Opinion
No. 1232 C.D. 2012
02-26-2013
Dagmar Johnson, Petitioner v. Workers' Compensation Appeal Board (Bucks County Intermediate Unit), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Dagmar Johnson petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of Workers' Compensation Judge (WCJ) Michael J. Rosen to grant two May 2008 modification petitions and an August 2008 termination petition filed by Employer Bucks County Intermediate Unit. We affirm.
In February 2002, Claimant sustained work injuries consisting of a low back strain, right knee strain and reflex sympathetic dystrophy (RSD) of the right lower leg. In April 2004, WCJ Bruce K. Doman expanded the injury description to include RSD of the right side and right shoulder and a pain disorder associated with psychological factors and a chronic medical condition. In November 2006, he denied a February 2006 termination petition, which alleged Claimant's full recovery as of November 23, 2005, and further expanded the injury description to include RSD of the left side of the body.
In 2008, Employer filed the three petitions at issue: 1) a modification petition alleging Claimant's full recovery from RSD as of February 18, 2008, based on the opinion of board-certified neurologist Donald McCarren, D.O.; 2) a modification petition alleging her full recovery from the mental component of the injury as of January 25, 2008, based on the opinion of board-certified psychiatrist Timothy Michals, M.D.; and 3) a termination petition alleging her full recovery as of July 31, 2008, based on the opinion of board-certified orthopedic surgeon John P. Nolan, M.D. WCJ Rosen rejected the testimony of Claimant and her medical witnesses as not credible and granted all three petitions based on the credible testimony of Employer's medical witnesses. The Board affirmed and Claimant's petition for review to this Court followed.
The WCJ is the ultimate finder of fact in compensation cases and has exclusive authority over questions of credibility and evidentiary weight. Davis v. Workers' Comp. Appeal Bd. (City of Phila.), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). The WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Michel v. Workers' Comp. Appeal Bd. (U.S. Steel Corp.), 966 A.2d 643, 652-53 (Pa. Cmwlth. 2009). We will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Comp. Appeal Bd. (Murdock), 667 A.2d 262, 267 (Pa. Cmwlth. 1995).
In Lewis v. Workers' Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 497, 919 A.2d 922, 926 (2007), the Court stated as follows:
In order to terminate benefits on the theory that a claimant's disability has reduced or ceased due to an improvement of physical ability, it is first necessary that the employer's petition be based upon medical proof of a
change in the claimant's physical condition. Only then can the [WCJ] determine whether the change in physical condition has effectuated a change in the claimant's disability, i.e., the loss of his earning power.A change in condition can be a total recovery from illness or a subsidence of symptoms. Id. In cases of successive termination petitions, "the employer must demonstrate a change in physical condition since the last disability determination." Id. Where a prior termination petition was denied, an employer's case must "begin with the adjudicated facts found by the WCJ in the first termination petition and work forward in time to show the required change." Folmer v. Workers' Comp. Appeal Bd. (Swift Transp.), 958 A.2d 1137, 1144 (Pa. Cmwlth. 2008). In addition, if there were any additional recognized injuries, an employer in a subsequent termination proceeding also must prove that the claimant recovered from them. Mino v. Workers' Comp. Appeal Bd. (Crime Prevention Ass'n), 990 A.2d 832, 839 (Pa. Cmwlth. 2010).
On appeal, Claimant maintains that Dr. McCarren's testimony does not constitute unequivocal medical evidence of full recovery because he changed his opinion after reviewing a surveillance video taken prior to his examination of Claimant and after reading Dr. Michals' report. Claimant acknowledges that "films are admissible as evidence, and where they are corroborated with competent, credible medical testimony, there may be sufficient evidence to grant a termination petition." Clemente-Volpe v. Workmen's Comp. Appeal Bd. (Westinghouse Air Brake Div.), 624 A.2d 666, 671 (Pa. Cmwlth. 1993). She argues, however, that Dr. McCarren's opinion is equivocal because it is not based on medical records or an examination showing a change in her condition. Further, she maintains that it is not corroborated by the opinion of Dr. Michals. While it is true that Dr. McCarren revised his opinion, we do not find it to be equivocal.
The WCJ characterized Dr. McCarren's pertinent testimony on cross-examination as follows:
Dr. McCarren agreed that when he issued his first report he noted Claimant had no residual signs of RSD and he recommended a sedentary type position, but after reviewing the surveillance DVDs and Dr. Michals' IME report he changed his opinion to full recovery. He indicated that both times he did say Claimant could work but then changed his opinion [to reflect his updated view] that she could return to her pre-injury job.WCJ Rosen's Finding of Fact No. 7.
In general, the "[e]volution of a professional opinion, especially in the wake of previously unknown pertinent facts about a claimant's physical abilities, does not constitute equivocality." Fye v. Workers' Comp. Appeal Bd. (Super Moche), 762 A.2d 428, 430 (Pa. Cmwlth. 2000). With regard to video surveillance evidence, a doctor's opinion is not rendered equivocal when, during the course of forming his opinion, he revises his original view of a claimant's capabilities and condition after viewing a surveillance video. Id.
In the present case, even before Dr. McCarren viewed the video, his medical observations did not match Claimant's stated concerns, as WCJ Rosen found:
Dr. McCarren testified that during the physical examination Claimant indicated that she did not want to sit down and she was frequently bouncing around, moving back and forth in the exam room. Claimant reported diffuse pain to palpation, but she did not show any signs of limitation on range of motion. He observed cuts on her arm that would indicate she was doing more than one would expect given her complaints that she could not tolerate touching. He used a tape measure to mark her forearm and leg in order to get measurements and she pulled away as it was causing her pain. Claimant was seen[,] however, taking her shirt on and off during
the course of the evaluation and not showing any problems picking up her purse and holding it in her arm. He testified that he did Jamar grip testing and showed inconsistent findings. Dr. McCarren testified that he looked for signs of RSD including atrophy, change in temperature, dystrophic changes in the nails, and none of these were present. There were no signs of atrophy that would reach statistical significance in either her upper or lower extremities.WCJ Rosen's Finding of Fact No. 7 (emphasis added).
Once Dr. McCarren viewed the video, as in Fye, it "presented telling medical information regarding [the claimant's] actual, as opposed to . . . stated, physical capabilities." Id., 762 A.2d at 430. In other words, having had difficulty getting a detailed history from Claimant in order to determine her physical capabilities, the video confirmed Dr. McCarren's opinion regarding her lack of residual signs of RSD. As WCJ Rosen found, Dr. McCarren "noted that the multiple activities he observed on the physical exam and on the DVD showed that Claimant really uses her extremities without any limitations." WCJ Rosen's Finding of Fact No. 7 (emphasis added).
Moreover, we disagree with Claimant that Dr. McCarren's opinion is equivocal because it is not based on medical records or an examination showing a change in her condition. In determining that Claimant was fully recovered, Dr. McCarren on redirect examination stated that he based his opinion of full recovery on both his own examination and the video. As for Claimant's allegation that Dr. McCarren's opinion is not corroborated by that of Dr. Michals, we emphasize that "the combination of a physical examination and a viewing of the videotape constitutes substantial competent evidence." Clemente-Volpe, 624 A.2d at 671. Dr. McCarren's opinion as to full recovery, therefore, does not need to be corroborated by the opinion of another physician. Accordingly, we reject Claimant's argument that Dr. McCarren's testimony was equivocal and turn now to the adequacy of Dr. Michals' opinion as to her mental recovery.
Claimant maintains that Dr. Michals' testimony is equivocal because he acknowledged on cross-examination that the work injury aggravated her underlying psychological condition and that the latter is preventing her from working now. Contrary to Claimant's characterization of Dr. Michals' testimony, however, he did not expressly opine either that she could not work or that her previously recognized pain disorder associated with psychological factors and a chronic medical condition was ongoing. He merely suggested the possibility that her preexisting, non-work-related problems resulting from her previous life experiences could be a contributing factor as to why she was not working. Dr. Michals' Deposition, Notes of Testimony ("N.T.") at 62 and 69. In any case, we agree with the Board that Dr. Michals' opinions expressed on cross-examination do not affect the competency of his previously expressed opinion of full recovery, but merely go to the weight of his opinion. Corcoran v. Workers' Comp. Appeal Bd. (Capital Cities/Times Leader), 725 A.2d 868, 872 (Pa. Cmwlth. 1999). To reiterate, the WCJ has exclusive authority over questions of credibility and evidentiary weight. Davis v. Workers' Comp. Appeal Bd. (City of Phila.), 753 A.2d 905, 909 (Pa. Cmwlth. 2000).
Next, Claimant contends that WCJ Rosen was collaterally estopped from basing his determination of full recovery on a July 2003 photograph of her getting married on a glacier and a January 2004 videotape of her teaching a spinning class, both of which predate WCJ Doman's 2006 determination that she was not fully recovered from her work injuries. WCJ Rosen, however, considered numerous other factors in assessing the severity of Claimant's ongoing symptoms. These factors, which postdate the prior adjudication, include his contemporaneous viewing of Claimant's demeanor on three separate occasions. Accordingly, given the fact that WCJ Rosen considered numerous other factors postdating the 2006 decision, we decline to disturb his credibility determination of Claimant. Casne v. Workers' Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008) (credibility determination will be overturned "only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.")
WCJ Rosen made the following additional findings, with the factors predating the 2006 adjudication omitted:
16. This Judge has reviewed and considered the entire testimony of Claimant and finds her to be not credible. Claimant's contention that she remains in severe pain and is unable to do any activities including caring for herself and simple tasks like opening a water bottle is rejected based on this Judge's observations of Claimant during her testimony on three occasions. Claimant's allegations that she continued to experience significant pain throughout her body including her skin, hands, legs, bones, headaches, has nausea and impaired vision, is not credible based on observations of Claimant and the accepted medical evidence. Claimant's testimony concerning her lack of activities and the inability to function is also rejected based on this Judge's view of the video tapes and DVDs that showed Claimant . . . packing a SUV, walking a dog, carrying items in both hands and over both shoulders, reaching high up to close the SUV, carrying coffee and other items with both hands all without any apparent difficulty. . . . Overall, this Judge finds Claimant has been manipulative during these proceedings when on multiple occasions she evaded or did not answer questions posed by [Employer's] counsel, would not cooperate with the examining physicians chosen by [Employer], and allegedly could not find the hearing office in October 2009 despite her being here on several occasions.WCJ Rosen's Finding of Fact No. 16.
Claimant next argues that Employer failed to establish the requisite change in her condition, i.e. change in her disability or earning power, via any of the three physicians whose testimony WCJ Rosen found to be credible. Noting that none of them even evaluated her until 2008, she asserts that they failed to opine that since November 23, 2005, the recovery date alleged in the prior termination petition, her condition changed in a way that produced a decrease in disability. To that end, she challenges WCJ Rosen's application of the Lewis standard of proof for successive termination petitions, wherein the Court differentiates between a change in disability and a change in condition. Claimant's argument is without merit.
In Delaware County v. Workers' Compensation Appeal Board (Browne), 964 A.2d 29, 35 (Pa. Cmwlth. 2008), we noted that, "by accepting the employer's medical evidence of a full recovery as credible, a WCJ could properly make a finding that the employer has met the standard set forth in Lewis by demonstrating a change in Claimant's condition." In the present case, WCJ Rosen found the testimony of Employer's three medical witnesses as to Claimant's full recovery to be credible. As we stated in Hall v. Workers' Compensation Appeal Board (America Service Group), 3 A.3d 734, 740 (Pa. Cmwlth. 2010), a claimant's benefits may be terminated where the employer proves by unequivocal, competent medical evidence that he is fully recovered from the work injury and has no remaining disability that relates to that injury. Accordingly, we conclude that WCJ Rosen did not misapply the Lewis holding.
Dr. McCarren opined that, as a result of successful treatment, Claimant had fully recovered from her RSD as of the date of his February 2008 examination. Dr. McCarren's Deposition, N.T. at 24-25. Dr. Michals testified that, as of the date of his January 2008 examination, Claimant had no disabling psychiatric disorder and that she was capable of returning to her pre-injury job. Dr. Michals' Deposition, N.T. at 38-40. Dr. Nolan testified that, as of his July 2008 examination, Claimant was fully recovered from the RSD, right knee internal derangement and the lumbosacral strain/sprain. Dr. Nolan's Deposition, N.T. at 30-31.
We also reject Claimant's arguments concerning both the timing of the examinations and the time period upon which she asserts WCJ Rosen should have based his determination. The timing of the examinations was merely a factor for WCJ Rosen to weigh as the ultimate finder of fact. As for Claimant's assertion that WCJ Rosen should have used the period from November 23, 2005, the alleged full recovery date in the prior termination petition, to July 31, 2008, the alleged full recovery date in the present termination petition, we note that Employer was required only to demonstrate that there was "a change in physical condition since the last disability determination[,]" which resulted in a change in earning power. Lewis, 591 Pa. at 497, 919 A.2d at 926 (emphasis added). See also Browne, 964 A.2d at 36 (WCJ in subsequent termination petition must make a finding that "the claimant's physical condition changed from the time of the first WCJ's adjudication.")
Finally, citing Browne, Claimant also maintains that we should remand this matter for a more specific fact-finding as to whether her condition changed from the time of the last disability adjudication. To the contrary, we find WCJ Rosen's fact-findings to be adequate. Even though he used the phrase, "since WCJ Doman's decision," only with respect to Dr. McCarren, that time period permeates WCJ Rosen's decision in that he painstakingly noted Claimant's accepted work injuries and each of the physicians acknowledged those injuries in rendering their opinions as to full recovery. It is, therefore, unnecessary to remand this matter for further fact-finding.
WCJ Rosen found that, "Dr. McCarren opined that since [WCJ] Doman's decision there has been subsequent change in Claimant's condition based on the objective findings and physical examination." WCJ Rosen's Finding of Fact No. 7 (emphasis added). --------
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 26th day of February, 2013, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge