Opinion
No. 1406 C.D. 2012
01-04-2013
Jeffry R. McKee, Petitioner v. Workers' Compensation Appeal Board (Commonwealth of PA Transportation), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Jeffry R. McKee (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers' Compensation Judge (WCJ) granting a suspension in favor of Claimant's employer, the Commonwealth of Pennsylvania, Department of Transportation (Employer). The WCJ determined Employer offered Claimant a modified duty job within his medical restrictions and that Claimant failed to make a good faith effort to return to work. Claimant, representing himself on appeal, contends the WCJ erred in finding Employer's medical expert credible. Also, he contends the WCJ erred in finding that Claimant did not follow up on Employer's job offer in good faith where Claimant's medical evidence indicated he could not perform the physical requirements of the position. Claimant further asserts the WCJ arbitrarily and capriciously disregarded the facts of the case. Upon review, we affirm.
We note Petitioner McKee, in naming the Department of Transportation as Respondent, omits the word Department.
I. Background
Claimant worked for Employer as an equipment operator A. In October 2009, Claimant suffered a right lower extremity injury while walking down an embankment to check a pipe. He experienced a pop in his right knee and fell 20 to 30 feet to the bottom of the embankment.
In November 2009, Employer issued a notice of compensation payable (NCP) describing Claimant's injury as an acute sprain of the right knee. Thereafter, Employer issued a corrected NCP changing the description of injury to a partial quadriceps tendon rupture of the right knee.
Claimant began treatment with Employer's panel physician, Dr. Edward McVey, who referred him to Dr. Douglas E.R. Roeshot (Employer's Physician) a board-certified orthopedic surgeon in State College. On Claimant's first visit, Employer's Physician noted Claimant had a swollen right knee and an obvious defect above the kneecap consistent with a quadriceps tendon rupture. An MRI confirmed a complete tear of the quadriceps tendon, the tendon above the kneecap that attaches the quadriceps to the kneecap.
In November 2009, Employer's Physician surgically reattached the tendon to the kneecap with strong suture. The doctor used another type of suture to repair the tendon and inside knee.
Employer's Physician personally examined Claimant in January 2010 and observed that the incision was healing nicely. Claimant could bend his knee to 80 degrees. He could also lift his leg against gravity, with his knee completely straightened out. This indicated Claimant had not developed an extensor leg deformity, which would have prevented the leg from straightening out entirely.
Thereafter, a physician's assistant handled Claimant's post-op visits. Employer's Physician reviewed the physician's assistant's notes and discussed Claimant's progress with his assistant. Claimant's last follow-up visit with the physician's assistant occurred in May 2010. Claimant still experienced some instability, which the physician's assistant attributed to weakness of the quadriceps rather than ligament instability.
At that time, Employer's Physician believed Claimant could return to work. To that end, Employer's Physician approved restrictions of no repetitive climbing, jumping or running, and no lifting over 50 pounds.
Thereafter, Employer's district safety coordinator, Janice Lynn Bunch (Safety Coordinator) developed a transitional duty position for Claimant based upon Employer's Physician's restrictions. In May 2010, Employer notified Claimant, by letter, of a full-time modified position, within Employer's Physician's restrictions, available as of June 1, 2010, at Claimant's time-of-injury wage. See Employer's Ex. 1; Supplemental Reproduced Record (S.R.R.) at 10b. The job's duties included flagging and light field work. Id. Employer's letter also advised, "Failure to report to this assignment could jeopardize your workers' compensation benefits, employment and may result in disciplinary action." Id.
Claimant responded by letter. See Employer's Ex. 2; S.R.R. at 11b. He declined Employer's job offer on the basis that he could not return to work based on his limited ability to stand, walk or sit for extended periods. Id. Thereafter, Claimant did not contact Employer.
In June 2010, Employer filed a modification/suspension petition averring it offered Claimant a modified position within his restrictions and that Claimant, not acting in good faith, refused to return to work. Employer's petition also sought a supersedeas. Claimant, represented by counsel, filed an answer averring that the work injury persisted, that Claimant continues to receive medical treatment, and that he could not perform the work offered him.
In July 2010, Claimant filed a petition to review medical treatment and review compensation benefits. Claimant averred the description of injury and average weekly wage were incorrect. Claimant further averred Employer failed to pay his medical bills.
In a July 2010 interlocutory order, the WCJ initially denied Employer's supersedeas request. In a second order circulated in September 2010, the WCJ granted supersedeas for a closed period of August 9-16, 2010 and then again denied supersedeas effective August 17 and continuing thereafter. Claimant filed an employee challenge to the grant of the one-week supersedeas.
Before the WCJ, Employer presented the testimony of Safety Coordinator and submitted Employer's Physician' deposition testimony. Claimant testified on his own behalf and submitted deposition testimony from Dr. David Bizousky (Claimant's Physician), an orthopedic surgeon who began treating Claimant in July 2010. Claimant's Physician testified that Claimant would not be able to perform work within Employer's Physician's restrictions. Rather, Claimant's Physician imposed additional restrictions.
Notably, in August 2010, Claimant returned to work for Employer in a stockroom position in accord with Claimant's Physician's additional restrictions. After approximately four days, Claimant's Physician took Claimant off work based on his phone call that he was not doing well. Claimant's Physician attributed Claimant's inability to work to problems with Lyrica, one of his medications.
Ultimately, the WCJ circulated an opinion and order granting Employer a suspension effective June 1, 2010. In Finding of Fact No 9, the WCJ made the following critical findings supporting a suspension:
a. The subject work injury involved a rupture of the right quadriceps tendon;
b. [Claimant] had sufficiently recovered from the subject work injury so as to be capable of performing alternative duty work at all material times beginning by at least June 1, 2010;
c. [Employer] has been willing and able to provide suitable alternative duty work for [Claimant] to perform at all material times beginning at least by June 1, 2010;
d. [Employer] provided [Claimant] with a suitable Notice of Ability to Return to Work form dated May 13, 2010, and offered him a return to alternative duty work beginning June 1, 2010, by letter dated May 21, 2010 ....WCJ Op., 3/30/2011, Findings of Fact (F.F.) Nos. 9a-9f.
e. [Claimant] failed to make a good faith effort to return to suitable alternative duty employment which [Employer] had made available to him and had offered to him and which would have resulted in no loss of earnings effective June 1, 2010; and
f. I do not believe that there was any material worsening in [Claimant's] condition at any time after June 1, 2010, which would have disabled him from continuing to work in the suitable alternative duty employment which [Employer] had available for him.
In reaching these findings, the WCJ accepted the testimony of Employer's Physician and Safety Coordinator as credible and convincing. F.F. No. 9. The WCJ rejected the contrary portions of the testimony of Claimant and Claimant's Physician "as not credible and not worthy of belief." Id. The WCJ then stated specific grounds for accepting or rejecting each witness's testimony. Id.
The WCJ also denied Claimant's review petition on the ground that he failed to establish anything incorrect about the description of injury or average weekly wage calculation. In addition, the WCJ denied Claimant's challenge to the one-week supersedeas.
On appeal, Claimant sought review of the suspension; his appeal did not address the review petition or supersedeas. In affirming the WCJ, the Board determined Employer met its burden for a suspension by offering Claimant a job within his medical clearance. The Board noted Claimant's failure to make a good faith effort to follow up on a job offer may result in a suspension of benefits. Kachinski v. Workmen's Comp. Appeal Bd. Vepco Constr. Co.), 516 Pa. 240, 532 A.2d 374 (1987); Beres v. Workmen's Comp. Appeal Bd. (Lawsons Convenience Store), 593 A.2d 939 (Pa. Cmwlth. 1991). The Board further observed the WCJ's findings were supported by substantial, competent evidence and that the WCJ's opinion, including his credibility determinations, met the reasoned decision requirements of Section 422(a) of the Workers' Compensation Act (Act). Claimant petitions for review.
Although Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) is, for the most part, superseded by statute as recognized in Riddle v. Workers' Compensation Appeal Board (Allegheny City Electric, Inc.), 603 Pa. 74, 981 A.2d 1288 (2009), Kachinski still applies where the employer offers the claimant a modified duty position within his medical restrictions. See Phoenixville Hosp. v. Workers' Comp. Appeal Bd. (Shoap), 2 A.3d 689 (Pa. Cmwlth. 2010), appeal denied, 610 Pa. 203, 18 A.3d 1093 (2011).
Act of June 2, 1915, P.L. 736, as amended, added by the Act of July 2, 1993, P.L. 190, 77 P.S. §834. Section 422(a) requires a 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. "A decision is 'reasoned' if it allows for adequate review by the appellate courts under the applicable review standards." Pryor v. Workers' Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1202 (Pa. Cmwlth. 2006).
II. Issues
Claimant states three issues for our review. He contends the WCJ erred in finding Employer's medical expert credible. He also assigns error in the finding that Claimant did not exercise good faith in failing to follow up on Employer's job offer, where Claimant's medical evidence indicated he could not perform the physical requirements of the position. Claimant also asserts the WCJ arbitrarily and capriciously disregarded the facts of the case.
This Court's review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
III. Discussion
A. Medical Evidence
1. Witness Credibility
Claimant first contends the WCJ erred in finding Employer's Physician more credible than Claimant's Physician. To that end, Claimant argues, although both doctors are orthopedic surgeons with impressive credentials, Claimant's Physician has more overall surgical experience, including his service as a surgeon in the U.S. Army.
Here, the WCJ indicated he found Employer's Physician's testimony credible and convincing because the doctor's factual testimony and opinions were entirely reasonable, realistic, scientific, logical, and consistent with the records. F.F. No. 9. Conversely, the WCJ rejected the contrary portions of Claimant's Physician's testimony on the basis that he did not express any opinions about the Claimant's ability to return to work at the relevant times. Id. The WCJ also noted Claimant's Physician sent Claimant back to work for Employer in August 2010 but then took the Claimant off work again based solely upon Claimant's subjective complaints. Id.
Further, the WCJ rejected Claimant's testimony regarding his pain as neither credible nor convincing based upon his demeanor. Id. The WCJ felt Claimant's various complaints were highly exaggerated and unrealistic. Id. For this reason, the WCJ also found Claimant's Physician, opinions, based on Claimant's subjective complaints, neither credible nor convincing. Id.
As noted, it is the WCJ's role to assess credibility and resolve conflicts in the evidence. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). The WCJ is free to accept or reject the testimony of any witness, including a medical expert, in whole or in part. Anderson v. Workers' Comp. Appeal Bd. (Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). In other words, it is not the role of the Board or a reviewing court to reweigh the evidence on appeal or reassess the credibility of the witnesses. Skirpan.
Moreover, the reasoned decision requirement in Section 422(a) does not require the WCJ, in making credibility determinations, to discuss all of the evidence of record. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003); Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). Rather, the WCJ need only make the findings necessary to resolve the issues raised by the evidence and relevant to the decision. Id.
Nonetheless, "[w]here 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." Dorsey, 893 A.2d at 194. To allow effective appellate review, the WCJ must articulate an objective basis for the credibility determination. Id. at 194-95. Although there are countless objective factors that may support a credibility determination, these factors must be identified and enunciated. Id.
Here, the WCJ's findings provide an objective basis for his credibility determinations. He found Employer's Physician's testimony to be entirely reasonable, realistic, scientific, logical and consistent with the record. F.F. No. 9. To the contrary, the WCJ noted Claimant's Physician did not express an opinion concerning Claimant's ability to work in June 2010. Id. Further, the WCJ did not find any material worsening in Claimant's condition at any time after June 1, 2010 which would have disabled him from continuing to work in the modified duty employment offered him in June 2010. F.F. No. 9f. Consequently, the WCJ's credibility determinations regarding the medical testimony satisfy the reasoned decision requirement of Section 422(a) of the Act. Dorsey. Although Claimant disagrees with the WCJ's credibility determinations, such disagreement is not a basis for setting them aside. Hall v. Workers' Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734 (Pa. Cmwlth. 2010).
Section 422(a) does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations. Dorsey. Moreover, "[a] reasoned decision does not require the WCJ to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision." Acme Mkts., Inc. v. Workers' Comp. Appeal Bd. (Brown), 890 A.2d 21, 26 (Pa. Cmwlth. 2006).
In addition, the WCJ found Claimant's testimony regarding his pain neither credible nor convincing based upon his demeanor. F.F. No. 9. The WCJ felt Claimant's various complaints were highly exaggerated and unrealistic. Id. For witnesses testifying before the WCJ, it is appropriate for the WCJ to base his determination upon the demeanor of the witnesses. Daniels. Thus, the WCJ's credibility determination regarding Claimant's testimony is sufficient. Id.
Further, the WCJ properly found that Claimant's Physician's opinion regarding Claimant's ability to work, based on Claimant's unrealistic and discredited complaints of pain, was neither credible nor convincing. See Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997) (WCJ may reject a doctor's expert opinion that is based solely on a claimant's unreliable or discredited representations).
2. Competency
Claimant also attacks the competency of Employer's Physician opinions. "Medical testimony will be deemed incompetent if it is equivocal." Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 954 (Pa. Cmwlth. 2008). "Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists." Id. Medical testimony is equivocal, if, after a review of a medical expert's entire testimony, it is found to be merely based on possibilities." Id. "In determining whether medical testimony is unequivocal, the medical witness's entire testimony must be reviewed and taken as a whole and a final decision shall not rest upon a few words taken out of the context." Id.
We note that Claimant, in his brief, attempts to introduce evidence not of record, including an on-line job description (Claimant's Br. at 13) and an on-line medical opinion from the Academy of Orthopedic Surgeons regarding a tear of the quadriceps tendon (Claimant's Br. at 14). This Court, however, will not consider items that are not admitted to the record before the workers' compensation authorities. Kimberly Clark Corp. v. Workers' Comp. Appeal Bd. (Bullard), 790 A.2d 1072 (Pa. Cmwlth. 2001).
Here, Claimant asserts, other than performing surgery, Employer's Physician only saw him twice: once for the initial diagnosis and once two months after surgery in January 2010. Essentially, Claimant argues Employer's Physician issued his May 2010 return to work order without proper examination or first-hand knowledge of either the physical requirements of Claimant's job duties or his limited functional capabilities following surgery.
In addition, Claimant asserts Employer's Physician testimony that he is a symptom magnifier who would like to get paid not to work and that he was "full of it," is contradicted by functional capacity evaluations performed in November 2010, which indicated Claimant provided maximum effort during the evaluation. See S.R.R. at 24b-30b.
See Dep. of Douglas E.R. Roeshot, 9/24/10, (Roeshot Dep.) at 44; S.R.R. at 182b.
Further, Claimant argues Employer's Physician improperly relied upon examinations performed by his physician's assistant. Claimant contends the physician's assistant's findings cannot be considered those of an expert.
Employer's Physician, a board-certified orthopedic surgeon, testified he treated Claimant from mid-November 2009 through early May 2010. Dep. of Douglas E.R. Roeshot, 9/24/10, (Roeshot Dep.) at 13; S.R.R. at 151b. He took Claimant's history of the injury and physically examined him. Id. at 14-15; S.R.R. at 152b-53b. Upon examination, Employer's Physician diagnosed Claimant's injury as a ruptured quadriceps tendon above the right kneecap. Id. at 16; S.R.R. at 154b. About a week after his initial examination, Employer's Physician surgically repaired Claimant's ruptured tendon. Id. Employer's Physician drilled two parallel vertical holes through the top of the kneecap and sutured the tendon to the kneecap. Id. at 16-17; S.R.R. at 154b-55b. He similarly sutured the ruptured tendon where it attached to the inside of the knee. Id. at 17; S.R.R. at 155b.
Employer's Physician testified the surgery was successful and he continued to see Claimant post-op. Id. at 18; S.R.R. at 156b. In January 2010, eight weeks after the surgery, Employer's Physician examined Claimant and noted he was healing as expected. Id. at 19; S.R.R. at 157b. Specifically, Employer's Physician testified:
[Claimant] could lift his leg against gravity while holding his knee completely straight without - when a tendon repair such as this heals improperly, often the deformity that remains is called an extensor leg. When the person tries to lift the leg, the knee can't straighten completely. That was not the case in this case.Id.
A physician's assistant handled subsequent visits. Id. at 19-20; S.R.R. at 157b-58b. Employer's Physician testified he routinely relies on his physician's assistant for follow-up examinations. Id. at 20; S.R.R. at 158b. To that end, he testified: "My physician's assistant would routinely run cases by me. Even if I'm not going to come into the room, I know what is going on." Id.
Employer's Physician last examined Claimant in May 2010. Id. at 21; S.R.R. at 159b. Regarding Claimant's ability to return to work, Employer's Physician testified:
Q. Did you feel at that point in time that he was capable of working at any level?
A. Absolutely.
Q. And what were the restrictions placed on him?
A. Well, we didn't actually design any restrictions at that time. We have a nurse liaison who works with employers. And the way we had left it, she was going to contact the Workers' Compensation nurse, and they were going to come up with some sort of job limitations that he could work within.
Q. And, Doctor, I'm going to show you a note that's signed by you, dated May 7th, 2010, and I'm also going to show you a copy of your office notes from your PA dated May 7th, 2010. I note on the note you signed, it appears that there were some restrictions, general restrictions, were placed on him.
A. Okay. Well, this would have been the note generated by Connie, the nurse liaison, and approved by myself.
Q. And what were the limitations that you placed?
A. No repetitive climbing, jumping, or running. No lifting more than 50 pounds for now, period.
Q. And did you release him at that time to return to work within those restrictions?
A. Yes.
Q. And was he capable of work within those restrictions in your opinion?
A. Yes.
Q. Is that offered within reasonable medical certainty.Id. at 21-23; S.R.R. at 159b-61b.
A. Yes.
Viewed as a whole, we find Employer's Physician testimony that Claimant could return to modified duty work in May 2010 to be unequivocal. Employer's Physician provided the necessary foundation for his opinion that Claimant could return to modified duty with certain restrictions. Thus, in accord with our decision in Coyne, we hold Employer's Physician's testimony provides substantial competent evidence for the WCJ's finding that Claimant sufficiently recovered from his work injury "so as to be capable performing alternative duty work at all material times beginning by at least June 1, 2010." F.F. No. 9b.
Moreover, Employer's Physician's reliance on notes from his physician's assistant does not render his opinion incompetent. A medical expert may express an opinion, based in part on the notes of others upon which he customarily relies in his profession. Westinghouse Elec. Corp./CBS v. Workers' Comp. Appeal Bd. (Burger), 838 A.2d 831 (Pa. Cmwlth. 2003). An objection on this ground goes to the weight of the evidence, not its competency. Id. Here, Employer's Physician testified he routinely relies upon his physician's assistant's notes in the treatment of his patients. Roeshot Dep. at 20; S.R.R. at 158b.
In addition, the WCJ credited Employer's Physician's testimony regarding Claimant's symptom magnification. Although a subsequent functional capacity evaluation performed at another doctor's request may contradict Employer's Physician's opinion, the WCJ is free to resolve any conflicts in the evidence and to accept Employer's Physician as credible and persuasive. Skirpan; Anderson.
B. Available Work
Claimant further contends Safety Coordinator's testimony regarding Claimant's failure to follow up on the modified duty job offer does not provide substantial evidence to support the finding that he failed to make a good faith effort to return to work. In short, Claimant asserts his medical evidence established that he could not perform the modified duty work offered to him in June 2010.
We disagree. As discussed above, the WCJ did not err or abuse his discretion in accepting Employer's Physician's testimony as credible and rejecting the contrary portions of Claimant's testimony and Claimant's Physician's testimony as not credible or worthy of belief. Skirpan; Anderson.
In addition, the WCJ also found Safety Coordinator's testimony to be credible and convincing. F.F. No. 9. Based on her testimony, the WCJ found Employer offered Claimant a modified duty job within his Employer's Physician's restrictions available June 1, 2010. F.F. No. 9d. The WCJ further found Claimant failed to make a good faith effort to return to work. F.F. No. 9e.
Safety Coordinator's testimony supports these findings. She testified Employer offered Claimant a modified duty position within Employer's Physician's restrictions beginning June 1, 2010 at no loss in earnings. See Notes of Testimony (N.T.), 7/27/10 at 15-18; S.R.R. at 71b-74b. Claimant, however, responded by letter that he declined the offered position due to his limited physical capabilities. See S.R.R. at 11b.
Therefore, based on our review of the record, we hold Safety Coordinator's testimony provides substantial evidence for the WCJ's findings that Claimant failed to make a good faith effort to return to available modified duty work within Employer's Physician's restrictions.
An employer may obtain a modification of benefits by first showing a change in the claimant's medical condition followed by the availability of work within the claimant's medical clearance. Kachinski; Beres. The burden then shifts to the claimant to show that he followed through on the referral in good faith. Id. Here, the WCJ did not err or abuse his discretion in determining Employer met its burden under Kachinski.
C. Capricious Disregard
As a third issue in his Statement of Questions Involved, Claimant states, "Whether the facts of the case were arbitrarily and capriciously disregarded by the WCJ." Claimant's Br. at 6. However, Claimant does not develop this argument in his brief beyond the issues we address above. Arguments not properly developed will be deemed waived. Pa. R.A.P. 2119(a); Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998).
As discussed above, the WCJ's essential findings are supported substantial evidence, including competent medical evidence regarding Claimant's ability to return to modified duty work and credible evidence that Employer offered Claimant a modified duty position within his medical restrictions. Therefore, we discern no error or abuse of discretion on the part of the WCJ in granting Employer a suspension effective June 1, 2010. Kachinski; Beres. Accordingly, we affirm.
We also note Claimant seeks reinstatement to his position with Employer at a specific geographic location with back pay and no loss of seniority. Such remedies, however, are beyond the scope of the Act and are thus unavailable in workers' compensation proceedings. See Cohen v. Workers' Comp. Appeal Bd. (City of Phila.), 589 Pa. 498, 909 A.2d 1261 (2006) (compensation proceedings under the Act are uniquely structured and more limited in subject matter than civil service proceedings). --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 4th day of January, 2013, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge