Opinion
No. 1398 C.D. 2014
06-09-2015
Craig Guest, Petitioner v. Workers' Compensation Appeal Board (Jewish Home of Eastern Pennsylvania), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Craig Guest (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) decision denying Claimant compensation because he failed to prove that he sustained an injury at work. We affirm.
Claimant was employed by Jewish Home of Eastern Pennsylvania (Employer), a nursing home, as a maintenance worker. On October 11, 2010, Claimant filed a claim petition alleging that he had sustained a stress fracture in his hip at work on May 18, 2010, as a result of his job duties. Claimant sought total disability benefits and payment of his medical bills. Employer filed a timely answer denying that Claimant sustained a work injury. The petition was assigned to a WCJ who held a hearing. Both Claimant and Employer appeared and presented evidence.
Claimant testified. He explained that he had worked for Employer for two years as the second shift maintenance supervisor. His duties included building maintenance and such tasks as changing oxygen bottles and trash removal. Daily he carted one to four bins of trash outside for disposal into the dumpster. Claimant testified that he also moved furniture quite a bit, removing chairs and boxes of belongings from rooms when residents passed away. Claimant repaired wheelchairs and walkers; to do so he had to sit on a concrete floor because there was no work bench.
In April 2010, Claimant developed aching pain in his right hip. Claimant reported to work on May 18, 2010. Halfway through his shift, he developed excruciating hip pain. Claimant stated that "it was just like something let go" in his hip. Reproduced Record at 66a (R.R. ___). Claimant called his supervisors and told them he was leaving work because something was wrong with his hip. Claimant did not tell them he had a work injury at that point because he did not know what was causing his problem. Claimant received leave under the Family and Medical Leave Act and sought medical treatment, which included injections and physical therapy.
Claimant submitted the deposition testimony of Edwin S. Malloy, M.D., a board certified orthopedic surgeon. Dr. Malloy first treated Claimant in February 2008 for bursitis in his right hip by administering a steroid injection. This resolved the bursitis. On May 19, 2010, Claimant saw Dr. Malloy's medical partner for severe right hip pain. On May 25, 2010, Dr. Malloy sent Claimant for an MRI and other tests to establish the cause of the pain. Based on a review of the MRI, Claimant's history and physical examinations, Dr. Malloy diagnosed Claimant with a right iliac bone stress fracture. Dr. Malloy opined that Claimant's injury was work-related and caused by prolonged sitting on concrete floors and lifting heavy items. Claimant related that he spent "significant" time working on concrete floors, which Dr. Malloy interpreted to mean three or four hours in an eight-hour shift. R.R. 189a. Dr. Malloy did not know how much time Claimant spent lifting items during a shift. As of his last examination of Claimant on August 12, 2010, Dr. Malloy did not release Claimant to return to his regular job with Employer.
Employer presented the deposition testimony of Chuck Bombar, Employer's Assistant Director of Maintenance. On May 18, 2010, Bombar met with Claimant at the beginning of Claimant's work shift to give him his job assignment for the night. When Claimant stood up and began walking, Bombar noticed that Claimant was limping badly. Claimant told Bombar that he had done something to his hip. Bombar instructed Claimant to tell their boss, Michael Marion, to which Claimant replied, "'Why do I have to do that for? I didn't hurt myself here.'" R.R. 286a.
Employer also presented the deposition testimony of Director of Maintenance, Michael Marion. He testified that as second shift supervisor, Claimant did routine maintenance and supervised two other maintenance workers. Marion testified that only occasionally did Claimant move furniture or boxes. Marion estimated that Claimant was required to fix wheelchairs a couple of times a week. However, Marion testified that Claimant did not sit on a concrete floor to make the repairs, explaining: "We don't sit on floors. Nobody sits on the floor to do that." R.R. 313a. Employees simply tip the wheelchair forward or on its side to make needed repairs.
Employer also presented the deposition testimony of Debra Welby, its Employee Benefits Coordinator. Welby's testimony largely pertained to whether Employer received proper notice of a work injury. Because notice is not an issue on appeal, we do not summarize Welby's testimony.
The WCJ accepted Claimant's testimony as credible, in part, but rejected Claimant's testimony that his hip was not hurting and he was not limping at the start of his work shift on May 18, 2010. The WCJ credited the testimony of Chuck Bombar regarding the events of that day and the testimony of Michael Marion about Claimant's work duties. The WCJ also accepted Dr. Malloy's testimony as credible, in part, but rejected his opinion that Claimant's iliac stress fracture was caused by prolonged sitting on concrete floors and lifting in the course of his employment. The WCJ did so because Dr. Malloy's opinion on causation was based upon an incorrect understanding of Claimant's work duties, which did not involve sitting on concrete floors or heavy lifting. Instead, the WCJ credited the testimony of Marion and Bombar to establish Claimant's work duties. Based on the foregoing, the WCJ concluded that Claimant failed to prove that he had sustained a work injury, and denied the claim petition. Claimant appealed, and the Board affirmed. Claimant then petitioned for this Court's review.
The WCJ has complete authority over questions of credibility, conflicting medical evidence and evidentiary weight. Sherrod v. Workmen's Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to accept, in whole or in part, the testimony of any witness, including medical witnesses. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995).
In reviewing an order of the Board, this Court must determine whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. Cytemp Specialty Steel v. Workers' Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth. 2012).
On appeal, Claimant argues that the WCJ did not issue a reasoned decision because the WCJ failed to consider the report of Employer's medical expert who performed an independent medical examination (IME) and opined that Claimant sustained a work injury. Claimant also argues that it was error to deny his claim when both Claimant's treating physician and the IME physician confirmed that Claimant sustained an iliac stress fracture at work.
In a claim petition, the claimant has the burden of proving all elements necessary to support an award of benefits. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). The claimant must prove he sustained an injury that is causally related to his employment. Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corporation), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). When there is no obvious causal connection between the injury and the alleged work-related cause, competent, unequivocal medical evidence is necessary to establish that connection. Budd Trailer Company, Inc. v. Workmen's Compensation Appeal Board (Behney), 524 A.2d 525, 527 (Pa. Cmwlth. 1987).
Section 422(a) of the Workers' Compensation Act (Act) requires the WCJ to issue 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." 77 P.S. §834 (emphasis added). The WCJ must give reasons for accepting or rejecting evidence. Id. A decision is reasoned for purposes of Section 422(a) if it allows for adequate appellate review. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
Section 422(a) states in relevant part:
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. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.77 P.S. §834.
On January 17, 2011, Eugene J. Chiavacci, M.D., a board certified orthopedic surgeon, did an IME of Claimant. Dr. Chiavacci issued an IME report and provided it to Employer. However, Employer did not submit the IME report into evidence, opting to rely on the testimony of lay witnesses to refute Claimant's description of his work duties as involving prolonged sitting on concrete floors and heavy lifting.
Claimant offered Dr. Malloy's testimony to prove that his work activities caused an injury. The final WCJ's hearing in this case was held on March 3, 2011. At that hearing, the parties mentioned that an IME had been performed. Claimant described the examination and testified that he had seen a copy of the IME report. However, Claimant did not attempt to introduce the IME report into evidence nor did he express an intention to do so.
On August 30, 2011, Claimant, through his counsel, wrote to the WCJ stating, inter alia, that Dr. Chiavacci had acknowledged Claimant sustained a work injury. Claimant attached a copy of the IME report to his letter. Claimant argues that in doing so, he properly submitted the IME report into evidence and that the WCJ erred by failing to address the IME report in his decision. We disagree.
Documentary evidence must be offered and admitted as an exhibit by the WCJ during an on-the-record proceeding. Kimberly Clark Corp. v. Workers' Compensation Appeal Board (Bullard), 790 A.2d 1072, 1075 (Pa. Cmwlth. 2001). Claimant mailed the IME report to the WCJ but did not request that the WCJ mark the IME report as an exhibit; admit it into the record; or convene an on-the-record proceeding so that Claimant could submit the IME report as part of his case-in-chief. Evidence de hors the record cannot support a finding of fact and cannot be considered by the factfinder or the appellate body on review. Id. at 1075-76. Therefore, the WCJ correctly discussed only the evidence that was made part of the record, which necessarily could not include the IME report. In short, the WCJ issued a reasoned decision.
Claimant also argues that his claim should have been granted because he submitted an abundance of evidence showing that he sustained a work injury, including the opinions of Dr. Malloy and Dr. Chiavacci. Employer's lay witnesses did not refute the opinions of the medical experts. Claimant requests that the matter be remanded to the WCJ for further consideration of the medical evidence.
In any case, as noted by Employer, Dr. Chiavacci's IME report suffers the same problem afflicting Dr. Malloy's report. There is no dispute that Claimant has a hip problem. The IME physician relied on Claimant's description of his work duties and how his pain developed. However, the WCJ rejected Claimant's account of his work duties and found that Claimant was limping before he began his shift. Simply, the IME report does not prove causation.
The WCJ fully considered all the evidence of record, which does not include Dr. Chiavacci's IME report because it is not part of the record. Dr. Malloy opined that Claimant's work activities caused a stress fracture in his hip. However, the WCJ found that Dr. Malloy's understanding of Claimant's work duties, including that he sat on a concrete floor for three to four hours a day and engaged in frequent lifting, was contrary to the job description provided by Employer's witnesses and Claimant himself and, thus, was inaccurate. As a result, the WCJ rejected Dr. Malloy's opinion of causation. In addition, the WCJ credited Bombar's testimony that Claimant was in pain and limping badly when he started his work shift on May 18, 2010, the date Claimant alleges he was injured at work. When questioned by Bombar, Claimant stated that he did not hurt himself at work. A medical opinion of causation is not competent if the medical expert "does not have a complete grasp of the medical situation and/or the work incident." Long v. Workers' Compensation Appeal Board (Integrated Health Service, Inc.), 852 A.2d 424, 428 (Pa. Cmwlth. 2004). Because Claimant's testimony of his condition when he reported for work on May 18, 2010, was rejected and Dr. Malloy's inaccurate understanding of the situation and work duties rendered his medical opinion of causation incompetent as well as not credible, Claimant failed to meet his burden of proving that he sustained a work injury. His claim petition was properly denied.
This Court may not disturb the above credibility determinations because the WCJ is the ultimate fact finder and has complete authority over questions of credibility. Davis v. Workers' Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). --------
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 9th day of June, 2015, the order of the Workers' Compensation Appeal Board dated July 16, 2014, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge