Opinion
No. 2440 C.D. 2011
08-27-2012
Mirsad Pekmezovic, Petitioner v. Workers' Compensation Appeal Board (Erie Metropolitan Transit Authority), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Mirsad Pekmezovic (Claimant), pro se, petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated November 2, 2011. The Board affirmed a decision of a Workers' Compensation Judge (WCJ), which denied Claimant's claim petition for workers' compensation benefits pursuant to the Workers' Compensation Act (Act). For the reasons set forth below, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041, 2501-2708.
Claimant was employed by Erie Metropolitan Transit Authority (Employer) as a bus driver. On February 28, 2008, Claimant alleged to have suffered a work-related injury to his left arm when he was driving Employer's bus. Claimant filed a claim petition on November 12, 2008, alleging that he suffered from Reflex Sympathetic Dystrophy Syndrome (RSD)/Complex Regional Pain Syndrome (CRPS) of his left arm. Claimant alleged total disability beginning March 19, 2008. Employer filed an answer denying the material averments in the petition.
We note that Claimant filed a claim petition prior to the November 12, 2008 petition, and testimony was taken at hearings on that petition. The parties, however, subsequently agreed that Claimant would withdraw the claim petition with leave to re-file once he had a diagnosis. The testimony from the prior hearings was incorporated to the present proceedings.
The WCJ held hearings, at which Claimant testified on his own behalf. Claimant testified that when he was working his shift on February 28, 2008, he attempted to make a right-hand turn and had to swing the steering wheel to the left. (Hr'g Tr., May 5, 2008, at 11.) Claimant stated that as he made this motion with the wheel, he felt a pinching and "something like a stun gun" in his left arm. (Id.) Subsequently, Claimant felt pain in his arm, which he described as "a lot of pinches" similar to "knives between [his] fingers." (Id.) Claimant stated that the pain resurfaced "three or four times" after the incident and, thereafter, his left hand swelled and changed colors. (Id.) Claimant testified that the bus he drove had power steering, but when making turns he had to use "some muscle" to turn the wheel. (Id. at 28.) Claimant notified his supervisor of the injury a few days after the incident occurred. (Id. at 12.) Claimant's supervisor filled out a claim form on Claimant's behalf and advised Claimant to schedule an appointment to see a panel physician. (Id.) Employer then placed Claimant on light duty work. (Id.) When Claimant's left arm continued to swell and change color, Claimant visited Hamot Emergency Room for treatment, where he was advised that he may have tennis elbow and was referred to a specialist. (Id. at 14.) Employer thereafter rejected Claimant's workers' compensation claim and refused to continue to place Claimant on light duty work. (Id. at 18.) Claimant stated that he did not have any injuries to his arm prior to the February 27, 2008 incident. (Id. at 20.) Claimant confirmed that his injury did not occur as a result of a fall or as a result of hitting his arm. (Id. at 29.) Claimant also indicated that he began receiving unemployment compensation benefits subsequent to his injury. (Id. at 41.)
With respect to his treatment, Claimant testified that, after his emergency room treatment, he ultimately was referred to the Cleveland Clinic's Department of Neurosurgery in Ohio, where he was prescribed pain medication. (Hr'g Tr., January 7, 2009, at 13.) In the meantime, Claimant treated with various physicians regarding his condition. Claimant testified that he began treating with neurosurgeon Dr. Rai at the University of Pittsburgh Medical Center, where he received two epidural injections. (Id. at 12.) Claimant also noted that he has lost the use of his left arm and suffers from a constant burning sensation in the arm. (Id. at 18.) Subsequently, Claimant was seen by Thomas Jackson, M.D., a board certified physician in physical medicine rehabilitation, who injected Claimant with a ganglion block. (Id. at 35.) Claimant stated that he did not receive relief from the injections. (Id.) Claimant also indicated that his insurance company would not cover some medications and certain injections. (Id. at 36-37.) Finally, Claimant testified that, though initially denied, he began receiving Social Security disability on February 18, 2009. (Hr'g Tr., April 20, 2009, at 6-7.)
Claimant presented the testimony of Dr. Jackson. In addition to his certification in physical medicine rehabilitation, Dr. Jackson also has a subspecialty in pain management. (Dep. Test., July 8, 2009, at 3.) Dr. Jackson testified that he first examined Claimant, by referral, on July 29, 2008. (Id. at 6.) Dr. Jackson indicated that Claimant's primary complaints included neck pain, shoulder pain, and pain and discomfort into the left hand. (Id. at 7.) Dr. Jackson initially diagnosed Claimant with a cervical radiculitis, or irritation of the nerve in the neck which causes symptoms in the left upper limb. (Id. at 10.) Dr. Jackson's diagnosis was also based on referring physician Matt El-Kadi, M.D.'s, interpretation of Claimant's injury. (Id. at 11.) As a result of his diagnosis, Dr. Jackson treated Claimant with two epidural injections. (Id.) The goal of the injections was to reduce any inflammation around the nerve root. (Id.) Claimant indicated no significant relief from the epidural injections. (Id.) During Dr. Jackson's November 6, 2008 examination, Claimant indicated that he received a second surgical opinion from the Cleveland Clinic, where he was diagnosed with CRPS Type I. (Id. at 12-13.) Dr. Jackson testified that typically CRPS includes symptoms such as loss of range of motion, edema or swelling, redness, changes in sensitization, and pain due to touch. (Id. at 13.) Dr. Jackson also stated that, at the November 6, 2008 examination, Claimant's subjective complaints included significant burning in the left shoulder and trapezius region. (Id.) Claimant also indicated a weakness and swelling of his left hand. (Id.) Based on Dr. Jackson's own observations of Claimant, Dr. Jackson noted that Claimant had a discoloration of the skin, a fair grip strength, and an increased pain sensation known as hyperpathia. (Id. at 14.)
Dr. Jackson based this diagnosis on Claimant's subjective complaints, coupled with some of the degenerative changes found in the MRI. (Dep. Test., July 8, 2009, at 23.)
Dr. Jackson opined that Claimant exhibited some of the classic signs of CRPS Type I. (Id. at 15.) Dr. Jackson did admit, however, that Claimant's diagnosis was one of exclusion. (Id. at 21.) More specifically, Dr. Jackson ruled out every other diagnosis in order to diagnose Claimant with CRPS. (Id.) Dr. Jackson noted that all of the diagnostic studies were negative or unremarkable and there could be no explanation for Claimant's subjective complaints. (Id.) Dr. Jackson also conceded that during his July 29, 2008 examination, Claimant had no swelling of the left arm or cervical area, nor did Claimant have a discoloration of the skin. (Id. at 23.) Furthermore, Dr. Jackson conceded that Claimant's symptoms had not changed in subsequent examinations. (Id. at 29.) Finally, Dr. Jackson opined that Claimant would be unable to work an eight (8) hour work day. (Id. at 38.)
Employer submitted the deposition testimony of Robert Waltrip, M.D., a board certified orthopedic surgeon. (Dep. Test., September 21, 2009, at 4.) Dr. Waltrip has a subspecialty certification in sports medicine. (Id.) Dr. Waltrip examined Claimant on July 17, 2008. (Id. at 6.) Dr. Waltrip reviewed Claimant's medical records in addition to performing a physical examination. (Id.) Dr. Waltrip indicated that Claimant described his work-related injury, which occurred without any real trauma. (Id. at 9.) At the time of Claimant's initial examination, Dr. Waltrip noted Claimant's complaints of discomfort over the front and top of the shoulder. (Id. at 15.) Claimant also complained of radiating pain throughout his entire hand with tingling. (Id.) Dr. Waltrip testified that during the examination, Claimant held his arm with a straight elbow in a "rather awkward" position, but did not appear to be in any distress. (Id. at 16.) Dr. Waltrip observed a slight duskiness or "bluish" discoloration of Claimant's left extremity in comparison to the right. (Id.) Dr. Waltrip opined that Claimant did not exhibit any signs of CRPS such as swelling, enhanced response to a painful stimulus, or a painful response to a stimulus that is not normally painful. (Id. at 17-18.) In addition, Claimant's forearm did not exhibit signs of atrophy, which Dr. Waltrip would have expected if Claimant had no use of his left arm. (Id. at 18.) Dr. Waltrip described Claimant's physical examination of his arm as "bizarre." (Id.) Dr. Waltrip noted that Claimant had pain in areas where it would not be expected. (Id. at 18-19.) Furthermore, Claimant indicated a tenderness and burning over the left trapezius muscle despite the absence of muscle spasms. (Id. at 19.) Dr. Waltrip indicated that Claimant had full range of motion of his neck and had slightly diminished external rotation of his left arm. (Id.) However, Dr. Waltrip noted that Claimant had normal wrist and hand motion. (Id.) Dr. Waltrip testified that Claimant's grip strength was inconsistent. (Id. at 20.) Dr. Waltrip opined that the inconsistent grip strength was significant because patients with true weakness exhibit consistent strength (which would be less than the opposite, non-injured side). (Id. at 22.)
Finally, Dr. Waltrip diagnosed Claimant with "possible" cervical radiculopathy and "possible" Raynaud's disease because he did not have any objective support for the cervical radiculopathy diagnosis beyond Claimant's subjective report of radiating pain. (Id. at 26.) Dr. Waltrip did indicate that a diagnosis of "possible" Raynaud's disease is better supported by the objective studies, however, Claimant's symptoms were atypical. (Id. at 27.) Dr. Waltrip opined that Claimant reported a greater magnitude of symptoms than expected for someone with Raynaud's disease and that his subjective symptoms did not correlate with the disease. (Id.) Claimant's history, however, was somewhat consistent with Raynaud's disease. (Id.) Furthermore, Raynaud's disease or another type of vasospastic disorder could account for Claimant's skin discoloration. (Id.) Dr. Waltrip observed that Claimant's x-rays showed a significant degenerative disc disease, but Dr. Waltrip concluded that Claimant's job responsibilities did not aggravate that condition. (Id. at 29.) Dr. Waltrip also opined that Claimant's "possible" diagnosis of cervical radiculopathy was not the result of his work-related injury because this condition would not arise from turning the steering wheel of a bus. (Id. at 29.) Further, Claimant's "possible" diagnosis of Raynaud's disease was completely unrelated to the work-related incident. (Id. at 30.) More specifically, the possible diagnoses Dr. Waltrip attributed to Claimant were not the result of a post traumatic diagnosis. (Id. at 31.) Finally, Dr. Waltrip testified that during his second examination of Claimant, Claimant's subjective complaints did not relate to a CRPS diagnosis. (Id. at 34.)
Dr. Waltrip describes Raynaud's disease as a connective tissue disorder. (Dep. Test., September 21, 2009, at 27.)
At the March 15, 2010 hearing, the WCJ opened the record to hear additional evidence. (Hr'g Tr., March 15, 2010, at 8.) Claimant's counsel objected to the opening of the record, arguing that there were no extraordinary circumstances. (Id. at 7.) The WCJ ultimately permitted Employer to submit two surveillance videos as additional evidence. The surveillance video of February 18, 2010, showed Claimant freely moving his left arm, opening and closing doors with his left arm, and driving with both arms in a quick, easy fashion. (WCJ decision and order.) A second video displayed Claimant reaching out and opening doors with his left arm and wiping snow off his car while using his left arm. Further, Claimant appeared to be walking and moving his arm in a normal manner, unlike at hearings where he would hold his left arm in a protective manner and wince in pain. Claimant also testified at the March 15, 2010 hearing that since the last hearing, he was prescribed a pain patch known as Fentanyl. (Hr'g Tr., March 15, 2010, at 13.)
By decision and order dated April 6, 2010, the WCJ denied Claimant's petition. Specifically, the WCJ found, in relevant part, as follows:
14. This case was troubling because the Claimant had such significant symptoms from a seemingly minor injury. The Claimant attended many hearings apparently in extreme pain. He was consistently leaning to the right and was holding his left arm tight against his body in a protective manner. The doctors noted some signs and symptoms of CRPS, but the classic objective signs were not consistently present. This was proving to be a very difficult case until the surveillance films were submitted. Each of the 5 days [contained in the videos] document the Claimant freely moving his left arm, completely inconsistent with his presentation at all of the hearings, even the March 15, 2010 hearing. In the [DVDs], even when the Claimant was not using his left arm, his body was held in a normal manner, he showed none of the extreme pain behaviors that were demonstrated at hearings and he was never seen to be holding his left arm in a protective manner in any of the footage. During the various times when the Claimant used his left arm, it was in a seemingly pain free manner performing activities that he testified he was not able to do. This change in Claimant's presentation can not be explained simply by the use of a Fentanyl patch since December, especially since he was still demonstrating some of the same pain behaviors at the March 15, 2010 hearing. Therefore, the Claimant's testimony as a whole is called into question and is found to be not credible in its entirety.
15. The testimony of Dr. Jackson is not credible since it is based upon the Claimant's reports of pain, which are not found to be credible.
In addition, Dr. Jackson never reported the Claimant as having many of the classic objective signs of CRPS, his testimony primarily related to symptoms.(WCJ's decision and order.)
16. The testimony of Dr. Waltrip is credible. He performed a comprehensive physical examination of the Claimant and valiantly attempted to make sense out of what he called a bizarre examination of the Claimant's left arm. Dr. Waltrip noted various signs and symptoms of CRPS that were not present in the Claimant, which he would have expected to see in someone with CRPS. Grip strength findings were inconsistent and Dr. Waltrip said that these could not be explained. To his credit, Dr. Waltrip still attempted to reach a diagnosis and treatment plan that would alleviate the Claimant's severe symptoms whether they were work related or not.
17. The Defendant entered Employer Exhibit D which shows the Claimant's short-term disability is 100 percent funded by the Employer. Exhibit D also documents short-term disability benefits paid to the Claimant.
Claimant appealed to the Board, arguing that the WCJ erred in finding Dr. Waltrip's testimony credible and also that the WCJ erred in allowing the admission into evidence of the surveillance videos. The Board affirmed the WCJ's decision. Claimant then filed the subject petition for review with this Court.
On appeal, Claimant argues that the Board erred in finding Dr. Waltrip's testimony to be credible. Claimant also argues that the WCJ erred in re-opening the record to consider the surveillance videos as evidence. Finally, Claimant argues that the WCJ and Board erred in failing to consider Claimant's Social Security disability decision in rendering Claimant's workers' compensation decision.,
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.
Claimant also argues that the WCJ erred in considering a doctor's note written by Dr. Rai's office manager. However, the WCJ did not consider the note by the office manager as the WCJ sustained Claimant's hearsay objection. (WCJ decision and order.)
In his petition for review, Claimant suggests that there are many defective dates within the proceedings. Claimant, however, failed to include these issues in the statement of questions presented and failed to brief these issues. The issues, therefore, are waived. Pa. R.A.P. 2116; Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544 (Pa. Cmwlth. 1994); Coraluzzi v. Cmwlth., 524 A.2d 540 (Pa. Cmwlth. 1987).
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 Electric 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). "The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses." Leca v. Workers' Comp. Appeal Bd. (Philadelphia Sch. Dist.), 39 A.3d 631, 634 n.2 (Pa. Cmwlth. 2012). "Unless made arbitrarily or capriciously, a WCJ's credibility determinations will not be disturbed on appeal." Id.
In addition, where the connection between the cause of a claimant's injury and her work is not obvious, the connection must be established by unequivocal medical testimony. Bemis v. Workers' Comp. Appeal Bd. (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011). Here, Claimant failed to prove that he suffered a work-related injury because the WCJ discredited Claimant's and Dr. Jackson's testimony.
Here, the WCJ found that Dr. Waltrip's testimony was credible as opposed to that of Dr. Jackson. Based on the surveillance videos presented, the WCJ rejected Claimant's testimony in its entirety. This decision is one that is within the WCJ's discretion. Leca, 39 A.3d at 634 n.2. The WCJ noted that the majority of Dr. Jackson's testimony and diagnosis was based on Claimant's subjective complaints, as opposed to Dr. Waltrip's objective findings. In addition, Dr. Jackson similarly conceded that Claimant's examinations yielded unremarkable results and that he did not have an explanation for Claimant's subjective complaints. (Dep. Test., July 8, 2009, at 21.) Because Claimant was found to be not credible, the WCJ rejected Dr. Jackson's testimony, as it was based on Claimant's subjective complaints. The WCJ credited Dr. Waltrip's testimony based on Dr. Waltrip's physical examinations of Claimant and noted that Dr. Waltrip attempted to "make sense" out of Claimant's "bizarre" examinations. These determinations are also within the WCJ's sole discretion. Leca, 39 A.3d at 634. Furthermore, we do not believe that the WCJ's credibility determinations were arbitrary and capricious. Rather, the WCJ considered all of the testimony presented, including the surveillance videos, and found Claimant's to be not credible. Additionally, we note that is does not matter whether there is evidence to support a contrary finding because the only inquiry is whether the record supports the WCJ's findings. Hoffmaster, 721 A.2d 1155. Accordingly, we find no error with the Board's decision finding Dr. Waltrip to be credible.
We next address whether the WCJ erred in re-opening the record to allow Employer to present surveillance videos of Claimant as evidence. Specifically, Claimant argues that he did not have an opportunity to review the February 18, 2010 video prior to the hearing. Moreover, Claimant argues that he did not have an opportunity to provide an explanation of his behavior. It is well established that a WCJ has discretion to reopen the record, once closed, and such a decision will not be reversed absent an abuse of discretion. Sharkey v. Workers' Comp. Appeal Bd. (Tempo, Inc.), 739 A.2d 641, 644 (Pa. Cmwlth. 1999), appeal denied, 568 Pa. 674, 795 A.2d 983 (2000). To the extent that Claimant argues that he did not have an opportunity to review the February 18, 2010 video or provide an explanation for his behavior, such arguments are waived as he failed to properly preserve the issues before the WCJ. See GMS Mine Repair & Maint., Inc. v. Workers' Comp. Appeal Bd. (Way), 29 A.3d 1193, 1197 (Pa. Cmwlth. 2011) (stating that in order to preserve issue for appeal it must be preserved at every stage of proceeding).
However, even if the argument was not waived, we find no error on behalf of the WCJ. It is evident from a review of the record that Claimant and his counsel had the opportunity to review the February 18, 2010 video prior to its introduction into evidence. (Hr'g Tr., March 15, 2010, at 36, 43-44.) Claimant also had the opportunity to place additional objections or testimony on the record subsequent to the video viewing, but failed to do so. (Id. at 44.) Accordingly, Claimant's arguments with respect to the video surveillance lack merit. We also note that the WCJ used his discretion in opening the record to include the surveillance tapes as evidence in the proceedings, which ultimately assisted the WCJ in making his decision. (See WCJ's finding of fact number 14.) Accordingly, we find no abuse of discretion in the WCJ's decision to re-open the record in this case.
Finally, we address Claimant's argument that the Board erred in failing to consider Claimant's Social Security disability decision in the workers' compensation claim. Initially, we note that in a workers' compensation case, the burden is on the claimant in a claim proceeding to prove that he suffered a work-related injury that resulted in disability. See Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 945 (Pa. Cmwlth.), appeal denied, 599 Pa. 683, 960 A.2d 457 (2008). In order to receive disability benefits under the Social Security Act, however, a claimant must prove a "disability," defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). As a result, it is evident that "[d]isability as defined by the Social Security Act . . . does not include the consideration of whether the disability resulted from an injury at work." Bailey v. Workmen's Comp. Appeal Bd. (Auto Rental Co.), 431 A.2d 1114, 1116 (Pa. Cmwlth. 1981). The determination of whether Claimant received Social Security disability, therefore, has no bearing on whether Claimant suffered a work-related injury. Accordingly, the Board did not err in failing to consider Claimant's Social Security disability decision for purposes of workers' compensation.
42 U.S.C. §§ 301-1397mm. --------
Because we find no error on behalf of the WCJ or the Board, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge Senior Judge Colins concurs in result only.
ORDER
AND NOW, this 27th day of August, 2012, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge