Opinion
No. 68 C.D. 2014
11-06-2014
Theresa Simpson, Petitioner v. Workers' Compensation Appeal Board (Community Interactions, Inc. and CADES), Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Theresa Simpson, petitions for review of an order of the Workers' Compensation Appeal Board that affirmed the decision of the Workers' Compensation Judge (WCJ) to deny her claim petition. We affirm.
Claimant worked for Employer Community Interactions, Inc., as the caregiver for one specific client with bipolar disease and thyroid problems. In June 2010, Claimant filed a claim petition alleging that she sustained injuries to her right shoulder and trapezius on April 5, 2010, when that client assaulted her by repeatedly hitting her on her right side when both of them were seated in a car in the parking lot of the client's apartment complex. Claimant had attempted to take the client to Wendy's, but decided to return the client to her home when she became verbally abusive. Claimant never returned to work for Employer after the April 2010 incident.
At the time of her alleged April 2010 injuries, Claimant was working concurrently for Children and Adult Disability and Educational Services (CADES). Her concurrent earnings yielded a combined average weekly wage of $701.59, with a weekly compensation rate of $467.72. Although no physical restrictions were imposed on her after the April 2010 episode, Claimant told her supervisor at CADES that she had difficulty using a Hoyer lift to transfer patients due to pain from that prior incident. Claimant has not worked since June 2010 and there is no dispute that she received unemployment compensation benefits.
In August 2010, Employer filed a petition for joinder, seeking to join CADES as an additional defendant. In December 2010, Employer filed a termination petition, alleging that Claimant had recovered from her work injuries as of November 18, 2010. In her June 2011 decision, the WCJ denied Claimant's claim petition and Employer's joinder petition. The WCJ also dismissed the termination petition as moot. The Board affirmed and Claimant's petition for review to this Court followed. Claimant's sole issue on appeal is as follows:
Did the Appeal Board err by affirming the conclusion of [the WCJ] that [Claimant] did not sustain disabling work injuries on April 5, 2010[,] when a police report documented that she was assaulted by a client and the decision is not supported by substantial evidence.Claimant's Brief at 5.
In a claim petition proceeding, the claimant bears the burden of establishing his or her right to compensation and all of the elements necessary to support an award of benefits, including proof that he or she sustained a compensable injury in the course and scope of employment. Milner v. Workers' Comp. Appeal Bd. (Main Line Endoscopy Ctr.), 995 A.2d 492, 496 (Pa. Cmwlth. 2010). In the present case, the WCJ concluded that Claimant failed to meet that burden, rejecting as not credible her testimony that an incident occurred. In assessing Claimant's credibility, the WCJ found as follows:
10. Based upon my observation of her, and based upon the following factors, I find claimant's testimony entirely lacking in credibility: a) claimant testified that she lives in Freemansburg, [Pa.], but her testimony regarding household chores and living with her boyfriend, combined with the address given on her employment records for CADES indicates she may really live elsewhere; b) claimant testified that she was having "really bad pains" as a result of the incident, yet she did not seek medical treatment until June 7, 2010 and she consistently worked at CADES after the April 5 incident for 50-72 hours per week; and c) claimant adamantly denied having any previous neck or right shoulder problems, a fact belied by the medical records.WCJ's Finding of Fact No. 10.
In addition, the WCJ rejected the opinion of Claimant's medical witness, board-certified orthopedic surgeon Dr. William Burch, and accepted the testimony of board-certified orthopedic surgeons Drs. Richard J. Mandel and Ira Sachs, who, respectively, testified on behalf of Employer and CADES. Specifically, the WCJ found "the opinions of Dr. Mandel and Dr. Sachs entirely credible and persuasive and supported by the normal diagnostic images and the fact that the EMG findings do not correlate with claimant's complaints, her physical examination, and the alleged mechanism of injury." Id., No. 12.
Notwithstanding Claimant's assertions that the WCJ's findings lack substantial evidence, her arguments reflect that she is urging this Court to reweigh the testimony and disturb the WCJ's credibility determinations. With regard to her testimony, Claimant maintains that it is irrelevant where she lived, how long she waited before seeking medical treatment and that she denied any prior neck or shoulder problems. In addition, Claimant maintains that the police report belies the WCJ's finding that no work-related incident occurred. With regard to the doctors' testimony, Claimant emphasizes the fact that Dr. Burch was her treating physician and alleges that the other two doctors were "hired guns" for the employers and their insurance carriers. Contrary to Claimant's arguments, however, those factors are not for this Court to weigh.
In any event, the WCJ obviously found relevance in the doctors' testimony that Claimant waited several months after the April 2010 incident before seeking treatment and that she denied any prior neck or shoulder problems. In order to extrapolate what injuries a claimant may or may not have sustained in an alleged work injury, it is probable that any prior injuries would be relevant in rendering an opinion, particularly as to causation, within a reasonable degree of medical certainty. This principle would hold true for treating physicians and any other health care professionals.
In addition, contrary to Claimant's suggestion, the police report was considered. Dr. Mandel reviewed it and noted that it indicated that "claimant complained of being punched in the shoulder, but there was no obvious sign of injury." WCJ's Finding of Fact No. 8. As for Claimant's assertion that neither Employer nor CADES presented any evidence to the contrary regarding what the police documented in the report, it was not their burden to do so. As we noted, Claimant has the burden of establishing her right to compensation.
It is well established that a WCJ as the ultimate fact finder is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Milner, 995 A.2d at 496. Determinations of credibility and evidentiary weight are within the WCJ's exclusive province. Ward v. Workers' Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159, 1164 (Pa. Cmwlth. 2009). Neither this Court nor the Board in their appellate capacities is entitled to reassess the credibility of witnesses or to reweigh their testimony.
Moreover, it is well established that, "the fact that one party to a proceeding may view testimony differently is not grounds for reversal if substantial evidence supports the lower tribunal's findings." Second Breath v. Workers' Comp. Appeal Bd. (Gurski), 799 A.2d 892, 899 (Pa. Cmwlth. 2002). Although the present case is one in which the grounds for Claimant's appeal primarily consist of requests to reweigh the evidence and disturb credibility determinations, we nonetheless find substantial evidence to support the WCJ's fact-findings. Specifically, the testimony of Drs. Mandel and Sachs constitutes substantial evidence to support the WCJ's conclusion that Claimant failed to meet her burden of proof. Both doctors testified that Claimant's clinical presentation was inconsistent with her complaints, that she had incorrectly denied any previous injuries to her neck and shoulder and that, if she had sustained a work injury, she was fully recovered at the time of their respective examinations. WCJ's Findings of Fact Nos. 8 and 9.
Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rife v. Workers' Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750, 754 (Pa. Cmwlth. 2002) (citation omitted).
Dr. Mandel examined Claimant on November 18, 2010, and Dr. Sachs conducted his examination on December 7, 2010. --------
Accordingly, viewing the evidence in a light most favorable to Employer as the party who prevailed before the WCJ, Waldameer Park, Inc. v. Workers' Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003), we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 6th day of November, 2014, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge