Opinion
No. 657 C.D. 2014
02-23-2015
Charles Surman, Petitioner v. Workers' Compensation Appeal Board (United Parcel Service), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Charles Surman (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of a Workers' Compensation Judge (WCJ) denying a claim petition (Claim Petition) filed by Claimant against United Parcel Service (Employer). We affirm.
Claimant filed the Claim Petition on January 13, 2012, in which he alleged that he had suffered a work-related injury on December 17, 2011 of a herniated disc at L4-5 and that he was totally disabled as of December 19, 2011. (Claim Petition; WCJ Decision, Finding of Fact (F.F.) ¶2.) Employer filed a timely answer to the Claim Petition denying the allegations and issued a Notice of Worker's Compensation Denial denying that Claimant had suffered a compensable work injury. (WCJ Decision, F.F. ¶¶3-4.)
Hearings were held before a WCJ on the Claim Petition, at which Claimant testified and Claimant's supervisors, Lee Schreck and Scott Corcoran, testified. Claimant testified that he had worked for Employer for 39 years as a feeder driver and that his job duties consisted of sitting for large portions of the day while driving and squatting and bending over to inspect trucks and trailers. (Id., F.F. ¶7; Feb. 22, 2012 Hearing Transcript at 8-9, Reproduced Record (R.R.) at 8-9.) Claimant testified that on Saturday, December 17, 2011, he was off of work and began experiencing a severe pain in his back and right leg while running errands. (WCJ Decision, F.F. ¶7.) Claimant ultimately sought treatment for the pain at Westfield Hospital on Sunday, December 18, 2011, which was also an off day for Claimant. (Id.) Claimant stated that he spoke to both of his supervisors on Monday, December 19, 2011, to report that he would miss work because of the back pain. (Id.) Claimant began treatment with Dr. Charles Norelli on December 20, 2011, and following his first examination he informed his supervisors that he had a work-related injury. (Id.) Claimant testified that he continued with physical therapy and other treatment with Dr. Norelli for the next several weeks, and Dr. Norelli released Claimant to return to work without restriction on March 1, 2012. (Id.) Claimant testified that he had sustained a work-related back injury approximately 20 years ago, and that he had also been in a motor vehicle accident approximately 30 years ago and sustained injuries after falling out of a tree while hunting around that same time. (Id.)
The testimony of Employer's witnesses substantially confirmed the timeline of events presented in Claimant's testimony. Both Schreck, who supervised Claimant's duties driving tractor-trailers between Employer's hub facilities, and Corcoran, who supervised Claimant with respect to his role in making transports to Employer's Allentown local delivery facility, testified that Claimant called out of work on Monday, December 19, 2011 but did not report that he had sustained a work-related injury. (Id., F.F. ¶¶8, 9.) Schreck testified that Claimant spoke to him again the following day after the visit with Dr. Norelli and reported that the back injury was in fact work-related. (Id., F.F. ¶8.) Both Schreck and Corcoran testified that Claimant did not report any back pain prior to the date of his alleged work-injury and that Claimant had returned to work on March 1, 2012 in his full-duty position without restrictions. (Id., F.F. ¶¶8, 9.)
Both Claimant and Employer submitted medical evidence. Claimant submitted office notes of Dr. Norelli, which document his visits on December 20, 2011, December 27, 2011, January 12, 2012 and February 17, 2012. In these notes, Dr. Norelli described Claimant's treatment of physical therapy and epidural injections and Dr. Norelli opined that Claimant's injury was work-related. (Id., F.F. ¶12; Claimant Ex. 5, R.R. at 80-83.) Claimant also submitted a report from Dr. Patrick Sewards, who examined Claimant on June 11, 2012. Dr. Sewards opined that Claimant had suffered from an acute disc herniation at L4-5 and that, though Claimant was not working on the date of the injury, the injury was work-related as a result of cumulative trauma resulting from 39 years of prolonged sitting and repetitive bending at work. (WCJ Decision, F.F. ¶11; Claimant Ex. 4, R.R. at 77-79.) Dr. Sewards further opined that Claimant was totally disabled from December 17, 2011 to March 1, 2012 as a result of the back injury. (WCJ Decision, F.F. ¶11; Claimant Ex. 4, R.R. at 79.)
Employer submitted records from Westfield Hospital documenting Claimant's treatment on December 18, 2011 and a report by Dr. Scott Naftulin, who conducted an independent medical evaluation of Claimant on April 12, 2012. Dr. Naftulin opined that Claimant suffered from right L4 radiculopathy secondary to an L4-5 disc herniation, but that this injury was not work related based on the fact that Claimant was engaged in non-work activities when the injury occurred and no precipitating work-related trauma had been identified as a cause for the injury. (WCJ Decision, F.F. ¶14; Employer Ex. 2, R.R. at 84-89.)
On October 5, 2012, the WCJ issued a decision denying the Claim Petition. The WCJ concluded that Claimant had failed to sustain his burden of proof that he had suffered a compensable injury, finding that the opinion expressed by Dr. Naftulin in his report that the injury was not work-related was more credible and persuasive than the opinions of Claimant's medical witnesses. (WCJ Decision, F.F. ¶¶15, 16, Conclusion of Law (C.L.) ¶2.) Claimant appealed, and on March 21, 2014 the Board affirmed. This appeal followed.
Our review of an appeal from a determination by the Board is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether Board procedures or constitutional rights were violated. 2 Pa. C.S. § 704; Furnari v. Workers' Compensation Appeal Board (Temple Inland), 90 A.3d 53, 58 n.2 (Pa. Cmwlth. 2014). To the extent we review the evidentiary support for the WCJ's decision, it is irrelevant whether the record contains evidence to support alternate findings and instead we must determine whether there is substantial evidence to support the findings of fact actually made by the WCJ. Hall v. Workers' Compensation Appeal Board (America Service Group), 3 A.3d 734, 743 n.16 (Pa. Cmwlth. 2010); Hoffmaster v. Workers' Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sell v. Workers' Compensation Appeal Board (LNP Engineering), 771 A.2d 1246, 1250 (Pa. 2001) (quoting Republic Steel Corp. v. Workmen's Compensation Appeal Board (Shinsky), 421 A.2d 1060, 1062 (Pa. 1980)).
Additionally, in accordance with our Supreme Court's decision in Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 812 A.2d 478 (Pa. 2002), we may review a WCJ decision for capricious disregard of material, competent evidence as a component of our appellate review when a party has properly presented such an issue to the Court. Id. at 487. A capricious disregard of evidence occurs "when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Casne v. Workers' Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 n.5 (Pa. Cmwlth. 2008) (quoting Station Square Gaming L.P. v. Pennsylvania Gaming Control Board, 927 A.2d 232, 237 (Pa. 2007)). As our Supreme Court has explained, "where there is substantial evidence to support an agency's factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard." Leon E. Wintermyer, Inc., 812 A.2d at 487 n.14; see also Williams v. Workers' Compensation Appeal Board (USX Corp.-Fairless Works), 862 A.2d 137, 144, 146 (Pa. Cmwlth. 2004).
Claimant argues that the decision by the WCJ capriciously disregarded the opinions of Claimant's treating doctor, Dr. Norelli, and Claimant's medical expert, Dr. Sewards, each of whom opined that Claimant's back injury was work-related. However, contrary to Claimant's argument, the WCJ did not ignore the medical evidence presented by Claimant. Instead the WCJ summarized the opinions of Dr. Norelli, Dr. Sewards and Employer's expert, Dr. Naftulin, and then made the following finding:
This Judge finds the opinions of Dr. Naftulin, a well qualified physician, to be most credible and persuasive. This Judge is not aware of Dr. Seward or Dr. [N]orelli's area of medicine. Dr. Naftulin credibly explained that there was no indication that Claimant's back problems were in any way related to his employment. This Judge also finds it suspect that during the alleged period of disability, Claimant underwent surgery to repair an admittedly unrelated knee injury. Furthermore, this Judge questions Dr. Sewards' opinion that the status of Claimant's lumbar spine was the result of Claimant's work history and not any of the three (3) injuries Claimant sustained years prior, including the work injury, the fall from a tree and/or the motor vehicle accident. Dr. Sewards indicates that his opinions are based upon "the totality of the patient's history" but there is no indication the doctor was even aware of Claimant's significant past medical history.(WCJ Decision, F.F. ¶15.) Based on the credible opinion of Dr. Naftulin that Claimant's injury was not work-related and the undisputed fact that the back injury occurred on Claimant's off-day while he was engaged in non-work related activities, the WCJ found that Claimant failed to establish that he had sustained a work-related back injury. (Id., F.F. ¶¶15, 16, C.L. ¶2.)
The grounds cited by the WCJ for the credibility determination are supported by evidence of record. Dr. Naftulin's report indicates that he is board certified in physical medicine and rehabilitation with a subspecialty in pain medicine and certified by the American Board of Independent Medical Examiners, while the evidence submitted by Claimant does not indicate anything about the credentials of Dr. Norelli and Dr. Sewards, aside from their place of employment and degrees. (Claimant Ex. 4, R.R. at 77-80; Claimant Ex. 5, R.R. at 80-83; Employer Ex. 2, R.R. at 89.) As our Supreme Court has explained, the relative qualifications of experts are an appropriate objective factor that may support the decision to credit or discredit certain evidence. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 2003). Furthermore, Dr. Naftulin's report describes Claimant's prior back injuries that may have contributed to his current condition, (Employer Ex. 2, R.R. at 84-85, 89), while Dr. Sewards' report does not mention these injuries. Finally, the WCJ's statement that it was suspicious that Claimant was treated for an unrelated knee injury during the disability period is supported by Claimant's testimony that after the back injury he decided to have surgery on a torn meniscus in his left knee and he was released to return to work following the surgery in early February 2012. (Feb. 22, 2012 Hearing Transcript at 18-19, 31, R.R. at 18-19, 31.)
Accordingly, the WCJ's credibility determination supported by evidence of record is conclusive on appeal. The WCJ has exclusive province over questions of credibility and evidentiary weight, including whether to accept or reject the testimony of any witness, including a medical witness, in whole or in part. University of Pennsylvania v. Workers' Compensation Appeal Board (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011); Anderson v. Workers' Compensation Appeal Board (Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). Neither the Board nor this Court may reweigh the WCJ's credibility determinations. Sell, 771 A.2d at 1251.
Claimant further contends that Dr. Naftulin's report was internally inconsistent because Dr. Naftulin opined that "most disc herniations are the result of daily activities and are not precipitated by trauma" and that Claimant's injury was not work related based on the fact that Claimant "suffered no precipitating events or trauma." (Employer Ex. 2, R.R. at 89.) We see nothing inconsistent about these statements. Dr. Naftulin explained the rationale for his opinion that Claimant's injury was not work related based on the fact that there was no precipitating event that caused Claimant's sudden onset of pain on December 17, 2011, that Claimant was engaged in daily activities when the events occurred and that most herniations occur as a result of daily activities. (Id., R.R. at 88-89.) Dr. Naftulin further explained that Claimant had suffered several previous injuries to his back and that he had recently been treated for symptoms related to his right leg, which could have been related to a lower back problem. (Id., R.R. at 85, 86, 89.) That Dr. Naftulin did not identify an alternate cause aside from Claimant's employment is irrelevant; Claimant, rather than Employer, bore the burden of proof in demonstrating a compensable work-injury. Gibson v. Workers' Compensation Appeal Board (Armco Stainless & Alloy Products), 861 A.2d 938, 943 (Pa. 2004).
Finally, Claimant argues that Dr. Naftulin grossly mischaracterized Claimant's job duties at Employer when Dr. Naftulin stated in his report that Claimant was injured while "performing activities of daily living including driving, and handling of packages." (Employer Ex. 2, R.R. at 84, 89.) However, nothing about this statement indicates that Dr. Naftulin was under a misapprehension regarding Claimant's job duties; Dr. Naftulin was referring not to Claimant handling packages for Employer, but instead to Claimant's explanation to Dr. Naftulin during the examination that he first felt the onset of pain while running errands and picking up Christmas presents. On the contrary, it is evident from Dr. Naftulin's report that he was well aware of Claimant's work duties as he indicated in the report that he had read Claimant's testimony in which Claimant explained his job duties and Claimant provided Dr. Naftulin with his occupational history and job duties during the examination. (Id., R.R. at 85, 87.)
Because the WCJ's credibility determination in favor of Employer's medical expert was supported by substantial evidence and because the opinion of this expert supported the conclusion that no work-related injury had occurred, we conclude that the Board correctly affirmed the WCJ's decision. The order of the Board is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 23rd day of February, 2015, the order of the Workers' Compensation Appeal Board in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge