Opinion
No. 67 C.D. 2014
12-18-2014
Building Management Co., Inc., Petitioner v. Workers' Compensation Appeal Board (Graham), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Building Management Co., Inc. (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ) granting a claim petition brought by Pearl Graham (Claimant). We now vacate and remand.
One June 1, 2007, Claimant filed a claim petition, alleging that on March 9, 2006, she fell and injured her left knee during the course of her employment as a housekeeper at Chestnut Hill Towers, a Philadelphia apartment building managed by Employer. (Reproduced Record (R.R.) at 2-2a.) Claimant later amended the claim petition to seek full disability benefits from April 30, 2006 forward. (Id. at 11-12.) Employer filed an answer to the claim petition, denying all of the material allegations. (Id. at 1, 3-4.)
During a hearing before the WCJ, Claimant testified that on March 9, 2006, she slipped and fell on her left knee while cleaning a kitchen door in one of the apartments. (Id. at 16.) Claimant stated that she informed her supervisor, David Brown (Brown), that she had fallen. (Id. at 17.) Brown later called the paramedics when Claimant's knee began to swell, and Claimant was admitted to the Chestnut Hill Hospital Emergency Room. (Id.) Claimant was discharged with a leg brace later in the evening, and she was able to return to work the following day. (Id. at 18.) Claimant did not see a physician and continued working for Employer until Employer terminated her employment on April 30, 2006. (Id. at 20.) Claimant testified that Brown informed her that her employment was terminated because she had "threatened people." (Id. at 21.)
Claimant also submitted the deposition testimony of Michael McCoy, M.D., who testified that Claimant first visited him on March 14, 2007, complaining of pain in her left knee, and that he started Claimant on physical therapy treatments. (Id. at 83, 86.) Following an MRI, Dr. McCoy diagnosed Claimant with chondromalacia patella with a softening of the left kneecap and an acute tear in the medial meniscus of the left knee as a result of "bang[ing] the knee, or from being on the knee." (Id. at 89, 95.) He further opined that Claimant's injury occurred over time as a result of being on her hands and knees at work. He testified:
A. She came to me saying that she had worked as a housekeeper at Chestnut Hill Towers Apartment Complex, and that she had cleaned about nine to ten apartments and the lobby, as well as managers' offices. She was cleaning the floors on her hands and knees when she started to develop left knee pain.
. . .
Q. Following that physical exam [in 2007], Doctor, what was your assessment of this patient?
A. It was my assessment that she remains symptomatic as a result of her work injury that occurred on or about March 4, 2005; that she had ongoing left knee pain.(Id. 83-84, 86, 93, 98, 108 (emphasis added).)
. . .
Q. Doctor, within a reasonable degree of medical certainty, what do you attribute to be the cause of Miss Graham's knee injury?
A. Her work-related accident causing her to get down on the floor.
. . .
Q. When she described the injury to you, it was an injury that occurred over time because she was cleaning floors on her hands and knees, is that correct?
A. Yes.
. . .
Q. What she told you was that she hurt herself back in March of 2005 and worked full-duty all the way through May 1, 2006, is that correct?
A. Yes.
. . .
Q. Doctor, what Miss Graham told you was that, on March 4, 2005, due to this constant being on her hands and knees, she was having left leg pain, correct?
A. She said on or about that date. Yes.
Employer submitted to the WCJ the deposition testimony of its expert, John Duda, M.D., who testified that he had evaluated Claimant and determined that Claimant may have suffered a contusion or sprain and strain of her left knee but that she had fully recovered by the date of the examination and any lingering issues were a result of arthritis. (Id. at 114-121.) Employer also submitted the deposition testimony of five of its employees at Chestnut Hill Towers, who testified that Claimant had not mentioned that she had fallen or was experiencing pain on the date of her alleged work injury and that Claimant's employment was terminated on or about May 1, 2006, because she had used abusive language towards co-workers and tenants.
Francis S. Clapsaddle, who became the General Manager at Chestnut Hill Towers after the events at issue, testified that Claimant had been warned three times in the weeks before her termination for poor attendance, excessive tardiness, abusive language, and sleeping on the job, and Employer ultimately terminated her employment for these progressive disciplinary issues. (R.R. at 63-65.) The other four employees, who had worked directly with Claimant, testified that Claimant did not tell them that she had been injured on the day of her alleged work injury and that Claimant had repeatedly used abusive language while at work, including in front of tenants. (Id. at 46, 50-51, 54-55, 59-60.) Brown, the supervisor to whom Claimant reported her fall, did not testify in these proceedings, because Employer had terminated his employment for poor performance. (Id. at 65.) Claimant denied that she used abusive language to co-workers and tenants. (Id. at 20-22, 34.)
On April 1, 2009, the WCJ issued a decision and order in which she concluded that Claimant suffered a work injury on March 9, 2006, and that she was fully disabled from April 30, 2006 onward. (WCJ Decision and Order, dated May 24, 2011, at 5.) In support of this conclusion, the WCJ made the following relevant findings of fact:
4. On March 9, 2006, Claimant fell on her left knee at work. She reported the accident to her supervisor, David Brown, who called paramedics. Claimant was taken to the emergency room at Chestnut Hill Hospital where her left knee was examined and x-rayed. Claimant was also given a brace at the hospital.
. . .
8. Claimant is still under the care of Dr. McCoy. Her knee is still painful and she feels like she is going to fall. Claimant denied prior injury to her left knee.
. . .
22. Dr. McCoy saw Claimant on March 14, 2007 when she presented with a history. Dr. McCoy learned about the mechanism of Claimant's left knee injury while she was working as a housekeeper, her treatment at Chestnut Hill Hospital where she was treated and given a brace and her major complaint of knee pain. Dr. McCoy examined Claimant's knee and found focal tenderness over the medial aspect of the knee, tenderness over the patellar tendon insertion, crepitus on flexion and extension and a positive McMurray's test, which determines a posterior horn meniscal tear. Dr. McCoy concluded that Claimant remained symptomatic as a result of her work injury. Dr. McCoy started Claimant on physical therapy and continued to see her. Claimant's complaints of left knee pain were consistent. Her left knee felt weak and like it was going to give out. Claimant had difficulty going up and down stairs and noticed that her knee popped and clicked. Dr. McCoy referred Claimant out for an MRI, which was done on September 20, 2007. The MRI revealed chondromalacia patella and a tear of the posterior medial meniscus. Dr. McCoy sent Claimant for an orthopedic evaluation to Dr. Todd Kelman to determine whether Claimant needed surgical intervention or an injection. Dr. Kelman's recommendations included arthroscopic evaluation and debridement.(Id. at 1, 3.) Where the testimony of Dr. McCoy conflicted with that of Dr. Duda, the WCJ rejected Dr. Duda's testimony, finding Dr. McCoy's testimony more credible and persuasive. (Id. at 4.)
. . .
24. Dr. McCoy attributed Claimant's knee injury to her work-related accident and diagnosed her with post-traumatic chondromalacia and a medial meniscal tear of the right knee. Dr. McCoy characterized Claimant's condition without surgery as guarded. Dr. McCoy opined that Claimant was and is disabled from her pre-injury job and that the tear in her knee, which is acute, could get worse without surgery.
Employer appealed, and the Board affirmed the WCJ's grant of the claim petition, but it reversed and remanded the matter on the issue of reimbursement of costs, because Claimant had not submitted a bill of costs. (Bd. Opinion, dated December 30, 2010, at 3-12.) In so doing, the Board rejected Employer's argument that the WCJ erred in accepting Dr. McCoy's testimony, finding that "Dr. McCoy's testimony, wherein he diagnosed Claimant with chondromalacia patella and a tear of the posterior medial meniscus and he opined that the injury was caused by Claimant's fall at work, was sufficiently clear and unequivocal." (Id. at 9.) On May 24, 2011, the WCJ issued a decision and order awarding Claimant's litigation costs in the amount stipulated by the parties and otherwise reissuing the prior decision and order verbatim. Following an appeal by Employer, the Board issued an order on December 30, 2013, affirming the WCJ's May 24, 2011 decision and order and reaffirming the WCJ's April 1, 2009 decision and order. (Bd. Opinion, dated December 30, 2013.) Employer then petitioned this Court for review.
On appeal, Employer challenges the competency of the testimony of Dr. McCoy, arguing that the WCJ erred in accepting Dr. McCoy's testimony as the basis for her decision that Claimant suffered a work injury on March 9, 2006 and was totally disabled from her job as of April 30, 2006. Employer contends that the finding that Claimant suffered a work injury on March 9, 2006, was contradicted by the fact that Dr. McCoy testified with regard to an incident on March 4, 2005, not March 9, 2006, and Dr. McCoy's statements that Claimant told him that her knee pain was a result of her being on her hands and knees rather than the result of a fall. Employer also notes that Dr. McCoy's bills indicated that Claimant's condition was not work-related. Employer further argues that Dr. McCoy did not provide unequivocal medical testimony to substantiate a compensable disability as of April 30, 2006, where Claimant continued working until her discharge on or about May 1, 2006, and Dr. McCoy did not examine Claimant until March 14, 2007, over a year after Claimant's putative work injury.
Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Employer also argues that the Board erred in placing the burden of proving a justifiable reason for Claimant's loss of earning power on Employer. This argument has no merit. Employer has cited nothing in the record to support this argument, and both the Board and WCJ clearly indicated that Claimant bore the burden of proving that she was injured in the course of employment and a disability that resulted from that injury. The Board did explain that Employer bore the burden of proof to demonstrate that suitable work would have been available to Claimant but for her discharge in circumstances demonstrating her lack of good faith. This standard, however, is consistent with the well-established case law. See, e.g., BJ's Wholesale Club v. Workers' Comp. Appeal Bd. (Pearson), 43 A.3d 559, 563 (Pa. Cmwlth. 2012).
At the outset, we note that it is well-settled that with respect to a claim petition, the claimant bears the burden of proving all elements necessary for an award. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993). Pursuant to Section 301(c)(1) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1), an employee's injuries are compensable if they "(1) arise[] in the course of employment and (2) [are] causally related thereto." ICT Group v. Workers' Comp. Appeal Bd. (Churchray-Woytunick), 995 A.2d 927, 930 (Pa. Cmwlth. 2010). Further, an employee must demonstrate that he is disabled as a consequence of the work-related injury. Cromie v. Workmen's Comp. Appeal Bd. (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). Unequivocal medical evidence is required where it is not obvious that an injury is causally related to the work incident. Id.
The question of whether expert medical testimony is unequivocal and, thus, competent evidence to support factual determinations is a question of law subject to our review. Somerset Welding & Steel v. Workmen's Comp. Appeal Bd. (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994), appeal denied, 659 A.2d 990 (Pa. 1995). In such cases, we review the testimony as a whole and may not base our analysis on a few words taken out of context. Id. "Taking a medical expert's testimony as a whole, it 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 College), 794 A.2d 443, 449 (Pa. Cmwlth. 2002). "[M]edical testimony is unequivocal if a medical expert testifies, after providing foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists." O'Neill v. Workers' Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 58 (Pa. Cmwlth. 2011). In other words, the medical witness's testimony must establish more than a mere possibility that the alleged injury arose as a consequence of a work-related cause, but rather demonstrate that, in the medical expert's opinion, to a reasonable degree of medical certainty, a causal connection exists between a claimant's disability and his employment. Sears, Roebuck & Co. v. Workmen's Comp. Appeal Bd., 409 A.2d 486, 488 (Pa. Cmwlth. 1979).
It is not obvious that Claimant's knee injury is causally related to her fall on March 9, 2006, thus unequivocal medical evidence is required to support the WCJ's finding that Claimant was disabled as a result of that fall. Both Claimant and the Board contend that Dr. McCoy's testimony concerning Claimant's knee injury was unequivocal, and thus competent, because Dr. McCoy "attributed the cause of the claimant's injury to her work-related accident." (Respondent's Br. at 18.) A reading of Dr. McCoy's entire testimony, however, reveals that he did not opine that Claimant's injury was the result of her 2006 fall. Instead, Dr. McCoy stated that Claimant's injury occurred in 2005 and stemmed from constantly being on her hands and knees at work. Such testimony is not competent to establish that Claimant's injury arose as a result of her work-related incident in 2006. Despite this, the WCJ concluded that Claimant sustained a work-related injury when she fell in 2006. This conclusion is not supported by substantial, competent evidence.
It is clear from the WCJ's opinion that she believed that Claimant had sustained a work-related injury and that she was entitled to benefits. It is similarly clear that she considered Dr. McCoy's testimony credible. The WCJ's summary of Dr. McCoy's testimony, however, is inaccurate and causes confusion. Although the findings may not be inconsistent on their face, the confusion lies in the fact that while the WCJ found Dr. McCoy's testimony credible, she mischaracterized his testimony in her summary. Dr. McCoy never testified that Claimant's disability was the result of the Claimant's fall in 2006; rather, he testified that Claimant's injury occurred as a result of being on her hands and knees at work. The WCJ found that Claimant sustained her injury as the result of a fall, a finding which is clearly not supported by Dr. McCoy's testimony.
It is impossible to determine which mechanism of injury the WCJ believed that Claimant suffered. Consequently, clarification is required, as we are unable to engage in appellate review without speculation. See Oriole Chem. Carriers, Inc. v. Workers' Comp. Appeal Bd., 720 A.2d 842, 844 (Pa. Cmwlth. 1998). Further, it is appropriate to remand a matter in which a WCJ has mischaracterized witness testimony. See, e.g., Sewell v. Workers' Comp. Appeal Bd. (City of Phila.), 772 A.2d 93, 98 (Pa. Cmwlth.), appeal denied, 790 A.2d 1021 (Pa. 2001) (remanding case in which WCJ mischaracterized testimony of claimant as well as employer's medical expert). Thus, this matter must be remanded so that the WCJ may clarify her findings.
A medical expert need not accept the mechanism of injury proffered by a claimant. See To v. Workers' Comp. Appeal Bd. (Insaco, Inc.), 819 A.2d 1222, 1225 (Pa. Cmwlth. 2003) (finding expert's testimony competent where he testified that he was "unable to see how the work injury could possibly happen," but never testified that claimant did not have work injury). We note, however, that if the WCJ intends to adopt a mechanism of injury that differs from the 2006 fall, Employer must be given an opportunity for a hearing: "Procedural due process has as its essential element notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before an impartial tribunal of competent jurisdiction." Antonucci v. Workmen's Comp. Appeal Bd. (U.S. Steel Corp.), 576 A.2d 401, 405 n.8 (Pa. Cmwlth. 1990), appeal denied, 593 A.2d 423 (Pa. 1991) (citing Soja v. Pa. State Police, 455 A.2d 613 (Pa. 1982)).
Accordingly, because the WCJ has mischaracterized the testimony of Dr. McCoy, we vacate the Board's order and remand this case for the issuance of new findings of fact and, if necessary, conclusions of law consistent with this opinion.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 18th day of December, 2014, the order of the Workers' Compensation Appeal Board (Board), dated December 30, 2013, is hereby VACATED, and this matter is REMANDED to the Board with instruction that the matter be remanded to the Workers' Compensation Judge for the issuance of new findings of fact and conclusions of law consistent with this opinion.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE COLINS
I must respectfully dissent as I believe the well-written opinion of the majority encroaches on the traditional role of a WCJ in making findings of fact, determining the credibility of witnesses and resolving conflicts in the evidence.
The majority asserts that the WCJ's summary of the testimony of Claimant's treating physician, Dr. Michael McCoy, is inaccurate and causes confusion and therefore the case must be remanded for clarification by the WCJ as to the mechanism of Claimant's injury. The majority focuses on the divergence between Dr. McCoy's testimony and Claimant's testimony, both of which were found credible and persuasive by the WCJ, on two points: first, Dr. McCoy's testimony that Claimant's injury resulted from being on her hands and knees and not as the result of a fall and, second, Dr. McCoy's statement that Claimant's work injury occurred on March 4, 2005, rather than March 9, 2006.
In contrast to the majority, I believe that Dr. McCoy's testimony was unequivocal and competent medical testimony that provided substantial evidence to support the WCJ's grant of the Claim Petition. Dr. McCoy provided clear and detailed testimony regarding Claimant's symptoms, his treatment of Claimant with physical therapy and injections, and his diagnosis of Claimant, following an MRI and consultation with an orthopedist, with chrondomalacia patella with a softening of the kneecap and an acute tear of the medial meniscus in the left knee. (McCoy Dep. at 10-20, Reproduced Record (R.R.) at 83-93.) Dr. McCoy unequivocally testified that Claimant had suffered a work-related injury to her left knee and that she was disabled from her pre-injury job. (Id. at 20-21, R.R. at 93-94.) The WCJ found Dr. McCoy's testimony to be more credible and persuasive than that of Employer's expert based on the fact that Dr. McCoy was Claimant's treating physician and that Dr. McCoy's testimony was bolstered by objective MRI results and the opinion of a consulting orthopedist that Claimant needed surgery. (May 24, 2011 WCJ Decision and Order, Finding of Fact ¶29(c).)
In granting the Claim Petition, the WCJ operated well within her authority here as the sole arbiter of issues of witness credibility and evidentiary weight. Lombardo v. Workers' Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). While Dr. McCoy testified that Claimant began suffering pain in her left knee as a result of working on her hands and knees, Dr. McCoy also testified that Claimant "banged her knee" and that the injury was a result of that impact. (McCoy Dep. at 16, R.R. at 89.) Dr. McCoy's testimony attributing Claimant's left knee injury to both a fall and the repetitive stress of being on her hands and knees is consistent with Claimant's own testimony that when she was admitted to the hospital she told an emergency room doctor that she had already been feeling pain in her knee for one month prior to her fall. (Hearing Transcript (H.T.) at 26-27, R.R. at 30-31.) Furthermore, Dr. McCoy's testimony regarding the nature of Claimant's injury closely tracks Claimant's testimony in other respects, specifically Claimant's sudden onset of pain and swelling while at work, her request for a knee pad that was refused, the swelling that ensued and a visit to the emergency room where an x-ray was performed, Claimant's attempt to work through the pain with a brace, her ultimate separation from Employer on May 1, 2006, and her subsequent employment at a grocery store. (Compare McCoy Dep. at 10-11, R.R. at 83-84 with H.T. at 10-23, R.R. at 14-27.)
Further, I do not believe that Dr. McCoy's use of the wrong date for Claimant's injury renders Dr. McCoy's testimony incompetent. Dr. McCoy recognized during his testimony that the date might not be correct when he stated that his opinion would not be affected if Claimant had given the wrong date but a correct history. (McCoy Dep. at 32, R.R. at 105.) There is no indication that Claimant or Dr. McCoy intentionally misrepresented the date but rather as Dr. McCoy explained he took the date from an intake form filled out by Claimant during her first visit. (Id. at 24-25, 32, R.R. at 97-98, 105.) This case is therefore distinguishable from other decisions of this Court holding a medical witness's testimony incompetent where the testimony was based on false and misleading information provided by the claimant.
Cf. Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking Corp.), 692 A.2d 1062, 1064-66 (Pa. 1997) (medical expert's testimony incompetent where based on history presented by claimant that he had been struck in the shoulder during a work-place incident and claimant had repeatedly testified in prior proceedings that he had only been struck in the chest and face and never indicated shoulder issues); Southwest Airlines/Cambridge Integrated Service v. Workers' Compensation Appeal Board (King), 985 A.2d 280, 287 (Pa. Cmwlth. 2009) (medical expert's testimony incompetent where expert did not have access to extensive record of previous head injuries as a result of claimant's inaccurate responses on expert's medical questionnaire); Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick), 792 A.2d 678, 689 (Pa. Cmwlth. 2002) (medical expert's testimony incompetent where claimant did not reveal treatment for eight-year history of neck and back problems prior to the alleged work injury). --------
A remand is unnecessary here as I believe the opinion is clear that the WCJ found that Claimant suffered a work injury after a fall on March 9, 2006. Any further elaboration by the WCJ on the exact cause of Claimant's left knee injury is unnecessary under our case law. As this Court has recognized, a claimant is not required to pinpoint a specific event that resulted in the injury. Gray v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 657 A.2d 77, 80 (Pa. Cmwlth. 1995). Furthermore, an injury may develop over a period of time, so long as the injury arises out of the course of employment. Curran v. Workmen's Compensation Appeal Board (Maxwell Industries), 664 A.2d 667, 670 (Pa. Cmwlth. 1995).
As an appellate court, we must grant the WCJ, as the trier of fact, great deference in resolving conflicts of evidence. Because I believe that Dr. McCoy's testimony provided substantial, competent evidence in support of the WCJ's opinion, I would affirm the order of the Board.
/s/ _________
JAMES GARDNER COLINS, Senior Judge