Opinion
No. 967 C.D. 2012
11-29-2012
Paul M. Silver, Esq., Petitioner v. Workers' Compensation Appeal Board (Reger Rizzo Kavulich & Darnall), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Paul M. Silver, Esq. (Claimant), representing himself, petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) denying benefits sought pursuant to the Workers' Compensation Act (Act). Claimant contends the Board erred in affirming the WCJ's decision because the WCJ erred in her interpretation of the evidence, and she failed to issue a reasoned decision. He also asserts the Bureau of Workers' Compensation (Bureau) improperly reassigned the case to the WCJ without affording him an opportunity to object. Discerning no error, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.
I. Background
Claimant alleged he sustained various injuries on September 1, 2006, his last day of work, while in the employ of Reger, Rizzo, Kavulich & Darnall (Employer) as an associate attorney in the workers' compensation department. Specifically, Claimant asserted he suffered injuries to his neck, back and knees from unpacking boxes to use them to pack the personal things in his office as he prepared for the end of his employment. Claimant filed a claim petition for his alleged work injury more than two years later, on September 26, 2008. Claimant sought total disability benefits as well as the payment of medical bills and the imposition of counsel fees.
During the hearing of February 23, 2009, Claimant limited his request for total disability benefits from September 1, 2006 to December 27, 2006, and a request for ongoing partial disability benefits from December 28, 2006 to June 1, 2007. WCJ Op., 2/25/2010, Finding of Fact No. 3.
Employer issued a Notice of Compensation Denial, denying that Claimant suffered a work injury and contending that Claimant was not within the scope of employment at the time of his alleged injury.
At the hearings before the WCJ, Claimant testified, presented testimony by two of his personal friends, members of the bar who occasionally worked with him, and submitted expert reports of Dr. Steven Valentino (Claimant's Physician), a panel physician with a specialty in orthopedic surgery. Employer presented expert reports from Dr. Dennis McHugh, an orthopedist, (Employer's Physician) and testimony of fact witnesses, including its office manager, Megan Halter (Office Manager).
Claimant testified in support of his claim petition on February 23, 2009, and again on May 26, 2009. Claimant testified he suffered an injury while he packed his office contents into boxes on his last day of work. Specifically, Claimant lifted and unloaded copy paper boxes with Office Manager, and in the course of packing his office, he developed low back pain, as well as pain in his shoulders, neck and knees. Claimant advised Office Manager of his symptoms hours later, and she suggested over-the-counter pain medication.
Claimant testified about the alleged work injury before WCJ Bonnie Callahan in February 2009. The case was transferred to WCJ Audrey Beach, who issued the decision, after Employer sought WCJ Callahan's recusal for bias.
Two days later, Claimant reported to Bryn Mawr Hospital for back symptoms. A week later, Claimant began treatment with Claimant's Physician and underwent a course of physical therapy and diagnostic tests. Claimant's Physician released Claimant for light duty work, to which Claimant returned on December 28, 2009. In the interim, Claimant received unemployment compensation benefits. He also filed a claim petition for a jaw injury against another employer for whom Claimant worked for one year.
Claimant admitted that prior to the alleged date of injury, Employer advised him he was being terminated effective September 8, 2006. Notes of Testimony (N.T.), 2/23/09, at 28. He also admitted that he obtained the boxes for "personal use," and he packed up to 10 boxes of his personal items. N.T., 2/23/09, at 11, 12.
Claimant also admitted that he sustained prior low back injuries on two occasions in the 1980s, and that he injured his back in a motor vehicle accident in 1990, for which he underwent lumbar spine surgery at L5-S1. Claimant testified regarding his alleged ongoing symptoms in his neck, low back and knees in May 2009 before WCJ Beach. He testified that since the work injury, he was only capable of lifting small files.
Office Manager testified that on the date of the alleged injury, Claimant advised her that his employment was being terminated, that "today was his last day" and that he needed to pack his office. N.T., 5/26/09, at 19. She testified that she said she would "bring [him] boxes in a little while," but he insisted on getting them immediately and offered to help her get them from the supply room. Id. Office Manager and Claimant took the paper out of the boxes and placed them on shelves. She also observed that Claimant appeared overly helpful, and "pretty insistent" on helping the whole time they were unpacking boxes and taking the empty ones to his office. N.T., 5/26/09, at 25. About four hours later, Claimant told Office Manager that he "overdid it." Id. at 27. Claimant told her that he may need the list of panel physicians, and she subsequently emailed it to him. Office Manager testified that she was unsure of the nature of Claimant's alleged injuries, that he did not tell her about any specific injury, and that he did not seem injured when they unloaded the boxes.
In response to Claimant's testimony regarding ongoing limitations, Office Manager also testified she recently saw Claimant carrying three very large "red wells" while shopping, and he did not appear to have any difficulty.
Claimant submitted reports authored by Claimant's Physician; Claimant's Physician did not testify. Claimant's Physician opined that based on Claimant's diagnostic test results and reports of pain and medical history, Claimant sustained a work injury. Specifically, he opined that the work injury involved aggravation of cervical and lumbar degenerative disc disease, radiculopathy, aggravation of degenerative joint disease about both knees, and internal derangement of the right knee. Claimant's Physician reported that Claimant was "virtually asymptomatic prior to the September 1, 2006 work injury." WCJ Op., 2/25/10, Finding of Fact (F.F.) No. 8. He opined that Claimant was totally disabled from September 1, 2006, through December 27, 2006. Claimant's Physician did not believe Claimant fully recovered.
Employer's Physician examined Claimant on March 20, 2009, and took a full medical and employment history. He also reviewed Claimant's medical records, including diagnostic test results. Employer's Physician opined that none of Claimant's symptoms or complaints were attributable to the work-related activities of September 1, 2006. He described Claimant as a severely overweight male who suffered from degenerative changes throughout his axial skeleton, including degenerative joint disease and degenerative disc disease in the cervical and lumbar spine. While Employer's Physician conceded Claimant could have exacerbated these degenerative problems on the day of the work incident, he opined that no restrictions placed on Claimant were due to that exacerbation.
WCJ Beach considered the testimony and Claimant's exhibits. The WCJ rejected Claimant's testimony regarding his alleged work injury as not credible. Specifically, she rejected his testimony for the following reasons:
(1) [Claimant] suffers from longstanding degenerative disc disease and joint disease in his cervical and lumbar spine which pre-dated September 1, 2006;WCJ Op., 2/25/2010, F.F. No. 11 (1)-(6).
(2) [Claimant's] alleged work-related injury took place on the very same day [his] employment was terminated by [Employer] which casts doubt on [Claimant's] veracity;
(3) there was no compelling reason for [Claimant] to insist upon helping [Office Manager] in unpacking boxes of paper. A more credible response would have been for [Claimant] to assemble the contents of his office while [Office Manager] collected the empty boxes and delivered them to [Claimant's] office;
(4) according to the credible testimony of [Office Manager], the claimant was non[-]specific in his complaints to her later in the afternoon of September 1, 2006;
(5) [Claimant] sequestered himself in his office for hours before presenting himself to [Office Manager] in the afternoon of September 1, 2006 with complaints of overdoing it. There were no witnesses to corroborate [Claimant's] activities in those hours or even that [Claimant] was in his office that entire time;
(6) the testimony of [Office Manager] and the opinions of [Employer's Physician] are far more credible and persuasive.
The WCJ also rejected the opinions of Claimant's Physician as he necessarily relied on information provided by Claimant and his credibility "can rise no higher than that of [Claimant]." F.F. No. 12. She found Claimant's Physician "offered no credible explanation as to what specific mechanisms of injury served to alter those preexisting changes on September 1, 2006," particularly with regard to the alleged bilateral knee pain. Id.
The WCJ concluded that Claimant "failed to sustain his burden of proving that on September 1, 2006, he sustained any work-related injuries, thus the Claim Petition must be denied." WCJ Op., 2/25/10, Concl. of Law No. 1. Claimant appealed the decision to the Board, listing among the alleged errors the improper transfer of the case to WCJ Beach.
The Board affirmed the decision, reasoning that "[d]eterminations of credibility and the weight to be accorded evidence are the prerogative of the WCJ, not the Board." Bd. Op., 5/17/2012, at 9. Claimant petitions for review.
This Court's review is limited to determining whether there was a violation of constitutional rights, an error of law committed, or a violation of Board procedures, and whether necessary findings of fact were supported by substantial evidence. Habib v. Workers' Comp. Appeal Bd. (John Roth Paving Pavemasters), 29 A.3d 409 (Pa. Cmwlth. 2011).
II. Discussion
Claimant contends the WCJ disregarded the evidence of record and that her findings are not supported by substantial evidence. He further asserts the WCJ did not issue a reasoned decision in that she disregarded the opinions of his medical expert and failed to recognize the aggravation of his pre-existing condition as a work injury. He also challenges the transfer of the case from WCJ Callahan to WCJ Beach as a violation of Board procedures. Additionally, Claimant criticizes WCJ Beach's handling of the case as biased, because she limited his evidence and cross-examination in violation of his due process rights.
A. Improper Transfer
We first address Claimant's challenge to the transfer of his case to WCJ Beach after WCJ Callahan heard testimony regarding Claimant's alleged work injury. Claimant contends the Bureau violated its own procedures in transferring the case to WCJ Beach, ostensibly "after Claimant rested his case." See Pet'r's Br. at 10. Because there were no extenuating circumstances for the transfer, Claimant argues, the transfer was inappropriate, and the decision should be remanded to WCJ Callahan. Bureau procedures provide:
(a) If the transfer of the case is agreed to by the Office of Adjudication, the parties and the judge, the Office of Adjudication will promptly reassign the case or petition. Notice of reassignment will be given to all parties.34 Pa. Code §131.22. The Bureau is authorized to substitute one referee (now WCJ) for another in a workers' compensation proceeding pursuant to Section 415 of the Act, 77 P.S. §851. Arena v. Packaging Sys. Corp., 510 Pa. 34, 507 A.2d 18 (1986). Section 415 provides:
(b) Transfer or reassignment under subsection (a) will take place prior to the date of the first hearing unless circumstances dictate otherwise.
At any time before an award or disallowance of compensation or order has been made by a referee to whom a petition has been assigned, the department may order such petition heard before any other referee. Unless the department shall otherwise order, the testimony taken before the original referee shall be considered as though taken before the substituted referee.Id. Essentially, to substitute one WCJ for another, the Board must provide notice and an opportunity for parties to object before reassignment. See Izzi v. Workers' Comp. Appeal Bd. (Century Graphics), 654 A.2d 176 (Pa. Cmwlth. 1995).
This Court considered a claimant's challenge to reassignment to a different workers' compensation decision-maker in Izzi. There, the Bureau transferred the case to another referee after the close of evidence, but prior to rendering a decision. The notice of transfer advised the claimant that he could object to the transfer to a specified referee. The claimant did not object at that time. However, a different reassigned referee issued the decision. The Bureau did not provide notice of the second transfer. Once the claimant received an adverse decision, the claimant appealed and challenged that the decision was not based on the evidence. The claimant in Izzi also sought reconsideration, asserting improper transfer in that he was not afforded notice and had no opportunity to object to the second reassignment.
Ultimately, we agreed with the claimant in Izzi, that he was entitled to notice of the second reassignment, and that the Board should have considered the issue. Therefore, we reversed and remanded with instructions to hold a hearing regarding prejudice to the claimant suffered as a result of the Bureau's rule violation.
The circumstances of the reassignment in Izzi are markedly different from those before us now. First, in Izzi, the claimant never received notice of the second reassignment. By contrast, Claimant here does not dispute he received notice of the reassignment to WCJ Beach. Second, in Izzi, the claimant had specific reasons for objecting to the decision-maker, based on his identity and experience level, not on the contents of the decision. Here, Claimant's criticisms of WCJ Beach pertain to her handling of the case and the decision rendered, not her experience level, of which he had notice at the time of reassignment. Finally, in Izzi, the referee who issued the decision did not handle the case or hear any of the evidence. Contrary to Claimant's representation in his brief, WCJ Beach heard evidence, including Claimant's testimony regarding his injuries, and testimony of his two friends. Thus, WCJ Beach heard many of the witnesses testify first-hand and handled the case before the evidence closed.
However, we recognize it is permissible for a WCJ who did not take evidence in the case to render a decision on the claim. McAfee v. Workmen's Comp. Appeal Bd. (Allegheny Gen. Hosp.), 579 A.2d 1363 (Pa. Cmwlth. 1990).
Claimant was afforded due process in accordance with the Bureau rules because he received notice of the reassignment, and had the opportunity to object before the evidence closed, including at a hearing before the reassigned WCJ. In particular, at the hearing on May 23, 2009, Claimant had an opportunity to be heard and to object to WCJ Beach about the reassignment to her. Claimant did not object until July 3, 2009, at which time he objected by letter to WCJ Beach's refusal to permit Claimant's two friends to testify by deposition. As he did not object at or before the first hearing before WCJ Beach, Claimant implicitly agreed to the transfer and waived his right to object later. In sum, unlike the situation Izzi, the Bureau did not violate its rules in this case; Claimant failed to timely object, and Claimant failed to show the requisite prejudice from the transfer. See Izzi.
B. Merits
Because this matter arose from Claimant's filing of a claim petition, the burden is on Claimant to establish all the elements necessary for an award, including the existence of injury, disability and its duration. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 535 Pa. 135, 634 A.2d 592 (1993); Morrison v. Workers' Comp. Appeal Bd. (Rothman Institute), 15 A.3d 93 (Pa. Cmwlth. 2010). A claimant must establish that he sustained an injury during the course of his employment, and that he is disabled as a result of that injury. Morrison. The claimant's burden to prove disability never shifts to the employer. Id. Where the causal connection between the work incident and alleged disability is not obvious, unequivocal medical evidence is necessary to establish it. Southwest Airlines v. Workers' Comp. Appeal Bd. (King), 985 A.2d 280 (Pa. Cmwlth. 2009). It is Claimant's burden to prove he suffered a work injury, not Employer's burden to prove he did not suffer one.
Based on the testimony and exhibits, the WCJ concluded Claimant did not meet his burden. Upon careful consideration of Claimant's position, the evidence of record and the decisions below, we hold the WCJ's conclusion is well-supported by the findings of fact in her eight-page opinion. Significantly, Claimant's dissatisfaction with the result is predicated upon the WCJ's credibility determinations.
In a workers' compensation proceeding, the WCJ is the ultimate fact-finder and "has exclusive province over questions of credibility and evidentiary weight ...." Anderson v. Workers' Comp. Appeal Bd. (Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). The WCJ is free to accept or reject the expert testimony of any witness, including a medical witness, in whole or in part. Id.; Riggle v. Workers' Comp. Appeal Bd. (Precision Marshall Steel), 890 A.2d 50 (Pa. Cmwlth. 2006). Credibility determinations are within the exclusive province of the WCJ and, absent arbitrary or capricious action, this Court may not disturb the findings of fact made below. Lehigh County Vo-Tech School v. Workmen's Comp. Appeal Bd. (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).
Here, the WCJ found Employer's witnesses "far more credible and persuasive" than Claimant and resolved any conflicts in testimony in their favor. F.F. No. 11. The WCJ did not credit Claimant or Claimant's Physician, and did not find Claimant's allegations of a causal relationship between his alleged condition and the work incident plausible. Id. The WCJ also did not credit Claimant's testimony regarding the circumstances under which he sustained the alleged work injury and noted he had no corroboration for his whereabouts between the time he unpacked boxes with Office Manager and his later complaints of pain. Id. Without a causal link between the alleged injury and the work incident, Claimant cannot sustain his burden.
In finding that Claimant did not suffer a work injury, the WCJ credited Employer's Physician. He opined "within a reasonable degree of medical certainty that ... any symptoms and/or treatment does not directly correlate to September 1, 2006." See Report of Dr. McHugh, March 20, 2009; Reproduced Record (R.R.) at 267a.
Claimant also argues the WCJ erred in failing to find the alleged work incident exacerbated his pre-existing degenerative conditions, given the medical reports to the contrary. Claimant faults the WCJ for not crediting Claimant's Physician's opinion that the work incident aggravated his degenerative issues. The WCJ found that "the credibility of [Claimant's Physician] can rise no higher than that of [Claimant]." F.F. No. 12. While the law is clear that aggravation of a preexisting condition is compensable under the Act, the WCJ ably addressed this issue. The WCJ considered Claimant's Physician's testimony that Claimant sustained an aggravation of a pre-existing condition, and explicitly rejected it.
See Pawlowsky v. Workmen's Comp. Appeal Bd. (Latrobe Brewing Co.), 514 Pa. 450, 525 A.2d 1204 (1987).
Claimant contends that because the WCJ credited Employer's Physician, she erred in disregarding his statements regarding exacerbation. We disagree. Employer's Physician stated, "Given the mechanism of heavy lifting and repetitive exertional activities on September 1, 2006, there definitely could have been an exacerbation of those chronic issues." R.R. at 266a (emphasis added). Because this statement is equivocal and lacking the certainty typically required of expert opinion, the WCJ was not required to base a finding of fact on it. See Potere v. Workers' Comp. Appeal Bd. (Kemcorp), 21 A.3d 684 (Pa. Cmwlth. 2011).
In short, we conclude the WCJ properly considered the evidence before her and her determination that Claimant did not suffer a work injury is supported by the credited evidence of record. This Court thus agrees with the Board that the WCJ properly denied the claim petition.
C. Due Process
Claimant also contends he was not afforded due process in the hearings before WCJ Beach. WCJ Beach presided over two of the three hearings on the claim petition, one in May 2009, and one in August 2009. Claimant presented evidence at both of these hearings, and he testified regarding his condition. Claimant asserted that WCJ Beach erred in not including his correspondence to and from her in the record. Claimant also contends WCJ Beach unfairly curtailed his cross-examination of Office Manager regarding the alleged work incident and regarding his description of his injuries later that day.
As to the alleged improper exclusion of the correspondence, the letters to and from WCJ Beach precede the August 2009 hearing. We reviewed the letters, which are attached as an appendix to Claimant's brief. They reflect Claimant's requests to present fact witnesses to rebut Office Manager's testimony regarding his current abilities and to have his witnesses testify by deposition to avoid travel. In each of the letters, Claimant asks "Please also make this request a part of the formal record." See Pet'r's Br., App'x 3.
That these letters were not in the record does not constitute a denial of due process, and we fail to perceive any prejudice. Correspondence with the WCJ regarding the hearing proceedings and presentation of witnesses does not constitute evidence in the case. Moreover, despite the fact that the correspondence preceded the hearing in August 2009 when the witnesses testified, Claimant did not attempt to submit the correspondence as evidence.
Claimant also complains that he did not have a sufficient opportunity to cross examine Office Manager. We disagree. From our review of the transcript, Claimant's cross-examination of Office Manager spans 27 pages. Moreover, Claimant had the opportunity to rebut Office Manager's testimony, because he testified after her. Instead, he restricted his testimony to his current medical state, and he did not take the opportunity to refute her testimony. This is not an error attributable to WCJ Beach.
As we cannot agree with Claimant's characterization that the WCJ mishandled the hearing and disregarded the evidence, we fail to discern any due process violation.
D. Reasoned Decision
Claimant also argues that the WCJ failed to issue a reasoned decision supported by the evidence. We must again disagree.
Section 422(a) of the Act provides, in pertinent part, that
[a]ll 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.77 P.S. §834. A decision is reasoned if it allows for adequate review by the Board and the appellate courts. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003); Morrison.
Section 422(a) of the Act requires a WCJ to set forth the rationale for the decision by specifying the evidence relied upon and reasons for accepting it. Daniels. When presented with conflicting evidence, the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence. Id. The WCJ may not reject uncontroverted evidence without reason or for an irrational reason, but must identify such evidence and explain adequately the reasons for its rejection. Id.
In essence, Claimant complains the WCJ did not issue a reasoned decision because he disagrees with her credibility determinations. In his brief he writes that "she provided no verifiable, legitimate reasons for her credibility determinations" and characterizes her decision as arbitrary and capricious. See Pet'r's Br. at 15.
"[A] WCJ's observation of a witness's demeanor alone is sufficient to satisfy the reasoned decision requirement." Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 77 (Pa. Cmwlth. 2012) (citing Daniels). "Section 422(a) does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations. Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006) (quoted in Hershgordon v. Workers' Comp. Appeal Bd. (Pepboys, Manny, Moe and Jack), 14 A.3d 922, 928 (Pa. Cmwlth. 2011)). "[W]here a WCJ summarizes testimony and also objectively explains his credibility determinations, the decision will satisfy the requirement." Amandeo, 37 A.3d at 76.
For witnesses testifying before the WCJ, it is appropriate for the WCJ to base his or her determination upon the demeanor of the witnesses. Daniels. Thus, "a mere conclusion as to which witness[es] were deemed credible" is sufficient. Id. at 77, 828 A.2d at 1053.
The WCJ stated that she did not find Claimant's Physician credible, primarily because the Physician's opinions relied on Claimant's reports of injury. The WCJ did not find Claimant credible, and she enumerated six reasons. Our careful review reveals the WCJ adequately explained her reasons for rejecting Claimant's testimony. See F.F. No. 11.
Claimant does not make a case that the WCJ's determinations are arbitrary or capricious. Dorsey. Given the thorough explanation the WCJ provided for discrediting Claimant and Claimant's Physician, the grounds are not left to our imagination, and we are enabled to thoroughly consider them on appeal. Lewis v. Workers' Comp. Appeal Bd. (Disposable Prods.), 853 A.2d 424 (Pa. Cmwlth. 2004). We decline Claimant's invitation to question the WCJ's thorough credibility determinations here.
Because the WCJ clearly explained her credibility determinations and other findings, we hold she issued a reasoned decision in accordance with Section 422(a) of the Act.
III. Conclusion
For the foregoing reasons, the Board's decision is affirmed. We further hold that the transfer to WCJ Beach was not improper, and we discern no bias or denial of due process in her handling of the hearings and the evidence.
Claimant also argued he is entitled to attorney fees for unreasonable contest. Unreasonable contest fees are reserved for the party who succeeds in the litigation. "Section 440(a) of the Act, 77 P.S. §996(a), [added by Act of February 8, 1972, P.L. 25] provides that where a claimant succeeds in a litigated case reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest." U.S. Steel Corp. v. Workers' Comp. Appeal Bd. (Luczki), 887 A.2d 817, 820 (Pa. Cmwlth. 2005). Claimant did not prevail, and the record is replete with reasons for Employer to contest the claim petition. Unreasonable contest fees are unwarranted in this case. --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 29th day of November, 2012, the Opinion and Order of the Workers' Compensation Appeal Board dated May 17, 2012, at No. A10-0344 is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge