Opinion
No. 1987 C.D. 2011
08-30-2012
Shelida Lewis, Petitioner v. Workers' Compensation Appeal Board (SEPTA), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Shelida Lewis (Claimant) appeals from orders of the Workers' Compensation Appeal Board (Board), dated July 31, 2009 and September 19, 2011. In the July 31, 2009 opinion and order, the Board reversed a decision and order of WCJ Alan Gilbert with respect to WCJ Gilbert's amendment of a Notice of Compensation Payable (NCP) to include a chronic adjustment disorder. The Board also remanded WCJ Gilbert's decision for more findings on SEPTA's (Employer) termination petition and for a determination as to litigation costs. By its September 19, 2011 order, the Board reaffirmed its July 31, 2009 opinion and order. We now affirm the Board's orders.
SEPTA is the acronym for Southeastern Pennsylvania Transportation Authority.
At the outset, we note that Claimant presents two issues for review. First, Claimant argues that prior to the matters now on appeal to this Court, WCJ Donald Poorman, by decision and order dated August 19, 2002, implicitly amended the NCP to include the additional injuries now at issue in this matter, and, therefore, the Board erred in not recognizing the NCP as already having been amended. Second, Claimant argues that WCJ Gilbert, in a subsequent decision and order dated August 1, 2008, erred in amending Claimant's NCP to include some but not all of Claimant's additional injuries and failing to address Claimant's mental health issues. For those reasons, our recitation of the facts include a discussion of the relevant history relating to WCJ Poorman's decision and order dated August 19, 2002, even though that decision is not the subject of the Board's orders presently before the Court for review.
As background, Claimant worked for Employer as a cashier. On December 27, 1996, Claimant suffered a work-related injury when she fell, sustaining an injury to her left wrist. (WCJ Poorman's opinion, attached to Claimant's brief at 47.) A Notice of Temporary Compensation Payable (NTCP) was issued on January 10, 1997, which identified Claimant's injury as a "left wrist sprain, ruled out fracture." (Id. at 53.) Claimant was paid benefits pursuant to the notice. The NTCP converted to an NCP by operation of law. (Id.) On May 7, 2001, Employer filed a petition for modification, alleging that Claimant was able to return to available employment within her physical restrictions as of January 29, 2001. (Id. at 47.) The basis for Employer's petition was that Claimant could return to work in the transitional duty position of a fire watcher. The fire watcher position required observation of bus welding operations and the use of either hand to operate a fire extinguisher. (Id. at 48.) The job required a total of six to seven hours sitting and one hour standing, walking, or driving. (Id.) Claimant filed an answer, denying the averments in the modification petition. (Id. at 47.)
As proceedings progressed, it became clear and undisputed by all parties that Claimant's injury included a fracture.
In addition, the parties entered into a Supplemental Agreement on May 28, 1999, because Claimant suffered a recurrence of total disability on April 19, 1999. Employer agreed to pay ongoing compensation, and the agreement recognized the injury as a "left wrist sprain r/o fracture." (WCJ Poorman decision attached to Claimant's brief at 54.)
WCJ Poorman conducted a hearing, at which Employer presented the testimony of Randall Culp, M.D., a board certified orthopedic and hand surgeon, who first examined Claimant on July 21, 1997. (Id.) Dr. Culp completed a physical capacities form on January 6, 2001, indicating that Claimant could return to work with restrictions on use of her left hand. (Id. at 48.) Dr. Culp reviewed a transitional duty task description of the fire watcher position and approved this job as within Claimant's physical capacity on April 11, 2001. (Id.) Dr. Culp ultimately concluded that Claimant could return to light-duty work initially and eventually return to full duty work. (Id. at 47.)
Judith Peterson, M.D., who is board certified in physical medicine and rehabilitation, testified on behalf of Claimant. Dr. Peterson concluded that, as of June 1, 2001, Claimant had "significant functional restriction in the use of the left upper extremity secondary to regional pain" and "chronic wrist arthritic problems associated with multiple surgeries and chronic pain." (Id. at 49.) Dr. Peterson opined that Claimant would have permanent restrictions of her left upper extremity. (Id.) With respect to the fire watcher position, Dr. Peterson concluded that Claimant would be unable to perform the position based on the fact that Claimant could not use her left hand and did not have the endurance to tolerate the work activity. (Id.)
In a decision circulated on August 19, 2002, WCJ Poorman found Dr. Peterson's testimony more persuasive than Dr. Culp's testimony. (Id.) Specifically, WCJ Poorman did not accept Dr. Culp's testimony that Claimant could return to work in the fire watcher position. Importantly, WCJ Poorman also did not accept Dr. Culp's testimony that the fire watcher position was within the restrictions of the physical capacity form. (Id.) WCJ Poorman found: "Employer has failed to meet its burden to establish that Claimant [is] physically capable of performing the modified duty job made available to her as of January 19, 2001. Accordingly, Employer's Petition for Modification shall be denied." (Id. at 50.) Employer did not appeal WCJ Poorman's decision.
Thereafter, on May 17, 2004, Claimant filed a Petition to Review Medical Treatment and/or Billing and a Petition to Review Compensation Benefits. (Id. at 53.) Claimant alleged that the NCP was incorrect and sought to add additional diagnoses to the NCP, including reflex sympathetic dystrophy syndrome (RSD), chronic pain syndrome, and chronic adjustment disorder with depressed mood. Employer filed an answer, denying all material allegations. On November 19, 2004, Employer filed a Petition to Terminate Claimant's benefits, alleging that Claimant was fully recovered, there was available work, and that Claimant was able to return to unrestricted work. (Id.) Claimant filed an answer denying these averments. (Id.) The matters were assigned to WCJ Gilbert.
Claimant testified before WCJ Gilbert that she worked as a cashier for Employer prior to her December 27, 1996 injury. (Hr'g Tr., April 22, 2005 at 4.) In her role, Claimant was responsible for selling tokens, transpasses, transfers, and exchanging coins through the window. (Id.) Although Claimant is right-handed, Claimant noted that she used both hands while performing her job functions. (Id. at 5-6.) Claimant also testified to her evaluations with Gladys Fenichel, M.D., relating to her psychological issues, specifically problems dealing with her stress. (Id. at 13.) Claimant did note that she had personal and family issues creating stress. (Id.) Claimant indicated that she did not have any psychological problems prior to her work injury. (Id. at 14.) Further, Claimant testified that she did not have the ability to return to work as of 2005 based on her stress and mental issues. (Id.) Specifically, Claimant stated that she would forget to do things, had trouble focusing, and could not deal with the public in general based on her "excruciating pain[]." (Id. at 19.) Finally, Claimant testified that, beyond a short return to work in 1997, Claimant has not been employed since April 19, 1999. (Id. at 23, 24.)
Claimant submitted the deposition testimony of Gerald Keller, Psy.D. Dr. Keller is board certified in psychology and first examined Claimant on March 29, 2001, upon referral from Dr. Peterson. (Dep. Test., November 29, 2004 at 10.) Claimant discussed her financial stress and interpersonal issues. (Id.) With respect to her mental health, Claimant complained of depressed mood, mild insomnia, low energy, no interest in anything, a sense of helplessness about the future, and suicidal ideation. (Id. at 12.) Dr. Keller noted that Claimant was previously treated (in 1994 or 1995) for post-traumatic stress disorder, resulting from a punch in the face that occurred while Claimant worked for Employer. (Id. at 13.)
We note that, in addition to the expert testimony discussed, medical testimony was elicited from several other physicians pertaining to Claimant's physical injuries to her left wrist. Additionally, both Dr. Keller and Dr. Fenichel testified to Claimant's physical injuries. However, Claimant's wrist injury is not the subject of this appeal, and, therefore, we need not address the additional testimony.
Most significantly, Dr. Keller testified to performing a mental status exam on Claimant, which is a sampling of a patient's psychological status. (Id.) Based on the mental status exam, Dr. Keller concluded that Claimant did not have any psychotic disorder. (Id. at 14.) Dr. Keller testified that Claimant was very sad, and he described her mood as very depressed. (Id.) Dr. Keller opined that Claimant was unable to return to work. (Id. at 19.) With respect to treatment, Dr. Keller testified that he treated Claimant with pain management, cognitive therapy, stress management, and relaxation therapy. (Id. at 19-20.) In 2002, Dr. Keller changed his depression diagnosis to dysthymia, a lesser form of depression, based on Claimant's increased stability. (Id. at 25, 26.) Dr. Keller noted that Claimant stopped treating with him in 2003, but returned in June of 2004 for her dysthymia and interpersonal issues that were creating difficulty for her. (Id. at 30.) Dr. Keller, however, ultimately concluded that Claimant's major depressive disorder was in remission. (Id.) Finally, Dr. Keller admitted that a majority of the stress that Claimant experienced was related to non-work, interpersonal issues. (Id. at 81.)
Dr. Fenichel, who is board certified in psychiatry, also testified as to Claimant's mental state. (Dep. Test., February 9, 2005 at 5.) Dr. Fenichel examined Claimant on October 24, 2004. (Id. at 7.) At the examination, Claimant recounted her personal issues, such as her loss of contact with her children and loss of custody of her grandchild. (Id. at 13-14.) Dr. Fenichel also performed a mental status exam on Claimant. (Id. at 16.) Dr. Fenichel opined that Claimant did not appear depressed. (Id. at 26.) Dr. Fenichel indicated that Claimant had several social stressors, occupational stressors, financial stressors, and medical stressors. (Id. at 31.) Dr. Fenichel also noted that Claimant had chronic pain complaints. (Id.) Dr. Fenichel stated that Claimant did not have a psychiatric disorder and she did not need any additional psychological treatment related to her December 27, 1996 work-related injury, based primarily on the pain management techniques Claimant had learned through Dr. Keller. (Id. at 33, 35.) Further, Dr. Fenichel testified that Claimant's injuries were not solely related to her December 27, 1996 injury. (Id.) Rather, new factors including financial stressors, social stressors, and loss of contact with her family affected Claimant's perception of pain. (Id. at 36.) Dr. Fenichel diagnosed Claimant with a pain disorder associated with psychological factors and general medical condition. (Id. at 30.) Dr. Fenichel testified that Claimant's depression was in remission and that Claimant's pain disorder still exists but is not disabling. (Id. at 35-36.) Finally, Dr. Fenichel opined that Claimant could return to work without any restrictions related to a psychiatric diagnosis. (Id. at 38.)
Initially, in his August 1, 2008 decision, WCJ Gilbert concluded, in part, that WCJ Poorman did not expand the description of Claimant's injury beyond what was recognized in the NCP. (WCJ Gilbert's opinion, attached to Claimant's brief at 74.) Specifically, WCJ Gilbert found that WCJ Poorman's decision addressed a modification of benefits, and WCJ Poorman made no specific findings regarding Claimant's conditions or diagnoses. (Id.) Further, WCJ Gilbert concluded that both Dr. Fenichel and Dr. Keller were credible regarding Claimant's psychiatric diagnosis of the pain disorder, and, additionally, that Claimant had not recovered from the pain disorder. (Id.) WCJ Gilbert credited Dr. Fenichel's testimony that Claimant's depressive condition had ceased or was in remission, based on Claimant's documented progress and WCJ Gilbert's personal observation of Claimant's demeanor during her testimony. (Id.) It is noted that WCJ Gilbert accepted Dr. Keller's opinion that Claimant's depression was related to her injury, but not his view that Claimant still suffered from the condition. (Id. at 75.) WCJ Gilbert concluded that the NCP should be amended to include chronic pain disorder and chronic adjustment disorder with depressed mood. (Id. at 77.) However, WCJ Gilbert also concluded that Claimant had recovered from the chronic adjustment disorder with depressed mood at the time of Dr. Fenichel's examination on October 24, 2004. (Id.) As a result, WCJ Gilbert amended the NCP based on Claimant's additional injuries to include a pain disorder and chronic adjustment disorder with depressed mood, a disorder from which Claimant recovered. (Id. at 79a.) WCJ Gilbert also denied Employer's termination petition, as Employer failed to prove that Claimant has fully recovered. (Id.)
Both Claimant and Employer appealed WCJ Gilbert's decision. Claimant posited that an additional injury of RSD should have been included in the NCP and argued that WCJ Poorman had previously implicitly expanded the injury description in the NCP. Additionally, Claimant argued that WCJ Gilbert failed to issue a reasoned decision by amending the NCP to include chronic adjustment disorder and by failing to address Claimant's milder form of diagnosed depression. Employer argued that WCJ Gilbert erred in denying its termination petition.
In its July 31, 2009 decision, the Board concluded that WCJ Poorman did not implicitly amend the NCP. The Board also found, however, that WCJ Gilbert erred in amending the NCP to include chronic adjustment disorder with depressed mood, because neither medical expert concluded that Claimant suffered from these conditions as a result of her work injury. (Board's opinion, attached to Claimant's brief at 92.) Moreover, the Board found WCJ Gilbert's conclusion that Claimant's depression was in remission to be supported by substantial evidence. Finally, regarding Employer's termination petition, the Board remanded the case for more findings to determine whether Claimant had fully recovered from her work-related injury.
We note that the Board ultimately reaffirmed its July 31, 2009 order by decision and order dated September 19, 2011. The Board's September 2011 order came after the Board remanded the matter based on WCJ Gilbert's decision. The remand was heard by a third WCJ.
In her current appeal to this Court, Claimant raises two issues. First, she claims that the Board erred in concluding that WCJ Poorman, in denying Employer's modification petition, did not implicitly amend the NCP description of injury to include RSD. Second, Claimant argues that WCJ Gilbert's decision is not reasoned under Section 422(a) of the Workers' Compensation Act (Act), because WCJ Gilbert's finding that Claimant suffered from chronic adjustment disorder is not supported by substantial evidence.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
Without using the formal amendment process under the Act, where a WCJ makes "findings in a termination petition . . . based on non-recovery from work injuries not accepted in the NCP, those injuries [become] part of the accepted injury." Mino v. Workers' Comp. Appeal Bd. (Crime Prevention Ass'n), 990 A.2d 832, 839 (Pa. Cmwlth.), appeal denied, 607 Pa. 697, 4 A.3d 159 (2010) (alteration in original). In cases where a WCJ implicitly amends an NCP, the WCJ generally makes a finding that the work-related incident caused a specific injury. See Westmoreland Cnty. v. Workers' Comp. Appeal Bd., 942 A.2d 213, 218 (Pa. Cmwlth. 2008). Further, a WCJ's findings expanding an injury description, if unchallenged, are binding on the parties in a subsequent proceeding. Mino, 990 A.2d at 839.
See 77 P.S. §§ 771-72.
WCJ Poorman decided the issue of whether Employer's proposed alternative employment fit within Claimant's modified duty description. Based on his credibility determinations, WCJ Poorman found that "Claimant is not capable of performing the fire watcher position offered to her by Employer." (WCJ Poorman's decision attached to Claimant's brief at 49.) WCJ Poorman made no findings of facts or conclusions of law as to Claimant's specific injuries or the cause of those injuries. WCJ Poorman did not render any conclusions with regard to Claimant's recovery, but only that Claimant was unable to perform the position of fire watcher. As a result, WCJ Poorman's basis for denying Employer's modification petition was the fact that the fire watcher position did not fit the description of suitable employment based on the evaluation of Dr. Peterson. At no point did WCJ Poorman make any findings related to additional injuries suffered by Claimant or in any other way implicitly amend the NCP. We conclude, therefore, that the Board did not err in determining that WCJ Poorman's decision did not expand Claimant's injury description in the NCP.
Claimant next argues that WCJ Gilbert failed to issue a reasoned decision, because his finding that Claimant suffered from chronic adjustment disorder is not supported by substantial evidence. Rather, Claimant suggests that WCJ Gilbert's decision with regard to Claimant's injury should have been remanded to the Board for further findings on Claimant's mental injuries and depression. We disagree.
To the extent Employer argues that this argument is moot, based on the Board's review of WCJ Gilbert's decision, the argument lacks merit. "It is settled that the WCJ exercises administrative discretion '[i]n taking evidence and in assessing its credibility and weight. . . .'" Peterson v. Workers' Comp. Appeal Bd. (Wal Mart, CMI, Inc.), 938 A.2d 512, 515 (Pa. Cmwlth. 2007) (alteration in original) (citations omitted). "Therefore, when a WCJ is required to take evidence on remand, the Board's remand order is not appealable under Rule 311(f)(1)[,] [Pa. R.A.P. 311(f)(1)]." Id. In other words, a Board's remand order is an unappealable interlocutory order. Id.; see Compservices, Inc. v. Workers' Comp. Appeal Board (Hoffmaster-Bellini), 836 A.2d 170 (Pa. Cmwlth. 2003). Here, the Board remanded WCJ Gilbert's decision for additional evidence, and Claimant could not appeal WCJ Gilbert's decision prior to the remand. Accordingly, Claimant's argument is valid.
Section 422(a) of the Act requires a WCJ to issue a reasoned decision such that it permits an appellate court to exercise adequate appellate review. Amendeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012). To satisfy this standard, a WCJ need not discuss every detail in the record. Id. "Rather, Section 422(a) of the Act requires WCJs to issue reasoned decisions so that this Court does not have to 'imagine' the reasons why a WCJ finds that the conflicting testimony of one witness was more credible than the testimony of another witness." Id. (citations omitted). Where medical experts testify by deposition, a WCJ's resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another. Green v. Workers' Comp. Appeal Bd. (U.S. Airways), 28 A.3d 936, 940 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, ___ A.3d ___ (No. 663 EAL 2011, filed June 1, 2012). "Some articulation of the actual objective basis for the credibility determinations must be offered for the decision to be a 'reasoned' one which facilitates effective appellate review." Id. (quoting Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003)).
Further, we note that the WCJ is the ultimate fact finder in workers' compensation cases, and we are bound by the WCJ's findings of fact if they are supported by substantial evidence. General Elec. Co. v. Workmen's Comp. Appeal Bd. (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth.), appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). It does not matter that there is evidence of record which could support a finding contrary to that made by the WCJ, the only inquiry is whether there is evidence of record which supports the WCJ's finding. Hoffmaster v. Workers' Comp. Appeal Bd. (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). When reviewing the determination of the WCJ, an appellate court must ascertain whether, upon consideration of the evidence as a whole, the findings of fact have the requisite measure of support in the record. Condran v. Workers' Comp. Appeal Bd. (H.B. Reese Candy Co.), 721 A.2d 1133, 1138 (Pa. Cmwlth. 1998), appeal denied, 560 Pa. 750, 747 A.2d 371 (1999).
Here, with respect to Claimant's residual mental injuries stemming from the work-related incident, WCJ Gilbert found that, based on the testimony of Drs. Fenichel and Keller, Claimant suffered from a pain disorder and depression. With respect to Claimant's depression, however, WCJ Gilbert concluded that Claimant's depression was in remission based on the credited testimony of Dr. Fenichel. (Claimant's brief at 74-75.) Based on the expert testimony presented, there is a lack of evidence to support the finding that Claimant suffered from a chronic adjustment disorder. As a result, the Board properly reversed WCJ Gilbert's finding that Claimant suffered from chronic adjustment disorder.
As previously addressed, Claimant seems to suggest that WCJ Gilbert's decision regarding Claimant's mental injuries should have been remanded for further findings on Claimant's depression. While Dr. Keller opined that Claimant had a depression disorder, Dr. Fenichel opined that Claimant's depression was in remission. WCJ Gilbert credited Dr. Fenichel's testimony based on Claimant's progress as well as WCJ Gilbert's personal observation of Claimant's demeanor. (WCJ Gilbert's opinion, attached to Claimant's brief at 74.) This constitutes a reasoned decision because WCJ Gilbert articulates a rationale for finding Dr. Fenichel more credible than Dr. Keller. We stress that it does not matter if there is evidence in the record that could support a finding contrary to that made by the WCJ, the only inquiry is whether there is evidence of record to support the WCJ's finding. Hoffmaster, 721 A.2d at 1155. The WCJ, as the ultimate fact finder, had the discretion to credit Dr. Fenichel's testimony over Dr. Keller's testimony regarding Claimant's depression. Furthermore, this finding is supported by substantial evidence because Dr. Fenichel specifically opined that Claimant's depression was in remission. As a result, the Board properly concluded that the WCJ's decision was reasoned and supported by substantial evidence. A remand, therefore, was unnecessary.
To the extent Claimant argues that WCJ Gilbert failed to address Dr. Keller's diagnosis of dysthymic disorder, a milder form of depression, Claimant's argument lacks merit because WCJ Gilbert specifically found that Claimant's depressive condition, as a whole, was in remission. (Claimant's brief at 74.) --------
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 30th day of August, 2012, the orders of the Workers' Compensation Appeal Board, dated July 31, 2009, and September 19, 2011, are hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge