Opinion
No. 615 C.D. 2009.
Submitted: July 2, 2009.
Filed: July 30, 2009.
BEFORE: PELLEGRINI, Judge; LEAVITT, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
Penny Yaich (Claimant) appeals an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) denying her claim petition for workers' compensation benefits in which she alleged that she was injured in the course and scope of her employment while working for American Infrastructure (Employer). Because there was substantial evidence to support the WCJ's decision, we affirm the Board's decision.
Claimant was employed by Employer for four years running heavy construction equipment when she went off work due to an injury to her right knee. She underwent surgery and then returned to regular-duty work but was laid off in January 2007. On May 22, 2007, Claimant was asked by Lynn Verdes (Verdes), Employer's scheduling coordinator, to return to work on May 23, 2007, as a flagger on a construction site in Avondale, Pennsylvania. As a flagger, Claimant, who was five feet tall, was required to stand on the road to control traffic, holding a six-foot tall sign made of two to three-inch PVC pipe displaying either a "stop" or "slow" sign to oncoming traffic. Claimant, who lived in Coopersburg, Pennsylvania, would be required to drive 150 miles round-trip to perform this job.
Claimant agreed to return to work, appeared at the job site on May 23, 2007, and resumed working for Employer. The next day, May 24, 2007, Claimant again showed up for work but at some time during the morning, she alleged that she injured her lower back when she twisted it as a result of the wind blowing and catching the sign. She drove herself to an emergency room for treatment. Five days later, she filed a claim petition seeking total disability benefits from May 24, 2007, through May 29, 2007, and ongoing, and the payment of medical bills and attorneys' fees. She alleged a low back injury when she was "blown over while holding a sign." Employer issued a notice of compensation denial and filed an answer denying the allegations.
At the hearing, counsel for Claimant explained that he was actually seeking ongoing total disability benefits for Claimant but there was a problem with the computer printing the form properly.
At the hearing before the WCJ, Claimant testified that she began working for Employer on May 19, 2003, had a prior work-related injury and eventually returned to work. She was laid off in January 2007 and was then recalled to work on May 23, 2007, as a flagger. In that position, she was required to hold a "stop/slow" sign attached to a six-foot PVC pipe that weighed between 15-20 pounds. On May 24, 2007, Claimant stated that she was holding the sign with two hands because the sign was so heavy when the wind caught the sign and took the top of it and she lost her balance. She said she fought to hold onto the sign and she did not let go of the sign because she was not allowed to let the sign hit the ground while she was controlling the traffic. She stepped crossways and twisted, but did not fall. She testified that she had immediate, excruciating low back pain like knives in her back and her feet were falling. She said she continued working for about an hour and then called her foreman, Eric Marburger (Marburger), and left a voice mail message regarding the injury. She stated that when he did not get back to her, she left Verdes a message. Claimant stated that she went to an emergency room where she was treated and since that time has treated with Brent Nickischer, D.O. (Dr. Nickischer), who had not yet released her to work.
On cross-examination, Claimant specified that the date of injury was May 24th. She said her job assignment was about 75 miles from her home, but denied complaining to anyone on May 23rd that she had a sore back from commuting to work. She also denied telling the emergency room staff that she had pain from repetitive turning or that the injury occurred on May 23rd.
Claimant offered the expert medical testimony of Dr. Nickischer who testified that he first saw Claimant on May 30, 2007, when she complained of severe low back pain. She explained to him that she was injured when she was attempting to hold a flag and that the wind was gusting and that a large gust of wind blew the sign forward. As she tried to hold the flag, she bent forward and with a severe twisting motion she wrenched her back causing her low back pain. Dr. Nickischer diagnosed her with a low back problem with accompanying spasm. He stated that he saw her 34 times after that because her back was still in spasm with her pain getting worse. He ultimately diagnosed her with lumbar sprain/strain, degenerative joint disease of the lumbar spine, degenerative disc disease of the lumbar spine, bilateral lower extremity radiculitis, radiculopathy, and difficulty sleeping, insomnia secondary to pain. He relied upon the history Claimant gave him regarding the injury, his physical exam, an MRI, and a nerve conduction study. He opined that this was caused by the incident at work when Claimant tried to restrain the flagging sign against the wind.
Claimant also offered the testimony of Verdes and Marburger in support of her claim petition. Marburger, a field manager for Employer, testified that Claimant worked for him on May 23 and 24, 2007. He stated that he received a voice mail from Verdes on May 24, 2007, stating that Claimant needed to see him and he responded by walking down to see her. He saw that she was in some discomfort holding the flagging sign. He asked her what the problem was and she said she was in pain and did not know if she could perform her duties anymore, but did not say what caused the pain. He told her to sit in her car off the road, but instead, she just left. He assumed her duties as a flagger until he was able to get another laborer to take his post and during that time had no problem with the wind. He noted that May 24, 2007, was a clear, hot day. Marburger stated that Claimant did not report that there was a work-related incident, but he reported to his supervisor that Claimant had left.
Verdes testified that Claimant called her because she could not contact Marburger, but Verdes was unable to remember whether Claimant told her she was injured during that phone call. She remembered that she spoke to Claimant a second time and it may have been during that call that Claimant mentioned that she injured her back while struggling with a flagging sign.
Ken Myers (Myers), a laborer for Employer, who also did flagging work, testified on behalf of Employer stating that when Claimant arrived at work on May 23, 2007, she told him that her back had been hurting from her long drive to work. The next day, he gave Claimant breaks from her flagging duties for that very reason. Myers also stated that Claimant told him on May 24, 2007, that a truck had passed her the previous day and blown the sign out of her hands even though the sign only weighed between five to 10 pounds. Myers stated that on May 24, 2007, the day of the alleged injury, the weather was "nice, calm, not too cloudy, a normal day." (September 17, 2007, Notes of Testimony at 9.) He said that it was not excessively windy and specified that he did not have any problems with the wind on May 24th while he was doing flagging work.
Samuel Baird (Baird), a pipe layer for Employer for five years, also testified that Claimant complained to him on May 23, 2007, about her long ride to work. He said that he asked her why she did not get a job closer to home and she told him that her lawyer would not let her get another job. Baird also stated that he had done flagging work and that the flagging sign weighed about five to 10 pounds. Baird denied having any knowledge of a rule that the flagging pole could not hit the ground. On re-cross examination, Claimant did not recall ever meeting or having a conversation with either Myers or Baird.
Employer offered into evidence the May 24, 2007 emergency room records of St. Luke's Hospital Emergency Department which indicated that Claimant was triaged at 2:30 p.m. with her chief complaint as "low back pain — yesterday." The records also stated that "Claimant works as a flagger with road crew; flag caught by the wind yesterday — twisted." Under the history of present illness, Claimant described her complaint as "back pain from repetitive turning while holding a road sign, worse today." The records also indicated that Claimant had a past history of "previous back injury." Employer did not offer any expert medical testimony.
The WCJ denied Claimant benefits because he did not believe that she sustained a work injury on either May 23 or May 24, 2007. He stated that he observed all of the witnesses' testimony and found that Claimant's testimony "regarding the manner and mechanism of her injury and the events concerning May 23 and May 24, 2007 is generally unpersuasive, not believable and is rejected. The inconsistencies and contradictions between claimant's testimony, the employer's witnesses and the emergency room records so severely undermine claimant's credibility that her testimony is rejected. Claimant's insistence that her incident with the flagging pole occurred on May 24, 2007, is largely undermined by the statements provided to the emergency department the day before on May 23, 2007. Additionally, the credible testimony of Mr. Myers and Mr. Baird further undermine the claimant's credibility." (WCJ's May 19, 2008 Decision at 5.) He also accepted the testimony of Verdes and Marburger to the extent that it was consistent with the testimony of Myers and Baird. Regarding Dr. Nickischer's testimony, the WCJ made no specific findings of fact other than to state that because Dr. Nickischer relied on Claimant's history in formulating his opinions on diagnosis and causation, and the WCJ rejected Claimant's testimony that she sustained an injury, Dr. Nickischer's testimony was also rejected.
Claimant appealed to the Board arguing that the WCJ failed to issue a reasoned decision or that the evidence of record supported the conclusion that she sustained a work-related injury, although the date of injury was disputed because the WCJ failed to explain why he determined that she did not sustain an injury. The Board affirmed the WCJ's decision explaining that the WCJ's decision was reasoned because the WCJ explained what testimony and evidence he relied upon in concluding that Claimant did not sustain a work-related injury. Specifically, the WCJ rejected Claimant's testimony based on the inconsistencies and contradictions between her testimony and testimony and evidence presented by Employer. This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether constitutional rights have been violated, whether an error of law was committed or whether findings of fact are supported by substantial evidence. Morella v. Workers' Compensation Appeal Board (Mayfield Foundry, Inc.), 935 A.2d 598 (Pa.Cmwlth. 2007).
Claimant now argues on appeal that the WCJ's decision is not supported by substantial evidence because all of the witnesses' testimony and the evidence admitted support that a work-related injury occurred. What Claimant fails to understand is that the WCJ is the ultimate determiner of credibility in workers' compensation cases, Rissi v. Workers' Compensation Appeal Board (Tony DePaul Son), 808 A.2d 274 (Pa. Cmwlth. 2002), and that he did not find a single witnesses' testimony credible that supported Claimant's contention that she was injured while performing her flagging duties.
In a claim petition, the claimant has the burden of proving all of the elements necessary to support an award, including the duration of disability. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The claimant must prove that she sustained a work-related injury and that the injury continued to cause disability throughout the pendency of the claim petition. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa.Cmwlth. 1994). Where the connection between the work injury and disability is not obvious, the claimant must establish that connection with unequivocal medical evidence. Fotta v. Workmen's Compensation Appeal Board (USX Steel/USX Corp.), 534 Pa. 191, 626 A.2d 1144 (1993). In addition to finding that Claimant lacked any credibility, the WCJ also found that Dr. Nickischer was not credible. Therefore, Claimant failed to meet her burden of proving that her injury was work-related because she failed to provide unequivocal medical evidence that the WCJ found credible.
The WCJ found that Claimant was not credible because while she insisted she was injured on May 24, 2007, when she was "blown over while holding a sign," she told the emergency room that same date that she was injured on May 23, 2007, as a result of repetitively turning the flagging pole. She also told two separate employees working for Employer on May 23, 2007, that her back hurt from the long drive into work that day. Because the WCJ did not find Claimant credible, he also did not find her medical expert's opinion credible that she suffered a work-related injury because he relied on the history of the injury as Claimant relayed it to him.
Instead, the WCJ found Employer's witnesses, Myers and Baird, credible that Claimant told them that her back hurt from driving a long distance to work, but apparently she could not quit the job due to advice from her attorney. The WCJ also relied on Employer's witnesses' recount of the weather on May 24, 2007, when they explained that the weather was calm, not excessively windy or "gusting winds" as Claimant told her physician when Claimant was allegedly injured by the flagging pole due to the wind. Also, the WCJ relied on their testimony regarding the weight of the pole, i.e., five to 10 pounds rather than 15 to 20 as alleged by Claimant. Verdes' and Marburger's testimony that Claimant told them she was injured, but not specifying the cause of the injury, was accepted only to the extent that it was consistent with the testimony of Myers and Baird and did not prove that she suffered a work-related injury. In fact, none of the witnesses' testimony supported a finding of a work-related injury other than what Claimant told them regarding the events of May 24, 2007.
Because there was substantial evidence to support the WCJ's decision to deny benefits because the WCJ did not find that any of the evidence presented proved that Claimant suffered a work-related injury, the WCJ properly denied Claimant compensation. Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 30 th day of July, 2009, the order of the Board dated March 18, 2009, at No. A08-1025, is affirmed.