, that he is incapable of fully commenting on Claimant's situation given gaps in Claimant's medical records." (F.F. ¶12b, R.R. at 352a.) The WCJ then identified and quoted the specific instances in Dr. Marien's testimony to which he was referring. (F.F. ¶12b, R.R. at 105a, 106a, 352a.) Finally, the WCJ explained: "In short, given Dr. Marien's credible concessions regarding the limitations of the records available to him as demonstrated by such quotes as the preceding ones, his belief that Claimant's December 2006 injury probably did not result in the 2007 amputation is simply not as persuasive as Dr. Puffenberger's opinion, based on his understanding of Claimant's condition and his extensive contact with Claimant." (F.F. ¶12b, R.R. at 352a.)
The WCJ's opinion reviewed the evidence considered, clearly articulated why it was reasonable to credit some and discredit other evidence, and provided a more than sufficient basis for appellate review. We find that the WCJ issued a reasoned opinion as required by Section 422(a) of the Act. Furthermore, because we find that the WCJ issued a reasoned decision, it necessarily follows that there was no capricious disregard of evidence. Wintermyer, 571 Pa. at 204 n.13, 812 A.2d at 488 n.14. Accordingly, we find the Board did not err in its findings affirming the WCJ.
For the above reasons, we affirm the Board's decision.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 14th day of March , 2012, the order of the Workers' Compensation Appeal Board, dated July 8, 2011, is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge