Opinion
No. 294 C.D. 2011
02-03-2012
Shara Stokes, Petitioner v. Workers' Compensation Appeal Board (HGO, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
Shara Stokes (Claimant) petitions for review of the January 26, 2011, order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) granting the termination petition filed by HGO, Inc. (Employer). We affirm.
This decision was issued by WCJ Debra Lee Bowers.
Claimant worked for Employer as a housekeeper. (Finding of Fact No. 1.) On January 24, 2001, during the course of her employment, Claimant sustained an injury to her right wrist. Id. Employer issued a notice of temporary compensation payable on April 4, 2001, which eventually converted to a notice of compensation payable, accepting a work injury in the nature of a right wrist strain/sprain. (R.R. at 10a.) On June 16, 2003, WCJ Carl Lorine granted Employer's request for a suspension of Claimant's benefits from August 10, 2001, to August 1, 2002, based upon Claimant's refusal to accept an available position with Employer that only required Claimant to use her left hand. (R.R. at 83a-90a.) However, Claimant's total disability benefits were reinstated as of August 2, 2002. (R.R. at 10a.) On August 13, 2004, WCJ Lorine denied a petition filed by Employer seeking to modify and/or suspend Claimant's benefits based upon an offer of a similar job. (R.R. at 91a-101a.)
Employer appealed this decision to the Board, which, by order dated June 20, 2005, remanded the matter to the WCJ for further findings as to whether the offered job was the same job offered in 2001, and, if so, whether the doctrine of collateral estoppel is applicable. (R.R. 112a-118a.) On remand, WCJ Lorine concluded that Employer failed to establish that the job offered in 2003 was the same job offered in 2001 or that any such job was in fact available to Claimant. (R.R. at 119a-30a.) Hence, on April 5, 2006, WCJ Lorine again issued a decision denying Employer's modification/suspension petition. Id.
On March 18, 2005, WCJ Lorine denied a claim petition wherein Claimant sought benefits for the loss of use of her right hand, forearm, and/or arm for all practical intents and purposes. (R.R. at 102a-10.) On August 8, 2008, WCJ Kelly Melcher issued a decision denying a modification petition filed by Employer on the basis of an earning power assessment and labor market survey. (R.R. at 131a-39a.) On April 17, 2009, Employer filed the present petition to terminate Claimant's compensation benefits, alleging that, based on a recent independent medical evaluation (IME), Claimant was fully recovered and capable of returning to work without restrictions. Claimant filed an answer denying this allegation, and the case proceeded with hearings before WCJ Bowers.
Employer presented the deposition testimony of Stephanie Sweet, M.D., who is board-certified in orthopedic surgery with an added certification in hand surgery. Dr. Sweet conducted an IME of Claimant on February 24, 2009, which included a review of Claimant's medical records and previous diagnostic studies. Dr. Sweet testified that her physical examination revealed no objective findings to support Claimant's subjective complaints of pain. Dr. Sweet indicated that Claimant underwent two surgeries on her right wrist for treatment of her work injury, later diagnosed as DeQuervain's tenosynovitis, the first deemed a failure and the second deemed a success. Dr. Sweet noted that, although Claimant insisted that she used her right hand minimally, there was no disuse osteopenia or atrophy, abnormal callous pattern, or focal problem. Dr. Sweet opined that Claimant had no remaining disability related to her original work injury and that Claimant was capable of returning to her pre-injury job with no restrictions. Dr. Sweet completed a physician's affidavit of recovery to that effect. (Finding of Fact No. 2.)
DeQuervain's tenosynovitis is similar to carpal tunnel and involves fibrosis of the sheath of a tendon of the thumb. Stedman's Medical Dictionary, 446 (25th ed. 1990).
The first surgery was performed on May 2, 2001, and the second surgery was performed on August 2, 2007. (R.R. at 17a.)
Claimant did not testify on her own behalf. Instead, Claimant presented the deposition testimony of her treating physician, Joseph Thoder, M.D., who also is board-certified in orthopedic surgery with an added certification in hand surgery. Dr. Thoder testified that Claimant exhibited objective signs of ongoing problems, including a diminished range of motion on the right side, a lack of grip strength of 15% to 25%, difficulty with repetitive activities, and occasional recurrences of symptoms which have required physical therapy and anti-inflammatory medications. Dr. Thoder indicated that the restrictions from a 2007 functional capacities evaluation remain and preclude Claimant from returning to her pre-injury job as a housekeeper. Dr. Thoder noted that Claimant no longer suffers from DeQuervain's tenosynovitis, but that the residual scar from her surgery still prevents the tendons in the right wrist from functioning normally. Finally, Dr. Thoder opined that Claimant was not fully recovered from her original work injury. (Finding of Fact No. 3.)
The WCJ accepted the testimony of Dr. Sweet as more credible and persuasive than the testimony of Dr. Thoder. (Finding of Fact No. 7.) Based upon this credibility determination, the WCJ concluded that Employer met its burden of proving that Claimant had fully recovered from her work injury. Hence, the WCJ granted Employer's termination petition. Claimant appealed to the Board, which affirmed the WCJ's decision.
On appeal to this Court, Claimant argues that the Board erred in affirming WCJ Bowers' determination that she was fully recovered from her work injury. We disagree.
Our scope of review is limited to determining whether findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Meadow Lakes Apartments v. Workers' Compensation Appeal Board (Spencer), 894 A.2d 214 (Pa. Cmwlth. 2006).
An employer seeking to terminate workers' compensation benefits bears the burden of proving either that the employee's disability has ceased or that any current disability arises from a cause unrelated to the employee's work injury. Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503 (Pa. Cmwlth. 1998) (holding that termination was improper where the employer's expert did not rebut the claimant's credible complaints of ongoing pain and fatigue). Termination is proper where the WCJ credits the testimony of the employer's medical expert, who testifies unequivocally, that within a reasonable degree of medical certainty, the employee is fully recovered and can return to work without restrictions, and that there are no objective medical findings that either substantiate the complaints of pain or connect them to the work injury. Udvari v. Workers' Compensation Appeal Board (US Air, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997).
In Udvari, the employer filed a termination petition, and, in support thereof, the employer's medical expert testified that the claimant had fully recovered from the work injury. The WCJ granted termination, and the Board affirmed. This court reversed the termination, citing the expert's acknowledgement that the claimant continued to have subjective complaints of pain. The employer appealed, arguing that there was substantial evidence to support a termination. Our Supreme Court agreed and held as follows:
We must keep in mind that the employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met when an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without any restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury.
Claimant begins her argument by noting that Employer's own medical expert, Dr. Sweet, found decreased grip strength in Claimant's right hand. Claimant contends that this finding evidences residual disability, thereby precluding a termination of her benefits. We cannot agree. WCJ Bowers recognized Dr. Sweet's grip strength findings but accepted Dr. Sweet's explanation that the discrepancy in the results did not mean that Claimant does not have normal function of her hand. (Finding of Fact No. 7.) In this regard, Dr. Sweet acknowledged that Claimant's grip strength was slightly diminished, but she stated that the "overall raw data numbers are excellent and indicate that [Claimant] can use [her right] hand with force and with grip." (R.R. at 19a.) On cross-examination, Dr. Sweet explained that a finding of decreased grip strength "does not mean [a person] can't use their [sic] hand in a normal fashion." (R.R. at 22a.) Further, Dr. Sweet reiterated her lack of objective findings and repeatedly stated that she did not discount Claimant's diminished grip strength in rendering her opinion of full recovery. (R.R. at 22a-23a.) Again, the WCJ credited this testimony from Dr. Sweet.
Dr. Sweet also noted on cross-examination that, while Claimant exhibited full flexion and grip strength during a 2001 functional capacities evaluation, a discrepancy arose as to Claimant's inability to hold an empty crate, thereby questioning the validity of that evaluation. (R.R. at 21a.)
In reviewing Dr. Sweet's grip strength testimony, WCJ Bowers stated that "grip strength testing obviously requires effort on the part of the claimant." (Finding of Fact No. 7, R.R. at 13a.) Citing Zeigler v. Workers' Compensation Appeal Board (Jones Apparel Group, Inc.), 728 A.2d 421 (Pa. Cmwlth. 1999), Claimant argues that WCJ Bowers impermissibly interjected her own opinion into this finding. We do not agree. In Zeigler, the WCJ chose to rely on one of two functional capacity evaluations and concluded that said evaluation constituted a more valid depiction of the claimant's abilities. On appeal, this Court held that the WCJ erred by impermissibly substituting and relying on her own opinion to make findings as to the medical significance of certain functional capacity evaluation results.
The same is not true in the present case. WCJ Bowers credited the testimony of Dr. Sweet and relied on this testimony in rendering her decision. In discounting Claimant's allegation that the discrepancy in the grip strength results represents an objective sign of a continuing injury, WCJ Bowers simply stated the obvious, i.e., grip strength testing requires effort on the part of Claimant. Indeed, this Court has previously held that the WCJ, as the fact finder, is permitted to draw reasonable inferences from the evidence. Bentley v. Workers' Compensation Appeal Board (Pittsburgh Board of Education), 987 A.2d 1223 (Pa. Cmwlth. 2009); General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). In any event, as noted above, Dr. Sweet adequately discussed this discrepancy in her testimony.
Claimant also contends that WCJ Bowers erred in discounting the results of a 2007 functional capacity evaluation. Alternatively, Claimant contends that WCJ Bowers capriciously disregard these results. We disagree with each of these contentions. First, Claimant is essentially asking this Court to re-weigh the evidence before the WCJ. However, the law is well settled that the WCJ has exclusive province over questions of credibility and evidentiary weight. Potere v. Workers' Compensation Appeal Board (KEMCORP), 21 A.3d 684 (Pa. Cmwlth. 2011); Global v. Workers' Compensation Appeal Board (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005). Second, WCJ Bowers did not capriciously disregard the 2007 functional capacity evaluation. A capricious disregard occurs when the fact-finder ignores relevant, competent evidence. Armitage v. Workers' Compensation Appeal Board (Hogue), 842 A.2d 516 (Pa. Cmwlth. 2004). Here, WCJ Bowers did not ignore this evaluation. Instead, WCJ Bowers recognized the evaluation but opted not to rely on it because the evaluation was performed two years prior to filing of the present termination petition.
The WCJ found that the 2007 functional capacity evaluation was conducted "long before the time period in question in this petition [2009]." (Finding of Fact No. 7, R.R. at 13a.)
Finally, Claimant contends that Employer failed to establish a change in her medical condition from the multiple, prior adjudications. See Folmer v. Workers' Compensation Appeal Board (Swift Transportation), 958 A.2d 1137 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 690, 971 A.2d 493 (2009) (holding that, in the case of multiple termination petitions, an employer must show that the claimant's physical condition has changed since the latest denial of a termination). Once more, we disagree. WCJ Bowers relied on the testimony of Dr. Sweet in support of her decision in this case. Dr. Sweet conducted a physical examination of Claimant on February 24, 2009, which included multiple tests of Claimant's right hand and wrist. Dr. Sweet testified that all of these tests were negative, with the exception of the grip strength test discussed above. (R.R. at 18a-19a.) Dr. Sweet also testified that her examination of Claimant revealed no objective findings. (R.R. at 19a.) Thus, Employer presented sufficient evidence of Claimant's condition as of February 24, 2009, to establish an improvement of Claimant's physical condition since her second surgery in 2007 and the denial of its modification petition in 2008. In sum, Dr. Sweet's testimony constitutes substantial evidence to support the WCJ's determination that Claimant had fully recovered from her work injury.
Dr. Sweet noted a "negative Tinel test over the incision and the dorsal sensory radial nerve," which was the nerve that had been irritated during the original injury, as well as negative results from "the Shake test and the Watson and the TFCC test...." (R.R. at 18a.) --------
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 3rd day of February, 2012, the order of the Workers' Compensation Appeal Board, dated January 26, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Udvari, 550 Pa. at 327, 705 A.2d at 1293.