Tradesmen Int'l, LLC, Broadspire, and IMC Construction v. D. Brown (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tradesmen International, LLC, :
Broadspire, and IMC Construction, :
Petitioners :
:
v. : No. 450 C.D. 2022
: Submitted: March 3, 2023
Demetrius Brown (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: July 14, 2023
Tradesmen International, LLC (Employer), along with IMC Construction and
its third party administrator, Broadspire,1 filed a Petition for Review of the April 7,
2022 order of the Workers’ Compensation Appeal Board (Board) that affirmed the
Workers’ Compensation Judge’s (WCJ) August 12, 2021 order granting, in part,
Demetrius Brown’s (Brown) Claim Petition he filed under the Workers’
Compensation Act (Act).2 On appeal, Employer argues the Board erred by affirming
1
Employer was a subcontractor of IMC Construction (IMC). IMC held a workers’ compensation
insurance policy with Broadspire, and as a result, IMC defended the case on behalf of Employer.
Board Opinion, 4/7/22, at 1 n.1.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
the WCJ decision when it was not supported by substantial, competent evidence.
Employer further argues the Board erred by affirming the WCJ’s transfer of the
burden of proof to Employer. Upon review, we affirm.
I. Background and Procedural History
On February 15, 2020, Brown worked as a plumber for IT Landes, who
subcontracted him to Employer. WCJ Decision and Order, 8/12/2021 (WCJ Dec.),
Findings of Fact (F.F.) ¶ 1.a. On that date, Brown tripped and fell when walking up
some steps at a job site, and he injured his right hand, back, and neck. Id. ¶ 1.b.
Brown continued to work for the rest of his shift that day. Id. Brown did not report
the incident when it happened because he did not think he had suffered a major
injury. Id. Although his back hurt after he fell, Brown continued to work the
following week as well. Id. ¶ 1.c.
On February 21, 2020, however, Brown reported to the emergency room (ER)
at Abbington Hospital because his right hand was swollen. Id. ¶ 1.d. Brown had
developed an infectious tenosynovitis in the tendons of his fourth and fifth fingers.
Id. ¶ 1.c. On February 21, 2020, and again one week later, Brown underwent surgery
on his right hand. Id. ¶ 1.d. The surgeries drained fluid that had accumulated in the
tendons of Brown’s hand because of the infection. Id. ¶ 1.c.
Brown then reported his February 15, 2020 injury to Employer’s foreman. Id.
Employer’s Pre-Construction Compliance Coordinator, Derna O’Brien (Ms.
O’Brien), indicated Employer learned of the injury on March 3, 2020. Id. ¶ 5.a.-b.
Employer issued a Notice of Compensation Payable (NCP) on March 31, 2020.3 On
3
Employer issued the NCP outside the 21-day limit required by the Act, and accordingly, the WCJ
granted the Penalty Petition Brown filed along with his Claim Petition. Employer did not appeal
the portion of the Board’s order affirming the WCJ’s grant of Brown’s Penalty Petition.
2
April 23, 2020, Brown submitted a Claim Petition seeking full disability benefits
from February 21, 2020, and ongoing. Reproduced Record (R.R.) at 4a-8a.
In a decision and order circulated August 12, 2021, the WCJ granted Brown’s
Claim Petition in part. The WCJ ordered Employer to pay Temporary Total
Disability (TTD) benefits from February 21, 2020, until June 26, 2020, which is the
date the WCJ found Brown was fully recovered from his work injury. WCJ Dec. at
11. In an April 7, 2022 opinion and order, the Board affirmed the WCJ’s decision
and order in its entirety. Employer’s Petition for Review to this Court followed.
Employer presents three issues on appeal.4 First, Employer argues Brown’s
medical expert did not render a legally sufficient opinion that Brown’s work-related
4
We have reframed Employer’s issues on appeal for purposes of clarity and ease of analysis. In
its Petition for Review, Employer presented its issues as follows:
a. The [Board] committed an error of law, and its Decision was not supported by
substantial, competent evidence, in affirming the WCJ’s finding that Claimant’s
medical expert, Dr. Gregory Nelson, rendered a legally sufficient opinion regarding
causation. Dr. Nelson based his causal opinion upon the “temporal proximity”
between Claimant’s complaints and the work incident. The opinion was legally
insufficient and incompetent as set forth in the Supreme Court’s holding in [Lewis
v. Workmen’s Comp. Appeal Bd. (Pittsburgh Bd. of Educ.),] 498 A.2d 800 (P[a].
1985).
b. The [Board] committed an error of law, and its Decision was not supported by
substantial competent evidence, in affirming the WCJ’s finding that Claimant and
Dr. Nelson offered credible and persuasive testimony. The WCJ erred in accepting
the testimony of Claimant and Dr. Nelson insofar as they offered conflicting
testimony about the alleged hand injury and whether Claimant had cut his hand or
had broken the skin. Claimant and his expert offered contradictory testimony
regarding the alleged mechanism yet the judge accepted the evidence as credible.
Moreover, Claimant offered inconsistent testimony about the condition of his hand
after the alleged work incident.
c. The [Board] committed an error of law by affirming the WCJ’s transfer of the
burden of proof to the defense. Although the WCJ correctly noted that Claimant
(Footnote continued on next page…)
3
injury was the cause of his disability. Second, Employer argues the Board and the
WCJ erred in finding that Brown and his medical expert offered credible and
persuasive testimony when those witnesses offered conflicting testimony. Lastly,
Employer argues the WCJ incorrectly shifted the burden of proof on the issue of
causation to Employer.
II. Discussion
In a workers’ compensation appeal, we are limited to determining whether the
necessary findings of fact are supported by substantial evidence, whether the Board
committed an error of law, or whether the Board’s decision violates a party’s
constitutional rights. See Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936
A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007). Substantial evidence is such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.
Republic Steel Corp. v. Workmen’s Comp. Appeal Bd. (Shinsky), 421 A.2d 1060,
1062 (Pa. 1980).
A. Causation
Employer argues Brown’s evidence failed to support a finding that his work-
related injury caused his disability. Brown’s disability did not occur at the time of
the incident and the causal relationship between the work injury and his subsequent
disability was not obvious. As a result, unequivocal medical evidence was necessary
to establish causation. Jeannette Dist. Mem’l Hosp. v. Workmen’s Comp. Appeal
Bd. (Mesich), 668 A.2d 249 (Pa. Cmwlth. 1995).
bears the burden of proof on a Claim Petition, he then asserted that the defense
medical expert had failed to provide an explanation for the cause of the alleged
work injury. Employer bore no burden of proof. Claimant alone had that burden
and he failed.
Employer’s Petition for Review ¶ 8.a-c.
4
When a physician states that in his professional opinion a claimant’s injury
was caused by a specific incident, that testimony constitutes unequivocal medical
expert testimony. Indus. Recision Servs. v. Workers’ Comp. Appeal Bd. (Farbo),
808 A.2d 994 (Pa. Cmwlth. 2002). In contrast, medical expert testimony which
assumes a causal relationship between an injury and a recent event based solely on
temporal proximity is equivocal and incompetent in finding a work-related injury.
Lewis v. Workmen’s Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 498 A.2d 800 (Pa.
1985). Questions of credibility, conflicting medical evidence and evidentiary weight
fall within the WCJ’s authority, and the WCJ is free to accept the testimony of any
witness, including medical witnesses, in whole or in part. Ingrassia v. Workers’
Comp. Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394, 399 n.5 (Pa.
Cmwlth. 2015).
Brown presented the deposition testimony of Gregory Nelson, M.D. (Dr.
Nelson). Dr. Nelson stated Brown “contracted the infection when his hand scraped
the cement steps.” WCJ Dec., F.F. ¶ 2.b. Brown testified he did not notice a cut on
his hand immediately after his fall, but his hand was “grazed” and had a “little
redness.” Id. ¶ 1.b. Dr. Nelson testified a cut was not necessary and the abrasion
was sufficient to break the skin and lead to the infection. Id. ¶ 2.f. Dr. Nelson
“related [Brown’s] diagnoses to the February 15, 2020 incident” based upon “the
timing of [Brown’s] symptoms and the fall.” Id. ¶ 2.g. Dr. Nelson’s testimony was
not equivocal, nor did he assume a causal relationship based solely on the timing of
the incident. The WCJ found Dr. Nelson’s testimony on causation, “credible and
convincing, based upon his experience.” Id. ¶ 8.
Employer presented the deposition testimony of John Nolan, Jr., M.D. (Dr.
Nolan). Dr. Nolan opined that a deep puncture wound would have been required to
5
cause Brown’s infection. Because Brown suffered no such puncture wound, but did
in fact develop an infection, the WCJ did not credit this portion of Dr. Nolan’s
testimony. The WCJ carefully considered and weighed the expert medical testimony
on causation, and we conclude the Board did not err when it affirmed the WCJ in
this regard.
B. Conflicting Testimony
Employer also argues the Board erred in accepting testimony from Brown and
Brown’s expert, Dr. Nelson, when their testimony conflicted at times. Questions of
credibility, conflicting medical evidence, and evidentiary weight fall within the
WCJ’s authority, and the WCJ is free to accept the testimony of any witness,
including medical witnesses, in whole or in part. Ingrassia, 126 A.3d at 399 n.5.
The WCJ is the ultimate factfinder, but a WCJ must provide reasons for accepting
or rejecting evidence. Id. at 402-03.
Section 422(a) of the Act provides a WCJ “shall specify the evidence upon
which the [WCJ] relies and state the reasons for accepting it . . .” 77 P.S. § 834.
When faced with conflicting evidence, the WCJ “must adequately explain the
reasons for rejecting or discrediting competent evidence.” Id.
Here, the WCJ did not fully accept the testimony of Brown or Dr. Nelson.
Rather, the WCJ accepted each of their testimony, in part, and provided an
explanation for doing so. For example, the WCJ did not find Brown fully credible,
based on his “demeanor and deportment” when testifying live before the WCJ. WCJ
Dec., F.F. ¶ 6. Specifically, the WCJ witnessed Brown make a fist, despite Brown’s
testimony he could not do so. Id. Further, the WCJ did not find Brown credible
regarding his back and neck injuries because his testimony conflicted with the
medical reports. Id. The WCJ rejected Brown’s testimony regarding the status of
6
his right hand where it conflicted with the accepted testimony of Dr. Nolan. Id. The
WCJ noted Dr. Nolan was a “board-certified orthopedic surgeon, whose
qualifications in such regard exceed those of Dr. Nelson.” Id. ¶ 8. The WCJ rejected
Dr. Nelson’s testimony about Brown’s alleged back and neck injuries. However,
the WCJ found Brown’s testimony about his initial injury “credible and convincing”
given the consistent reports he gave at the ER. Id. ¶ 6.
The WCJ discussed why he accepted some testimony and rejected other
testimony. He carefully parsed out portions of testimony he found credible, and those
he did not. Except for Ms. O’Brien, the WCJ did not fully accept the testimony of
any one individual. We find no error in the WCJ’s acceptance or rejection of
testimony, nor in the Board’s affirmation of the WCJ.
C. Burden of Proof
In its third and final issue on appeal, Employer argues the WCJ incorrectly
shifted the burden of proof on causation to Employer. It is well established that the
claimant bears the burden to prove each element required to establish entitlement to
benefits in a claim petition proceeding. Inglis House v. Workmen’s Comp. Appeal
Bd. (Reedy), 634 A.2d 592 (Pa. 1993).
While the WCJ found Employer’s expert, Dr. Nolan, did not provide a viable
opinion on causation, the WCJ also acknowledged Employer did not carry this
burden. WCJ Dec., F.F. ¶ 8. Rather, the WCJ juxtaposed the testimony of Dr.
Nelson and Dr. Nolan as further explanation for accepting the opinion of Dr. Nelson,
finding his testimony “credible and convincing.” Id. Thus, the WCJ concluded
Brown met his burden of proof regarding causation and did not improperly shift the
burden of proof to Employer.
7
III. Conclusion
For the foregoing reasons, we conclude the Board did not err when it affirmed
the WCJ’s order granting Brown’s Claim Petition. Accordingly, we affirm the
Board’s order.
______________________________
STACY WALLACE, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tradesmen International, LLC, :
Broadspire, and IMC Construction, :
Petitioners :
:
v. : No. 450 C.D. 2022
:
Demetrius Brown (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 14th day of July, 2023, the April 7, 2022 order of the
Workers’ Compensation Appeal Board is AFFIRMED.
______________________________
STACY WALLACE, Judge