Opinion
No. 9 C.D. 2015
07-27-2015
William Ross, Petitioner v. Workers' Compensation Appeal Board (Starlite Industries, Inc.), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
William Ross (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) that reversed the Workers' Compensation Judge's (WCJ) grant of Claimant's Claim Petition. For the following reasons, this Court affirms.
Claimant was employed with Starlite Industries, Inc. (Employer) as a machine operator. At the time of the alleged injury, Claimant was working on a manual lathe polishing machine parts. Claimant began employment with the Employer on November 8, 2011. Claimant began to feel pain in his neck and shoulder in January and February of 2012. Employer issued a notice of compensation denial (NCD) on May 1, 2012. Reproduced Record (R.R.) at 000052. Claimant filed a Claim Petition on May 22, 2012, and alleged the following:
Called into Starlite [Employer] to inquire if I was needed for work, and that time mentioned neck pain. Elected to take a vacation day, and was told by HR Representative Eileen [Gallagher] NOT to report back to work without a doctor's note. Visited personal doctor (Dr. G. Ortley) because of pain and X-ray was recommended. Then was directed by Starlite [Employer] to instead see Dr. B. Smith, Orthopedic Specialist, for further examination.Claim Petition at 3; R.R. at 000003. Employer denied the allegations.
A hearing was held before the WCJ on August 13, 2012. Claimant described his work activities:
Well, the lathes - all of the spindles or collets come out from left to the right, and I'm right-handed, and I've always pushed like this. And then I would hold onto the machine to like - 'cause I would push myself away. And I would have - I would have to constantly look down like this at it, and it would just - after a while I just thought it was like a headache or something.Notes of Testimony, August 13, 2012, (N.T.) at 7; R.R. at 000016.
Claimant said the polishing would go on for "sometimes six hours. Sometimes all eight hours...other than a few minutes." N.T. at 7; R.R. at 000016. Claimant started to feel pain in "[m]y neck and my shoulder, and it got worse...and worse. Driving home I would have headaches, sitting on my couch I would have headaches." This pain increased to the point where Claimant felt he could no longer perform his job duties: "before Easter it was really bad, and I went back to work on Monday, and...that's when I couldn't take it anymore." N.T. at 9; R.R. at 000018. Claimant notified his supervisor about the pain and believed the polishing activity was the cause: "I told her exactly what I said about putting the pressure on all wheels, running the lathe, constantly, continuously doing the same thing in that same position is what hurt my neck." N.T. at 11; R.R. at 000020. He had no previous problems with that area, and suffered no new injuries since April 2012. N.T. at 34; R.R. at 000043. Claimant stated that he did have a prior injury to his right shoulder in 2003 when a refrigerator fell on him, which healed in three months. N.T. at 16; R.R. at 000025.
Claimant submitted the deposition testimony of Christopher Davis, D.O. (Dr. Davis), board-certified in family practice, hospice care, and palliative care. Deposition of Christopher Davis, D.O., November 11, 2012, (Dr. Davis Deposition) at 5; R.R. at 000065. Dr. Davis initially diagnosed Claimant with neck pain with radiculitis (nerve injury), shoulder pain, left shoulder sprain, and left shoulder strain at the initial visit in July 2012. Dr. Davis Deposition at 32; R.R. at 000092. Dr. Davis opined these injuries were caused by leaning into the lathe as described by the Claimant and were the result of repetitive use or overuse of those areas. Dr. Davis Deposition at 32-33; R.R. at 000092-000093. Dr. Davis stated that this diagnosis was current at the last visitation in October 2012. Dr. Davis Deposition at 42-43; R.R. at 000102-000103. Claimant had no non-work related injuries. Dr. Davis Deposition at 24; R.R. at 28. Dr. Davis opined Claimant was not able to return to his pre-injury job because of these injuries. Dr. Davis Deposition at 33; R.R. at 000093.
Employer presented the deposition testimony of Richard G. Schmidt, M.D. (Dr. Schmidt), board-certified in orthopedic surgery. Deposition of Richard G. Schmidt, M.D., January 14, 2013, (Dr. Schmidt Deposition) at 4; R.R. at 000216. Dr. Schmidt examined Claimant on October 8, 2012. Dr. Schmidt Deposition at 7; R.R. at 000219. Claimant had minimum degenerative changes at C5 - C6, but there was no evidence of disc herniation or foramindal compromise. Dr. Schmidt Deposition at 11-12; R.R. at 000223-000224. There was no radiculopathy or nerve damage. Dr. Schmidt Deposition at 28; R.R. at 000240. Dr. Schmidt opined that at most, Claimant may have suffered a strain. Dr. Schmidt Deposition at 34; R.R. at 000246.
Employer also submitted the deposition testimony of Eileen Gallagher (Gallagher), Claimant's supervisor. Gallagher confirmed that Claimant was with Employer for five months at the time of the injury and left work on April 10, 2012. Deposition of Eileen Gallagher, October 24, 2012, (Gallagher Deposition) at 144-145; R.R. at 000191-000192. She was familiar with the operation of the lathes from being a manager at the machine shop. Gallagher Deposition at 6; R.R. at 000183. However, Gallagher never actually used a lathe. Gallagher Deposition at 26; R.R. at 000203. Gallagher described the polishing process as "[t]he tool is in the lathe, and you have the Scotch-Brite or - it's a steel wool product - and you hold it around it, and the tool is spinning and it polishes." Gallagher Deposition at 7; R.R. at 000184. The lathe operator had to keep his face from the moving parts of the lathe: "you do keep an eye on it, but you wouldn't want to crunch up and be very close to it for the simple reason that could be dangerous." Gallagher Deposition at 7; R.R. at 000184. Claimant was the only person to have complained to Gallagher about discomfort or pain from using the lathes in the thirty-one years she has worked at Employer. Gallagher Deposition at 9; R.R. at 000186. She was not aware of any issues until Claimant told her of his pain. Gallagher Deposition at 13; R.R. at 000190.
The WCJ found:
6. . . . Dr. Schmidt performed a physical examination and opined that there were no positive objective findings found on examination. He opined that this was consistent with the lack of positive findings found by Dr. Davis. Claimant was not taking any medication at the time of his examination. Dr. Schmidt opined that Claimant did not have a significant mechanism of injury...
. . . .
8. This Judge finds that having reviewed the record as a whole, Claimant is credible to the extent that he sustained a thoracic strain as a result of operating the lathe over the course of two months. This Judge finds that Claimant left work on April 10, 2012 as a result of this pain. This Judge finds Claimant was further disabled from this thoracic pain from April 10, 2012 through October 8, 2012, after which date he fully recovered. This Judge finds that Claimant is credible to this extent because this Judge had the opportunity to observe his live testimony.
9. This Judge has carefully reviewed the record and finds that the testimony of Dr. Schmidt is credible and persuasive. This Judge accepts that the Claimant sustained a thoracic strain as a result of working the lathe. This Judge finds that Claimant was fully recovered from this injury on October 8, 2012. (Emphasis added.)
10. This Judge finds that the testimony of Dr. Davis is not credible or persuasive. Dr. Davis only saw Claimant on two occasion [sic] and really could not speak to his condition in an unequivocal manner. Dr. Davis' testimony is not credible because it in large part , relies on Claimant who did not actively seek medical
treatment from the time he saw Dr. Bradley Smith through the time he saw Dr. Davis. His testimony is exaggerated and not credible. It is also not consistent with the MRI from 2012 which showed no significant difference from the MRI of 2003. This Judge does not find the EMG credible to sustain a finding that Claimant suffered radiculopathy as a result of his injury because he did not show any clinical findings clinical [sic] of radiculopathy in his complaints, in Dr. Davis' examination or most importantly in the credible findings of Dr. Schmidt. (Emphasis added.)WCJ Decision, May 13, 2013, (WCJ Decision), Findings of Fact (F.F.) Nos. 6, 811 at 3-4; R.R. at 000317-000318.
11. This Judge has reviewed the testimony of Ms. Gallagher and finds that she is credible and persuasive. This Judge finds that Claimant made no complaints of pain prior to his leaving work on April 10, 2012. This Judge also finds that no one else complained about the operation of the lathe at Starlight Industries.
The WCJ granted Claimant compensation in the amount of $426.67 per week for the period between April 10, 2012, and October 8, 2012. WCJ Decision, F.F. No. 13; R.R. at 000318.
Claimant appealed the WCJ's Order and asserted that the WCJ's opinion consisted of a "patchwork of findings [which] demonstrate a disregard of the evidentiary record when considered in its entirety" and there are "substantial omissions and inconsistences which have adversely impacted the credibility findings." Claimant's Appeal from WCJ Decision at 1-10; R.R. 000279-000286. Employer cross-appealed the award of benefits and argued that Dr. Schmidt's testimony was equivocal and could not support a grant of benefits. Employer's Appeal from WCJ Decision at 1; R.R. at 000288. The Board agreed with Employer and reversed the WCJ's grant of compensation. Board Opinion December 17, 2014 (Board Opinion) at 5-6; R.R. at 000326-000327.
Claimant presents six issues for review., Essentially, Claimant argues that the WCJ's findings of fact and credibility determinations were not supported by substantial evidence and that the WCJ failed to produce a reasoned decision as required by Section 422 of the Workers' Compensation Act (Act), 77 P.S. § 834.
In his Statement of Questions Involved, Claimant lists the following issues:
1. Whether the [Board] failed to exercise their [sic] appellate duty to review the evidence in it's [sic] entirety.Statement of Issues Involved, Claimant's Brief at 3 (emphasis omitted.)
2. Whether the [Board] failed to recognize that the 'patchwork of findings' together demonstrate a scheme that does not make sense; and that no reasonable person could reach the same conclusions of the WCJ.
3. Whether the [Board] failed to recognize that the [WCJ] capriciously disregarded material evidence, the employer's failure to present material evidence, and the significance of these combined errors in the overall scheme of the WCJ's decision.
4. Whether the [Board] failed to recognize that the [WCJ] had a material misunderstanding of the evidence that was presented, and that the findings of fact misrepresent the record, when considered in its entirety.
5. Whether the [Board] failed to recognize that the credibility determinations are not sufficiently reasoned, as required by The Act and controlling case law.
6. Whether the [Board] improperly substituted their [sic] evaluation of the evidence for that of the [WCJ] in their Reversal of the award of benefits.
This Court's review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. Furnari v. Workers' Compensation Appeal Board (Temple Island), 90 A.3d 53, 58 n.2 (Pa. Cmwlth. 2014) citing World Kitchen, Inc. v. Workers' Compensation Appeal Board (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009).
Act of June 2, 1915, P. L. 736 as amended.
1. Whether The WCJ's Findings Of Fact Are Supported By Substantial
Evidence?
Claimant contends the WCJ's findings of fact are not supported by substantial evidence. Substantial evidence has been defined by this Court as "such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Waldameer Park, Inc. v. Workers' Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003), citing Hoffmaster v. Workers' Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998). Where both parties have presented evidence, it does not matter that there is evidence which supports a factual finding contrary to the one made by the WCJ. Id. Rather, the pertinent inquiry is whether there is any evidence which supports the WCJ's finding. Id.
The WCJ found Claimant to be credible only to the extent that he suffered a thoracic strain and was prevented from working at his job between April 10, 2012, and October 8, 2012. WCJ Decision, F.F. No. 8 at 3; R.R. at 000335.
On appeal, the Board found:
As indicated, Dr. Schmidt testified that Claimant 'theoretically maybe' or 'may have' sustained a transient trapezial cervical strain as a result of his work. This is
equivocal language and Dr. Schmidt did not meet the required standard of testifying that Claimant's injury was in fact a trapezial cervical strain instead [of] using mere possibilities. Thus , the [WCJ] erred in relying on Dr. Schmidt's legally insufficient testimony to find that Claimant has sustained a work injury. In addition , the [WCJ] found Claimant sustained a period of disability as a result of his work injury , however , there was nothing in Dr. Schmidt's testimony to support any period of disability. Thus , there was no credited unequivocal medical evidence to support either Claimant sustained a work-related injury or disability. Consequently, we must reverse the [WCJ's] finding that Claimant experienced a work-related thoracic strain and her award of a closed period of disability benefits.Board Opinion at 5-6; R.R. at 000344-000345 (Citations and footnotes omitted; emphasis added.)
In the present controversy, the WCJ actually mischaracterized Dr. Schmidt's testimony, which was offered by the Employer to attack the testimony of Dr. Davis, not to establish a sprain. Dr. Schmidt gave that statement in response to a series of questions on direct examination regarding the plausibility of Claimant's injury:
Q. First of all, doctor, what is your opinion as to the plausibility of this alleged mechanism of injury?
A. I would say that there's really not a significant mechanism of injury here.
Q. Why not?
A. Well, there are no slips and falls or anything unusual that occurred to him. So I really can't come up with a discrete mechanism of injury.
Q. Well, he's saying that pushing against this wheel over a period of time caused him to have symptoms. Does that make sense to you?Dr. Schmidt Deposition at 17; R.R. at 000229.
A. Well , I mean , theoretically maybe he experienced a transient trapezial cervical strain , but beyond that I couldn't come up with any other explanations. (Emphasis added.)
This testimony conflicted with Dr. Davis's testimony about the cause of Claimant's injuries, which was "from basically leaning into the lathe as the patient described to me....He described a repetitive use injury or an over use injury." Dr. Davis Deposition at 32-33; R.R. at 000092-000093. Additionally, Dr. Schmidt mentioned a possible cervical strain, and the WCJ mischaracterized that statement to award benefits for a thoracic strain. WCJ Decision F.F. No. 9, at 3; R.R. at 000335.
There is no credited, unequivocal testimony that is available to support an award of benefits. In cases requiring medical testimony, only unequivocal medical testimony is competent testimony. Evans v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 487 A.2d 477, 479 - 480 (Pa. Cmwlth. 1985). Medical testimony is equivocal where it is found to be based on mere possibilities after reviewing the testimony in its entirety. Michel v. Workers' Compensation Appeal Board (U.S. Steel Corp.), 966 A.2d 643, 653 n.9 (Pa. Cmwlth. 2009). Where medical testimony is necessary to establish a causal connection, the medical witness must testify in the medical witness' professional opinion that the injury did come from the cause in question, not that the injury "might have" or "possibly could have." New Enterprise Stone & Limestone v. Workmen's Compensation Appeal Board (Baird), 555 A.2d 800 (Pa. Cmwlth. 1988).
However, Claimant cites Northwest Medical Center v. Workers' Compensation Appeal Board (Cornmesser), 880 A.2d 753 (Pa. Cmwlth. 2005), for the proposition that a claimant's testimony alone may be sufficient to support an award without additional medical evidence. In Northwest Medical Center, the claimant was "moving a large patient...when he felt something pop his back." Id. at 754. "Although Claimant's back was stiff and he felt pain, he continued his shift." Id. "The next morning... Claimant awoke with a lot of back pain, which was made worse when he moved." Id. The employer in that case argued that the claimant failed to provide unequivocal medical evidence. Id. at 755. This Court noted "where the causal connection is obvious, medical evidence of causation is not necessary." Id.
Here, the alleged injury was neck and shoulder pain with a possible nerve injury. The causes of these injuries were unclear due to the gradual onset of symptoms and the Claimant's previous injury. Claimant also participated in martial arts tournaments and was a black belt in karate. See WCJ Decision, F.F. No. 4, at 1; R.R. at 000333. Claimant's martial arts activity was a possible source for his injuries, and Claimant admitted to being injured while participating in karate events, but not in his shoulder area. N.T. at 23; R.R. at 000032. Contrary to Claimant's assertion, unequivocal medical evidence was needed to establish a claim for benefits in this controversy.
The WCJ may reject the testimony of any witness, including a medical witness, in whole or in part. A & J Builders, Inc. v. Workers' Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ found Dr. Davis' testimony was equivocal, and rejected his testimony. The WCJ provided her reasons for doing so. Specifically, the WCJ rejected Dr. Davis' testimony because there was a lack of significant change in Claimant's MRIs between 2003 and 2012, and a lack of clinical findings of radiculopathy. WCJ Decision, F.F. No. 10 at 3; R.R. at 000317. See Amandeo v. Workers' Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012) ("A WCJ may satisfy the reasoned decision requirement if he summarizes the witnesses' testimony and adequately explains his credibility determinations.")
Employer submitted Dr. Schmidt's testimony to contest the Claimant's Claim Petition. However, Dr. Schmidt's testimony was equivocal concerning a possible cervical strain and was incompetent as a matter of law to support an award for Claimant. Also, the WCJ rejected Dr. Davis' testimony. As a result there was no evidence to support a finding of a work-related disability. The Board properly determined that the WCJ's award of benefits was in error because of a lack of substantial evidence.
2. Whether The WCJ Rendered A Reasoned Decision?
Claimant contends the WCJ failed to render a reasoned decision under Section 422 of the Act, 77 P.S. § 834. The Pennsylvania Supreme Court discussed what is a "reasoned" decision in Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003):
Section 422 of the Act, 77 P.S. § 834 provides:
Neither the board nor any of its members nor any workers' compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient evidence to justify same. All parties to an adjudicatory proceeding are entitled to 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 so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.--------
[A] decision is 'reasoned' for purposes of Section 422(a) if it allows for adequate review by the appellate courts under applicable review standards. A reasoned decision is no more , and no less.
Turning to the specific question at issue , the Act requires that , in rendering a reasoned decision in a case with conflicting evidence , the WCJ 'must adequately explain the reasons for rejection or discrediting competent evidence.' In workers' compensation cases, the WCJ functions in a manner similar to the trial judge in a bench trial. Thus, it has long been recognized that the WCJ has the exclusive authority to make findings of fact and credibility determinations....
Accordingly, in a case where the fact-finder has had the advantage of seeing the witnesses testify and assessing
their demeanor, a mere conclusion as to which witness was deemed credible, in the absence of some special circumstance, could be sufficient to render the decision adequately 'reasoned'... We do not believe that the statute, as amended, was intended to mandate that adjudicative officers explain inherently subjective credibility decision according to some formulaic rubric or detailed to the 'nth degree.'Daniels, 828 A.2d at 1052-1053 (Footnote omitted and emphasis added.)
The complication here - and in many cases like this - is that, although appellant appeared live before the WCJ, the medical experts, whose evidence concerning the persistence of appellant's work injury was conflicting, testified only by deposition. Since the WCJ did not observe the respective demeanors of the experts, her resolution of the conflicting evidence cannot be supported by a mere announcement that she deemed one more 'credible and persuasive' than another. This is not to say that the WCJ must actually observe competing witnesses on the standing to assess their relative credibility. To the contrary , as the cases that we have canvassed demonstrate , there are countless objective factors which may support the decision to accept certain evidence while 'rejecting or discrediting competent [conflicting] evidence.'
The point is that, absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstance of witness demeanor, 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.
The WCJ provided explanations for all of her credibility determinations except for Gallagher's testimony. Even without an explanation for crediting her testimony, both the Board and this Court were able to adequately review the WCJ's Decision. Those portions of the WCJ Decision that the Claimant attacks met the requirements of Section 422 of the Act, 77 P.S. § 834, and was a reasoned decision in all regards other than the award of benefits for a closed period. Accordingly, this Court affirms the Board's Order.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 27th day of July, 2015, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge