Opinion
No. 1668 C.D. 2012
02-26-2013
Pocono Mountain School District and Inservco Insurance Services, Petitioners v. Workers' Compensation Appeal Board (Nieves), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Pocono Mountain School District and Inservco Insurance Services (collectively, Employer) petition for review from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ), which granted Jenny Nieves (Claimant) temporary total disability benefits under the Workers' Compensation Act (Act) from June 25, 2009, to the present. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Our scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, board procedures violated, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 950 A.2d 358 (Pa. Cmwlth. 2008).
I. Background
Claimant worked for Employer as a custodian and her job required her, among other tasks, to collect garbage, lifting up to 75 pounds while performing her duties. (WCJ Findings of Fact (F.F.) ¶3.) She suffered a work-related injury in the form of a dropped uterus on February 4, 2008, while lifting a heavy bag of garbage. (F.F. ¶1.) Employer acknowledged receiving notice of the injury on February 6, 2008, and issued a Notice of Compensation Denial dated February 29, 2008. (F.F. ¶2; Notice, Reproduced Record (R.R.) at 18a.) Claimant saw a physician, Dr. William Walker, board-certified in general obstetrics and gynecology, on February 8, 2008, and she continued to work while Dr. Walker treated her for the injury. (F.F. ¶3.) She worked through June 24, 2009, when her condition worsened and Dr. Walker limited her to light-duty work. (F.F. ¶3.) She ultimately had to undergo surgery on September 29, 2009, as a result of the injury. (F.F. ¶3.) She filed the instant Claim Petition on August 7, 2009, claiming total disability as of June 24, 2009. (F.F. ¶1.) Employer filed an Answer denying the material allegations. (Employer's Answer, R.R. at 5a.) Since June 24, 2009, and ongoing until the present, she was cleared for light duty work from her uterus injury, however, Employer informed her that no such work was available. (July 14, 2010 Hearing Transcript (H.T.) at 13, R.R. at 68a.)
The WCJ conducted two hearings. At the first hearing, on February 9, 2010, Claimant testified regarding her work injury, stating that she "felt something come up from her vagina" and "felt something come out." (F.F. ¶3; Feb. 9, 2010 H.T. at 6, R.R. at 25a.) She was working with another custodian at the time she attempted to lift the heavy garbage bag. (F.F. ¶3.) She immediately reported the incident to her supervisor and another custodian and an incident report was completed. (Id.) Claimant testified that she had gastric bypass surgery in 2002. (Id.) At the second hearing, on July 14, 2010, Claimant testified regarding an automobile accident she had on November 16, 2008. (F.F. ¶4, July 14, 2010 H.T. at 6, R.R. at 61a.) As a result of the accident, she underwent a cervical spine fusion on February 18, 2010, and was completely disabled from that surgery until she was released to return to work on May 28, 2010. (F.F. ¶4; July 14, 2010 H.T. at 10, R.R. at 65a.) Although the WCJ recounted these facts about Claimant's medical history, there is no dispute in the record that they bear no relation to her claimed work injury.
Claimant submitted the deposition testimony of her treating physician, Dr. Walker. The WCJ summarized Dr. Walker's testimony at paragraph five of his decision and order. Dr. Walker testified that Claimant was diagnosed with a dropped uterus. He testified that his examination on February 8, 2008, revealed that the cervix and uterus had been pushed out to just inside the opening of the vagina. He opined that Claimant suffered from a prolapsed, retroverted uterus with a very large protuberant hypertrophic anterior cervical lip. (Walker Dep. at 12, R.R. at 87a.) Dr. Walker described prolapse of the uterus as "a relaxation, a descending, [the uterus and cervix] coming down the vagina that is not comparable to the normal anatomy." (Id. at 13, R.R. at 88a.) He treated her at first with a pessary in order to avoid or delay surgery and released her to return to work. (Id. at 15-16, R.R. at 90a-91a.) Dr. Walker testified that on June 23, 2009, Claimant's symptoms worsened and he placed her on restrictions and, ultimately, she was referred for surgery, having a total laparoscopic hysterectomy and vaginal vault suspension on September 29, 2009. (F.F. ¶5; Walker Dep. at 19-22, R.R. at 94a-97a.) Another doctor performed the surgery and Dr. Walker assisted. Dr. Walker testified that Claimant's anatomy accounted for certain variations or abnormalities in his examination, but he concluded to a reasonable degree of medical certainty that the February 8, 2008 work injury caused the prolapse and aggravated her condition such that she was unable to work. (F.F. ¶5; Walker Dep. at 27, 33, R.R. at 102a, 108a.)
As used here, a pessary is "an instrument or device to be introduced into and worn in the vagina to support the uterus [or] remedy a malposition. . . ." Webster's Third New International Dictionary of the English Language Unabridged at 1689 (ed. 2002).
Employer submitted the deposition testimony of Dr. Jay Goldberg, a board-certified obstetrician and gynecologist, whose testimony is summarized at paragraph six of the WCJ's decision and order. Dr. Goldberg saw Claimant one time, on November 12, 2009, when he obtained a history, reviewed medical records, and performed a physical examination. Dr. Goldberg testified that he believed Claimant's records indicated two different diagnoses and that neither one, uterine prolapse or hypertrophied anterior lip of the cervix, was causally related to heavy lifting on February 4, 2008. (F.F. ¶6; Goldberg Dep. at 9, 15, R.R. at 139a, 145a.) He testified that he believed Claimant's condition was anatomical and her injury had developed over many years resulting from trauma to the pelvic floor occurring at childbirth and Claimant's prior morbid obesity. (F.F. ¶6; Goldberg Dep. at 15-16, R.R. at 145a-146a.) He also opined that at the time he saw her, Claimant was six weeks post-surgery, had fully recovered from any work injury, and was able to return to her pre-injury job without restriction. (F.F. ¶6, Goldberg Dep. at 16, R.R. at 146a.)
The WCJ issued his decision and order on January 28, 2011. He concluded that Claimant had met her burden of proving that she suffered from a work-related injury on February 4, 2008, in the nature of a uterine prolapse as a result of lifting a heavy bag of garbage, and that she became temporarily totally disabled as of June 25, 2009, until the present. (WCJ Conclusions of Law (C.L.) ¶2.) The WCJ found: "[O]n February 4, 2008, the Claimant had an incident at work while lifting a bag of garbage which aggravated a pre-existing condition for which she received treatment and continued to work. . . . Claimant's aggravation worsened, she was given work restrictions effective June 23, 2009, and eventually required surgery on September 28, 2009." (F.F. ¶7.) The WCJ found the testimony of Dr. Walker that Claimant aggravated a pre-existing condition on February 4, 2008, to be more credible than Employer's explanation of the injury. (Id.) The WCJ explained the reasons for his credibility determination, citing, inter alia, the fact that Dr. Walker saw Claimant only four days after the February 4, 2008 injury and then continued to treat her thereafter. (Id.) The WCJ also found Claimant's testimony credible, providing specific examples of where he credited her testimony. (Id.) He concluded that Claimant was unable to work, citing Claimant's testimony that her job required her to lift at least 75 pounds and Dr. Walker's restrictions effective June 23, 2009, that she was not permitted to do that. (Id.) The WCJ also concluded that the Claim Petition was timely, citing Employer's Notice of Compensation Denial as evidence that Claimant timely informed Employer of her uterus injury.
Employer appealed and the Board affirmed, explaining that the WCJ's decision was free from error, that his findings were supported by substantial evidence, and that it would not disturb the WCJ's credibility determinations on appeal. This appeal followed.
II. Discussion
In a claim petition, the claimant bears the burden of establishing that the injury, aggravation, or exacerbation was sustained during the course of employment and that a causal connection exists between his or her work and the disabling injury. Coyne v. Workers' Compensation Appeal Board (Villanova University and PMA Group), 942 A.2d 939, 945 (Pa. Cmwlth.), appeal denied, 599 Pa. 683, 960 A.2d 457 (2008). If the causal connection is not obvious, a claimant is required to present unequivocal medical testimony. Povanda v. Workmen's Compensation Appeal Board (Giant Eagle Markets, Inc.), 605 A.2d 478, 481 (Pa. Cmwlth.), appeal denied, 533 Pa. 603, 617 A.2d 1276 (1992).
Section 422(a) of the Act aids meaningful appellate review by requiring the WCJ to issue a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole and clearly stating the rationale for the decision. 77 P.S. § 834. When the WCJ is faced with conflicting evidence, Section 422(a) of the Act further requires that his or her reasons for rejecting or discrediting competent evidence be explained. Id. This does not mean that the requirement of a reasoned decision permits a party to challenge or second-guess the WCJ's reasons for credibility determinations; determining the credibility of the witnesses remains the quintessential function of the fact finder. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007).
The WCJ is free to accept, in whole or in part, the testimony of any witness, including expert medical witnesses. Remaley v. Workers' Compensation Appeal Board (Turner Dairy Farms, Inc.), 861 A.2d 405, 409 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 720, 872 A.2d 1200 (2005). However, the WCJ's findings of fact and conclusions of law must be supported by "substantial evidence" or "such relevant evidence as a reasonable mind might accept to support a conclusion." Ryan v. Workmen's Compensation Appeal Board (Community Health Services), 550 Pa. 550, 559, 707 A.2d 1130, 1134 (1998). In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), our Supreme Court explained that when the WCJ is reviewing deposition testimony, rather than live testimony, "some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a 'reasoned' one which facilitates effective appellate review." 574 Pa. 61, 78-79, 828 A.2d 1043, 1053-54 (2003); see also Dorsey, 893 A.2d at 194 n.4 ("The WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision."). The appellate role in a workers' compensation case is not to reweigh the evidence or review the credibility of witnesses, but to determine whether the WCJ's findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmens' Compensation Appeal Board (Skirpan), 531 Pa. 287, 291-92, 612 A.2d 434, 436-37 (1992).
Employer raises one issue on appeal, asserting that the WCJ's decision was not supported by substantial, competent medical evidence for two separate reasons. First, Employer argues that Dr. Walker's testimony does not establish a causal connection between Claimant's work incident and her diagnosed injury. More specifically, Employer claims that Dr. Walker's conclusions are not competent because his testimony was based on an inaccurate medical history. According to Employer, Dr. Walker testified that "Claimant carried a 100 pound bag at work a few days earlier [prior to the February 8, 2008 appointment] and was experiencing prolapse symptoms, specifically pelvic pressure." (Employer Brief at 18.) That testimony, according to Employer, is inconsistent with Claimant's statement that "she rolled a bag of science room garbage and she and another woman attempted to lift the bag." (Id.)
Employer's brief lists three separate questions involved, making the boilerplate arguments that (1) the WCJ's decision is not supported by substantial evidence, (2) Claimant failed to meet her burden of proving causation, and (3) Claimant failed to meet her burden of proving disability. (Employer's Brief at 4.) However, the argument section of Employer's brief only discusses one issue, asserting that Dr. Walker's testimony did not constitute competent medical evidence for two reasons.
In addition to being unsupported by the record, Employer's argument is disingenuous. The testimony of both Claimant and Dr. Walker is consistent and clear that Claimant felt something come out of her vagina after lifting a heavy bag of trash on the job on February 4, 2008. Dr. Walker testified, reading from his own notes taken during Claimant's initial visit to his office on February 8, 2008, that Claimant "returned for prolapse . . . carried 100-pound bag at work a few days ago." (Walker Dep. at 9, R.R. at 84a.) Claimant testified that after she and a co-worker pushed a large rollaway garbage can out of a science room to the dumpsters, she tried to lift the large, heavy trash bag out of the can to move it into the dumpster. (H.T. at 16, 19, R.R. at 35a, 38a.) It was at that time Claimant suffered her injury. There is nothing inconsistent about her testimony, the history that Dr. Walker took a few days later, and Dr. Walker's deposition testimony on March 4, 2010. Accordingly, we reject Employer's first argument.
Second, Employer argues that Claimant failed to meet her burden of establishing "the duration of her disability." (Employer Brief at 20.) Employer claims that Dr. Walker's testimony is not competent to find a disability as of June 23, 2009. According to Employer, Dr. Walker did not testify "that there was any change or worsening of symptoms in Claimant's condition on June 23, 2009," and, consequently, the WCJ's finding that Claimant's condition worsened at that time is not supported by substantial evidence. (Employer Brief at 21.) Employer also argues that Dr. Walker did not place any restrictions on Claimant after June 23, 2009, and, consequently, Claimant failed to prove that she has an "ongoing disability." (Id.)
This argument fairs no better than Employer's first. The WCJ found that Dr. Walker credibly testified that Claimant's symptoms worsened on June 23, 2009, when he placed her on light-duty work and referred her to a surgeon. (F.F. ¶5.) That finding has direct support in Dr. Walker's deposition. (Walker Dep. at 19-20, R.R. at 94a-95a.) Dr. Walker also testified that he saw Claimant on a follow-up visit on August 25, 2009, when his assessment was the same. (Id. at 21, R.R. at 96a.) Employer relies on the testimony of its own expert to argue that the WCJ should have found that Claimant has healed from her injury, but the WCJ found Dr. Walker more credible on that point.
Employer does not provide a single citation to the record in the entire Argument section of its brief. --------
The WCJ's conclusions are not erroneous and his findings are supported by substantial evidence. He resolved the conflicting expert testimony in favor of Claimant by summarizing the deposition testimony and providing objective reasons for his credibility determinations. We will not disturb those determinations on appeal.
For the foregoing reasons, we affirm.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 26th day of February, 2013, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge