Opinion
No. 1878 C.D. 2012
06-18-2013
Institute for Cancer Research, Petitioner v. Workers' Compensation Appeal Board (McDermott), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Institute for Cancer Research (Employer) petitions for review of the September 4, 2012 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ) granting the review petition of Steven McDermott (Claimant). We affirm.
Claimant was employed by Employer as a housekeeper, primarily working in the operating room. On March 7, 2007, Claimant sustained a work-related knee injury. On March 29, 2007, Employer accepted liability pursuant to a Notice of Compensation Payable (NCP), which described Claimant's injury as a left knee sprain. On August 13, 2010, Claimant filed a review petition, asserting that the NCP should be amended to add psychological injuries that he developed subsequent to the NCP, specifically, adjustment disorder with an anxious and depressed mood and chronic pain syndrome. Employer filed a timely answer denying the material allegations in the petition and a hearing before a WCJ ensued.
At the hearing, Claimant testified that he has not returned to work in any capacity following his March 7, 2007 work injury. Claimant stated that after his work injury, he underwent six surgeries, including a total knee replacement, and that his last surgery was to correct nerve damage on the bottom of his foot. Despite receiving surgical treatment, Claimant continues to experience symptoms in his left leg, including a coldness sensation and severe pain. Claimant testified that he takes Percocet and Lyrica to treat the pain but the pain has prevented him from performing routine, daily activities. Also, Claimant stated that the pain has had a dramatic effect on his life emotionally and he is seeing a clinical psychologist, Ira Solomon, Ph.D, for these symptoms. Although Claimant testified that he was temporarily treated for anxiety prior to his March 7, 2007 injury, he could not remember when this occurred; nevertheless, Claimant said that he did not have problems with anxiety on an ongoing basis prior to his work-related injury and that he was never treated for a pain condition. According to Claimant, he did not suffer from any psychological symptoms in the months leading up to his work injury. Claimant further testified that after he sustained his work-related injury and underwent surgeries, he was diagnosed by a medical doctor with chronic regional pain syndrome (CRPS) of the left lower extremity and was prescribed Amitriptyline for his psychological symptoms. (WCJ's Findings of Fact Nos. 4, 5.)
Claimant also presented the deposition testimony of Dr. Solomon, a clinical psychologist who routinely treats patients with CRPS. Dr. Solomon testified that he obtained a medical history from Claimant and also reviewed "a number of" Claimant's medical records and reports. Dr. Solomon stated that he conducted a mental status examination of Claimant. This examination revealed that since the work-related injury, Claimant has gone through mood swings and feelings of hopelessness, has been unable to experience pleasure and is withdrawn from interpersonal activity, and has suffered from sleep disturbance and an erratic appetite. According to Dr. Solomon, the mental symptoms reported by Claimant were typical of patients with CRPS. (WCJ's Finding of Fact No. 6.)
Dr. Solomon diagnosed Claimant with adjustment disorder with anxious and depressed mood and chronic pain syndrome. In Dr. Solomon's opinion, the diagnosis of adjustment disorder with anxious and depressed mood was appropriate because Claimant's symptom complex fits the criteria in the Diagnostic and Statistical Manual for Mental Disorders (DSM) for this condition. Additionally, Dr. Solomon stated that the diagnosis of chronic pain syndrome was proper because Claimant suffered from an organic, physical process that has lasted for a period of six months, the physical process created a psychological disturbance and injury, and the psychological injury, in turn, made Claimant's pain and physical symptoms worse. Ultimately, Dr. Solomon opined that Claimant's psychological conditions were a direct result of his work-related injury, and he recommended a course of behavioral pain control consisting of individual, cognitive therapy and biofeedback therapy. (WCJ's Finding of Fact No. 6; Reproduced Record (R.R.) at 60a-63a, 66a-77a, 80a-81a, 89a.)
During cross-examination, Employer questioned Dr. Solomon with respect to a contingent fee agreement (the Agreement). In the Agreement, Dr. Solomon hired Claimant's counsel to prosecute a claim for reimbursement of medical bills in connection with Claimant's review petition. Dr. Solomon stated that the purpose of the Agreement was to retain Claimant's counsel "to try to collect the medical bills that are due for [Claimant's] treatment." Per the terms of the Agreement, if Claimant's counsel obtained reimbursement for Dr. Solomon by either a decision or a settlement, then counsel would receive 20% of the money reimbursed with attorney's fees being capped at $5,000.00. According to Dr. Solomon, he and Claimant's counsel entered into the Agreement so they could "ask the [WCJ] to approve a 20% fee of any of the medical bills that [Dr. Solomon] might get paid for in this case." Apparently, the reason for signing the Agreement was because Claimant's counsel and Dr. Solomon were not requesting that Claimant pay any fees or expenses for the review petition or Claimant's treatment. (R.R. at 83a-85a, 123a-24a.)
On its face, the Agreement is marked with ambiguity; therefore, this Court resorts to extrinsic evidence to clarify the functional purpose and basic terms of the Agreement. (See R.R. at 123a-24a.)
In rebuttal, Employer presented the deposition testimony of Wolfram Rieger, M.D., a board certified psychiatrist. Dr. Rieger stated that he evaluated Claimant, and Claimant reported a history of requesting anti-depressants in 2001 when his mother was severely ill and that he had previously experienced symptoms of anxiety. Based upon the records of Claimant's treating physicians and surgeons, Dr. Rieger opined that Claimant is not disabled from the psychiatric standpoint and is capable of returning to gainful employment. In Dr. Rieger's view, Claimant did not sustain psychological injuries as a result of his work-related injury; instead, if Claimant has any psychological problems, they are the result of his pre-existing psychiatric symptoms. In reaching his opinion, Dr. Rieger agreed that Claimant was diagnosed with CRPS but he is unsure if Claimant has this condition. (WCJ's Finding of Fact No. 8.)
Dr. Rieger also confirmed that Claimant's medical records indicate that Claimant has undergone seven to eight surgeries to his knee, including a total knee replacement. (R.R. at 143a.)
At the close of the record, the WCJ found the testimony of Claimant credible in all respects. (WCJ's Finding of Fact No. 9.) In assessing Dr. Solomon's expert testimony, the WCJ overruled Employer's objections challenging the testimony on grounds of competency. (WCJ's Finding of Fact No. 7.) With respect to the conflicting testimony of Dr. Solomon and Dr. Rieger, the WCJ found the testimony of Dr. Solomon to be more credible than that of Dr. Rieger. The WCJ reasoned as follows:
10. The WCJ has reviewed the testimony of Dr. Solomon and finds it credible as to Claimant's psychological diagnoses, including adjustment disorder with anxious and depressed mood and chronic pain syndrome. Dr. Solomon is a board certified clinical psychologist whose practice focuses on treatment of patients with chronic pain from physical injuries. He is familiar with the interplay between physical pain and psychological overlay.... Dr. Solomon's opinion that [his] diagnoses are directly related to the underlying work injury is specifically deemed credible as the work injury resulted in a significant life change.
11. The WCJ has reviewed the testimony of Dr. Rieger and finds that it is less persuasive than that of Dr. Solomon in light of the facts in this case. Dr. Rieger opines that Claimant does not suffer from a work-related adjustment disorder as he believes Claimant has underlying personality disorders including somatization and bipolar disorder. However, this [WCJ] does not find that [Claimant] had pre-existing disorders other than a few hospital visits for anxiety. Claimant was not under medications and was not receiving therapy in the year leading up to the work incident. To the extent to which the opinions of Dr. Rieger
are inconsistent with the opinion testimony of Dr. Solomon, they are rejected.(WCJ's Findings of Fact Nos. 10, 11.)
Based upon her findings and credibility determinations, the WCJ concluded that Claimant met his burden of proving that the NCP should be amended to add the psychological injuries of adjustment disorder with anxious and depressed mood and chronic pain syndrome. (WCJ's Conclusion of Law No. 2.)
Employer appealed to the Board, arguing that the WCJ's decision was not based on substantial, competent evidence; Dr. Solomon was incompetent to render a diagnosis that Claimant suffered from chronic pain syndrome; and Dr. Solomon's testimony was inadmissible due to the Agreement. The Board rejected Employer's assertions of error. First, the Board noted that the WCJ accepted as credible both Claimant's factual testimony and Dr. Solomon's unequivocal expert testimony and concluded that the evidence supported the WCJ's determination that Claimant's psychological conditions were the direct result of his work-related injury. Next, the Board correctly cited Serrano v. Workers' Compensation Appeal Board (Chain Bike Corp.), 553 A.2d 1025 (Pa. Cmwlth. 1989), for the proposition that a clinical psychologist is competent to testify as an expert in workers' compensation proceedings. The Board explained that although chronic pain syndrome originates from and is related to a physical injury, the condition is psychologically-based and, therefore, a diagnosis of chronic pain syndrome is within a clinical psychologist's field of expertise. Finally, the Board concluded that Employer placed unfounded reliance on Merva v. Workers' Compensation Appeal Board (St. John the Baptist R.C. Church), 784 A.2d 222 (Pa. Cmwlth. 2001), to assert that the Agreement rendered Dr. Solomon's testimony inadmissible. The Board explained that Merva only held that an agreement to pay an expert witness for his testimony that is contingent on the outcome of the case is unenforceable. By way of contrast, Dr. Solomon was paid a set deposition fee of $3,500.00, regardless of the outcome of the case, and the Agreement dealt only with payment to Claimant's attorney for purposes of reimbursement collection, and not to Dr. Solomon for his expert testimony. For these reasons, the Board affirmed the WCJ's decision. (Board's Decision at 5-7.)
On appeal to this Court, Employer first argues that the WCJ erred in concluding that Dr. Solomon was competent to render an expert opinion that Claimant suffers from chronic pain syndrome and that this condition was caused by his work-related incident. Employer contends that chronic pain syndrome is a physical, medical condition that is beyond the purview of a psychologist's practice area and can be diagnosed only by a licensed medical doctor. We disagree.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
An employee may file a review petition to amend an NCP to reflect further injuries, and a review petition functions as a claim petition for this purpose. Westinghouse Electric Corp./CBS v. Workers' Compensation Appeal Board (Korach), 584 Pa. 411, 883 A.2d 579 (2005). A claimant proceeding on a review petition may meet his burden of proof by establishing that he suffered a work-related mental disability as a result of the work-related physical injury for which the employer accepted liability in the NCP. Commercial Credit Claims v. Workers' Compensation Appeal Board (Lancaster), 556 Pa. 325, 728 A.2d 902 (1999). As in all cases, unequivocal medical evidence is required where it is not obvious that an injury is causally related to the work incident. City of Pittsburgh v. Workers' Compensation Appeal Board (Wilson), 11 A.3d 1071 (Pa. Cmwlth. 2011).
In Serrano, the claimant sustained internal injuries to his chest and abdominal area when he was compressed between two machines he thought were turned off. After receiving emergency surgery, the claimant experienced pain in his lower back and had surgery to remove several fragments of disc from his lower back. However, the claimant continued to complain of severe pain in his lower back and developed severe psychological problems. The claimant began treatment with a clinical psychologist. At a subsequent workers' compensation proceeding, the clinical psychologist opined that the claimant suffered from chronic post-traumatic stress disorder with acute depression and also a psycho-physiologic reaction resulting from organic musculoskeletal-type pain. The clinical psychologist further opined that these psychological injuries were the direct result of the claimant's work-related injuries. The WCJ concluded that the clinical psychologist's opinions were incompetent because the psychologist was not a medical doctor and could not render an opinion as to the diagnosis and cause of the claimant's conditions. On appeal, however, this Court reversed, concluding that a clinical psychologist is competent to render an opinion regarding the existence of a mental illness and whether the illness was a cause of a work-related injury.
Following Serrano, we conclude that Dr. Solomon was competent to testify that Claimant suffers from chronic pain syndrome and that this condition was the direct result of his work-related injury. Dr. Solomon testified that his practice focuses on treatment of patients who experience chronic pain as a result of physical injuries, and, he stated that a diagnosis of chronic pain syndrome is one that is within a clinical psychologist's field of expertise. (WCJ's Finding of Fact No. 10; R.R. at 70a-71a.) This Court held in Serrano that a clinical psychologist was competent to render an opinion concerning a type of psychological injury similar to Claimant's; that is, a psycho-physiologic reaction caused by organic musculoskeletal-type pain. We conclude, therefore, that the WCJ did not err in holding that Dr. Solomon was competent to render an opinion that Claimant suffered from chronic pain syndrome and that this syndrome developed as a direct result of Claimant's work-related injury.
See also Means v. Gates, 558 S.E.2d 921 (S.C. Ct. App. 2001) (concluding that a clinical psychologist's expert testimony was admissible to prove that the plaintiff suffered from chronic pain syndrome and that the chronic pain syndrome occurred as a result of the plaintiff's physical injuries).
Citing Newcomer v. Workers' Compensation Appeal Board (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997), Employer also contends that Dr. Solomon's opinion was legally incompetent because it was based on an inadequate medical history provided by Claimant, and Dr. Solomon did not review any medical records prepared by Claimant's treating physicians.
In Newcomer, the claimant sought a reinstatement of total disability, asserting that he developed a new shoulder injury that was related to his earlier work injury. Based upon the claimant's statement that he previously injured his shoulder at work, the claimant's doctor opined that the claimant's current shoulder pain was caused by the prior work injury. However, the doctor admitted that he did not review the claimant's medical records with respect to the initial work injury and did not know the extent of this injury. Our Supreme Court held that the testimony of the claimant's doctor was incompetent because the claimant provided his doctor with a description of the prior work injury (a shoulder injury) that was patently different from the description set forth in his medical records (an abdominal injury). Therefore, the doctor's opinion was "based solely on" the claimant's false statement that he previously sustained a shoulder injury at work and was deemed incompetent for lack of a proper foundation.
In interpreting Newcomer, this Court has repeatedly held that an expert's opinion is rendered incompetent only if it is based solely on inaccurate or false information. DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 1001 (Pa. Cmwlth. 2007); American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001). If a medical expert's opinion does not rest solely on inaccurate or false information, the fact that the expert does not have all of the claimant's medical information or medical records goes to the weight to be given to the expert's testimony, not its competency. DeGraw, 926 A.2d at 1001; American Contracting Enterprises, Inc., 789 A.2d at 395.
Here, Dr. Solomon testified that Claimant provided him with a medical history. Claimant told Dr. Solomon that he slipped and fell while attempting to roll-up a mat, underwent numerous surgeries to his left knee, was treated by Gary Muller, M.D., and David Reinhardt, D.O., for his knee injury, and was diagnosed with CRPS. With regard to Claimant's medical history that pre-dated the work-related injury, Claimant informed Dr. Solomon that he was prescribed an antidepressant by his primary care physician, Michael Marder, M.D., but the side effects resulted in discontinuing the medication. Claimant also told Dr. Solomon that he saw a psychologist for anxiety-related problems one or two times to complete an evaluation assessment but never returned for treatment. Further, Dr. Solomon examined some of the medical records from Claimant's treating surgeons to confirm Claimant's diagnosis of CRPS, and he also reviewed a number of Claimant's medical reports and found that they were consistent with the medical history provided by Claimant. Dr. Solomon relied upon this information, as well as his psychological assessment of Claimant, to opine that there was nothing in Claimant's medical history to suggest that Claimant was suffering from an adjustment disorder before his work-related injury. (R.R. at 60a-63a, 67a, 88a-93a.)
Here, Employer does not argue that Dr. Solomon relied solely on inaccurate information and this record cannot support such a finding. Accordingly, Employer's reliance on Newcomer is misplaced. To the extent that Dr. Solomon did not review each and every one of Claimant's medical reports, or that Claimant omitted specific details regarding his medical history, these omissions go to the weight of Dr. Solomon's expert testimony and not its admissibility or competence. American Contracting Enterprises, Inc.; County of Allegheny (Sheriff) UPMC Benefits Management Services, Inc. v. Workers' Compensation Appeal Board (Butkus), (Pa. Cmwlth. No. 311 C.D. 2010, filed Dec. 29, 2010), slip. op. at 15 (concluding that "[w]hile the medical history provided by [the claimant] could have been more complete, any deficiencies in that area go to the weight of [the expert's] opinion and not its competency.").
Finally, Employer argues that Dr. Solomon's deposition testimony was inadmissible because the Agreement contravened Merva. Employer contends that pursuant to the Agreement, Dr. Solomon would receive 80% of the money recovered for health provider bills only if Claimant prevailed on his review petition. From this premise, Employer deduces that Dr. Solomon's deposition testimony was inadmissible because it was contingent on the outcome of the case.
In Merva, the claimant argued that a WCJ erred in refusing to award him penalties for the employer's failure to timely pay a $2,000.00 expert witness fee for a deposition that was necessary to support the claim petition. This Court disagreed, noting that the agreement between the claimant's attorney and the expert medical witness provided that payment of the witness' deposition fee was contingent upon the claimant receiving workers' compensation benefits, i.e., the outcome of the case. Relying on section 552 of the Restatement of Contracts, we found this agreement unenforceable and refused to impose penalties on the employer, stating that "[f]ee agreements with expert witnesses that exceed the legal fee provided for other witnesses are now permitted, ... but only if such expert fees are not contingent on the outcome of the controversy." Merva, 784 A.2d at 230.
Additionally, the Merva court noted that pursuant to Rule 3.4(b) of the Pennsylvania Rules of Professional Conduct, a lawyer shall not "offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case...." Merva, 784 A.2d at 230 n.9.
Here, as the Board astutely observed, the Agreement does not condition payment for Dr. Solomon's deposition testimony on the outcome of the case. Irrespective of whether Claimant is awarded workers' compensation benefits, Dr. Solomon is guaranteed a flat-rate payment of $3,500.00 for his deposition testimony. While the Agreement is based on the underlying assumption that if Claimant prevails, Dr. Solomon will be able to collect from Employer the payments owed for Claimant's psychological treatment, this result and any corresponding incentive is true for any health care provider who treats and testifies for a claimant. Moreover, Dr. Solomon is entitled to payment for his psychological services regardless of whether Claimant is successful in these proceedings. The fact that Dr. Solomon seemingly released Claimant from payment and agreed to share a portion of any reimbursement with Claimant's attorney is collateral to the main action and does not concern Dr. Solomon's fees for testifying.
We express no opinion as to whether the actions of Claimant's attorney in effectuating the Agreement were consistent with his ethical responsibilities as a lawyer or whether Claimant's attorney can enforce the Agreement against Dr. Solomon.
For these reasons, we conclude that neither Merva nor the Agreement render Dr. Solomon's testimony inadmissible as a matter of law. In so doing, we note that Merva only addressed the legality of the agreement between the claimant's counsel and the expert and did not hold, much less suggest, that the contingency agreement rendered the expert's testimony inadmissible. To the extent that the Agreement could be deemed to have provided Dr. Solomon with an additional, financial incentive to testify in Claimant's favor, i.e., to collect payment for health provider bills, this does not affect the admissibility of Dr. Solomon's testimony, but, rather, is a matter for the WCJ to address when considering the credibility and weight of his testimony. See Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003) (noting "litigation bias" as a relevant factor when assessing the credibility of an expert's testimony); Creative Dimensions in Management, Inc. v. Thomas Group, Inc., No. 96-6318 (E.D. Pa. March 11, 1999), slip op. at 2 (citing, inter alia, Section 5921 of the Judicial Code, 42 Pa. C.S. §5921, and Pa. R.E. 613(a)) ("Under Pennsylvania law, a non-party witness is competent to testify even if he has a financial interest in the outcome of the action."). Therefore, Employer's final argument does not merit relief.
See also Tagatz v. Marquette University, 861 F.2d 1040, 1042 (7th Cir. 1988); In re Joy Recovery Technology Corp., 286 B.R. 54, 77 (Bankr. N.D. Ill. 2002) (concluding that "[t]here is nothing in the rules of evidence that bars testimony from contingent fee experts" and stating that "the factfinder may discount the credibility of such witnesses."). --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 18th day of June, 2013, the September 4, 2012 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge