Opinion
No. 1410 C.D. 2011
07-09-2012
Lehigh Heavy Forge Corporation, Petitioner v. Workers' Compensation Appeal Board (Vogrins), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when the opinion writer completed her term as President Judge.
Petitioner, Lehigh Heavy Forge Corporation, appeals from the decision of the Workers' Compensation Appeal Board (Board), which affirmed the decision of the Workers' Compensation Judge (WCJ) to grant in part Petitioner's termination petition and grant claimant, David Vogrins', review petition. We affirm.
Vogrins was injured on September 17, 2008, during the course of his employment with Petitioner. Vogrins received benefits pursuant to a temporary notice of compensation payable, which listed his injury as left knee strain. On October 1, 2009, Petitioner filed a termination petition, alleging that Vogrins was fully recovered from his work injury as of September 15, 2009. Vogrins filed a petition to review compensation benefits on November 16, 2009, alleging that the notice of compensation payable should be amended to include a lateral meniscus tear, medial reefing of the patella and aggravation of preexisting patella problems.
On September 11, 2009, Vogrins filed a petition for review of the utilization review determination which was considered by the WCJ with the other petitions. The WCJ denied the petition for review of utilization review determination and Vogrins did not appeal.
Vogrins was employed as CNC operator. The CNC, which is used in the production of steel, is a lathe mounted on a moving carriage and it is run by a computer program. Vogrins was required to change the CNC's tools, which weighed between 5 and 70 pounds, throughout the production process. He changed the tools four times a day. At times, Vogrins was required to descend three to four steps of a ladder into a trench to clear a clogged chute. Vogrins could sit for the majority of the process, but preferred to stand and observe the process in order to prevent broken tools from marring the sheet of steel. Vogrins' job required him to bend and squat, walk on scrap metal and oil, and the CNC produced a significant amount of vibrations. Prior to starting work for Petitioner, Vogrins completed a pre-employment physical which entailed the following components:
1. Lifting - 100 pounds one time, 75 pounds three times, 50 pounds five times;
2. carry 50 pounds 100 feet;
3. push/pull 200 pounds 25 feet;
4. ascend and descend 20 stairs and 20 rungs of a ladder; and
5. complete squatting, kneeling and reaching exercises.Reproduced Record (R.R.) at 213a-215a. Vogrins completed the assessment without reporting any pain.
Vogrins was injured when he attempted to kick away a stack of steel chips so that he could get to a tool. He felt a pop in his left knee as it twisted. Vogrins was initially treated in the emergency room for a left knee strain. On September 25, 2008, Vogrins underwent an MRI, which revealed a mild low grade sprain of the anterior cruciate ligament without evidence of a significant tear and changes to the knee from prior arthroscopic knee surgery performed when Vogrins was a teenager. On October 20, 2008, Dr. Michael F. Busch performed arthroscopic surgery on Vogrins' knee. Postoperatively, Dr. Busch diagnosed Vogrins with a torn lateral meniscus and recurrent dislocation of the left patella. Dr. Busch contoured the lateral meniscus tear and performed medial reefing to stabilize the patella preventing subluxation. Vogrins underwent several months of physical therapy. Dr. Busch released him to work without restrictions on February 3, 2009. Claimant returned to work but stopped working after a few days due to soreness and instability in his knee.
Dissatisfied with Dr. Busch's care, Vogrins came under the care of Dr. Thomas S. Sauer, a board certified orthopedic surgeon, who had previously operated on his knee when he was a teenager. As a child, Vogrins fell on a metal water pipe splitting his left knee open to the bone. Vogrins experienced knee pain for a couple of years after the injury and eventually sought treatment with Dr. Sauer for pain and a grinding sensation in his left knee. Dr. Sauer operated on Vogrins in 1990 when he was 16 years old performing a lateral retinacular release for patellar pain. Dr. Sauer's diagnosis at this time was patellofemoral syndrome/traumatic chondromalacia. Vogrins continued to experience knee pain for the next year or so. Vogrins injured his left knee again in 1993 and Dr. Sauer diagnosed him with a contusion. Following this injury, Vogrins did not experience any knee problems until his work injury.
In March 2009, Dr. Sauer examined Vogrins noting pain around the patella, crepitation with flexion and extension of the knee and atrophy of the quadriceps and calf muscles. He ordered an MRI, prescribed physical therapy to strengthen Vogrins' leg, and visco injections intended to lubricate the joint and help with inflammation. After examining Vogrins, reviewing the September 2008 MRI, Dr. Busch's surgery and treatment notes, and an April 2009 MRI, Dr. Sauer diagnosed Vogrins with chondromalacia. Dr. Sauer released Vogrins to work in April 2009, but took him out of work after he twisted his knee while adjusting machinery. In June 2009, Vogrins fell down some steps after his knee buckled. Following this injury, Dr. Sauer felt that Vogrins was only capable of performing sedentary work.
Dr. David R. Cooper, a board certified orthopedic surgeon, examined Vogrins on March 12, 2009, for an independent medical evaluation (IME). Dr. Cooper noted that Vogrins remained symptomatic after surgery and opined that he either sustained additional damage to the knee in the postoperative period or suffered from residual iliotibial band syndrome and/or synovitis. He determined that Vogrins was capable of doing light duty work. Dr. Cooper conducted a second IME on September 15, 2009. After reviewing Vogrins' MRI reports, operative record and office notes, Dr. Cooper opined that claimant had sustained a left knee strain as a result of the work injury and that he was fully recovered from the injury. In his IME report, Dr. Cooper stated:
With respect to the other findings at the time of his surgery and the treatment to the kneecap, that would be related to a chronic condition as there is no evidence on the MRI that there was any damage done to the patella or there was any subluxation or dislocation or any damage done to the patellar retinaculum. So, therefore, the surgery that was done was not specifically related to the left knee strain.R.R. at 108a. Dr. Cooper opined that Vogrins' complaints of soreness and instability in the knee were due to a non-work related condition.
The WCJ held two hearings at which Vogrins testified and the parties submitted the deposition testimonies of Dr. Sauer and Dr. Cooper, medical records and physician reports. In a December 31, 2009 report, Dr. Sauer opined that Vogrins' condition was related to his work injury. He stated that
I would disagree with Dr. Cooper's assessment since I feel the work related injury is the causative factor of Mr. Vogrins developing his present problems... Dr. Busch noted instability of the patella on physical exam and later confirmed this at the time of his arthroscopic surgery. It would appear that ever since the injury, the patient has had problems with patellar pain and occasional instability of the knee with grinding in the patellofemoral joint area. It is hard for me to imagine that the twisting type injury at work wasn't a causative factor. It would appear to me that if this was a pre-existing problem, he should have had more symptoms in the prior 16 years until the work injury occurred.R.R. at 308a-09a.
The WCJ found that Dr. Cooper's opinion that Vogrins was fully recovered from the left knee strain credible and persuasive and unrebutted by Dr. Sauer. The WCJ concluded that Petitioner had met its burden of proving that Vogrins is fully recovered from the left knee strain. Accordingly, the WCJ granted the termination petition as to the left knee sprain.
The WCJ also granted Vogrins' petition to review compensation benefits concluding that he had "met his burden of proving he sustained a lateral meniscus tear and an injury to the patella causing subluxation and aggravation of a preexisting traumatic chondromalacia." WCJ Decision at 11, Conclusions of Law at ¶ 4. The WCJ fully credited Vogrins' testimony. The WCJ rejected Dr. Cooper's opinion that Vogrins' current pain was unrelated to his work injury and was solely a result of a preexisting condition. The WCJ accepted as credible and persuasive Dr. Sauer's opinion that Vogrins suffered a lateral meniscus tear and injury to the patella causing subluxation and traumatic chondromalacia. The WCJ found:
[a]lthough Dr. Sauer did not utter the "magic words" that claimant materially aggravated a preexisting condition, the following portions of his testimony support such a finding: a) there is no evidence in the old records of any laxity or atrophy, which claimant now has; b) claimant had no medical treatment for a period of 15 years; c) claimant's pre-employment physical demonstrated that claimant was physically capable of performing the job when he was hired; and d) the mechanism of injury claimant described to the doctor could cause these conditions.WCJ Opinion at 10, Credibility Findings at ¶16 (footnotes omitted).
Petitioner appealed the WCJ's decision to the Board, asserting the WCJ's findings were not supported by substantial evidence. The Board affirmed the WCJ's decision. This appeal followed.
Petitioner argues that the WCJ erred in concluding that Vogrins had suffered a material aggravation of a preexisting condition when Dr. Sauer did not specifically opine that Vogrins' injury was an aggravation of preexisting condition. Petitioner asserts that the WCJ improperly made an independent medical determination in reaching her conclusion.
In a workers' compensation case, the claimant has the burden of proving the causal connection between the alleged disability and the work injury. Lewis v. Workmen's Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 508 Pa. 360, 498 A.2d 800 (1985). A claimant satisfies his burden if he proves that the alleged disability either "results from the injury or is aggravated, reactivated or accelerated by the injury . . . ." Fotta v. Workmen's Comp. Appeal Bd. (U.S. Steel/USX Corp. Maple Creek Mine), 534 Pa. 191, 194, 626 A.2d 1144, 1146 (1993) (quoting Section 301(1) of the Workers' Compensation Act). The WCJ is the ultimate finder of fact, and the WCJ's findings may not be disturbed unless they are not supported by substantial, competent evidence. Westinghouse Electric Corp. v. Workers' Comp. Appeal Bd. (Weaver), 823 A.2d 209 (Pa. Cmwlth. 2003). As the fact finder, a WCJ is permitted to draw reasonable inferences from the evidence. Bentley v. Workers' Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 987 A.2d 1223 (Pa. Cmwlth. 2009). Further, when a medical expert is stating an opinion, the expert is not required to recite "magic words." Schmidt v. Workers' Comp. Appeal Bd. (IATSE Local 3), 19 A.3d 1171, 1176 (Pa. Cmwlth. 2010). Rather, an expert's testimony must be reviewed in its entirety. Id.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411 (1).
The WCJ's finding that Vogrins "sustained a lateral meniscus tear and an injury to the patella causing subluxation and traumatic chondromalacia" is supported by substantial evidence. WCJ Decision at 10, Finding of Fact No. 16. Dr. Sauer first diagnosed Vogrins with chondromalacia in 1990. Dr. Sauer opined that a twisting of the knee would cause a subluxation of the patella and a meniscal tear. Further, Dr. Sauer opined during his deposition and in his December 2009 report that Vogrins' current chondromalacia pain resulted from his work injury. Thus, Petitioner's assertion that the WCJ improperly found that Vogrins' sustained a work-related material aggravation of his preexisting traumatic chondromalacia is not supported by the record. Rather, the WCJ simply determined from the evidence of record that Vogrins had previously suffered from chondromalacia, and that although the chondromalacia had resolved following surgery in 1990, Vogrins' reinjured his knee resulting in an aggravation of his traumatic chondromalacia. The record supports the WCJ's inference that the chondromalacia pain Vogrins suffers as a result of his work injury was an aggravation of his preexisting condition.
Petitioner also asserts that the WCJ erred in adding subluxation of the patella and lateral meniscus tear to the description of the work injury because Vogrins' medical witness had no personal knowledge of the conditions and there was no evidence supporting his opinions. A physician may base an opinion on facts of which he or she has no personal knowledge if they are supported by evidence of record. Wood v. Workers' Comp. Appeal Bd. (Country Care Private Nursing), 915 A.2d 181 (Pa. Cmwlth. 2007). See also Se. Pa. Transp. Auth. v. Workers' Comp. Appeal Bd. (Herder), 765 A.2d 414 (Pa. Cmwlth. 2000) (an expert's medical opinion regarding causation may be based on a history obtained from the claimant, assumed facts of record, and/or medical reports submitted into evidence).
It is well established that a medical witness' concession given during cross-examination does not destroy the effectiveness of the expert's previous opinion; as such statements go to the weight, not the competency, of that opinion. Hannigan v. Workmen's Comp. Appeal Bd. (Asplundh Tree Expert Co.), 616 A.2d 764 (Pa. Cmwlth. 1992). Petitioner relies upon Dr. Sauer's concession upon cross-examination that the meniscal tear could have been degenerative as Dr. Busch's operative note did not state whether the tear was acute or degenerative. However, Dr. Sauer also stated that Vogrins tore the anterior portion of the meniscus and that in his experience such a tear is not degenerative or myxoid. Petitioner also points to Dr. Sauer's testimony that in order for Vogrins to have sustained a lateral subluxation of the patella and lateral meniscus tear he would have had to rotate his knee to the inside and that the emergency room record stated that Vogrins' knee twisted outward. The emergency room record additionally characterizes Vogrins as suffering "a twisting knee injury." R.R. at 29. Dr. Busch's records noted that Vogrins slipped and "twisted the knee and felt a popping sensation anteriorly." R.R. 33a. Dr. Cooper's report stated that Vogrins "twisted his left leg" and Dr. Sauer' treatment records characterized Vogrins as having suffered a "twisting injury." R.R. at 92a, 306a. Dr. Sauer based his opinion that Vogrins suffered a subluxation of the patella and lateral meniscus tear upon his review of Vogrins' medical records, Dr. Busch's operative report noting the subluxation and meniscal tear, the absence of either injury in Vogrins' prior medical history, and an analysis of the mechanism of injury. It was solely within the WCJ's province to make the credibility determinations regarding Dr. Saur's testimony. We conclude that the WCJ did not err in amending the injury description.
Finally, Petitioner argues that the WCJ erred in failing to address the extent of Vogrins' disability when Dr. Sauer admitted that Vogrins was fully recovered from the subluxation of his patella. Dr. Sauer stated that the surgery performed by Dr. Busch corrected the subluxation of the patella. Dr. Sauer went on to opine, however, that Vogrins was not recovered from the subluxation because the "subluxation could have caused changes to the articular cartilage of the joint, which could cause inflammation and pain." R.R. at 269a. Dr. Sauer opined that Vogrins was not recovered from his work injury because he continues to have pain and giving way of the knee. Dr. Sauer's testimony supports a finding that Vogrins twisted his knee, sustained a lateral subluxation of the patella and a lateral meniscus tear which aggravated the chondromalacia. Because the WCJ credited Dr. Sauer's opinion over the opinion of Petitioner's expert, Dr. Cooper, we cannot disturb this finding. Westinghouse Electric Corp.
As we have determined that the WCJ did not commit any errors of law, the decision is supported by substantial evidence, and Vogrins prevailed in part, we need not address Petitioner's argument that the WCJ erred in awarding litigation costs pursuant to Section 440 of the Workers' Compensation Act, 77 P.S. § 996 . --------
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 9th day of July, 2012, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge