Opinion
No. 2080 C.D. 2011
05-16-2012
Lubrizol Corp., Petitioner v. Workers' Compensation Appeal Board (McCann, (Widow), McCann, (Dec'd), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Lubrizol Corp. (Employer) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision and Order granting the fatal claim petition filed by Laura McCann (Claimant). Employer argues that the WCJ's Decision is not supported by substantial competent evidence and is not reasoned under the Workers' Compensation Act. We reverse.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.
Claimant was married to and dependent upon Kenneth McCann (Decedent). Decedent suffered work-related injuries to his right wrist and low back on October 6, 2000, for which he began receiving workers' compensation benefits pursuant to the WCJ's October 28, 2002 Decision and Order. Thereafter, Decedent filed penalty and review petitions and Employer filed a termination petition. During the course of the litigation on these petitions, the WCJ was notified that Decedent had died in August 2003. Consequently, Decedent's counsel withdrew the review petition and requested that the penalty petition be dismissed. By Decision and Order circulated on January 30, 2004, the WCJ dismissed the penalty petition and denied Employer's termination petition based upon Decedent's testimony and the medical evidence submitted into evidence. (WCJ's Findings of Fact (FOF) ¶¶ 1-2, 8.)
On or about August 8, 2006, Claimant filed a fatal claim petition alleging that Decedent died on August 9, 2003 of cardio-pulmonary arrest due to a drug overdose. Claimant alleged further that Decedent's cardio-pulmonary arrest was caused by medications that were taken for the pain Decedent suffered as a result of his October 6, 2000 work-related injury to his low back. Employer filed a timely answer denying that the drug overdose was related in any way to Decedent's work injury. (FOF ¶ 1.) In support of the fatal claim petition, Claimant testified on her own behalf and presented the deposition testimony of Mary F. Pascucci, D.O. In opposition, Employer presented the deposition testimony of Nathan Schwartz, M.D.
Claimant, a trained registered nurse, described Decedent's physical condition immediately prior to his August 9, 2003 death. Claimant testified that Decedent "was unable to sustain any activity" such as "walking, laying, sitting, [or] standing," and that Decedent was in continuous pain. (FOF ¶ 3c.) Claimant testified that Decedent took prescription medications from 2000 to 2003 due to his work-related injury. Claimant testified that Decedent developed a dependency on the prescription medications shortly after he underwent back surgery in November 2000 and that Decedent entered a rehabilitation program in May or June 2003. Claimant testified that Decedent, after leaving the rehabilitation facility, "had stopped taking narcotics and he was virtually non-functional." (FOF ¶ 3c.) Claimant testified that she became aware within a month of Decedent leaving the rehabilitation facility that he was again using prescription medications, which Decedent had obtained from a physician identified as Dr. Alexanderian, who was not Decedent's family doctor. Claimant testified further that, prior to seeking rehabilitation, Decedent severed all ties with the doctors who were prescribing the medications; therefore, Decedent sought out Dr. Alexanderian who "had a reputation for giving people what they ask for." (FOF ¶ 3c.) Although Claimant testified that she accompanied Decedent to one of his appointments with Dr. Alexanderian, she did not recall what medications the doctor prescribed for Decedent. Claimant first stated that she could not recall and then later testified that there were no medications or pill bottles located in the vicinity of where she found Decedent after he overdosed. Claimant acknowledged that Decedent had a problem with street drugs approximately four years prior to their meeting, but she denied that Decedent used any drugs other than the prescription medication. (FOF ¶ 3e.)
Dr. Pascucci testified that she reviewed Decedent's medical records dating from 2000 through Decedent's death in August 2003, as well as Claimant's testimony. Dr. Pascucci testified that she did not review any medical records from Dr. Alexanderian. Claimant's counsel noted that the records were not available at the time of Dr. Pascucci's deposition, because Dr. Alexanderian was no longer practicing medicine due to the doctor's criminal convictions, which Employer's counsel stated were related to the improper distribution of narcotic medications. (FOF ¶ 4.)
Dr. Pascucci testified further that Decedent's entire medical record clearly indicated that Decedent had unrelenting or chronic type pain due to his work-related injury. Dr. Pascucci testified that Decedent was prescribed different medications for pain control, including OxyContin, Fentanyl patches, and Valium. Dr. Pascucci testified that a prescription for Valium would have been appropriate given the review of Decedent's medical records; however, Dr. Pascucci conceded that Decedent's medical records were unclear regarding whether he was receiving Valium from a doctor in August 2003. Dr. Pascucci testified that the drug screening performed on Decedent when he died in August 2003 was positive for Valium and that Decedent's death certificate listed the cause of death as "multisystem failure due to drug overdose." (FOF ¶ 4d.) Dr. Pascucci opined that Decedent died from an overdose of Valium, which he was taking for pain related to his work injury, and that his death was related to Decedent's October 6, 2000 work-related injury. (FOF ¶ 4e.)
Dr. Schwartz testified that he reviewed Decedent's voluminous medical records and produced a narrative report of his findings and conclusions dated March 16, 2009. Dr. Schwartz testified that none of Decedent's medical records indicated that Decedent was given a prescription for Valium at any time after December 2000. Dr. Schwartz testified further that he did not review Claimant's testimony, but that he was aware that Decedent suffered a low back injury that required surgery and that Decedent had ongoing complaints of low back pain. (FOF ¶ 5a, b.) The WCJ examined Dr. Wolanin's medical records, which had been reviewed by Dr. Schwartz and introduced as Exhibit #4 to Dr. Schwartz's deposition testimony, which revealed "references to 'val' or 'vali' as being prescribed by Dr. Wolanin for [Decedent] from January through April 2003 - the last record bearing the date April 8, 2003." (FOF ¶ 5a.)
Based on the evidence presented and reviewing the information presented in the prior litigation, the WCJ made the following credibility determinations:
[8]a. Having heard and observed [Claimant] and having reviewed her testimony, this Judge finds her credible. [Claimant's] testimony establishing her marriage to [Decedent] and her dependence on him at the time of his death is credible and accepted as fact. Additionally, her testimony regarding [Decedent's] ongoing back pain from the time of his 2000 work-injury events through to his death on August 9, 2003, is credible and is supported by the testimony this Judge received from [Decedent] on July 2, 2003. [Claimant's] testimony on this point is also supported by the medical testimony, accepted as fact, from [Decedent's] medical expert, Dr. Moran, that [Decedent's] pain was chronic. Accordingly, [Claimant's] testimony is accepted as fact. Finally, [Claimant's] testimony concerning her husband seeking assistance from Dr. Alexanderian for his back pain after he returned from the White Deer Rehabilitation program in 2003 is credible. It is again noted that [Claimant] did accompany her husband to Dr. Alexanderian on at least one occasion. Therefore, her testimony on this point also is accepted as fact.
b. With regard to the medical testimony offered by each party, this Judge finds that each expert offered her or his opinions within a reasonable degree of medical certainty. Nevertheless, this Judge considers Dr. Pascucci's testimony both credible and, on balance, more persuasive than Dr. Schwartz's testimony. In making this finding, this Judge is not unmindful of Dr. Schwartz's credentials in both anesthesiology and pain management and the doctor's lengthy practice history. Nor is this Judge unmindful of the fact that Dr. Schwartz conducted a thorough review of [Decedent's] records and related materials. However, this Judge also finds Dr. Pascucci's pathology credentials and experience in the field of pathology worthy of note.
This Judge also finds credible Dr. Pascucci['s] testimony that [Decedent's] medical records available to her were not clear in regard to the medications that were being prescribed for him at the time of his 2003 death. With regard to this testimony, it again must be noted that, while Dr. Schwartz testified he could not locate a reference to a prescription for Valium after 2000 from any of [Decedent's] treating physicians, a review of Dr. Wolanin's records made part of Dr. Schwartz's deposition transcript as Exhibit #4 reveals references to "val["] or "vali" a[s] being prescribed for [Decedent] from January through April 2003. Given records such as these, Dr. Pascucci's testimony regarding the lack of clarity in [Decedent's] medical records, again, is credible.
Additionally, this Judge finds that Dr. Pascucci presented a clear, understandable, and credible explanation for the use of Valium to treat pain. While Dr. Schwartz may not agree with this use, Dr. Pascucci's testimony makes it clear that another physician could be justified in prescribing Valium to address pain complaints such as those expressed by [Decedent]. More important, Dr. Pascucci presented a clear, understandable and credible explanation of the link between [Decedent's] use of Valium for pain due to his work injury and his death from this use; this explanation taking into account [Decedent's] prior substance abuse condition.
Given the preceding review, Dr. Pascucci's testimony concerning the cause of [Decedent's] death through his use of Valium and its relation to his October 2000 work injury is accepted as fact for this Decision. To the extent that Dr. Schwartz's testimony is
inconsistent with the testimony of Dr. Pascucci, Dr. Schwartz's testimony is not accepted as fact.(FOF ¶ 8.) The WCJ determined that Employer failed to meet its burden of showing that Decedent's use of Valium at the time of his death was illegal given the WCJ's credibility determinations. (WCJ Decision at 10-11.) The WCJ determined that there was "no clear evidence that [Decedent] violated the law by either, again, obtaining Valium illegally or by then using it to voluntarily intoxicate himself." (WCJ Decision at 11.) The WCJ determined further that Decedent "suffered from chronic low back pain as a result of his 2000 work injury and, therefore, took the Valium in August 2003 to address this pain." (WCJ Decision at 11.) Accordingly, the WCJ granted Claimant's fatal claim petition. Employer appealed to the Board, which affirmed. This appeal followed.
See Section 301(a) of the Act which provides, in pertinent part, that:
Every employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his employment, and such compensation shall be paid in all cases by the employer, without regard to negligence . . . Provided, That no compensation shall be paid when the injury or death is intentionally self[-]inflicted, or is caused by the employe's violation of law, including, but not limited to, the illegal use of drugs, but the burden of proof of such fact shall be upon the employer . . . . In cases where the injury or death is caused by intoxication, no compensation shall be paid if the injury or death would not have occurred but for the employe's intoxication, but the burden of proof of such fact shall be upon the employer.77 P.S. § 431.
"This Court's review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, and whether necessary findings of fact are supported by substantial evidence." Mark v. Workers' Compensation Appeal Board (McCurdy), 894 A.2d 229, 233 n.6 (Pa. Cmwlth. 2006). "Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion." Wells-Moore v. Workmen's Compensation Appeal Board (McNeil Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). The appellate role is not to reweigh the evidence or review the credibility of witnesses, but to "determine whether, upon consideration of the evidence as a whole, the [WCJ's] findings have the requisite measure of support in the record." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992).
"In a fatal claim proceeding, the surviving family member bears the burden of proving that the decedent sustained an injury in the course and scope of employment and that the decedent's death was causally related to the work-related injury." J.D. Landscaping v. Workers' Compensation Appeal Board (Heffernan), 31 A.3d 1247, 1252 (Pa. Cmwlth. 2011) (citing Whelan v. Workmen's Compensation Appeal Board (F.H. Sparks Co. of Pa.), 532 A.2d 65, 66 (Pa. Cmwlth. 1987)). "Where a decedent's death results from medical treatment received for a work-related injury, the law regards the decedent's death as having been caused by the work-related injury." Id. (citing Powell v. Sacred Heart Hospital, 514 A.2d 241, 243-44 (Pa. Cmwlth. 1986)).
Here, there is no dispute that Claimant suffered a work-related injury to his low back on October 6, 2000, for which he was receiving workers' compensation benefits. However, Employer argues that the WCJ's finding that Claimant met her burden of proof that Decedent's death was causally related to his October 6, 2000 work injury is not supported by substantial and competent evidence. In support of this argument, Employer contends that: (1) Claimant failed to present any evidence that Decedent was prescribed Valium for his work-related injury after 2000 or at the time of his death; (2) Dr. Pascucci admitted that Decedent's medical records do not show a prescription for Valium after December 2000 and that she did not review any records from Dr. Alexanderian; (3) Dr. Schwartz's testimony demonstrates that no physician prescribed Decedent Valium for his work-related injury after December 2000 or at the time of his death in August 2003; (4) the WCJ's interpretation of the "val" and "vali" references in Decedent's medical records introduced as Exhibit #4 during Dr. Schwartz's deposition does not constitute substantial evidence of record because the WCJ is not a medical expert and his references to "val" and "vali" are confusing and not evidence; and (5) no reasonable person would accept Claimant's assertion that Dr. Alexanderian prescribed Valium for Decedent, much less for his work-related injury.
Our review of the record reveals that Employer is correct that the WCJ's findings are not based upon substantial evidence. During her testimony on direct examination, Dr. Pascucci summarized Decedent's medical condition and treatment based on her review of Decedent's medical records. Dr. Pascucci testified that Decedent suffered unrelenting chronic pain, even after the November 2000 surgery, and that Decedent did not experience any pain relief from the surgery, therapy, or medications. (Pascucci Dep. at 15, R.R. at 44a.) Dr. Pascucci testified further that Decedent was prescribed OxyContin, Fentanyl patches, and Valium for pain control at various times and that Decedent eventually entered rehabilitation for substance abuse as a result of taking these legally prescribed medications. (Pascucci Dep. at 16, R.R. at 45a.) Dr. Pascucci testified that Decedent's medical records pertaining to his death revealed that a drug screen was performed which was positive for Valium. (Pascucci Dep. at 18-19, R.R. at 47a- 48a.) Dr. Pascucci opined that, based upon her review of Decedent's medical records and Claimant's testimony, Decedent died from a Valium overdose, that he was using Valium as a result of his work injury and the pain related thereto, and that Valium was an appropriate prescription medication to treat Decedent's pain. (Pascucci Dep. at 21-22, R.R. at 50a-51a.)
Dr. Pascucci testified that the drug screen performed on Decedent at the time of his death was positive for benzodiazepines. (Pascucci Dep. at 18, R.R. at 47a.) Dr. Pascucci explained that: (1) benzodiazepine is "a classification of drugs under which one of [Decedent's] prescription medicines falls"; (2) Decedent "had been taking Valium at the end"; and (3) "the Valium would show up under benzodiazepines." (Pascucci Dep. at 19, R.R. at 48a.)
However, on cross-examination, while Dr. Pascucci opined that Valium was prescribed to Decedent as a continuing medication, she could not find in the medical records where Decedent was prescribed Valium after December 2000. Dr. Pascucci also testified that she could not read some of the entries in Decedent's medical records. (Pascucci Dep. at 38-39, R.R. at 67a-68a.) Dr. Pascucci testified further that it was difficult to keep track of Decedent's medications and what doses he was prescribed. (Pascucci Dep. at 39, R.R. at 68a.) Dr. Pascucci pointed out that Decedent was getting various medications from different physicians; therefore, she did not know which physician Decedent "would have gotten any of his medications from." (Pascucci Dep. at 39, R.R. at 68a.) Dr. Pascucci also testified that she did not know if Decedent was prescribed Valium from a physician in August 2003 because there was "not a clear path of his records prior to August 2003 of a good progress note from one physician of exactly what he was on at that point." (Pascucci Dep. at 40, R.R. at 69a.) On re-direct, Dr. Pascucci testified once again that she could not find a subsequent prescription for Valium after December 2000 in Decedent's medical records that she could interpret because several of the records were illegible. (Pascucci Dep. at 47, R.R. at 76a.)
Dr. Schwartz testified throughout his testimony that he saw no indication in Decedent's medical records that Decedent was prescribed Valium for his work-related injury after December 2000. (Schwartz Dep. at 10-18, 102a-10a.) This testimony is consistent with Dr. Pascucci's testimony on this point. With respect to Dr. Wolanin's medical records introduced as Exhibit #4 to Dr. Schwartz's deposition, Dr. Schwartz testified that he reviewed the records and there was no indication contained therein that Dr. Wolanin prescribed Valium to Decedent. (Schwartz Dep. at 13-14, R.R. at 105a-06a.)
Notwithstanding the consistent expert testimony on this point, the WCJ, based on his own review of Dr. Wolanin's medical records detailing Decedent's office visits dated January 2, 2003, February 13, 2003, March 3, 2003, and April 8, 2003, found that the records did show that Dr. Wolanin prescribed Decedent either "val" or "vali." (FOF 5a, 8b; R.R. at 181a-82a.) However, contrary to the WCJ's finding, it is not clear that these references pertain to prescriptions for Valium. Specifically, the medical records dated January 2, 2003 and February 13, 2003 reference what appears to be "vul" and "vali" in the treatment section of each record; however, these entries do not contain "Rx" before each reference, as do the other entries written in this section. (R.R. at 181a.) Dr. Wolanin's medical records dated March, 3, 2003 and April 8, 2003 reference what appear to be "vuli" and "viali" in the treatment section of each record and while these entries do contain "Rx", it is not clear that these entries refer to prescriptions for Valium. (R.R. at 182a.) Given the lack of clarity in Dr. Wolanin's medical records, coupled with both Dr. Pascucci's and Dr. Schwartz's testimony that there was no indication in Decedent's medical records that he was prescribed Valium after December 2000, we conclude that the WCJ's determination that Decedent was prescribed Valium in 2003 by Dr. Wolanin is not supported by the record.
In addition, Claimant's testimony regarding Decedent's treatment with Dr. Alexanderian does not support the finding that Decedent was prescribed Valium for his work-related injury immediately prior to his death in 2003. Dr. Alexanderian's medical records were not available, Claimant could not recall what medications Dr. Alexanderian prescribed for Decedent, and Claimant testified that were no prescription medications or pill bottles located in the vicinity of where she found Decedent when he overdosed. Finally, Decedent testified before the WCJ on July 2, 2003 during litigation of the aforementioned penalty, review, and termination petitions. During his testimony, Decedent "testified that he was not taking any narcotic medications as of the July 2003 hearing." (FOF ¶ 6.)
We decline to take judicial notice of Dr. Alexanderian's criminal charges or convictions because Employer has not referenced any specific charges or convictions with respect to Dr. Alexanderian's treatment of Decedent.
This Court notes that Decedent's medical records reveal that, after his July 2, 2003 testimony before the WCJ, Decedent attempted to obtain relief for his chronic pain by securing a prescription for Duragesic patches. A medical record from Eastside Medical Urgent Care in Penfield, New York, dated July 17, 2003, entered into evidence by Employer during Dr. Schwartz's deposition testimony, states that Decedent visited the urgent care facility "seeking some pain control for chronic back condition." (Employer's Exhibit D-1, R.R. at 210a.) The medical record further states that: (1) Decedent had recently moved to New York from Pennsylvania and had "run out of his narcotic Duragesic patches which he has used for 3 years"; (2) Decedent had visited an area hospital two days prior and was treated for a mild medication withdrawal reaction; and (3) Decedent also asked "for some help in obtaining his Duragesic patches." (Employer's Exhibit D-1, R.R. at 210a.) The treating physician at the urgent care center did not prescribe Decedent Duragesic patches or any other type of narcotics, but instead referred Decedent for a follow up with another physician regarding "his chronic pain, his need for opiate narcotics and his withdrawal symptoms." (Employer's Exhibit D-1, R.R. at 210a.)
Claimant testified that Decedent was wearing two Duragesic patches on his body when she found Decedent. (Claimant Dep. at 23, R.R. at 284a.) Decedent's August 2003 hospital records state that Decedent was found with two Duragesic patches, which were removed somewhere en route to the hospital. (Report of Louise Breakstone, M.D., at 1, R.R. at 213a; Report of Alfonso Rodriquez, M.D., at 1, R.R. at 220a; Report of Dineshkumar C. Talati, M.D., at 1, R.R. at 226a.) Decedent's hospital records also state that: (1) Dr. Alexanderian was Decedent's family doctor; (2) Decedent was found with Duragesic patches on his body and multiple pills; (3) Decedent's wife did not know what kind of medications Decedent was using; (4) Decedent was "supposed to be on Lithium, Zoloft, Phendimetrazine; and (5) Decedent had a "history of psychiatric illness and was taking Zoloft and Lithium." (Report of Louise Breakstone, M.D., at 1, R.R. at 213a; Report of Alfonso Rodriquez, M.D., at 1, R.R. at 220a; Report of Dineshkumar C. Talati, M.D., at 1, R.R. at 226a, Report of Yu-Song Kao, M.D., at 1, R.R. at 227a.) Only one of Decedent's hospital records specifically mentions Valium in the history stating that Decedent "applied Duragesic patches and consumed an unknown amount of Valium as well as other pills." (Report of Louise Breakstone, M.D., at 1, R.R. at 213a.) Moreover, despite the frequent mention of the fact that Decedent was found with multiple pills, Claimant testified that there were absolutely no pills or any prescription medications around Decedent's body or in the general vicinity when she discovered Decedent. (Claimant's Dep. at 23, 31, R.R. at 284a, 292a.)
As stated previously, Claimant initially testified on direct examination that Dr. Alexanderian prescribed Duragesic and Valium to the Decedent; however, she testified on cross that she could not recall what medications Dr. Alexanderian prescribed for Decedent. (Claimant's Dep. at 20, 30-31, R.R. at 281a, 291a-92a.) Without Dr. Alexanderian's medical records regarding his treatment of Decedent, a description of the pills allegedly found with Decedent when he overdosed, or an actual pill bottle or prescription, it is not known exactly what treatment the doctor rendered to Decedent or where Decedent obtained the Duragesic patches found on his body, let alone the Valium found in Decedent's system. Accordingly, while it appears Decedent sought treatment for his chronic pain related to his work injury after July 2, 2003, based on the record certified to this Court, there is no evidence that Decedent was actually prescribed Valium or any other medication which would be classified as a benzodiazepine to treat his pain between July 2, 2003 and his death on August 9, 2003.
Accordingly, Claimant did not meet her burden of establishing that Decedent was being medically treated with Valium for his work-related injury at the time of his death. As such, the WCJ's findings that Decedent's "death through the use of Valium" was causally related to his October 6, 2000 work injury, (FOF ¶ 8b), is not supported by substantial evidence. Thus, the WCJ erred by granting the fatal claim petition.
The Order of the Board is reversed.
Due to our disposition of the first issue raised in this appeal by Employer, we need not reach the remaining issues. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge Senior Judge Colins dissents. ORDER
NOW, May 16, 2012, the Order of the Workers' Compensation Appeal Board entered in the above-captioned matter is REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge