E.F. Weatherill v. WCAB (Wise Foods, Inc.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward F. Weatherill, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Wise Foods, Inc.) , : No. 857 C.D. 2019
Respondent : Submitted: November 8, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 23, 2020
Edward F. Weatherill (Claimant) petitions for review of the June 12,
2019 order of the Workers’ Compensation Appeal Board (Board) affirming the
decision and order of Workers’ Compensation Judge Susan Caravaggio (WCJ)
granting the Petition to Terminate Compensation Benefits (Termination Petition)
filed by Wise Foods, Inc. (Employer) pursuant to the Workers’ Compensation Act
(Act).1 We affirm.
On November 8, 2016, while working as a shipper for Employer,
Claimant suffered an injury to his left knee when he tripped over a small pipe as he
pulled a hand jack. WCJ Decision dated August 6, 2018, Certified Record Item No.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
5 (WCJ Decision), Findings of Fact (F.F.) 6. Claimant sought medical treatment and
was placed on light duty by Employer. F.F. 7. However, Claimant’s knee continued
to hurt, and he underwent surgery in March 2017. F.F. 7-8. After the surgery,
Claimant underwent six weeks of physical therapy that improved his range of motion
and resulted in him feeling better. F.F. 8.
On May 7, 2017, Claimant returned to light-duty work scanning
products for Employer. F.F. 9. On his second day back, however, Claimant went
home after lunch as a result of knee pain and function issues. F.F. 9. Claimant
returned to the physician who had performed his knee surgery and underwent an
EMG test that indicated Claimant suffered from a tarsal tunnel condition, but did not
reveal any continuing knee issues. F.F. 10 & 14.
On July 31, 2017, Employer filed the Termination Petition seeking to
cease benefits as of June 5, 2017 based on Claimant’s physician’s opinion that
Claimant had fully recovered from his November 8, 2016 work injury as of June 5,
2017. See F.F. 2; Board Opinion at 1; Termination Petition at 1. The WCJ
conducted a hearing and issued a decision on August 6, 2018, in which the WCJ
found that Employer met its burden of proving that Claimant had fully recovered
from the work-related injury. WCJ Decision at 6. Accordingly, the WCJ granted
the Termination Petition and terminated Claimant’s benefits as of June 5, 2017.
WCJ Decision at 6-7. Claimant appealed the WCJ’s ruling that he had fully
recovered from his work injury, arguing that the WCJ’s findings of fact and
conclusions of law were based on inadmissible hearsay. On-line Appeal dated
August 13, 2018, Certified Record Item No. 6. The Board affirmed. See generally
Board Opinion dated June 12, 2019 (Board Opinion), Certified Record Item No. 8.
Claimant timely petitioned this Court for review.
2
On appeal,2 Claimant contends that the Board erred in affirming the
WCJ’s determination that substantial evidence existed to grant the Termination
Petition. See Claimant’s Brief at 16-19. Claimant alleges that the Board erred in
affirming the WCJ because the testimony of the doctor upon which the WCJ granted
the Termination Petition was based on the assessments of a physician’s assistant
employed by Claimant’s physician, which assessments Claimant argues are hearsay.
Id. Claimant is not entitled to relief.
As this Court has explained:
In a termination proceeding, the employer bears the
burden of proving that a work-related disability has
ceased. This burden can be met by presenting unequivocal
and competent medical evidence of a claimant’s full
recovery from a work-related injury.[3] A determination of
whether medical testimony is equivocal is a conclusion of
law fully reviewable by this Court. Credibility of
witnesses, however, is for the [WCJ] to evaluate and he or
2
In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workmen’s Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).
Substantial evidence is such relevant evidence a reasonable person might
find sufficient to support the WCJ’s findings. In determining whether a finding of
fact is supported by substantial evidence, this Court must consider the evidence as
a whole, view the evidence in a light most favorable to the party who prevailed
before the WCJ, and draw all reasonable inferences which are deducible from the
evidence in favor of the prevailing party.
Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).
3
“Medical evidence is considered unequivocal if the medical expert, after providing a
foundation, testifies that in his medical opinion, he thinks the facts exist.” Craftsmen v. Workers’
Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 439 (Pa. Cmwlth. 2002).
3
she may accept the testimony of one witness over that of
another.
Koszowski v. Workmen’s Comp. Appeal Bd. (Greyhound Lines, Inc.), 595 A.2d 697,
699 (Pa. Cmwlth. 1991) (internal citations omitted).
Here, in support of the Termination Petition, Employer presented the
deposition testimony of Mark Williams, D.O. See F.F. 8, 10 & 12-13; see also Board
Opinion at 2-3. Dr. Williams, a board-certified orthopedic surgeon who has treated
Claimant since the late 1990s, began treating Claimant for his knee injury on
February 28, 2017. F.F. 12; Board Opinion at 2. Dr. Williams explained that he
performed an arthroscopy with medial and lateral meniscectomies and an anterior
synovectomy of Claimant’s knee on March 10, 2017. F.F. 8; Board Opinion at 2.
Dr. Williams testified that he returned Claimant to light-duty work as of May 4,
2017. Board Opinion at 3. Dr. Williams further explained that, pursuant to
Claimant’s complaints of pain in his left leg and foot, he ordered the performance of
an EMG in May of 2017 that revealed Claimant had posterior tarsal syndrome
involving the medial and lateral plantar branches of the left foot, but which Dr.
Williams opined was unrelated to Claimant’s work injury. Board Opinion at 3. Dr.
Williams testified that Claimant returned to his office on June 5, 2017 with
continuing symptoms concerning the tarsal region of his left foot, but that his knee
injury was doing quite well. Board Opinion at 3. Ultimately, Dr. Williams opined
that Claimant was fully recovered from his work injury, was capable of returning to
work without restrictions as of June 5, 2017, and was not in need of further medical
treatment for his work injury. F.F. 12-14; Board Opinion at 3.
Claimant testified in opposition to the Termination Petition. See F.F.
5-11; Board Opinion at 3-4. Claimant explained that he began working for Employer
4
in 2011, and that on November 8, 2016, he tripped over a pipe sticking out of the
floor and felt something snap in his left knee, causing severe pain. F.F. 5; Board
Opinion at 3. Claimant sought medical treatment and was placed on light-duty
restrictions, but his knee continued to bother him. F.F. 7; Board Opinion at 4.
Eventually, Claimant underwent surgery performed by Dr. Williams followed by six
weeks of physical therapy and experienced a return to nearly a full range of motion.
F.F. 8; Board Opinion at 4. Claimant testified that he returned to light-duty work on
May 7, 2017, but could not finish his second day as a result of pain and burning in
his left leg and knee. F.F. 9; Board Opinion at 4. Claimant testified that he continues
to experience daily left knee symptoms, including constant muscle quivering both
above and below the knee, but that he can ambulate “fairly decently” otherwise.
Board Opinion at 4; see also F.F. 11.
Claimant also presented the deposition testimony of Christopher
Damsgaard, M.D., in opposition to the Termination Petition. F.F. 15-17; Board
Opinion at 4-5. Dr. Damsgaard, a board-certified eligible orthopedic surgeon,
testified that he examined Claimant once on December 29, 2017, at which time he
obtained Claimant’s medical history and information regarding Claimant’s
complaints and treatments, physically examined Claimant and took and reviewed x-
rays of Claimant’s left knee. F.F. 15; Board Opinion at 4-5. Dr. Damsgaard noted
that Claimant had some crepitus in his knee with range of motion. Board Opinion
5. Dr. Damsgaard stated he assumed Claimant’s continued knee pain resulted from
absent meniscus and scar tissue attendant to his surgery, but that it was unlikely that
the numbness in Claimant’s foot and leg was coming from his knee or arthritis in his
knee, which Dr. Damsgaard explained was not the result of Claimant’s work injury.
5
F.F. 16-17; Board Opinion at 5. Ultimately, Dr. Damsgaard opined that Claimant
was not fully recovered from his work injury. F.F. 16; Board Opinion at 5.
Based on the evidence presented, the WCJ made the following relevant
determinations:
4. Claimant’s testimony that he has pain in his left leg,
from above the knee all the way down to the foot, is
credible. His demeanor at the hearing was credible. The
issue is primarily a medical issue concerning the cause of
that pain.
....
14. The opinions of Dr. Williams are credible, logical,
internally consistent, and persuasive. They were
supported by his findings on physical examination and by
objective testing. The [WCJ] notes that by June 5, 2017,
Claimant’s complaints were primarily in his foot and ankle
and he was referred to another doctor for the treatment of
the tarsal tunnel condition found through the EMG. The
[WCJ] was impressed with Dr. Williams’ discussion that
Claimant continued to have complaints in his lower leg
which is what prompted him to order the EMG, and the
EMG did not reveal any problems with the knee, but only
with the foot.
....
17. Dr. Damsgaard’s opinions that the numbness and
arthritis are not related to the work injury are credible,
logical, internally consistent, and persuasive. Those
opinions were not refuted. His opinion that Claimant has
not recovered from the work injury is not credible. Those
opinions [sic] were refuted by Dr. Williams’ credible
opinions. It also appears that Dr. Damsgaard’s opinion
that Claimant was not recovered was based on his
assumptions and what Claimant told him and not on any
objective findings. . . .
6
WCJ Decision at 5-6, F.F. 4, 14 & 17 (internal record citations omitted). Of course,
the WCJ determines witness credibility and the weight of evidence, and neither the
Board nor this Court may overturn those determinations on appeal. Koszowski; see
also Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. &
Uninsured Emp’r Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth.), appeal denied, 173
A.3d 252 (Pa. 2017) (“Neither the Board nor this Court may reweigh the evidence
or the WCJ’s credibility determinations.”).
As a result of the WCJ’s credibility determinations, which we must
accept, as did the Board,4 we find that substantial record evidence supports the
WCJ’s findings of fact. Specifically, Dr. Williams’ credible testimony supports the
WCJ’s finding that Claimant had fully recovered from his November 8, 2016 work-
related injury as of June 5, 2017. Therefore, the WCJ properly terminated
Claimant’s compensation benefits. See WCJ Decision at 6 & Order. We find no
error in the Board’s affirmance of the WCJ’s decision.
To the extent Claimant argues that Dr. Williams’ testimony was
incompetent because it was based solely on the hearsay testimony of his physician’s
assistant, we do not agree. As this Court has expressly explained:
[I]t has long been held as an exception to the hearsay rule
that a medical witness may express an opinion based upon
medical records of others even if those records were not
introduced into evidence so long as they are the kind of
records upon which the medical profession customarily
relies in the practice of their profession.
4
See Board Opinion at 5-6.
7
Empire Steel Castings, Inc. v. Workers’ Comp. Appeal Bd. (Cruceta), 749 A.2d
1021, 1026 (Pa. Cmwlth. 2000). The notes and reports of non-testifying medical
professionals who assisted in a patient’s treatment and that are relied upon by a
testifying medical professional are just such records. Id.
Here, Dr. Williams testified that a physician’s assistant in his office
named Pamela Morrow performed follow-up examinations of Claimant at Dr.
Williams’ office. See Board Opinion at 2. Dr. Williams explained that Ms. Morrow
is authorized to act in his name and issue reports on behalf of the orthopedic group
of which he is a member. Id. Dr. Williams also explained that, as the supervising
physician, he reviews and co-signs all Ms. Morrow’s patient notes. Id. Dr. Williams
further testified that he routinely utilizes Ms. Morrow’s reports in formulating his
diagnoses and the treatment and care of his patients. Id. at 3. Dr. Williams also
testified that, in this matter, Ms. Morrow’s records reflect his review and opinion.
Id. We find no error in the WCJ’s acceptance, or the Board’s affirmance, of Dr.
Williams’ testimony based partially on the reports of his physician’s assistant. See
Empire Steel.
Accordingly, the Board’s order is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward F. Weatherill, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Wise Foods, Inc.) , : No. 857 C.D. 2019
Respondent :
ORDER
AND NOW, this 23rd day of January, 2020, the June 12, 2019 order of
the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge