County of Allegheny v. WCAB (Murphy) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, :
Petitioner :
:
v. : No. 570 C.D. 2015
: Submitted: November 25, 2015
Workers' Compensation Appeal :
Board (Murphy), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: February 4, 2016
The County of Allegheny (Employer) petitions for review from an
order of the Workers’ Compensation Appeal Board (Board) that affirmed a
Workers’ Compensation Judge’s (WCJ) decision that denied its termination and
suspension petitions. Employer contends the Board erred by determining its
medical expert’s testimony was incompetent. It also asserts the Board erred in
determining the WCJ’s error in admitting certain evidence was harmless.
Alternatively, Employer seeks a remand to the WCJ to consider Employer’s
medical expert’s opinion. Upon review, we affirm.
I. Background
Pamela Murphy (Claimant) worked for Employer as a clerk-typist
when she sustained strains in both her thumbs as a result of repetitive motion while
performing her job duties in October 2009. Employer recognized a “thumb strain”
injury in two notices of compensation payable (NCP) issued in 2010.
In December 2012, Employer filed petitions to terminate and suspend
compensation (Petitions), alleging that Claimant fully recovered as of April 2012.
Employer’s Petitions were based on the medical opinion of Trenton Gause, M.D., a
board-certified orthopedic surgeon (Employer’s Physician).
In 2013, Claimant filed a review petition alleging an incorrect injury
description. She alleged the description should be changed to “CMC[1]
arthritis/trapezial osteoarthritis of bilateral thumbs.” WCJ’s Op., 8/27/13 (Review
Petition) Finding of Fact (F.F.) No. 1. During the pendency of the litigation,
Claimant amended her review petition to a petition seeking approval of a compromise
and release agreement (Agreement). The Agreement resolved that no wage loss
benefits were payable after May 17, 2013. However, the Agreement did not resolve
whether Claimant fully recovered as of April 2012, and so left open other issues in
the Petitions. Relevantly, the Agreement did not alter the injury description.
A WCJ held hearings on the Petitions. In support of its Petitions,
Employer presented the deposition testimony of Employer’s Physician. Employer
also presented the deposition testimony of Kate Barkman, the Director of Court
Records (Supervisor) regarding Claimant’s job duties. Claimant testified on her
own behalf at two separate hearings. She also presented two reports prepared by
Steven Kann, M.D., an orthopedic surgeon, who operated on Claimant’s left thumb
twice and once on her right thumb (Treating Physician).2
1
The Carpometacarpal “CMC” joint is at the base of the thumb, where the thumb meets
the wrist. Reproduced Record (R.R.) at 213a.
2
Employer objected to the admission of Treating Physician’s report based on hearsay.
R.R. at 323a.
2
Employer’s Physician opined Claimant did not suffer a work-related
injury as there was nothing to indicate that the thumb strain was work related.
Specifically, he testified “[t]here was nothing at work to suggest that this
[Claimant’s symptoms] was caused by work.” Reproduced Record (R.R.) at 222a.
During his testimony, he repeatedly opined “this was not work related.” Id. He
opined the surgeries were not related to thumb strains, but to arthritis, a degenerative
condition. Further, his report stated, “[t]here is nothing in [Claimant’s] history to
substantiate a causal connection between her work and the onset of her thumb pain.
Due to the fact that I do not feel that [her] condition was work-related, I would not
impose any restrictions.” R.R. at 289a. Employer’s Physician also opined as to
Claimant’s continued complaints of “bilateral thumb pain,” that her complaints of
pain were “excessive” and out of proportion to her condition. Id. at 242a.
Employer’s Physician declined to complete a “Physician’s Affidavit of
Recovery” because he did not think Claimant’s injuries were work-related. R.R. at
225a. When asked to assume she had an injury at work, he testified: “[i]f one
hypothetically or to state that these injuries were accepted as strains, the strains in
and of themselves would have resolved.” Id. Notably, he did not recognize at the
time of his deposition that the injury was accepted as a strain.
As to work restrictions, Employer’s Physician opined Claimant could
return to her pre-injury job, a light-duty position. He recommended lifting
restrictions of 20 pounds and stated she should be able to type and use her hands.
Based on his observation that she healed well post-surgery, Employer’s Physician
expressed surprise that Claimant’s grip strength and reported pain did not improve.
3
Supervisor testified regarding Claimant’s job duties. She explained
that although Employer received notice that Claimant was able to return to work in
2012, Claimant did not return to work or contact Employer.
Treating Physician first examined Claimant in 2010 related to wrist
pain. In his report, Treating Physician opined Claimant has continued pain and
sensitivity in her bilateral thumbs post-operatively. He disagreed with Employer’s
Physician’s opinions that Claimant could perform her pre-injury position. Based on
the job description and Supervisor’s deposition transcript, he opined Claimant could
return to work in a modified position as of January 19, 2012. Specifically, he set
forth the following restrictions: no lifting greater than two pounds; no forceful
gripping, pinching, grasping; no repetitive motion; and, no typing in either hand. He
also restricted Claimant from performing passport work.
Claimant testified as to her condition and her capabilities. She
explained she suffered a loss of strength in both hands that made several daily tasks
difficult. She experienced greater pain in the left thumb than the right, and
continued to feel pain post-surgeries. She did not return to work despite Employer’s
requests to avoid further damage to her thumbs and the pain her job duties caused.
She could not return to pulling sizeable docket books and was unable to press the
spacebar on a keyboard with her thumbs. She also could not use a mouse for
sustained periods because her thumb would no longer function. She could not
perform the phone work of her pre-injury position because the reception for the
headset was poor.
4
The WCJ credited Claimant’s testimony. He noted her testimony
“specifically was very credible and believable in describing the duties of a multi-
function clerk and [her] pain in attempting to perform those duties.” WCJ’s Op.,
9/24/13, F.F. No. 6. The WCJ also credited the opinions in the reports submitted by
Treating Physician, noting his long-time treatment of Claimant.
Further, the WCJ credited Supervisor’s testimony. He did not credit
the testimony of Employer’s Physician. Specifically, he found “EVEN THOUGH
EMPLOYER RECOGNIZED THAT CLAIMANT HAD REPETITIVE TRAUMA
IMPAIRMENT AS THE RESULT OF HER WORK ACTIVITIES[,]” Employer’s
Physician opined Claimant had no thumb injury related to her work. F.F. 10(c)
(emphasis in original). Such an opinion was “worthless.” Concl. of Law No. 2.
Ultimately, the WCJ denied Employer’s Petitions. The WCJ concluded
Employer did not meet its burden of proof as to termination because Employer’s
Physician did not recognize the accepted work-injury. As to suspension, the WCJ
found Employer did not establish that a specific job was available within Claimant’s
restrictions. Employer appealed to the Board.
The Board affirmed. The Board agreed with the WCJ as to the
incompetency of Employer’s Physician’s testimony. The Board reasoned that the
admission of Treating Physician’s reports was harmless error because Employer did
not meet its burden of proof.
Employer filed a petition for review to this Court.
5
II. Discussion
On appeal,3 Employer argues the Board erred in upholding the WCJ’s
determination that Employer’s Physician’s testimony was incompetent evidence.
Employer emphasizes the WCJ erred in relying on Treating Physician’s reports as
they were inadmissible hearsay to which it objected. Employer also asserts the
admission of the reports constituted reversible error, not harmless error as the Board
determined. Based on these alleged errors, Employer asks this Court to reverse the
Board, or to remand to the WCJ to decide the Petitions on a proper record.
A. Competence of Employer’s Physician’s Opinion
First, we address Employer’s contention that the WCJ erred in rejecting
Employer’s Physician’s opinions as incompetent. Employer argues its medical
evidence is competent and is sufficient to satisfy the burden of proof on its Petitions.
An “employer bears the burden of proof in a termination proceeding to
establish that the work injury has ceased,” or that any existing injury is not the result
of the work-related injury. Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.),
705 A.2d 1290, 1293 (Pa. 1997). An employer meets its burden in a suspension
proceeding when it “establishes that a claimant has recovered all of … her earning
power.” Trimmer v. Workers’ Comp. Appeal Bd. (Monaghan Twp.), 728 A.2d 438,
440 (Pa. Cmwlth. 1999).
3
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d
1037 (Pa. Cmwlth. 2011).
6
Medical testimony is considered unequivocal and competent if the
medical expert, after establishing a proper foundation, testifies within his
professional opinion that a certain fact or condition exists. Campbell v. Workers’
Comp. Appeal Bd. (Pittsburgh Post–Gazette), 954 A.2d 726 (Pa. Cmwlth. 2008).
A medical expert’s testimony “will be found to be equivocal if it is based only
upon possibilities, is vague, and leaves doubt.” Kurtz v. Workers’ Comp. Appeal
Bd. (Waynesburg Coll.), 794 A.2d 443, 449 (Pa. Cmwlth. 2002). Also, a medical
expert’s testimony must be considered in its entirety, such that a decision does not
rest on a few words taken out of context. Lewis v. Workmen’s Comp. Appeal Bd.
(Pittsburgh Bd. of Educ.), 498 A.2d 800 (Pa. 1985).
For a termination petition, an employer’s medical expert must establish
that a claimant recovered from all injuries previously found to be work-related.
Cent. Park Lodge v. Workmen’s Comp. Appeal Bd. (Robinson), 718 A.2d 368 (Pa.
Cmwlth. 1998). To do so, an employer’s medical expert must recognize the
accepted injury, and opine as to a claimant’s recovery from it. GA & FC Wagman,
Inc. v. Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001).
“[I]t is well settled that where an expert’s opinion is based on an
assumption which is contrary to the established facts of record, that opinion is
worthless.” Williams v. Workers’ Comp. Appeal Bd. (Hahnemann Univ. Hosp.),
834 A.2d 679, 684 (Pa. Cmwlth. 2003). A medical expert’s failure to acknowledge
an accepted injury in his opinion renders his opinion insufficient as a matter of law.
Cent. Park Lodge.
7
From our careful review of his testimony, Employer’s Physician did
not accept the work-related injury. In fact, he repeatedly opined that Claimant’s
thumb strains were not work-related and declined to submit an affidavit of recovery
for that reason. R.R. at 222a, 225a, 289a. Both the NCPs and the Agreement clearly
accept “thumb strains” from repetitive tasks of Claimant’s job were the recognized
work injury. Id. at 1a, 4a, 36a. Because Employer’s Physician refused to accept
thumb strains as a work injury, his testimony that Claimant would be fully recovered
from that injury is “worthless.” Williams, 834 A.2d at 684.
Employer analogizes this case to To v. Workers’ Compensation Appeal
Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003). There, we held a medical
expert need not believe a claimant suffered a work injury to offer competent
testimony as to full recovery. To, however, arose from dissimilar facts.
There, the claimant appealed a grant of a termination petition based on
the alleged incompetence of a medical expert’s opinions. The claimant argued the
expert’s disbelief that a work injury occurred was grounds for reversal. This Court
disagreed, explaining the expert did not testify that claimant never had a work
injury. Rather, he was attempting to reconcile the claimant’s explanation of how
the injury occurred with his physical examination. The medical expert also
testified there was “no evidence of medical impairment” upon physical
examination, and thus no reason for ongoing medical care. Id. at 1225.
Importantly, we rejected the claimant’s position, noting the expert “did not testify
that [the] [c]laimant never had a work injury.” Id. at 1225.
8
Here, by contrast, Employer’s Physician repeatedly emphasized that
Claimant did not suffer a work injury. R.R. at 222a, 225a. He insisted throughout
his deposition that Claimant’s current complaints and pain were the result of
arthritis. Id. at 234a, 240a. He thus questioned the causality of a work injury that
should have been presumed. Cent. Park Lodge. Further, unlike the employer’s
expert in To, Employer’s Physician did not testify that Claimant suffered from no
medical impairment at all. Rather, he recognized she suffered from a medical
impairment, which he diagnosed as arthritis. R.R. at 235a. He also acknowledged
Claimant continued to experience pain and weakness. R.R. at 250a.
In evaluating whether an employer’s medical expert’s opinion is
sufficient as a whole to terminate benefits, we hold that “[a]t a bare minimum, the
expert must know what the accepted work-related injury was to be competent to
testify that a claimant has fully recovered from a work-related injury.” Elberson v.
Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth.
2007). Viewed as a whole, Employer’s Physician’s did not recognize Claimant’s
impairment as thumb strains. In these circumstances, his statement that if he
assumed she had strains, “she’s recovered,” R.R. at 233a, is not sufficient.
Employer’s Physician conceded Claimant would have restrictions, but
he attributed them to “her CMC arthroplasties … an arthritic condition and not work
related.” Id. We do not review an expert’s statements in isolation, but against the
backdrop of his entire testimony. Lewis. Because he did not accept the work-injury,
Employer’s Physician’s opinions were incompetent. GA & FC Wagman.
9
Regardless of its competency, Employer’s Physician’s testimony was
incapable of sustaining Employer’s burden because the WCJ did not credit his
opinions as more fully discussed below.
B. Credibility
Employer further contends the WCJ erred in crediting the opinion of
Treating Physician over that of Employer’s Physician. Employer argues the WCJ
would not have discredited Employer’s Physician’s opinion but for his reliance on
Treating Physician’s reports, which were improperly admitted. We disagree.
It is solely for the WCJ as fact-finder to assess credibility and resolve
evidentiary conflicts. Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd.
(Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the WCJ may reject the
testimony of any witness, in whole or in part. Id. This principle applies equally to
testimony of medical experts. Griffiths v. Workers’ Comp. Appeal Bd. (Red
Lobster), 760 A.2d 72 (Pa. Cmwlth. 2000).
Here, the WCJ discredited Employer’s Physician’s testimony in its
entirety. Specifically, the WCJ explained, “there was no way with intellectual
honesty to credit [Employer’s Physician’s] opinion….” Concl. of Law 5. The
WCJ also concluded, “Employer essentially litigated the termination petition as if
it was defending a claim petition, with no recognized injury. [Employer’s
Physician’s] opinions that all of [C]laimant’s work injuries were actually non-work
related are not credible, and therefore not a basis for prevailing in a termination
petition.” Concl. of Law No. 3.
10
The WCJ did not discredit Employer’s Physician’s opinions because
they conflicted with those expressed in Treating Physician’s reports. He made no
such comparison. Rather, he explained that he found Employer’s Physician’s
testimony as to Claimant’s alleged full recovery “not believable.” WCJ Op. at 1
n.1. The WCJ rejected Employer’s Physician’s testimony because it repeatedly
questioned the causality of Claimant’s condition that Employer recognized in two
NCPs. Concl. of Law Nos. 3, 5.
The WCJ is permitted to reject Employer’s Physician’s testimony as a
whole. Griffiths. This Court does not reweigh issues of credibility on appeal.
Waldameer Park. Because the WCJ did not credit Employer’s Physician’s
opinions, Employer had no credited evidence to support its burden of proof on its
Petitions.
C. Inadmissible Evidence
Lastly, Employer argues the Board erred in determining the WCJ
committed harmless error when he admitted and relied on Treating Physician’s
reports.4 Employer asserts the WCJ’s admission of such hearsay evidence
constitutes reversible error that, at a minimum, warrants a remand to the WCJ to
decide the case without the benefit of such evidence. Again, we disagree.
4
Employer also argues that by crediting Treating Physician’s opinion, the WCJ expanded
the work injury to include arthritis. That is unsupported by the WCJ’s decision that recognized
the injury as thumb strains. Concl. of Law No. 2. Further, the WCJ rejected Employer’s
Physician’s opinions because he failed to recognize thumb strains as the work injury.
11
Under Section 422 of the Workers Compensation Act (Act),5 77 P.S.
§835, a medical report may be admitted provided the matter involves 52 weeks or
less of compensation benefits. However, when a claim involves more than 52 weeks
of benefits, a report is only admissible if the party against whom the report is offered
does not object. Id.
There is no dispute that this case involves more than 52 weeks of
benefits. Further, Employer objected to Treating Physician’s reports as hearsay.
R.R. at 431a. Consequently, Treating Physician’s reports were not admissible under
Section 422. Weaver v. Workers’ Comp. Appeal Bd. (State of the Art, Inc.), 808
A.2d 604 (Pa. Cmwlth. 2002). Further, the reports constitute hearsay
uncorroborated by medical testimony. Therefore, the WCJ erred in admitting them.
Nevertheless, we agree with the Board that the WCJ’s error was
harmless. “To constitute reversible error, a ruling on evidence must be … harmful
to the party complaining.” Hart v. W.H. Stewart, Inc., 564 A.2d 1250, 1252 (Pa.
1989). An evidentiary ruling is harmless when it does not affect the result. Id.
Significantly, “[i]n a termination proceeding … a claimant has no
burden to prove anything and, having already established the right to benefits, the
benefits must remain in effect unless the employer proves that a termination of the
claimant’s benefits is warranted.” Cent. Park Lodge, 718 A.2d at 370 (italics in
original). Similarly, an employer bears the burden of proof in a suspension
proceeding. Trimmer.
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
12
Here, Employer bore the burden of proving a change in condition or a
full recovery. The WCJ rejected Employer’s Physician’s opinions. Lacking any
credited evidence to support its Petitions, Employer did not meet its burden of
proof. The admission of Treating Physician’s contrary medical report did not alter
the result. Accordingly, we agree with the Board that the error was harmless.
Benson v. Workmen’s Comp. Appeal Bd. (Haverford State Hosp.), 668 A.2d 244
(Pa. Cmwlth. 1995).
III. Conclusion
For the foregoing reasons, we affirm the Board.
ROBERT SIMPSON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, :
Petitioner :
:
v. : No. 570 C.D. 2015
:
Workers' Compensation Appeal :
Board (Murphy), :
Respondent :
ORDER
AND NOW, this 4th day of February, 2016, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge