Opinion
No. 525 C.D. 2013
09-25-2013
Victaulic Company, Petitioner v. Workers' Compensation Appeal Board (Ruschak), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Victaulic Company (Employer) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) March 18, 2013 order modifying the Workers' Compensation Judge's (WCJ) decision to reflect that Employer is to pay temporary total disability benefits beginning March 25, 2011. Employer presents six issues for this Court's review: (1) whether the Board exercised proper appellate review by merely relying upon a WCJ's recital of an unsupported conclusion that timely notice of injury was given under the discovery rule; (2) whether the Board erred in failing to reverse and/or modify the incorrect average weekly wage; (3) whether the Board erred by failing to reverse or remand the WCJ's decision because it was based on incompetent and equivocal medical testimony; (4) whether the WCJ issued a reasoned decision; (5) whether the Board erred in failing to remand the matter because the WCJ failed to make crucial findings on essential issues raised by the evidence presented; and (6) whether the Board erred by failing to address the timeliness of John Ruschak's (Claimant) rebuttal evidence (C-5) to which Employer had properly objected at the close of the record. We affirm.
On May 13, 2010, Claimant was employed by Employer when he suffered work-related injuries in the nature of an acute right cerebral intraparenchymal hematoma ganglia with intraventricular rupture. As a result of his injuries, Claimant filed a Claim Petition on June 8, 2011. Employer issued a Notice of Compensation Denial (NCD). The WCJ held hearings on July 6, 2011 and August 22, 2011. On January 31, 2012, the WCJ granted the Claim Petition, concluding Claimant met his burden of proving that he provided timely notice of the work-related injury as well as proving he sustained a disabling work injury. The WCJ ordered Employer to pay Claimant total disability benefits from May 13, 2010 and ongoing, with a credit for short-term disability benefits Employer paid for Claimant. Employer appealed to the Board. On March 18, 2013, the Board modified the WCJ's decision to reflect that Employer is to pay temporary total disability benefits beginning March 25, 2011, the date Employer received notice of the claim. Employer appealed to this Court.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
Employer first argues that the Board erred by relying upon the WCJ's unsupported conclusion that the Claimant furnished timely notice of his injury. Specifically, Employer contends that the WCJ's findings of fact 4 and 5, which state Claimant first became aware that his injury was work-related on February 16, 2011, are not supported by substantial evidence, thus, the Board should not have relied on them in making its conclusion that Claimant gave timely notice. We disagree.
Section 311 of the Workers' Compensation Act (Act) provides:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf . . . shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. The term 'injury' in this section means, in cases of occupational disease, disability resulting from occupational disease.(Emphasis added).
"Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Jacobi v. Workers' Comp. Appeal Bd. (Wawa, Inc.), 942 A.2d 263, 268 n.7 (Pa. Cmwlth. 2008). "It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made." Delaware Cnty. v. Workers' Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa. Cmwlth. 2002).
The WCJ's findings of fact 4, 5 and 6 read as follows:
4. Claimant credibly testified that he saw [Bruce Grossinger, D.O (]Dr. Grossinger[)] on February 16, 2011. At that time, he first learned that his stroke might be work[-]related (Hrg. 7/6/11 N.T. 30, 34). This is corroborated by the short[-]term disability application, in which Dr. Kirth
W. Steele indicated [C]laimant's condition is not work[-]related. Exhibit D-3.Reproduced Record (R.R.) at 13a-14a. At the July 6, 2011 WCJ hearing, during questioning by his attorney, Claimant testified as follows:
5. From reviewing medical records, Dr. Grossinger credibly testified that he was the first physician involved in [C]laimant's care to opine that there was a relationship between the stroke and [C]laimant's work environment (Grossinger depo. N.T. 60-61).
6. Based upon the above credible testimony of [C]laimant and Dr. Grossinger, I find that [C]laimant provided notice within 37 days of when he knew of the existence of the injury and its relationship to his employment. . . .
Q Prior to seeing Dr. Grossinger on February 16th, 2010 -- so before February 16th, 2011, excuse me. Before February 16th, 2011, had you gained an understanding from any of the doctors that you had seen that your stroke was caused by work?R.R. at 71a. Further, when questioned by Employer's attorney, Claimant similarly stated:
A Yes.
Q Which doctor before Dr. Grossinger had given you - - -
A Oh, no. No doctors before Dr. Grossinger.
Q So let me reask the question. Before February -- you saw Dr. Grossinger, had you gained an understanding from any of your doctors previously that your stroke was caused by work?
A No.
Q Okay. Did you have a conversation to that effect in terms of the relatedness to your work duties with Dr. Grossinger?
A Yes.
Q Just so we're clear, Dr. Grossinger is the first person, first doctor that told you that your condition was work related; is that correct?R.R. at 75a. Claimant's testimony establishes that finding of fact 4 is based on substantial record evidence. In addition, at his deposition on October 3, 2011, Claimant's attorney, Davis F. Stern, Esquire (Mr. Stern), asked Dr. Grossinger, "[c]an we agree, even though not everyone was asked to comment on it, but can we agree from the records you saw that you were the first physician involved in [Claimant's] care to draw a relation between his stroke event and his work environment at least in the records?" to which Dr. Grossinger responded: "I believe so, yes." R.R. at 207a-208a. Thus, Dr. Grossinger's testimony establishes that finding of fact 5 is also based on substantial record evidence.
A Yes.
The record further reflects the following exchange took place at the July 6, 2011 WCJ hearing:
MR. STERN: I think we can probably stipulate that the first time -- I sent a letter to the employer putting them on notice. The date of my letter was March 22nd, 2011. I'm assuming the date used on the NCD was the day it was received, March 25th. That was the first time the employer was put on notice.R.R. at 46a. "It is well established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Shannopin Mining Co. v. Workers' Comp. Appeal Bd. (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth. 2011) (quoting Griffiths v. Workers' Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000)). Because findings of fact 4 and 5 are supported by substantial record evidence, the Board did not err in relying on the WCJ's conclusion that Claimant gave timely notice.
JUDGE DONEKER: You can stipulate to that?
MR. STERN: I can stipulate. . . .
Employer next argues that the Board erred in failing to reverse and/or modify the incorrect average weekly wage. Specifically, Employer contends the Board mistakenly stated that both the Claimant and Employer's industrial relations administrator Lisa Myers (Ms. Myers) credibly testified that Claimant was expected to work overtime.
The WCJ's findings of fact 7 and 8 specify as follows:
7. Claimant testified at a hearing on July 6, 2011. Over the course of 22 years, [C]laimant has worked for defendant off and on, with lay-offs. Claimant had been laid-off for two years when he was called back to work in April 2010. Claimant was not placed in his previous job of pattern changer in the core room. Instead, [C]laimant was placed in the auto pour operator position. [C]laimant did not know if he would be working 40 hours per week. He did work 40 hours per week between April and May 13. Claimant also had overtime two to three times per week. When he worked overtime, [C]laimant was paid time-and-a-half (N.T. 14 -15).R.R. at 14a (footnote omitted; emphasis added). At the July 6, 2011 WCJ hearing, during questioning by his attorney, Claimant testified as follows:
8. At the hearing on August 22, 2011, [Employer] presented the testimony of Lisa Myers. Ms. Myers has been employed as the industrial relations administrator for 28 years. She is familiar with [C]laimant and was aware he was laid-off on November 3, 2008. He was recalled on April 19, 2010. Ms. Myers spoke with [C]laimant to inform him of his recall. Claimant was to be paid $19.82 per hour (N.T. 8-10). Ms. Myers identified [C]laimant's wage information from the time of his recall (N.T. 11; Exhibit D-2). The employer expected that [C]laimant would work 40 hours per week plus overtime, when available (N.T. 25). When [C]laimant worked overtime, he was paid time-and-a-half (N.T. 26). Claimant completed a short-term disability application, which Ms. Myers forwarded to the short-term disability carrier (N.T. 11-12; Exhibit D-3).
Q - - - between April and May 13th were you working 40 hours?R.R. at 55a-56a. Claimant's testimony establishes finding of fact 7 is based on substantial record evidence. In addition, Ms. Myers when questioned by Claimant's attorney, testified at the August 22, 2011 WCJ hearing:
A Yes.
Q Was there overtime in that - - -
A Yes.
Q How often did you get overtime?
A Two, three times a week.
Q And for how many hours a clip?
A Sometimes 10-hour days, sometimes 12-hour days.
Q So that would be between two to four hours of overtime?
A Um-hum.
Q Is that a yes?
A Yes.
Q And when you would work overtime, would it be paid at time and a half on the union rate?
A Yes.
Q. Now, his union rate of pay that he came back to was - 19.82 an hour?
A. Correct.
Q. And when you hired him, did you have an expectation as to how many hours he would work?
A. Forty hours; plus when there's overtime then the overtime kicks in. It's definitely 40 hours, and then there's overtime.R.R. at 106a-107a. Ms. Myers' testimony establishes that finding of fact 8 is based on substantial record evidence. Accordingly, the Board did not err in concluding that Claimant was expected to work overtime.
Employer next asserts that the Board erred by failing to reverse or remand the WCJ's decision because it was based on incompetent and equivocal medical testimony.
The equivocality of a medical opinion is a question of law and fully reviewable by this Court. Equivocality is judged upon a review of the entire testimony. In conducting this review, we are mindful of our admonition in Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), . . . 465 A.2d 132 ([Pa. Cmwlth.] 1983), that to be unequivocal, every word of medical testimony does not have to be certain, positive, and without reservation or semblance of doubt. Additionally, it is an established principle that medical testimony is unequivocal if a medical expert testifies, after providing a foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists. Even if a medical expert admits to uncertainty, reservation or lack of information with respect to medical details, the testimony remains unequivocal so long as the expert expresses a belief that, in his or her professional opinion a fact exists.O'Neill v. Workers' Comp. Appeal Bd. (News Corp. Ltd.), 29 A.3d 50, 57-58 (Pa. Cmwlth. 2011) (citations omitted; emphasis added).
Here, after ten pages of foundation testimony (R.R. at 159a-169a), Dr. Grossinger opined:
It is my opinion based on my review of my chart, [and] medical records . . . I have determined that the work experience, that is extremely heavy exertion with a
jackhammer in a hot room in a fire suit with a background of hypertension all give rise to this very untoward sudden rupture of a blood vessel.R.R. at 169a (emphasis added). Thus, Dr. Grossinger's testimony was unequivocal. Accordingly, the WCJ and the Board did not err in relying on said testimony.
Therefore, were it not for the fact he was in a hot work environment in a fire suit jackhammering it is my opinion were he just somewhere else . . . within a reasonable degree of medical certainty, he would not have suffered this catastrophic large ruptured blood vessel which required major neurosurgery and he, therefore would not have this outcome, which we can agree perhaps is one with very substantial neurological deficits.
Employer argues that Claimant used a chip hammer rather than a jackhammer, however, Claimant testified he used a jackhammer throughout his testimony, and the WCJ found Claimant credible. Specifically, the WCJ found:
19. Based upon my observation of him, I find [C]laimant's testimony entirely credible and persuasive. Although defense witnesses attempted to minimize the ambient temperature and the physical stresses associated with wearing work gear while experiencing the exertional force of using the chipping hammer, I find [C]laimant's own description of these factors most persuasive.R.R. at 19a.
Employer next avers that the WCJ did not issue a reasoned decision. Section 422(a) of the Act 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 competent 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 [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] 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 [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.77 P.S. § 834 (emphasis added). Essentially, Employer argues that the WCJ's decision is not reasoned because she found Dr. Grossinger more credible than Employer's medical witnesses, Steven Mandel, M.D. (Dr. Mandel) and Nicholas L. DePace, Sr., M.D. (Dr. DePace). However, the WCJ fully explained her reasons for accepting Dr. Grossinger's testimony and rejecting the testimony of Drs. Mandel and DePace. The WCJ expressly stated in findings of fact 23 and 24:
23. Dr. Grossinger's testimony is entirely credible and persuasive and supported by Dr. DePace's acknowledgement that, if [C]laimant is believed, a stroke could have been caused by his work activities.R.R. at 20a. Accordingly, the WCJ issued a well-reasoned decision.
24. The opinions of Dr. Mandel and Dr. DePace are rejected as lacking in credibility because they are based largely upon on (sic) acceptance of the defense witness testimony and an uncorroborated supposition that [C]laimant stopped taking his blood pressure medicines, causing his blood pressure to remain uncontrolled in the months leading up to the incident. This supposition is refuted, in part, by Exhibit C4. Both doctors also minimized the strenuous nature of the job. Of the many exhibits provided to these experts, noticeably missing is the job description, which may have caused them to reconsider their opinions.
The WCJ found "[C]laimant's testimony entirely credible and persuasive[,]" and explained her reasons therefor. R.R. at 19a.
Employer next contends that the Board erred in failing to remand the matter because the WCJ failed to make crucial findings on essential issues raised by the evidence presented.
"The Board may remand cases when findings of the [WCJ] are not supported by competent evidence or the [WCJ] failed to make findings on a crucial issue." Rossi v. Workmen's Comp. Appeal Bd. (City of Hazleton), 642 A.2d 1153, 1155 (Pa. Cmwlth. 1994). However, the Board lacks authority to remand when the WCJ makes adequate factual findings on conflicting evidence. Great Atlantic & Pacific Tea Co. v. Workmen's Comp. Appeal Bd., 436 A.2d 255 (Pa. Cmwlth. 1981). Here, as explained above, the WCJ's findings are supported by substantial evidence, and the WCJ issued a reasoned decision fully examining the conflicting evidence and addressing all of the crucial issues, i.e., notice, causation, and the average weekly wage. Accordingly, the Board did not err in not remanding the matter.
Lastly, Employer argues that the Board erred by failing to address the timeliness of Claimant's rebuttal evidence (C-5) to which Employer had properly objected at the close of the record. This issue is summarily addressed in the argument section of Employer's brief, wherein, Employer submits:
As there is no C-5 in the record and C-4 is a Rite Aid "Patient History Report", this Court will address it as C-4. R.R. at 237a-242a.
In addition, contrary to the scheduling order of [the] WCJ given to the parties at the time of the initial hearing and beyond the time deadline for rebuttal evidence under the rules, 34 P[a.] Code [§] 131.63(d)[,] Claimant's counsel sought to depose the Claimant for the purpose of authenticating prescription records for his purchase of blood pressure medicine.Employer's Br. at 47 (footnote omitted). Because 34 Pa.Code § 131.63 concerns the time for taking depositions, the specific rebuttal evidence referred to is Claimant's deposition, and Employer cites no authority for its assertion, there is no argument presented as to how the Board erred regarding C-4, thus, Employer waived this contention. See Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291 (2011) (an utterly undeveloped claim, is waived for purposes of appeal).
Employer further adds that "the WCJ improperly considered a filled prescription and ignored the actual office note of Claimant's family physician . . . ." Employer's Br. at 47. The request to submit Claimant's prescription record was made two days before the scheduled closing of the record. A WCJ's reopening of the record will not be reversed absent an abuse of discretion. Sherrill v. Workmen's Comp. Appeal Bd. (Sch. Dist. of Phila.), 624 A.2d 240 (Pa. Cmwlth. 1993). "The [WCJ's] duty is to resolve the claims before [her] in a fair and efficient manner. We believe that the [WCJ's] action in this case had the effect of advancing this goal, and thus there was no abuse of discretion." Id. at 245 (citations omitted). Further, it was within the WCJ's authority to determine what evidentiary weight to give to the prescription record and the physician's office note. Shannopin Mining. Accordingly, this argument is meritless.
This is the extent of the entire argument. --------
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 25th day of September, 2013, the Workers' Compensation Appeal Board's March 18, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge