The Arms Trucking Co. v. WCAB (Eichenberger) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Arms Trucking Company, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Eichenberger), : No. 269 C.D. 2017
Respondent : Submitted: June 30, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 22, 2017
The Arms Trucking Company (Employer) petitions this Court for review
of the Workers’ Compensation (WC) Appeal Board’s (Board) February 10, 2017
order affirming the Workers’ Compensation Judge’s (WCJ) decision granting Keith
Eichenberger’s (Claimant) Claim Petition (Claim Petition) and Petition for Review of
Compensation Benefits (Review Petition). Employer presents two issues for this
Court’s review: (1) whether the WCJ erred in awarding temporary total disability
benefits to Claimant; and (2) whether the WCJ erred by expanding Claimant’s work
injury to include a neck injury. After review, we affirm.
Claimant was employed by Employer as a full-time truck driver. On
November 21, 2011, Claimant filed the Claim Petition alleging a work-related injury
in the nature of left shoulder impingement syndrome. Claimant sought full disability
benefits from the date of the injury, July 7, 2011, payment of his medical expenses
and attorney’s fees. On March 22, 2013, the parties entered into an Agreement for
Compensation (Agreement), in which “[E]mployer . . . acknowledg[ed] that
[C]laimant sustained a work-related injury on [July 7, 2011], in the nature of
traumatically[-]induced impingement syndrome of the left shoulder.” Reproduced
Record (R.R.) at 13a. The Agreement provided that the parties wished to proceed
with litigation relating to Claimant’s entitlement to disability benefits. On October 8,
2013, Claimant filed the Review Petition asserting that the July 7, 2011 work injury
description should be amended to include the aggravation of his pre-existing
degenerative neck condition.1 Employer filed an answer to the Review Petition
denying Claimant’s material allegations.
WCJ hearings were held on January 4, April 25, August 22 and October
31, 2012, March 27, August 2, October 9 and December 11, 2013, and March 19,
May 21 and August 6, 2014. On January 6, 2016, the WCJ granted Claimant’s Claim
Petition and Review Petition, awarding Claimant temporary total disability benefits
from July 7, 2011 through December 10, 2012, and expanding the work injury
description to include aggravation of Claimant’s pre-existing degenerative neck
condition. Employer appealed to the Board. On February 10, 2017, the Board
affirmed the WCJ’s decision. Employer appealed to this Court.2
1
Section 301(c)(1) of the Workers’ Compensation Act provides, in relevant part:
The terms ‘injury’ and ‘personal injury’ as used in this act, shall be
construed to mean an injury to an employe, regardless of his previous
physical condition, . . . arising in the course of his employment and
related thereto, and such disease or infection as naturally results from
the injury or is aggravated, reactivated or accelerated by the
injury.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1) (emphasis added).
2
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014). This Court has explained:
‘Substantial [competent] evidence is such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.’
2
Employer first argues that the WCJ erred by awarding Claimant
temporary total disability benefits from July 7, 2011 through December 10, 2012
because Claimant admitted that during this same time period he was totally disabled
for reasons unrelated to the work injury. Specifically, Employer contends that since
Claimant delayed his work injury treatment because he was undergoing
chemotherapy treatments, he is not entitled to WC benefits for that period. 3 We
disagree.
“The cases are clear that, where there are alleged competing causes for
disability . . . , the claimant must establish that the work-related injury was a
substantial, contributing factor to that disability . . . .” Pa. State Univ. v. Workers’
Comp. Appeal Bd. (Rabin, Deceased), 53 A.3d 126, 133 (Pa. Cmwlth. 2012).
Further,
[w]hen delivering a causation opinion in a [WC] case, a
doctor or medical expert is not required to use magic words
such as ‘substantial contributing factor,’ ‘materially
contributed,’ or . . . ‘cause in fact.’ Rather, ‘[i]t is only
necessary that the doctor’s testimony permit a valid
inference that such causation was present.’
Id. (quoting Thomas Lindstrom Co. v. Workers’ Comp. Appeal Bd. (Braun), 992 A.2d
961, 967 (Pa. Cmwlth. 2010) (citations omitted).
Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819
A.2d 164, 168 (Pa. Cmwlth. 2003). In performing a substantial
evidence analysis, this [C]ourt must view the evidence in a light most
favorable to the party who prevailed before the factfinder.’ Id.‘Moreover, we are to draw all reasonable inferences which are
deducible from the evidence in support of the factfinder’s decision in
favor of that prevailing party.’ Id.3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings Int’l), 921 A.2d
1281, 1288 (Pa. Cmwlth. 2007).
3
Claimant was diagnosed with and treated for non-Hodgkin’s lymphoma in 2000, and was
in remission at the time of his work injury. However, Claimant started receiving chemotherapy
treatments in November 2011 and thereafter maintenance chemotherapy every six months for two
years. Claimant finished chemotherapy treatments in June 2014. See R.R. at 218a, 242a-243a.
3
The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). Neither the Board nor the Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
A.2d 1246 (Pa. 2001). This Court has stated:
‘[I]t 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.’ [Minicozzi v. Workers’ Comp.
Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29
(Pa. Cmwlth. 2005)] (quoting [Del. Cnty.] v. Workers’
Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa.
Cmwlth. 2002)). We review the entire record to determine
if it contains evidence a reasonable mind might find
sufficient to support the WCJ’s findings. Minicozzi. If the
record contains such evidence, the findings must be upheld
even though the record contains conflicting evidence.
Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa.
Cmwlth. 2007).
We recognize that, at the April 25, 2012 hearing, Claimant testified he
could not return to work because “I’m not done with my chemo[therapy] yet.” Notes
of Testimony (N.T.) April 25, 2012 at 6. However, when questioned: “How about
the work injury? Do you feel better from that part of you?” Claimant related: “No,
I still need to get surgery on that.” Id. (emphasis added). After the surgery, when
Claimant was questioned concerning his work-related injury: “What kind of problems
do you still have today?” Claimant related: “Stiffness, constant pain. I mean, it’s just
debilitating, actually.” N.T. August 6, 2014 at 10 (emphasis added).
4
Further, Oriente DiTano, M.D. (Dr. DiTano) opined:
Diagnosis is left shoulder metastatic tumor proximal
humerus and brachial plexus stretch. The brachial plexus
component has limited visibility to the roof of his shoulder,
I believe, and also was caused [sic] by the fall on
07/07/2011. I feel that prior to 07/07/2011 he had no
discomfort, no pain and was working full-duty. After the
fall he has not been able to lift his arm well or use it very
well.
At this point I feel that the diagnosis of the brachial plexus
injury to his left arm was caused by the fall that occurred on
07/07/2011. . . .
As far as work, I do not feel he can work and I’ve limited
his work to no work because of discomfort and pain and the
brachial plexus injury in his left arm.[4]
Dr. DiTano December 22, 2011 Report at 2 (R.R. at 67a). In addition, Jon Levy,
M.D. (Dr. Levy) reported:
Overall, I believe [Claimant’s] prognosis referable to the
cervical spine is fair. I believe in light of his pre-existent
condition and recent aggravation, there is potential he will
have ongoing neck pain. . . . I believe he is partially and
temporarily disabled from re-entering the workplace at his
pre-injury level of function.[5]
Dr. Levy December 10, 2013 Report at 2-3 (R.R. at 88a-89a). Moreover, Employer’s
medical expert, Steven Kann, M.D. (Dr. Kann), related: “[I]t is my opinion, again
assuming the accuracy of [Claimant’s] description of the work injury of July 7, 2011,
that he suffered traumatically induced impingement syndrome that is persisting
despite conservative treatment, and he has not fully recovered from this
4
“This . . . opinion has been rendered with a reasonable degree of medical certainty.” Dr.
DiTano December 22, 2011 Report at 2 (R.R. at 67a).
5
“All of the opinions . . . have been rendered to within a reasonable degree of medical
certainty.” Dr. Levy December 10, 2013 Report at 3 (R.R. at 89a).
5
aforementioned diagnosis.”6 Dr. Kann April 4, 2012 Report at 4 (R.R. at 23a)
(emphasis added). Finally, Employer’s medical expert Trenton Gause, M.D. (Dr.
Gause) agreed: “Though he has reached a point of maximum medical improvement
with respect to the left shoulder condition, he is not fully recovered from such.”7
Dr. Gause December 13, 2013 Report at 18 (R.R. at 49a) (emphasis added).
The WCJ found the testimony of Claimant, Dr. DiTano and Dr. Levy to
be competent and credible, and Dr. DiTano’s and Dr. Levy’s medical testimony more
persuasive than Dr. Kann’s and Dr. Gause’s testimony. See Findings of Fact (FOF)
23-26. Viewing Claimant’s testimony and medical evidence in a light most favorable
to the Claimant, as we must, we hold that Claimant established that his work injury
was a substantial, contributing factor to his disability. Therefore, the WCJ and the
Board did not err by granting Claimant temporary total disability benefits from July
7, 2011 through December 10, 2012.
Employer next argues that the WCJ erred by expanding Claimant’s work
injury to include aggravation of Claimant’s pre-existing neck injury. Specifically,
Employer contends that there was no competent, credible, unequivocal medical
evidence of record to establish a work-related cervical injury. We disagree.
“Just as with any other type of injury, in order for [an injury] . . . to be
compensable, the claimant must establish that [it] was causally related to the
[Claimant’s] employment. If the causal connection is not obvious, the connection
must be established by unequivocal medical testimony.” Dietz v. Workers’ Comp.
Appeal Bd. (Lower Bucks Cnty. Joint Mun. Auth.), 126 A.3d 1025, 1030 (Pa. Cmwlth.
2015) (citation omitted). “[M]edical testimony is unequivocal if a medical expert
testifies, after providing foundation for the testimony, that, in his professional
6
“[T]hese opinions are offered within a reasonable degree of medical certainty.” Dr. Kann
April 4, 2012 Report at 4 (R.R. at 23a).
7
“The above opinions are based on a reasonable degree of medical certainty. . . .” Dr.
Gause December 13, 2013 Report at 18 (R.R. at 49a).
6
opinion, he believes or thinks a fact exists.”8 Amandeo v. Workers’ Comp. Appeal
Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa. Cmwlth. 2012) (quoting O’Neill v.
Workers’ Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 58 (Pa. Cmwlth. 2011)).
At issue is the following statement from Dr. Levy’s December 10, 2013
report:
By history, it appears that the patient had escalation of his
cervical symptoms referable to the injury of July 2011. I
had the opportunity to evaluate treatment records from Drs.
DiTano and [Nicholas] Kubik. Of note, the records focused
specifically on the left shoulder and do not show
documentation of cervical complaints until March 1, 2013 .
. . . Certainly, the mechanism of his injury, having
undergone prior shoulder surgery and having restricted
range of motion of his shoulder, these all could contribute
to escalation of neck pain and increased stress on the
cervical area. By history, I believe this gentleman’s pre-
existent condition has been aggravated by his work event of
July 2011.
Dr. Levy December 10, 2013 Report at 2 (R.R. at 88a). Employer asserts that Dr.
Levy’s opinion is not unequivocal medical evidence because “the medical witness
must testify not that the injury or condition ‘might have’ or ‘possibly’ come from an
assigned cause, but that it is his professional opinion that the results in question did
come from an assigned cause.” Employer Br. at 15.
However, the law does not require every utterance which
escapes the lips of a medical witness on a medical subject to
be certain, positive, and without reservation or exception.
A medical witness’s use of words such as ‘probably,’
‘likely,’ and ‘somewhat’ will not render an opinion
equivocal so long as the testimony, read in its entirety, is
unequivocal and the witness does not recant the opinion or
belief first expressed.
8
“The question of whether expert medical testimony is unequivocal, and, thus, competent
evidence to support factual determinations is a question of law subject to our review.” Amandeo v.
Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa. Cmwlth. 2012).
7
Bemis v. Workers’ Comp. Appeal Bd. (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa.
Cmwlth. 2011) (citation omitted). The statement at issue is excerpted from a
paragraph which, in its entirety, reads:
At the time of my evaluation, I felt he had predominantly
axial pain and by history felt he had a pre-existent
degenerative condition that was aggravated by, his work
situation. I, therefore, recommended that [Claimant]
undergo a trial of physical therapy, a trial of non-steroidals,
and observation. At the time of my evaluation, I did not
feel this was a surgical situation. I discussed the fact that he
was at risk of developing myelopathy because of cervical
stenosis but this would be strictly on a degenerative basis.
By history, it appears that the patient had escalation of his
cervical symptoms referable to the injury of July 2011. I
had the opportunity to evaluate treatment records from Drs.
DiTano and Kubik. Of note, their records focus specifically
on the left shoulder and do not show documentation of
cervical complaints until March 1, 2013. By history, this
gentleman had pre-existent degenerative condition of his
cervical spine, had undergone prior cervical surgery, and
now reports escalating neck pain since the time of his
work event. Certainly the mechanism of his injury, having
undergone prior shoulder surgery and having restricted
range of motion of his shoulder, these all could contribute
to escalation of neck pain and increased stress on the
cervical area. By history, I believe [Claimant’s] pre-
existent condition has been aggravated by his work event
of July 2011.
Dr. Levy December 10, 2013 Report at 2 (R.R. at 88a) (bold and italics emphasis
added). Clearly, “th[is] testimony, read in its entirety, is unequivocal . . . .” Bemis,
35 A.3d at 72. Accordingly, the WCJ and the Board did not err by expanding
Claimant’s work injury to include that injury.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Arms Trucking Company, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Eichenberger), : No. 269 C.D. 2017
Respondent :
ORDER
AND NOW, this 22nd day of August, 2017, the Workers’ Compensation
Appeal Board’s February 10, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge