A. Ovid v. WCAB (Dolgencorp, LLC) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Ovid, :
Petitioner :
: No. 333 C.D. 2018
v. :
: Submitted: August 10, 2018
Workers’ Compensation Appeal :
Board (Dolgencorp, LLC), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 29, 2018
Anthony Ovid (Claimant) petitions for review from the February 22,
2018 order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of a workers’ compensation judge (WCJ) granting his claim petition for a
closed period followed by a termination. Claimant contends that the WCJ failed to
issue a reasoned decision under section 422(a) of the Workers’ Compensation Act
(Act).1 Upon review of the WCJ’s 156 findings of fact, and thorough and consistent
credibility determinations, we will affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834. Section 422(a) provides:
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
(Footnote continued on next page…)
On August 26, 2015, Claimant sustained a work-related injury while
operating a stand-up forklift for Dolgencorp, LLC (Employer) in the course and
scope of his employment. Specifically, Claimant maneuvered the forklift
inadvertently and in such a manner that he ended up being pinned between the forklift
and the steel from a warehouse rack, compressing his left arm and chest in the
process. Claimant was able to release himself and dropped to the floor, due to
difficulty breathing. After a period of seven minutes, several supervisors came to his
aid. The supervisors transported Claimant to a medical facility, Urgent Care, where
Claimant reported pain to his chest, neck, left shoulder, and upper back and displayed
a laceration on his right arm. (WCJ’s Findings of Fact (F.F.) Nos. 9-15.)
Thereafter, Claimant missed three days of work. On the second day of
his absence, Claimant sought treatment at Reading Hospital’s Emergency Room (ER)
for continued pain. A physical examination revealed that Claimant was positive for
myalgia, joint swelling, and neck pain, and negative for back pain and neck stiffness,
and his neck was noted to have a normal range of motion and was supple. Claimant
(continued…)
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.
2
was diagnosed with contusions to his left and right chest and left arm, and he was
released from the ER with ongoing restrictions. (F.F. Nos. 16-26.)
On September 1, 2015, Claimant returned to work in a modified duty
position and continued to work in that positon until October 15, 2015, when it was no
longer available. On October 15, 2015, Employer issued a notice of denial, denying
that Claimant had sustained any work-related injury. On December 21, 2015,
Claimant filed a claim petition, alleging that he sustained injuries to his neck, back,
left shoulder, and head. Employer denied the material allegations and the case was
assigned to a WCJ who held hearings. (F.F. Nos. 2-4, 27-28.)
At the March 8, 2016 hearing, Claimant testified to the facts above and
added that he developed headaches that appeared to be occipital in nature. At the
September 6, 2016 hearing, Claimant testified that his left shoulder, left arm, neck,
and head were getting worse, rather than better. Claimant stated that he had neck
pain that travels or “shoots” up into his head and that the amount of pain has
increased over time. According to Claimant, he is an avid weightlifter and confirmed
that, prior to the date of injury, he had been participating in a home-based
weightlifting program three days a week for approximately the last ten years. (F.F.
Nos. 33, 42, 44-46, 48.)
Claimant presented the deposition testimony of Charles Williams, M.D.,
who is board certified in anesthesiology and focuses his practice on treating patients
in pain management. Dr. Williams reviewed a cervical MRI of Claimant that
reflected a mild, broad-based disc protrusion to the left at C2-3 and C3-4, as well as
disc degeneration with central herniation at C4-5, a mild to moderate protrusion to the
left at C5-6, disc bulging at C6-7 and C7-T1, with no evidence of either fracture or
cord compression. Dr. Williams also reviewed the results of an EMG and determined
3
that they supported a finding of subacute C5 radiculopathy on the left, and he
attributed this condition to the work injury, specifically the broad-based protrusion at
C5-6. Dr. Williams also documented a positive Spurling’s compression test on the
left. (F.F. Nos. 53-54, 57-62.)
Ultimately, Dr. Williams diagnosed Claimant with multi-level cervical
disc displacement and herniation at C4-5 with left side radiculopathy. Dr. Williams
relayed that, on May 18, 2016, Claimant’s then-most recent examination, Claimant
continued to complain of neck pain with aching pain radiating into the left shoulder
and left arm, and Dr. Williams noted tenderness to palpation, decreased range of
motion, and limited flexion and extension. According to Dr. Williams, Claimant was
improving overall, but had not fully recovered, and he treated Claimant with a series
of injections, manual manipulation, and aggressive physical therapy. Dr. Williams
stated that the injuries to Claimant’s shoulder, hands, and elbows had fully recovered
as of the May 18, 2016 examination. (F.F. Nos. 66-70.)
During the course of his questioning, Dr. Williams opined that a
traumatic event is required to cause a disc herniation in a person who is 28 years old,
Claimant’s then current age. Dr. Williams conceded that the diagnosis provided by
the ER doctor did not include any cervical injury and admitted that there was
desiccation at every level from C2-T; he acknowledged that desiccation was a
degenerative finding and that it is unusual to have such widespread desiccation in
someone as young as Claimant. Dr. Williams did not believe that a person of
Claimant’s age could have developed a disc herniation from general lifting, and he
expressed the view that, although weightlifting could cause disc bulging, it could not
cause the herniation. Dr. Williams also confirmed that the Spurling’s compression
4
test was performed only once, when he initially examined Claimant. (F.F. Nos. 59,
72-74, 78.)
In addition, Claimant submitted the deposition testimony of Dr.
Christian Fras, M.D., who is a board certified orthopedic surgeon. Dr. Fras testified
that in March 2016, Claimant’s principal complaint was neck pain, a physical
examination revealed cervical spasm and tenderness, and a Spurling’s test was
positive for neck pain. With respect to the EMG study that was reviewed and relied
upon by Dr. Williams, Dr. Fras confirmed that he agreed with Dr. Williams that the
cervical radiculopathy was directly related to the work injury. Ultimately, Dr. Fras
diagnosed Claimant with cervical disc herniation with radiculopathy, aggravation of
cervical degenerative disc disease, and cervical spondylosis, and stated that these
diagnoses were directly related to the work injury. Specifically, Dr. Fras stated that,
in his opinion, the cervical disc herniation was superimposed on Claimant’s
preexisting degenerative disc condition and was sustained as a result of the work
injury. Dr. Fras also provided an alternate theory indicating that, if the disc
herniation had been preexisting, it was asymptomatic prior to the work injury and
became symptomatic following the work accident. According to Dr. Fras, Claimant’s
left shoulder and arm complaints were related solely to the cervical radiculopathy and
there were no separate diagnoses related to those body parts. In his view, Dr. Fras
did not believe that Claimant’s weightlifting activities could have had a significant
impact on his cervical spine, indicating that it was far more likely to contribute to
lumbar disc degeneration. (F.F. Nos. 80, 92, 96-97, 107, 109.)
Dr. Fras testified that he last examined Claimant in June 2016, and that
Claimant had not recovered from his work-related injuries and could not return to his
pre-injury position. Although Dr. Fras originally prescribed Claimant a course of
5
physical therapy, respecting Claimant’s desire to avoid surgical treatment, in June
2016 he recommended that Claimant undergo anterior cervical decompression and
fusion at C4-5. However, at the time of Dr. Fras’ deposition, Claimant was not
scheduled for surgery. (F.F. Nos. 89, 99, 102.)
In rebuttal, Employer presented the deposition testimony of Stuart
Gordon, M.D., a board certified orthopedic surgeon who performed an independent
medical examination of Claimant on April 7, 2016. Dr. Gordon stated that
Claimant’s primary complaint was soreness in the left side of the neck. Dr. Gordon
testified that he performed a physical examination of Claimant and this examination
was unremarkable from an objective basis; although the neck demonstrated a 50
percent reduction in range of motion, the test was purely subjective, and Claimant’s
reflexes were brisk and symmetric. In addition, Dr. Gordon performed the Spurling’s
maneuver three times, the results were all negative and no radicular complaints were
elicited, and Claimant did not display any symptoms that would be objectively
consistent with radiculopathy. Dr. Gordon diagnosed Claimant’s work-related
injuries as consisting of skin lacerations, and neck, shoulder, and upper back strains,
and he opined that Claimant had fully recovered from these injuries and their residual
effects as of April 7, 2016. (F.F. Nos. 114-116, 121, 125-126, 142, 146.)
In rendering his opinion, Dr. Gordon stated that Claimant did not require
cervical surgery and denounced the idea that Claimant suffers from a cervical disc
condition or radiculopathy. In reviewing the cervical MRI, Dr. Gordon noted the
multiple disc protrusions and a single disc herniation at C4-5, but explained that none
of these findings represented a recent or work-related injury because there was no
“hyper-intense” signal in the pulse sequences on the T2 weighted images. Regarding
the EMG study, Dr. Gordon expressed his view that the test is not a reliable
6
diagnostic tool, being open to a subjective interpretation and that, nonetheless, the
EMG findings did not have a strong positive correlation with the cervical MRI
because the herniation is located at the C4-5 level on the MRI while the EMG
indicated a positive at C5, the level below. Dr. Gordon noted that neuro-compressive
tests were completely normal and that the cervical MRI did not disclose any nerve
root impingement or acute inflammatory process. Further, Dr. Gordon stated that
multilevel desiccation could be expected given Claimant’s history of weightlifting
and stated that it is possible for a person of 28 years of age to have degenerative
findings on an MRI when active in weightlifting and sports. (F.F. Nos. 127, 129-131,
134, 137, 143, 144.)
By decision and order dated March 27, 2017, the WCJ found the
testimony of Claimant credible in part. More specifically, the WCJ accepted
Claimant’s testimony insofar as Claimant explained the mechanism of his injury,
initial course of treatment, complaints of subjective pain, and “the apparent
worsening of his complaints between the first and second hearings.” (F.F. No. 148.)
However, the WCJ rejected as not credible the testimony that Claimant offered
“regarding the causal relation of any of his imaging findings to the work injury or
with regard to the source of his ongoing complaints . . . to the extent it is contradicted
by the testimony of Dr. Gordon.” (F.F. No. 148.)
Concerning the opinions of the medical experts, the WCJ accepted their
opinions where consistent. Inasmuch as the opinions were inconsistent or conflicted,
the WCJ found the opinions and testimony of Dr. Gordon to be more credible and
worthy of belief than the opinions and testimony of Drs. Williams and Fras. (F.F.
No. 149.)
7
In determining that Dr. Williams’ testimony was less credible than that
of Dr. Gordon, the WCJ found that Dr. Williams, at times, provided testimony that
was internally inconsistent or was inconsistent with and contradicted by the credible
portions of Drs. Fras and Gordon’s testimony. The WCJ noted that Dr. Williams
performed the Spurling’s test, a “provocative maneuver,” only at the first, initial
examination and did not repeat it thereafter. (F.F. No. 150.)
In reviewing the testimony of Dr. Fras, the WCJ found that it was
credible in very limited respects, but determined that the remainder was not credible.
In discrediting the bulk of Dr. Fras’ testimony, the WCJ noted that Dr. Fras failed to
sufficiently explain why Claimant’s symptoms “were much improved” in March
2016 but “by the final examination in June 2016 the symptoms had returned and
actually progressed”; that is, Dr. Fras was unable to account “for how or why
Claimant’s symptoms suddenly accelerated months after he was removed from
work.” (F.F. No. 151.) The WCJ further noted that Dr. Fras opined that Claimant
suffered an aggravation of the entire cervical spine, or, in the alternative, a disc
herniation at the C4-5; however, Dr. Fras did not explain how Claimant’s radicular
complaints were caused by the findings on the MRI, which contained no indication of
cervical cord compression or injury. The WCJ determined that Dr. Fras did not
reconcile his theories of the injury with the fact that the MRI and the EMG did not
show radiculopathy at the level of the herniated disc. Accordingly, the WCJ found
the testimony of Dr. Fras to be less credible than the testimony of Dr. Gordon.
In accepting the opinions of Dr. Gordon as prevailing, the WCJ noted,
among other things, that his testimony was consistent with the ER records and other
medical documentation which showed that, in the proximate time frame following
Claimant’s injury, Claimant did not make any complaints related to a neck or cervical
8
injury, he had tested negative for back and neck pain, and his neck had a normal
range of motion and was supple. The WCJ found particularly persuasive Dr.
Gordon’s opinions “regarding the preexisting nature of the findings present on the
MRI and the inconsistencies between those findings and the EMG report.” (F.F. No.
152.) The WCJ further stated that the “opinions of Dr. Gordon are consistent with his
rather thorough and detailed physical examination.” (F.F. No. 152.)
Based on the credible testimony of Dr. Gordon, the WCJ concluded that
Claimant sustained work-related injuries on August 26, 2015, in the form of skin
lacerations and neck, shoulder, and upper back strains. The WCJ further concluded,
again based on the credible testimony of Dr. Gordon, that Claimant had fully
recovered from these injuries on April 7, 2016. Therefore, the WCJ awarded
Claimant benefits for the closed period of August 26, 2015, to April 7, 2016. (WCJ’s
Conclusions of Law Nos. 2-3, 6.)2
Claimant appealed to the Board, which affirmed.
Before this Court,3 Claimant presents an array of arguments, claiming
that the WCJ issued a decision that was not reasoned, but was instead unreasonable,
irrational, and illogical. Although Claimant advances his contentions under the rubric
2
In addition, the WCJ granted the penalty petition of Claimant based on the unreasonable
contest of Employer, concluding that Employer lacked a legitimate basis to issue a notice of denial
and contest liability prior to April 7, 2016, the date on which benefits were terminated. The WCJ
imposed a 25% penalty against all unpaid indemnity benefits and awarded attorney’s fees at an
hourly rate less than that requested by Claimant’s counsel. Employer did not appeal any aspect of
the WCJ’s decision. In his appeal, Claimant did not challenge the percentage of the penalty
imposed by the WCJ or the amount of the attorney’s fees.
3
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab),
15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
9
of the reasoned decision requirement of section 422(a) of the Act, a great deal of his
assertions attack the WCJ’s credibility determinations.
Initially, we note that in an original claim petition, a claimant bears the
burden of proving all of the elements necessary to support an award of benefits.
Potere v. Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d 684, 689-90
(Pa. Cmwlth. 2011). To show that an injury was related to employment, the claimant
must establish a causal connection between work and the injury, and unequivocal
medical evidence is required where it is not obvious that an injury is causally related
to the work incident. Povanda v. Workmen’s Compensation Appeal Board (Giant
Eagle), 605 A.2d 478, 486 (Pa. Cmwlth. 1992); Cromie v. Workmen’s Compensation
Appeal Board (Anchor Hocking Corporation), 600 A.2d 677, 679 (Pa. Cmwlth.
1991).
The claimant’s burden to prove a work-related injury never shifts to the
employer and remains with the claimant throughout the pendency of the claim
petition. Potere, 21 A.3d at 690. If the WCJ determines that the evidence supports a
finding of disability only for a closed period, the WCJ is free to make such a finding.
Id. Otherwise, to terminate benefits, an employer has to establish either that a
claimant had fully recovered from his work-related disability or that any current
disability arises from a cause unrelated to the work injury. Pryor v. Workers’
Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1205 (Pa.
Cmwlth. 2006).
It is a fundamental tenet of workers’ compensation law that the WCJ, as
fact-finder, has complete authority over questions of witness credibility and
evidentiary weight. Williams v. Workers’ Compensation Appeal Board (USX Corp.-
Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004).
10
For purposes of appellate review, it is irrelevant whether
there is evidence to support contrary findings; if substantial
evidence supports the WCJ’s necessary findings, those
findings will not be disturbed on appeal. As the ultimate
fact-finder, the WCJ has exclusive province over questions
of credibility and evidentiary weight, and is free to accept
or reject the testimony of any witness, including a medical
witness, in whole or in part. A court may overturn a
credibility determination only if it is arbitrary and
capricious or so fundamentally dependent on a
misapprehension of facts, or so otherwise flawed, as to
render it irrational.
Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Mills), 116
A.3d 1157, 1161 (Pa. Cmwlth. 2015).
Under section 422(a) of the Act, a WCJ must adequately explain the
reasons for rejecting or discrediting competent evidence when conflicting evidence is
presented. Daniels v. Workers’ Compensation Appeal Board (Tristate Transport),
828 A.2d 1043, 1047 (Pa. 2003). In addition, the WCJ may not reject uncontroverted
evidence without reason or for an irrational reason, but must identify such evidence
and sufficiently explain the reasons for its rejection. Id. For witnesses testifying
before the WCJ, it is appropriate for the WCJ to base his or her determination upon
the demeanor of the witnesses and, in the absence of “some special circumstance,” a
mere conclusion as to which witnesses were credible is sufficient for a reasoned
decision. Id. at 1052-53; PPL v. Workers’ Compensation Appeal Board (Rebo), 5
A.3d 839, 845 (Pa. Cmwlth. 2010). However, when witnesses testify only by
deposition, the WCJ must articulate an actual objective basis for the credibility
determination. Daniels, 828 A.2d at 1053.
Claimant first argues that the WCJ issued an illogical and unreasoned
decision by simultaneously finding Claimant’s testimony to be credible with respect
11
to a worsening of his condition between the hearings and determining that he had
fully recovered from his work-related injuries.
This contention, however, overlooks the fact that the WCJ only accepted
Claimant’s testimony as credible to the extent that it was not contradicted by the
expert testimony of Dr. Gordon. The WCJ specifically rejected Claimant’s testimony
“regarding the causal relation” and “source of his ongoing complaints.” (F.F. No.
148.) On the other hand, the WCJ credited the opinion of Dr. Gordon that the
multilevel desiccation and degenerative findings displayed on the MRI evidenced
preexisting conditions, and that these conditions, along with the pain associated with
them, could be related to Claimant’s weightlifting activities. (F.F. Nos. 130, 137,
152.) Based on Dr. Gordon’s credible testimony, the WCJ determined that
Claimant’s work-related injuries consisted of skin lacerations and neck, shoulder, and
upper back strains, and that Claimant had fully recovered from these injuries as of
April 7, 2016. Consequently, even though the WCJ credited Claimant’s testimony
that he experienced increased pain in his neck and head throughout the hearings, the
WCJ nonetheless determined that this pain was not work-related, concluding instead
that Claimant had fully recovered from any residual symptoms that were associated
with his work-related injuries. As these findings are logically consistent and
congruous in their application, we find no error on the part of the WCJ.
Next, Claimant asserts that the WCJ’s decision was unreasonable in that
Dr. Gordon did not know the specific details of Claimant’s weightlifting routine, e.g.,
what type of weights he used and how many pounds he lifted, and yet he determined
that Claimant’s cervical spine injuries could possibly be attributed to weightlifting
and not work-related trauma. Claimant contends that, in this respect, Dr. Gordon
rendered an opinion that was speculative and not based on facts of record.
12
This argument fails for several reasons. First, Claimant appears to
challenge the admissibility of Dr. Gordon’s testimony on the ground that his opinion
lacked a competent factual basis4 and was not expressed with the requisite degree of
certainty. However, there is no indication that Claimant raised these evidentiary
issues before the WCJ or in any of the proceedings below and, as such, they are
waived. See Riley v. Workers’ Compensation Appeal Board (DPW/Norristown State
Hospital), 997 A.2d 382, 387 (Pa. Cmwlth. 2010). Regardless, Claimant testified that
before the work accident, he lifted weights at a friend’s house for over 10 years, 3
times a week, for approximately an hour each session, focusing on the chest, biceps,
and trapezius regions. (Reproduced Record (R.R.) at 446a-47a.) Under the standards
for expert testimony, this factual foundation was sufficient to permit Dr. Gordon to
opine as to the potential effects or consequences of Claimant’s weightlifting
activities, despite the fact he did not know all the intricate details involving
Claimant’s routine. See DeGraw v. Workers’ Compensation Appeal Board (Redner’s
Warehouse Markets, Inc.), 926 A.2d 997, 1001-02 & n.4 (Pa. Cmwlth. 2007) (stating
that, although the medical expert admitted that he did not know the size or weight of
the object the claimant was lifting or how far his arms were extended at the time of
his injury, these omissions pertain to the weight to be accorded to his testimony, not
its competency); see also Calex, Inc. v. Workers' Compensation Appeal Board
(Vantaggi), 968 A.2d 822, 824-25 & 828 (Pa. Cmwlth. 2009). As a result, any
challenge that Claimant has to the adequacy of the factual foundation to support Dr.
4
See State Workmen’s Insurance Fund v. Workmen’s Compensation Appeal Board
(Wagner), 677 A.2d 892, 895-96 (Pa. Cmwlth. 1996) (“An expert’s opinion based upon
assumptions contrary to the established facts is worthless.”); see also Newcomer v. Workmen’s
Compensation Appeal Board (Ward Trucking Co.), 692 A.2d 1062, 1066 (Pa. 1997) (“While an
expert witness may base an opinion on facts of which he has no personal knowledge, those facts
must be supported by evidence of record.”).
13
Gordon’s expert testimony is one that pertains to the weight to be afforded to that
evidence, see DeGraw, 926 A.2d at 1001-02, which is a determination that lies within
the exclusive province of the WCJ.
Moreover, Claimant bore the burden of proving the length and duration
of his work-related injuries and that his injuries were causally related to the work
accident. Coyne v. Workers’ Compensation Appeal Board (Villanova University),
942 A.2d 939, 945 (Pa. Cmwlth. 2008). Because Employer has no burden of proof
on these issues, Employer’s medical experts were not required to testify to the degree
of certainty that is imposed on Claimant’s experts.5 Instead, the standard is much
more relaxed for defense medical experts, and Employer’s medical experts can offer
rebuttal testimony stating that there are other “possible” causes for Claimant’s
problems. See Jacobs v. Chatwani, 922 A.2d 950, 961 (Pa. Super. 2007) (concluding
that defense expert’s testimony that the present symptomology “supports” a medical
condition was stated to a sufficient degree of certainty for rebuttal purposes); Neal by
Neal v. Lu, 530 A.2d 103, 109 (Pa. Super. 1987) (reaching the same conclusion based
on defense expert’s testimony which opined as to a “possible” cause of the medical
condition).6 Here, upon reviewing the findings of the cervical MRI, Dr. Gordon
5
Generally, in workers’ compensation proceedings, a claimant’s medical expert has to
render an unequivocal opinion and “must do more than testify that the claimant’s condition ‘might
have been’ or ‘probably was’ the result of the claimant’s work.” Andracki v. Workmen's
Compensation Appeal Board (Allied Eastern States Maintenance), 508 A.2d 624, 619 n.2 (Pa.
Cmwlth. 1986); see Cardyn v. Workmen’s Compensation Appeal Board (Heppenstall), 534 A.2d
1389, 1391-92 (Pa. 1987) (“Medical evidence which is less than positive or which is based upon
possibilities may not constitute legally competent evidence for the purpose of establishing the
causal relationship.”).
6
The rationale for this rule has been stated thusly:
(Footnote continued on next page…)
14
stated that it was not “unusual” to see these malformations on a 28-year-old
weightlifter and opined this is a “common problem” for weightlifters, explaining that
when one lifts weights, he/she does the “Valsalva maneuver” which increases
“intradiscal pressure.” (R.R. at 305a-06a.) Hence, the WCJ acted within his
discretion in finding the testimony of Dr. Gordon to be credible.
Claimant maintains that the WCJ erred in crediting Dr. Gordon’s
testimony because Dr. Gordon only reviewed the reports of the MRI, and did not
personally review the images/films, and he had no understanding of Claimant’s
specific job duties and what physical exertion they required. However, this Court has
repeatedly held that the fact that an expert does not have all of the claimant’s medical
records, or fails to review them or the claimant’s job description, goes to the weight
to be given to the expert’s testimony, not its competency. DeGraw, 926 A.2d at
1001; Samson Paper Co. v. Workers’ Compensation Appeal Board (Digiannantonio),
834 A.2d 1221, 1224 (Pa. Cmwlth. 2003); American Contracting Enterprises, Inc. v.
Workers’ Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth.
2001). Therefore, like the challenges he advanced above, Claimant is merely seeking
(continued…)
Absent an affirmative defense or a counterclaim, the defendant’s case
is usually nothing more than an attempt to rebut or discredit the
plaintiff’s case. Evidence that rebuts or discredits is not necessarily
proof. It simply vitiates the effect of opposing evidence. Expert
opinion evidence, such as that offered by [the defendant] in this case,
certainly affords an effective means of rebutting contrary expert
opinion evidence, even if the expert rebuttal would not qualify as
proof. In general, the admission or rejection of rebuttal evidence is
within the sound discretion of the trial judge.
Neal by Neal, 530 A.2d at 110.
15
to attack the credibility and weight determinations of the WCJ—determinations
which are not subject to review on appeal.
Further, Claimant submits that the WCJ issued a decision that was not
reasoned because Dr. Gordon was not as credible as Dr. Fras for a multitude of
reasons. For example, Claimant argues that Dr. Gordon did not review the
images/films of the MRI while Dr. Fras did; Dr. Gordon did not perform as many
physical examinations of Claimant as Dr. Fras; Dr. Fras conducted more
comprehensive exams compared to Dr. Gordon; Dr. Gordon was biased, performing
independent medical examinations for defendants in a super-majority of the cases,
while Dr. Fras is more fair, impartial, and objective; Dr. Fras possesses greater
qualifications and credentials than Dr. Gordon; and Dr. Gordon’s testimony had more
inconsistencies when viewed alongside Dr. Fras’ testimony.
Section 422(a) only requires a WCJ to issue a reasoned decision “so that
this Court does not have to ‘imagine’ the reasons why a WCJ finds that the
conflicting testimony of one witness was more credible than the testimony of another
witness.” Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37
A.3d 72, 76 (Pa. Cmwlth. 2012). Pursuant to section 422(a), a WCJ must articulate
an actual objective basis for a credibility determination, in order for the decision to be
a reasoned one which facilitates effective appellate review, and there are countless
objective factors which may support a WCJ’s credibility determinations. Dorsey v.
Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191,
194-95 (Pa. Cmwlth. 2006). Examples of such objective factors include, but are not
limited to, situations where:
an expert witness’s opinion may be based upon erroneous
factual assumptions; or an expert may have had less
interaction with the subject; or the interaction was in a less
16
timely fashion; or the expert may betray a bias or interest in
the matter[;] an expert witness may be unqualified or less
qualified than the opposing party’s expert; or may be
impeached with inconsistencies or contradictions in his or
her testimony or reports; or may be impeached in some
other convincing fashion.
Daniels, 828 A.2d at 1053 (citations omitted).
We find that Claimant’s contentions are misplaced. Although Claimant
has arguably listed legitimate and objective reasons, which the WCJ could have relied
upon to determine that Dr. Gordon was not a credible expert, the WCJ made no such
determination. Instead, the WCJ found that Dr. Gordon was credible and accepted
his testimony as more persuasive than any conflicting testimony offered by
Claimant’s experts, Drs. Williams and Fras. In this context, the fact that Claimant
believes that there are objective reasons to discount Dr. Gordon’s testimony as not
credible is of no moment. “Clearly, a WCJ’s acceptance of the medical opinion of
one expert witness over that of another is not the basis for reversible error,”
Southeastern Pennsylvania Transportation Authority v. Workers’ Compensation
Appeal Board (Herder), 765 A.2d 414, 416 (Pa. Cmwlth. 2000), and section 422(a)
“does not permit a party to challenge or second-guess the WCJ’s reasons for
credibility determinations.” Dorsey, 893 A.2d at 195.
Because the WCJ accepted the expert testimony of Dr. Gordon where it
conflicted with the expert testimony of Drs. Williams and Fras, the WCJ was only
obligated to articulate objective grounds for his decision to favor Dr. Gordon. As
recounted above, the WCJ made detailed findings articulating the objective factors
the WCJ relied upon to assess the credibility of Dr. Williams, Dr. Fras, and Dr.
Gordon on an individual basis. (F.F. Nos. 149-152.) In these findings, the WCJ also
provided a thorough comparison of the experts’ testimony and explained why he
afforded the greatest credence to the testimony of Dr. Gordon. In doing so, the WCJ
17
pointed out the strengths of Dr. Gordon’s testimony, as well as the deficiencies of the
testimony of Drs. Williams and Fras, and all these supporting reasons are readily
verifiable in the record. Hence, Claimant’s arguments fail.
Finally, Claimant advances some other contentions. He posits that the
fact his “condition had worsened as of the date of Dr. Fras’ examination of June 8,
2016, as compared to the prior examinations . . . does not serve as a valid basis to not
find him credible.” (Claimant’s brief at 39.) Claimant also argues that the WCJ
“ignored and refused to genuinely consider a substantial portion of Dr. Fras’ credible
testimony and ignored much of Dr. Gordon’s incredible testimony.” (Claimant’s
brief at 28.) Claimant further contends that the differential diagnosis utilized by Dr.
Fras was sound, noting that Claimant had undisputedly sustained work-related
injuries, received a positive indication on the Spurling’s test, and the cervical MRI
depicts conditions that cannot be refuted.
Contrary to Claimant’s assertions, the WCJ stated an objective basis for
finding that Dr. Fras’ testimony contained a notable shortcoming:
Dr. Fras’ opinions become not credible in his inability to
explain why after the March 2016 visit at which point
Claimant’s symptoms had subsided, Claimant suddenly
became much more symptomatic in June 2016. I note that
on March 17, 2016, those symptoms were much improved
and then by the final examination in June 2016 the
symptoms had returned and actually progressed as he has
now documentary weakness and sensory changes which
were not present during either of the first two examinations.
Dr. Fras provided no explanation for how or why
Claimant’s symptoms suddenly accelerated months after he
was removed from work.
(F.F. No. 151.)
Undoubtedly, a physician’s failure to adequately account for a dramatic
change in a claimant’s physical status is a legitimate ground upon which to question
18
the credibility and weight of the physician’s testimony. In the eyes of a WCJ, this
deficiency can reasonably be construed to reflect or suggest that the physician
misapprehended the nature or extent of a claimant’s injuries and, also, their
relationship to the accident or event that allegedly caused those injuries.
Moreover, “[s]ection 422(a) does not require the WCJ to discuss all of
the evidence presented”; rather, “the WCJ is only required to make the findings
necessary to resolve the issues raised by the evidence and relevant to the decision.”
Dorsey, 893 A.2d at 194 n.4. Here, the WCJ provided a comprehensive summation
of Dr. Fras’ testimony and medical theories. (F.F. Nos. 80-114.) Given the detailed
and verifiable reasons the WCJ provided for deeming those opinions to be less
credible than that proffered by Dr. Gordon, (F.F. Nos. 150, 152), there is nothing in
the record to support the notion that the WCJ did not “genuinely consider” the
testimony of Dr. Fras, as argued by Claimant. (Claimant’s brief at 28.)
As a concluding matter, Claimant goes to great lengths in an attempt to
establish that Dr. Fras employed superior methodological reasoning to support his
differential diagnosis. However, these issues contain a matter that lies at the core of a
credibility determination, which, as stated previously, is for the WCJ to make. See
Parkview Court Associates v. Delaware County Board of Assessment Appeals, 959
A.2d 515, 521 (Pa. Cmwlth. 2008) (concluding that an argument challenging an
expert’s methodology “essentially seeks a new credibility finding . . . which is
inappropriate on appeal.”); Church Street Associates v. County of Clinton, 959 A.2d
490, 495 (Pa. Cmwlth. 2008) (concluding that a fact finder’s “resolution of the
conflicts within the two experts’ testimony, as well as the weight assigned
respectively thereto and the credibility determinations thereof, control on appeal.”).
19
Having reviewed Claimant’s arguments on appeal in this matter, the
decisions of the WCJ and the Board, and the applicable law, this Court can discern no
error that would require us to upset the determinations and orders of the tribunals
below.
Accordingly, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Ovid, :
Petitioner :
: No. 333 C.D. 2018
v. :
:
Workers’ Compensation Appeal :
Board (Dolgencorp, LLC), :
Respondent :
ORDER
AND NOW, this 29th day of November, 2018, the February 22, 2018
order of the Workers’ Compensation Appeal Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge