Opinion
No. 1650 C.D. 2011
03-07-2012
Christopher Miller, Petitioner v. Workers' Compensation Appeal Board (Pennsylvania State Police), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Christopher Miller (Claimant) petitions for review of the August 19, 2011, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of workers' compensation judge (WCJ) Irving L. Bloom, granting the Pennsylvania State Police's (Employer) termination/suspension and review petitions. We affirm.
WCJ Bloom also denied Claimant's review petition, but Claimant does not seek review of this denial.
On December 12, 1998, Claimant suffered a low back strain in the course and scope of his employment with Employer, which was recognized by a notice of compensation payable (NCP). On October 23, 2006, Employer filed a termination petition alleging that Claimant had fully recovered from his work injury. On September 12, 2007, WCJ Paul J. Costelnock denied Employer's termination petition upon finding the testimony of Claimant's treating physician, Dr. Anna Mathew, credible. Dr. Mathew diagnosed Claimant with chronic low back pain with MRI evidence of a herniated disc at L4-5, L2-3 and degenerative disc disease of the lumbosacral and thoracic spine (WCJ Bloom's Findings of Fact, No. 1), and concluded that Claimant had not fully recovered from his work injury (WCJ Costelnock's Conclusions of Law, No. 2).
This first termination petition was heard by a different WCJ.
On October 15, 2008, Employer filed a termination/suspension petition alleging full recovery from the work injury as of August 19, 2008. On September 9, 2009, Claimant filed a review petition alleging a worsening of his condition as of March 6, 2009. On September 18, 2009, Employer filed a review petition alleging an incorrect description of the injury. (WCJ Bloom's Findings of Fact, No. 2.)
WCJ Bloom held hearings on the petitions. Employer offered the deposition testimony of Dr. Thomas D. Kramer, a board-certified orthopedic surgeon. Dr. Kramer evaluated Claimant on August 19, 2008, and determined that Claimant had suffered a lumbar strain and possible temporary aggravation of his pre-existing degenerative condition. Dr. Kramer was unsure whether Claimant had truly suffered a disc herniation because the reports indicated a small left-sided disc herniation, but Claimant's complaints were right sided. Dr. Kramer opined that Claimant had fully recovered from the lumbar strain, as well as any temporary aggravation of the lumbar degenerative condition as a result of the original work injury. (WCJ Bloom's Findings of Fact, No. 6.)
Dr. Kramer further opined, after being provided with additional medical reports and MRI studies, that:
though there may have been MRI evidence of herniated discs at some point, this was not eviden[t] in the 2008 MRI. Further chronic pain in and of itself is a symptom, not a diagnosis, and even if we are to presume that [C]laimant suffered an aggravation of his pre-existing degenerative disc disease, he had fully recovered from such aggravation. Claimant does have a degenerative condition in his spine and may have pain from it, but it is not due to the work injury.(WCJ Bloom's Findings of Fact, No. 7.)
Employer also presented the testimony of Claimant's neighbor who videotaped Claimant in the fall of 2009 and winter of 2010. The neighbor testified that she videotaped Claimant building a fence, unloading fence posts and digging holes, as well as shoveling snow manually and using a snow blower. (WCJ Bloom's Findings of Fact, No.13.)
Claimant testified on his own behalf, stating that he is in constant pain. (WCJ Bloom's Findings of Fact, No. 4.) Claimant also testified that, although he returned to work on March 10, 2009, he continues to have pain and limited mobility, and just about any physical activity aggravates his back condition. (WCJ Bloom's Findings of Fact, No. 5.)
Claimant presented the testimony of Dr. Mathew, who diagnosed Claimant with chronic low back pain with degenerative disc disease of the lumbosacral spine. Dr. Mathew stated that some of Claimant's problems were pre-existing and were aggravated by the work injury. While Dr. Mathew released Claimant to return to modified duty on March 9, 2009, she opined that Claimant never fully recovered from the work injury. (WCJ Bloom's Findings of Fact, No. 8.) Dr. Mathew nonetheless admitted on cross-examination that she could not opine as to what percent of Claimant's present condition was due to the work injury and what percent was due to his pre-existing condition. (WCJ Bloom's Findings of Fact, No. 9.)
WCJ Bloom found Dr. Kramer more credible than Dr. Mathew, finding that although WCJ Costelnock had previously credited Dr. Mathew's testimony regarding a herniated disc at L4-5 and L2-3, the same herniation was not shown on the latest MRI. (WCJ Bloom's Findings of Fact, No. 15a.) WCJ Bloom further found Claimant not credible with regard to his testimony of being physically unable to do most anything and that all activities caused him pain. (WCJ Bloom's Findings of Fact, No. 16.) WCJ Bloom also credited Claimant's neighbor, who authenticated her videotape which showed Claimant exerting himself while building a fence and not expressing any outward signs of pain or fatigue. (WCJ Bloom's Findings of Fact, Nos. 13 and 16.)
WCJ Bloom granted Employer's termination/suspension petition, concluding that Claimant had fully recovered from his work injury as of August 19, 2008. WCJ Bloom granted Employer's review petition, concluding that Employer established that the April 2008 lumbar MRI showed that Claimant does not have evidence of herniated discs. Claimant appealed to the WCAB, which affirmed. Claimant now petitions this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant, citing to Lewis v. Workers' Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007), argues that, in reaching his decision, WCJ Bloom relied upon legally incompetent evidence from Dr. Kramer, who rejected the findings of WCJ Costelnock regarding the injuries from which Claimant suffered. Claimant contends that Dr. Kramer testified that Claimant never had herniated discs and is thereby challenging the prior determination of WCJ Costelnock. We disagree.
An employer pursuing a termination petition may not ignore prior determinations of a claimant's physical condition, since it is not sufficient for an employer merely to challenge the diagnosis of a claimant's injuries. Lewis, 591 Pa. at 502-503, 919 A.2d at 929.
Here, the 1998 NCP listed Claimant's injury as a low back strain. In 2007, WCJ Costelnock expanded the injury to include chronic low back pain with MRI evidence of a herniated disc at L4-5, L2-3 and degenerative disc disease of the lumbosacral and thoracic spine. (WCJ Costelnock's Findings of Fact, No. 7.)
WCJ Bloom, in granting Employer's present review and termination/suspension petitions, relied on the testimony of Dr. Kramer. Dr. Kramer examined Claimant in 2008 and reviewed an MRI that was done the same year. Dr. Kramer stated that, in the past, Claimant may have been suffering from various work-related injuries, but he was now only suffering from a degenerative condition that was not work-related and was not being aggravated by the previous work injury. When he was asked to presume that Claimant had been diagnosed with chronic low back pain with MRI evidence of a herniated disc at L4-5, L2-3 and degenerative disc disease of the lumbosacral and thoracic spine, Dr. Kramer opined that Claimant had recovered from the work injury. A medical professional is not required to believe a condition existed; he or she is merely required to accept as true the adjudicated fact that a condition existed and opine as to whether the condition continues to exist at the time of the examination. Folmer v. Workers' Compensation Appeal Board (Swift Transportation), 958 A.2d 1137, 1148 (Pa. Cmwlth. 2008).
Assuming the above diagnosis, when asked whether Claimant had fully recovered, Dr. Kramer opined:
Yes, I again would - - I would again state that the one diagnosis of chronic lower back pain is that of a symptom and therefore I cannot really state if he's fully recovered as he continues to have subjective complaints of lower back pain.
However, on the MRI study, which I reviewed . . . recently . . . there's no - - seem to be any further evidence of herniated dis[c] at L2-3 based on the MRI study which I reviewed dated April 10, 2008.
Lastly, the degenerative dis[c] disease of the thoracic and lumbar spine is still present in Mr. Miller's spine, however, it's my medical opinion at this time that there's no further aggravation of this degenerative condition based on the examination I performed.
Dr. Kramer addressed the accepted work injuries and cited objective medical evidence to support his conclusions that Claimant had fully recovered from all of his work injuries. Although Dr. Kramer may not have agreed with the diagnoses, Dr. Kramer presumed Claimant's diagnoses for purposes of his testimony and concluded that Claimant had fully recovered. WCJ Bloom found Dr. Kramer's testimony that Claimant had recovered credible. Credibility determinations are for the WCJ, not this Court. Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap), 2 A.3d 689, 698 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 18 A.3d 1093 (2011). Dr. Kramer's testimony is legally sufficient to support a determination that Claimant has fully recovered from his work injury.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 7th day of March, 2012, we hereby affirm the August 19, 2011, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
(Dr. Kramer deposition, 5/6/09, at 21; R.R. at 229a.)