Opinion
460 C.D. 2020
08-27-2021
Kathy Hammill Becht, Petitioner v. Workers' Compensation Appeal Board (Daqle Holdings, LLC and Cincinnati Insurance Company), Respondents
OPINION NOT REPORTED
Submitted: July 16, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
CHRISTINE FIZZANO CANNON, JUDGE
Kathy Hammill Becht (Claimant) petitions for review of the April 17, 2020 order by the Workers' Compensation Appeal Board (Board) affirming the January 8, 2019 decision and order of Workers' Compensation Judge Carmen Lugo (WCJ) that dismissed Claimant's Claim Petition for Compensation Benefits (Claim Petition) filed against Daqle Holdings, LLC/Panera Bread (Employer) pursuant to the Workers' Compensation Act (Act). Upon review, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
This matter comes to us on appeal following remand to the WCJ by this Court. See Becht v. Workers' Comp. Appeal Bd. (Daqle Holdings, LLC, Cincinnati Ins. Co. & Panera Bread) (Pa. Cmwlth., No. 1655 C.D. 2017, filed Aug. 3, 2018) (Becht I). In Becht I, we outlined the details of Claimant's underlying injury and the procedural posture of the matter to that point as follows:
On May 4, 2010, while working for Employer as a director of operations, Claimant sustained an L4-L5 spinal injury that required surgical intervention in the form of a lumbar spinal fusion at L4-L5. Claimant received workers' compensation (WC) benefits as a result of this work injury.
On January 29, 2014, Employer filed a petition to terminate Claimant's WC benefits. In support of this petition, Employer presented the deposition testimony of Gerard J. Werries, M.D., who had conducted an independent medical examination of Claimant. Dr. Werries opined that Claimant had fully recovered from her work injury and subsequent surgical fusion at L4-L5, and that Claimant's "mild adjacent arthritic changes at L3-[L]4 . . . were not as a result of the surgery . . . [but instead were] due to the natural progression of arthritis at that level versus stress from the previous fusion site." WCJ Decision and Order dated October 29, 2014 (2014 WCJ Decision) at 4. The WCJ found Dr. Werries' testimony credible and, based thereon, issued the 2014 WCJ Decision finding that Claimant's L4-L5 fusion was solid, that she was fully recovered from her May 4, 2010 work injury, and that the natural progression of existing natural arthritis caused her spinal stenosis at L3-L4, not the work injury or the L4-L5 fusion. See 2014 WCJ Decision at 4-5. Accordingly, the WCJ terminated Claimant's WC benefits. Id. at 5. Claimant appealed and the Board affirmed by opinion dated December 8, 2015 (2015 Board Opinion). Claimant did not appeal the 2015 Board Opinion to this Court.
After the termination of her WC benefits in October 2014, Claimant returned to work and regular duty. She continued, however, to seek medical attention for symptoms, including occasional steroid injections in her
lower back from David M. Babins, M.D., with the last of these injections occurring on March 5, 2015.
On March 18, 2015, Claimant twisted her back as she attempted to assemble an ice cream machine while working for Employer. Subsequently, Claimant filed a Reinstatement Petition seeking reinstatement of her previous WC benefits as a result of an alleged recurrence of her 2010 disabling condition that occurred on March 18, 2015 as she attempted to assemble the ice cream machine at work. See Reinstatement Petition. As an alternative to the Reinstatement Petition, Claimant also separately filed a Claim Petition seeking WC benefits based on the March 18, 2015 event, alleging an "Aggravation of Lumbar Spine stenosis[.]" See Claim Petition.
The WCJ conducted hearings on June 8, 2015 and June 1, 2016, during which Claimant and a co-worker testified. See Notes of Testimony (N.T.) 6/8/2015 & 6/1/2016. The WCJ also received into evidence Dr. Babins' deposition testimony. See Deposition Testimony of David M. Babins, M.D., December 1, 2015 (Babins Deposition).
On November 3, 2016, the WCJ issued a Decision and Order holding that, because the 2014 WCJ Decision had determined that Claimant had fully recovered from her 2010 work injury and that the arthritis observed at her L3-L4 was not related to the 2010 work injury, Claimant's Reinstatement Petition was barred by res judicata and collateral estoppel. See WCJ Decision and Order dated November 3, 2016 (2016 WCJ Decision) at 6-7. The 2016 WCJ Decision accordingly denied Claimant's
Reinstatement Petition. Id. at 7. The 2016 WCJ Decision also denied the Claim Petition, finding that Claimant had not met her burden of proving that a new work injury occurred on March 18, 2015. Id. Claimant appealed, and the Board affirmed the 2016 WCJ Decision by opinion and order dated October 13, 2017. See Board Opinion dated October 13, 2017 (2017 Board Opinion).Becht I, slip op. at 1-4.
On appeal, this Court agreed that Claimant was estopped from claiming that her L3-L4 level changes were a recurrence of her 2010 work-related injury where the 2014 WCJ Decision and 2015 Board Opinion previously found that injury to be limited to Claimant's L4-L5 and fully resolved. See Becht I, slip op. at 10-11 & 15. However, the Court vacated the Board's affirmance of the WCJ's denial of the Claim Petition, finding that the WCJ erred by omitting any discussion of whether the March 18, 2015 incident contributed to Claimant's disability. See Becht I, slip op. at 13-14. Without such a discussion, the Court found that it could not ascertain whether the WCJ erred in determining that Claimant had not proven an aggravation of a preexisting condition. See id., slip op. at 14. Therefore, because the "determination of whether the March 18, 2015 work incident contributed to Claimant's disability must be made by the WCJ in his role as fact-finder[, ]" the Court remanded the matter to the WCJ for further findings regarding whether the March 18, 2015 incident contributed to Claimant's disability. See id., slip op. at 14-15. The Court ended by specifically instructing that,
[i]n the event the WCJ determines that the March 18, 2015 incident represents a new injury because it contributed to Claimant's disability, we instruct the WCJ to include additional findings regarding the length and extent of Claimant's resulting disability and any compensation due.Becht I, slip op. at 15.
On remand, the WCJ denied Claimant's request to depose Dr. Werries because the Commonwealth Court had not indicated that the WCJ was to reopen the record for additional evidence on remand. See Board Opinion dated Apr. 17, 2020 (2020 Board Opinion) at 3; see also WCJ Order dated Sept. 13, 2018. Instead, the WCJ reviewed the existing record, determined for the second time that Claimant failed to establish that she sustained either a compensable injury or an aggravation of a preexisting condition as a result of the March 18, 2015 incident, and denied the Claim Petition. See WCJ Decision and Order dated Jan. 8, 2019 (2019 WCJ Decision) at 5, Finding of Fact (F.F.) 8; see also 2020 Board Opinion at 3. Claimant again appealed and the Board affirmed by opinion dated April 17, 2020. See 2020 Board Opinion at 11 & Order. Claimant now appeals to this Court.
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)); see also Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. "Substantial evidence is such relevant evidence a reasonable person might find sufficient to support the WCJ's findings." Frog, Switch & Mfg. Co. v. Workers' Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa. Cmwlth. 2014).
On appeal, Claimant alleges that the WCJ erred by denying her Claim Petition because she failed to prove an aggravation of her 2010 injury or a new injury. See Claimant's Brief at 11-22. She argues that the WCJ capriciously disregarded medical evidence in favor of a surveillance video, abused her discretion in refusing to admit further evidence on remand, and improperly assessed the available testimony. See id. at 11-21.
Initially, we outlined the law regarding claim petitions based on alleged aggravations or recurrences of existing injuries in our previous opinion as follows:
"With respect to a claim petition, the claimant bears the initial burden of proving that [an] injury arose in the course of employment and was related thereto." Frankiewicz v. Workers' Comp. Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991, 995 (Pa. Cmwlth. 2017). "Generally, if there is no obvious relationship
between the disability and the work-related cause, unequivocal medical testimony is required to meet this burden of proof." Id. "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).
"The terms 'aggravation of a pre-existing condition' and 'recurrence of a prior injury' are legal terms of art that are utilized to attribute causation of the current disability to a particular event or series of events." S. Abington Twp. v. Workers' Comp. Appeal Bd. (Becker & ITT Specialty Risk Servs.), 831 A.2d 175, 181-82 (Pa. Cmwlth. 2003). "In workers' compensation law, 'aggravation' is a term of art denoting a new injury, as opposed to the resumption or manifestation of symptoms from a past injury[, ]" which is known as a "recurrence" of the prior injury. Zurn Indus. v. Workers' Comp. Appeal Bd. (Bottoni), 755 A.2d 108, 111 (Pa. Cmwlth. 2000). Both aggravations and recurrences of prior work-related injuries are compensable under the Act. Chik-Fil-A v. Workers' Comp. Appeal Bd. (Mollick), 792 A.2d 678, 688-89 (Pa. Cmwlth. 2002). "A work-related aggravation of a prior non-work-related condition is . . . [also] compensable." Am. Contracting Enters., Inc. v. Workers' Comp. Appeal Bd. (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (claimant with history of shoulder problems). However, "a disability that results from the natural progression of a non-work-related preexisting condition is not compensable under the Act." Locher v. Workers' Comp. Appeal Bd. (City of Johnstown), 782 A.2d 35, 38 (Pa. Cmwlth. 2001).
This Court has explained:
An employee who experiences an injury based on the aggravation of a pre-existing condition is entitled to benefits if she shows that the aggravation arose in the course of employment, the aggravation was related to the employment, and
disability resulted. To show that an injury was related to employment, the employee must establish a causal connection between work and the injury. When the connection between the injury or the aggravation and work is not obvious, unequivocal medical testimony is necessary. Moreover, where a claimant had an underlying condition that is not work related, she must show continuing existing disability in order to receive benefits. Therefore, if restrictions are placed on a claimant that are causally related to the work-related aggravation, the claimant is entitled to benefits.
Chik-Fil-A, 792 A.2d at 688-89 (internal citations omitted).Becht I, slip op. at 5-6. Additionally, as this Court has previously noted:
[t]he WCJ is the fact finder, and it is solely for the WCJ . . . to assess credibility and to resolve conflicts in the evidence. Neither the Board nor this Court may reweigh the evidence or the WCJ's credibility determinations. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. . . . As such, the WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted.Hawbaker v. Workers' Comp. Appeal Bd. (Kriner's Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth.), appeal denied, 173 A.3d 252 (Pa. 2017) (internal citations, quotations, and brackets omitted).
To the extent Claimant argues that the Board erred in affirming the WCJ because the WCJ erred by capriciously disregarding or misinterpreting her testimony and the testimony of Dr. Babins, we disagree. See Claimant's Br. at 11-17. Pursuant to this Court's direction, on remand the WCJ examined the evidence of record to determine whether Claimant proved that the March 18, 2015 incident constituted a new injury or an aggravation of an underlying condition for the purpose of receiving WC benefits. See 2019 WCJ Decision at 3, F.F. 4. In so doing, the WCJ noted Claimant's testimony regarding the March 18, 2015 incident, her medical treatment, and her claim that "she is in pain and cannot bend, twist or lift, and therefore is unable to return to work." Id. at 3, F.F. 5. The WCJ also noted Claimant's testimony that she had been receiving epidural injections for back pain from Dr. Babins since the original injury, with the most recent injection occurring 13 days before the March 18, 2015 incident. See id.
The WCJ also reviewed Dr. Babins' testimony. See 2019 WCJ Decision at 3-4, F.F. 6. The WCJ noted that Dr. Babins testified as to Claimant's course of treatment following the original May 2010 work-related injury, including Claimant's spinal fusion, continuing medications, and ongoing epidural injections, including the injection 13 days prior to the March 18, 2015 incident. See id. The WCJ also noted that Dr. Babins testified regarding Claimant's treatment following the March 18, 2015 incident, including the MRI showing stenosis at the L3-L4 level adjacent to the prior fusion, which Dr. Babins related to the previous surgery. See id. at 4, F.F. 6. The WCJ noted Dr. Babins' opinion that Claimant's current limitations resulted from a combination of her previous injury/treatment and the March 18, 2015 incident. See id. The WCJ observed that Dr. Babins testified that Claimant had suffered from at least "a transient increase in the manifestation of her symptoms following the work-related event [of March 18, 2015]." Id. at 4, F.F. 6. The WCJ noted, however, that Dr. Babins conceded that his opinion was "[s]olely based on [Claimant's] subjective complaints." Id.
The WCJ also reviewed the surveillance video offered into evidence by Employer covering the period of April 25, 2015, through July 20, 2015. See 2019 WCJ Decision at 4-5, F.F. 7. The WCJ noted that the video showed Claimant performing a number of actions, including driving a car, visiting a number of businesses, getting out of a car and carrying bags and dry cleaning into her vehicle and from the vehicle to her house, walking down her driveway to retrieve mail, going to church, and picking up a small tree that had fallen. See id.
After reviewing the evidence of record, the WCJ found as follows:
Based on all the evidence, including Claimant's testimony, Dr. Babins['] opinions and the surveillance evidence, this Judge finds that the Claimant did not sustain a compensable work injury. This Judge finds that the March 18, 2015 incident at work is not an aggravation of the Claimant's underlying lumbar condition. The Claimant had a low back injury on May 4, 2010[, ] and had surgery. She was found to be fully recovered from that injury as of December 18, 2013. She continued to actively treat for her low back and, in fact, received an injection just two weeks before the March 18, 2015 event. Dr. Babins described the March 18, 2015 incident as "a transient increase in the manifestation of her symptoms" but offered no concrete testimony comparing her condition before and after the March 18, 2015 event or explaining this testimony. When specifically asked on re-direct[] whether there was a change in her condition between the March 5, 2015 injection and the March 18, 2015 incident, he acknowledged that he did not do a detailed physical exam at the time of the injection but stated if she had been seen two weeks before a new event he'd have a tough time indicating the later event was the only and sole cause of the exacerbation or aggravation of symptoms. He then went on to opine that based on her subjective complaints, the March 8, 2015 incident aggravated her previous condition. However, his opinion based on the Claimant's
subjective complaints is rejected. The surveillance shows the Claimant to be an active woman who can get about town on a regular and frequent basis driving a vehicle and visiting various establishments. The Claimant's testimony that she is in pain and is unable to bend, twist or lift is not consistent with the activities seen on the surveillance DVD from April 25, 2015[, ] through June 20, 2015[, ] and this Judge does not find her credible. As Dr. Babins['] opinion that the March 18, 2015 incident was an aggravation of her underlying pre-existing condition is based on the Claimant's subjective complaints, which were not found to be credible by this Judge, this Judge rejects as not credible the opinions of Dr. Babins.2019 WCJ Decision at 5, F.F. 8.
The Board reviewed the 2019 WCJ Decision and found no error. See 2020Board Opinion at 7. The Board reviewed the evidence of record and, after noting that the WCJ was free to accept or reject, in whole or in part, the testimony presented, found that substantial evidence supports the WCJ's determinations and conclusions. See id. at 8-9. The Board disagreed with Claimant's argument that the WCJ erroneously rejected Claimant's testimony or capriciously disregarded Claimant's functional capacity evaluation (FCE). See id. at 7-9. The Board found instead that substantial evidence supports the WCJ's summary of Claimant's testimony, noting that the WCJ fairly approximated Claimant's testimony regarding her physical capabilities by finding that Claimant testified that she could not bend, twist, or lift. See id. at 8-9. The Board further found that the WCJ's ruling was not inconsistent with the results of the FCE because the WCJ did not find that Claimant had no physical limitations, but instead that Claimant had not proven her alleged physical limitations were caused by the March 18, 2015 incident. See id. at 9. Additionally, the Board found that the WCJ did not err in performing her duty as fact finder by crediting the video surveillance evidence over Claimant's testimony to the contrary regarding her physical limitations. See id. Finally, the Board rejected Claimant's claim that the WCJ erred by rejecting Dr. Babins' testimony because it was based solely on Claimant's subjective complaints that the WCJ found not to be credible. See id. at 10-11. The Board noted that "Dr. Babins[] confirmed that his opinion was reliant on Claimant's subjective symptoms and history of the incident[] in believing that Claimant sustained a disabling aggravation in March of 2015." Id. at 11. Ultimately, the Board concluded that it could not overturn the WCJ's credibility determinations regarding the testimony of either Claimant or Dr. Babins because, being supported by record evidence, neither were arbitrary or capricious. See id. at 9-11.
Claimant testified that she "can't continue to turn, twist, reach up, reach down, you know, move product out, move product in, just basically, you know, physically, I can't do it." 2020 Board Opinion at 9.
We find no error in the Board's affirmance of the 2019 WCJ Decision. The WCJ, of course, was the arbiter of evidence credibility and weight in this matter. See Hawbaker, 159 A.3d at 69. As was her prerogative, the WCJ credited the surveillance video evidence over Claimant's contrary evidence regarding her physical capabilities. See 2019 WCJ Decision at 5, F.F. 8. The WCJ therefore rejected Dr. Babins' conclusion that Claimant's limitations were caused by an aggravation of her previous injury because that conclusion was based, by Dr. Babins' admission, on Claimant's subjective complaints, which complaints the WCJ found lacked credibility. See id. As the Board noted, the WCJ explained her credibility determinations and the resulting rejection of various evidence based thereon, and the evidence supports those determinations. See 2020 Board Opinion at 10-11.
We note that Claimant cites Hartzell v. Workers' Compensation Appeal Board (Bowen McLaughlin, York Div.), 515 A.2d 1009 (Pa. Cmwlth. 1986), for the proposition that surveillance evidence alone cannot support a finding of decreased disability. See Claimant's Brief at 14-15. However, Hartzell is inapposite because the use of the surveillance video therein to support a requested reduction in WC benefits - where the burden of proof rests with the employer - differs from the use of surveillance video in the instant matter to impeach the credibility of a claimant attempting to prove an entitlement to WC benefits in the first instance. See Hartzell, 515 A.2d at 1010-12. Further, additional evidence beyond the surveillance video existed in the instant matter, such as the testimony of Claimant's medical expert that "if she had been seen two weeks before a new event he'd have a tough time indicating the later event was the only and sole cause of the exacerbation or aggravation of symptoms." 2019 WCJ Decision at 5, F.F. 8. Thus, the surveillance video was not the only evidence used to deny the claim petition, making Hartzell further distinguishable.
As a result of the WCJ's credibility determinations, which we must accept, as did the Board, we find that substantial record evidence supports the WCJ's findings of fact. Specifically, the surveillance video supports the WCJ's finding that Claimant was not credible in her testimony regarding her physical limitations and, as a result, failed to establish that she sustained either a compensable injury or an aggravation of a preexisting condition as a result of the March 18, 2015 incident. See 2019 WCJ Decision at 5, F.F. 8. Further, we find no error in the WCJ's rejection of Dr. Babins' testimony, even though uncontradicted, regarding the causation of Claimant's alleged limitations where that testimony was based on Claimant's subjective complaints that the WCJ found not to be credible. Therefore, we find no error in the WCJ's denial of the Claim Petition based on her conclusion that Claimant failed to establish that she sustained either a compensable injury or an aggravation of a preexisting condition as a result of the March 18, 2015 incident. Likewise, we find no error in the Board's affirmance of the 2019 WCJ Decision.
See 2020 Board Opinion at 10-11.
Further, to the extent Claimant argues that the WCJ erred by refusing to take additional evidence on remand, we disagree. See Claimant's Br. at 17-20. Pennsylvania Rule of Appellate Procedure 2591 covers proceedings on remand and requires a remand court to "proceed in accordance with the judgment or other order of the appellate court[.]" Pa.R.A.P. 2591. Remand does not necessarily require the admission of new evidence in the absence of such direction from an appellate court. As our Supreme Court has explained:
[E]very remand order directing that further proceedings be conducted must necessarily be examined in conjunction with the opinion of the appellate tribunal and the particular facts, circumstances, and procedural history of the case in order to determine what the lower court or tribunal is required to do upon return of the case to it. It must be emphasized that, when a case is returned to a lower court or administrative agency with such a directive, those tribunals have usually already conducted some fact-finding or legal analysis in the case and, accordingly, this acquired familiarity with the already developed record allows the court or administrative agency considerable discretion to choose the specific type of proceedings it will conduct in order to fulfill the purposes for which the appellate court has ordered remand.SugarHouse HSP Gaming, L.P. v. Pa. Gaming Control Bd., 162 A.3d 353, 371 (Pa. 2017) (remand did not require a new hearing or the presentation of additional evidence where the Gaming Control Board had previously developed an evidentiary record and was able to prepare a supplemental adjudication based on that evidentiary record that explained the reasons supporting its determination regarding whether an award violated the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101-1904).
Here, this Court remanded the matter to the WCJ for further findings to determine whether the March 18, 2015 incident represented a new, compensable injury, or whether that incident contributed to Claimant's disability, for the purpose of determining the merits of the Claim Petition. See Becht I, slip op. at 14-15. The Court did not expressly order the record be reopened, merely that the WCJ explain the role of the March 18, 2015 incident in relation to Claimant's disability and the determination of the Claim Petition. See id. The WCJ retained discretion as to the proceedings necessary to accomplish this goal. SugarHouse, 162 A.3d at 371.
We find that the WCJ properly denied Claimant's request to enter new evidence into the record of this matter on remand. In denying Claimant's request to depose Dr. Werries, the WCJ explained: "The remand order from the Commonwealth Court did not include instructions to open the record for additional evidence. A remanded decision will be issued based on the evidence of record at the time of the original litigation. No new evidence will be accepted." WCJ Order dated Sept. 13, 2018. Ultimately, the WCJ was able to determine and explain her decision regarding the Claim Petition based on the previously-created evidentiary record, with which the WCJ was familiar. We find no error in the WCJ's decision not to admit additional evidence on remand.
For the reasons stated above, the Board's order is affirmed.
ORDER
AND NOW, this 27th day of August, 2021, the April 17, 2020 order of the Workers' Compensation Appeal Board is AFFIRMED.