Opinion
No. 1327 C.D. 2014 No. 1328 C.D. 2014
04-23-2015
Brechbill & Helman Construction Co., Inc., Petitioner v. Workers' Compensation Appeal Board (Humwood), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Brechbill & Helman Construction Co., Inc. (Employer) petitions for review of two consolidated orders of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ). The WCJ's decision granted a claim petition, reinstatement petition, and petition to review medical treatment brought by Charles Humwood, Jr. (Claimant) and awarded Claimant temporary total disability benefits as well as benefits for the specific loss of Claimant's right leg. We now affirm.
On January 19, 2007, Claimant suffered a work-related right knee injury when he stepped in a hole on a construction site. (Reproduced Record (R.R.) at 1a, 452a.) Claimant sought treatment for his injury, and an MRI was performed. Claimant was eventually referred to Shabbar Hussain, M.D., who diagnosed him with a torn medial meniscus. (Id. at 58a.) Dr. Hussain performed an arthroscopy on Claimant's right knee on March 9, 2007. (Id.) During the operation, Dr. Hussain noted "grade 2 to grade 3" degenerative changes in Claimant's knee and indicated that there was an area in Claimant's knee with barely any cartilage remaining. (Id.)
On March 26, 2007, Employer issued Claimant a notice of compensation payable, which described Claimant's injury type as a "torn medial meniscus." (Id. at 44a.) Claimant received total disability benefits in the amount of $389.50 until Employer suspended benefits on August 8, 2007, pursuant to a supplemental agreement. (Id. at 48a-49a.) Employer reinstated Claimant's benefits on December 28, 2007. Ultimately, Claimant's benefits were suspended again when he returned to light duty work on June 16, 2008. (Id. at 52a-55a.)
Claimant continued to seek treatment for his knee injury and eventually came under the care of Albert Tom, M.D. Dr. Tom performed an osteotomy on Claimant's knee on November 29, 2007. Claimant continued to experience pain in the knee after surgery and later opted to undergo a right knee replacement. (Id. at 148a-50a.) Dr. Tom performed the surgery on October 17, 2011, during which Claimant's popliteal artery and vein were lacerated. (Id. at 68a, 73a.) Despite the care of vascular surgeons, Claimant developed a fungal infection and muscle necrosis, and his right leg was amputated above the knee. (Id. at 75a-76a, 77a-80a, 82a-83a.) After the amputation, Claimant received anticoagulants and developed a subdural hematoma. (Id. at 86a.) Philip Villanueva, M.D., performed a craniotomy on November 24, 2011, but the subdural hematoma recurred after surgery and another craniotomy had to be performed the same day. (Id. at 84a-85a, 86a-87a.)
Claimant filed a reinstatement petition and a petition to review medical treatment on November 23, 2011, alleging that his injury was described incorrectly. (R.R. at 1a.) Claimant filed a claim petition and a penalty petition on January 11, 2012, seeking compensation for his right knee injury, right leg amputation, head disfigurement, and his injuries related to the recurring subdural hematoma. (Id. at 7a-8a.) Claimant filed an additional claim petition, alleging that Claimant was laid off on May 14, 2009, and that Employer was aware of Claimant's ongoing knee pain at that time. (Id. at 18a.) Employer filed answers denying all of Claimant's petitions. Claimant's various petitions were consolidated and assigned to a WCJ, who conducted several hearings.
Before the WCJ, Claimant testified that after stepping in a hole, he heard a pop in his right knee and felt the knee twist to the right. (Id. at 453a-54a.) He fell to the right and began to feel pain on the inside of his right knee. (Id. at 454a.) He testified that after his work injury and subsequent knee surgeries, he continued to experience pain in his right knee. (Id. at 460a.) He remained on light duty work until he was laid off in May 2009. (Id. at 459a-60a.) Claimant continued to treat with Dr. Tom through the knee replacement surgery on October 17, 2011. (Id. at 463a.) After the amputation, Claimant began rehabilitation and received a prosthetic leg. (Id. at 474a-75a.) Claimant testified that he now experiences pain in his right arm and has difficulty using his right hand. (Id. at 476a-78a.) Similar difficulties with his left hand have since improved. (Id. at 479a.) He also experiences phantom pain. (Id. at 480a-81a.) Claimant further testified that he now has "cognitive issues," such as difficulty with concentration and memory. (Id. at 481a.)
Claimant presented the deposition testimony of Dr. Tom. Dr. Tom testified that he reviewed the MRI obtained prior to Claimant's surgery on March 9, 2007, and that he observed the meniscus tear in Claimant's knee, but not arthritis. (Id. at 146a.) Dr. Tom testified that he first saw Claimant on September 26, 2007, and noted that Claimant exhibited signs of arthritis. (Id. at 147a.) He discussed treatment options with Claimant, and he subsequently performed an osteotomy. (Id. at 148a.) He put Claimant on light duty work restrictions after the surgery, but Claimant continued to experience knee pain and difficulty at work. (Id. at 149a.) He continued to treat Claimant and ultimately performed a total knee replacement. (Id.) Dr. Tom opined that Claimant's January 19, 2007 work injury caused the need for the total knee replacement. (Id. at 152a.) He characterized Claimant's arthritis as post-traumatic rather than pre-existing:
What the meniscus is is an important shock absorber in the knee, and the role of the meniscus is to cushion the forces on the knee, much like the bottom of the sneaker does when you walk on a hard surface.(Id.) Dr. Tom also acknowledged that Claimant's family doctor treated Claimant for knee pain prior to his work injury. (Id. at 154a.) Dr. Tom further acknowledged Dr. Hussain's note concerning grade 2 to grade 3 degenerative changes in Claimant's knee, but he noted that Dr. Hussain did not identify which classification system he had used. (Id.)
With [Claimant] being as large as he is, having a tear of that meniscus and having that removed, much like, for example, taking a gouge or a chunk off a rubber tire on an 18-wheeler, being a large individual. So, by damaging his shock absorber, we know that does lead to what is called a term post-meniscectomy or post-traumatic arthritis, and that is something well-established in orthopedic literature.
Claimant also presented the deposition testimony and medical report of Robert Beatty, M.D., a neurosurgeon. Dr. Beatty testified that he reviewed Claimant's medical records, including Dr. Hussain's operative report. (Id. at 184a.) He explained that Claimant's left popliteal artery and vein were lacerated during his knee replacement surgery and that they were repaired by "sewing up the two ends of the torn vessels." (Id. at 186a.) This solution was insufficient, and femoral tibial bypass, essentially an artery graft, was performed. (Id.) To prevent the graft from clotting, Claimant was given anticoagulants. (Id. at 187a.) Claimant later developed two subdural hematomas, which Dr. Beatty opined were the result of the anticoagulants. (Id. at 191a, 228a.) In his medical report, Dr. Beatty further explained how Claimant's inability to use his right arm was connected to the work injury:
Connecting this with the previous history of the work injury, it is clear that he never would have had anticoagulation if he had not had the vascular complication from his knee surgery, which in turn he would not have had if he had not had the work injury. . . . The right hemiparesis, chiefly involving the right arm, is a result of the use of anticoagulants and is a separate body part injury, as a result ultimately of the work injury of 1/19/07.(Id. at 228a.) Like Dr. Tom, Dr. Beatty acknowledged that Claimant had complained of knee pain prior to his work injury, but Dr. Beatty explained that Claimant could still work without restrictions and had equal pain in both knees prior to his work injury. (Id.)
Employer presented the deposition testimony and medical report of Brian Sennett, M.D. Dr. Sennett, an orthopedic surgeon, testified that Claimant first complained of problems with his right knee on October 9, 2006. (Id. at 282a.) He found it significant that Claimant had been in enough pain to be prescribed narcotic medication at that time. (Id. at 284a.) Dr. Sennett discussed Dr. Hussain's operative report and explained that grade 2 to 3 changes, such as those discovered in Claimant's knee by Dr. Hussain, occur over a long period of time. (Id. at 291a.) He opined that Claimant had osteoarthritis unrelated to his injury on January 19, 2007. (Id. at 307a.) He concluded that Claimant's work injury did result in a torn meniscus, but that it did not lead to Claimant's knee replacement and subsequent amputation. (Id. at 313a.) Dr. Sennett further opined that Claimant fully recovered from the meniscus tear he developed on January 19, 2007. (Id. at 313a-14a.) His medical report also reflected his view that Claimant's knee replacement surgery was the result of pre-existing arthritis, not a work injury. (Id. at 383a.)
Sherry DiPrima, a medical case manager assigned to Claimant's case, also testified on behalf of Employer by deposition. She testified that Dr. Tom "related [Claimant's knee replacement] to the arthritic process," and not to Claimant's work injury. (R.R. at 242a.) Two of Employer's employees, Charles Pugh and Edward Shaw, also testified on behalf of Employer. Mr. Pugh testified that he worked with Claimant both before and after Claimant was injured. (Id. at 531a-32a.) He was not aware of any restrictions on Claimant's ability to work prior to Claimant's injury, but he knew that Claimant was on light duty after his injury. (Id. at 532a.) Mr. Shaw testified that prior to Claimant's work injury, Claimant had no work restrictions apart from being unable to work in a small space due to his size. (Id. at 541a.) He further testified that after Claimant's injury, Claimant was on light duty and limped. (Id. at 542a.)
The WCJ granted Claimant's petition to review medical treatment, review petition, claim petition, and reinstatement petition, but denied Claimant's penalty petition. (WCJ Decision at 33.) The WCJ ordered Employer to pay 410 weeks of specific loss benefits, in addition to a 25 week healing period, for the loss of use of Claimant's right leg; 104 weeks of benefits for the disfigurement of Claimant's head; and temporary total disability benefits in the amount of $389.50 per week as of May 14, 2009. (Id. at 34.) The WCJ did not provide a payment schedule for the payment of specific loss or disfigurement benefits. In granting Claimant's petitions, the WCJ found Claimant's testimony to be credible. (Id. at 30.) He further found Dr. Tom and Dr. Beatty's testimony credible. (Id. at 30-31.) The WCJ explained that he did not find Dr. Sennett's testimony credible to the extent it contradicted that of Claimant, Dr. Tom, and Dr. Beatty. (Id. at 32.)
Employer appealed to the Board, arguing that Dr. Tom and Dr. Beatty's medical opinions were incompetent and that Claimant was not entitled to simultaneous payment of specific loss and total disability benefits. The Board affirmed the WCJ's order. In so doing, the Board rejected Employer's argument concerning the competency of Dr. Tom and Dr. Beatty's medical opinions as an attack on the WCJ's credibility determinations. The Board further concluded that Claimant was entitled to both disability benefits and specific loss benefits because Claimant was disabled from an injury separate and apart from his specific loss. Employer petitioned this Court for review.
On appeal, Employer presents two issues. Employer argues that Dr. Tom and Dr. Beatty's medical opinions were incompetent because they are not based on established medical facts. Next, Employer argues that Claimant is not entitled to simultaneous payment of both specific loss and total disability benefits.
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.
We first address Employer's argument that Dr. Tom and Dr. Beatty's medical opinions are incompetent. As discussed above, Dr. Hussain's note indicated that he observed arthritic changes in Claimant's right knee during surgery. Additionally, Claimant was treated for knee pain prior to his January 19, 2007, work injury. Employer argues that the degenerative changes, which were present prior to January 19, 2007, were the actual reason for Claimant's injury and subsequent knee replacement surgery. Employer contends that Drs. Tom and Beatty disregarded this evidence in forming their medical opinions. Thus, the doctors' causation opinions are not based on established medical facts and should be deemed incompetent.
As noted above, the Board characterized Employer's argument concerning competency as an attack upon the WCJ's credibility determinations. (Bd. Op. at 11.) To the extent that Employer is attacking the WCJ's credibility determinations, we note "that the WCJ has the exclusive authority to make findings of fact and credibility determinations." Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). We will not reevaluate the WCJ's credibility determinations on appeal.
In support of this argument, Employer cites Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking Corporation), 692 A.2d 1062 (Pa. 1997). In Newcomer, the Pennsylvania Supreme Court held that an expert's medical opinion was incompetent when it was based solely on a false medical history provided by the claimant. Newcomer, 692 A.2d at 1064. The instant matter is readily distinguishable. There is no evidence that Claimant provided a false medical history or that Drs. Tom and Beatty based their medical opinions solely on an inaccurate medical history. EMI Co. v. Workers' Comp. Appeal Bd. (Rathman), 738 A.2d 33, 36 (Pa. Cmwlth. 1999) (finding Newcomer inapplicable to case where there was no evidence that claimant provided doctor with false history.) Thus, Newcomer is inapplicable to the instant matter.
"[T]he question of the competency of the evidence is one of law and fully subject to our review." Cerro Metal Prods. Co. v. Workers' Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004), appeal denied, 868 A.2d 1202 (Pa. 2005). "It 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). "An opinion that is rendered where the medical professional does not have a complete grasp of the medical situation and/or the work incident can render the proffered opinion incompetent." Long v. Workers' Comp. Appeal Bd. (Integrated Health Servs.), 852 A.2d 424, 428 (Pa. Cmwlth. 2004).
The evidence of record establishes that Dr. Tom did not ignore the evidence in Dr. Hussain's operative report or the evidence that Claimant experienced knee pain prior to his work injury; rather, he specifically acknowledged this evidence. During his deposition, Dr. Tom was questioned about Dr. Hussain's operative report and Claimant's history of pain in his knees. Dr. Tom first acknowledged several doctor's notes which indicated that Claimant had knee pain prior to his work injury. (R.R. at 154a.) He also acknowledged Dr. Hussain's notations concerning arthritic changes, but he explained that the MRI performed prior to Claimant's March 9, 2007, arthroscopy did not reveal any arthritis. (Id. at 146a.) He further explained that Dr. Hussain did not identify which classification system he used in grading the degenerative changes in Claimant's knee. (Id. at 154a.) He concluded that Claimant only developed osteoarthritis after Dr. Hussain operated on his torn meniscus. (Id. at 160a.) Dr. Tom's testimony concerning Dr. Hussain's operative report and Claimant's history of knee pain demonstrates that Dr. Tom simply interpreted the medical evidence differently from Dr. Hussain and Dr. Sennett, not that he ignored the evidence. Such a difference of opinion does not render his opinion incompetent. See Jenkins v. Workmens' Comp. Appeal Bd. (Woodville State Hosp.), 677 A.2d 1288, 1293 (Pa. Cmwlth. 1996) ("A difference of opinion and a WCJ's acceptance of one medical opinion over another is not the basis for reversible error."), appeal denied, 725 A.2d 184 (Pa. 1998).
Dr. Beatty similarly acknowledged Dr. Hussain's operative report and Claimant's history of knee pain. In his medical report, Dr. Beatty stated that Claimant "had pre-existing arthritic changes in his knees bilaterally as far back as 2003." (Id. at 228a.) He explained that despite these arthritic changes, Claimant was able to work without restriction and experienced equal amounts of pain in both knees. (Id.) He further opined that it was not until Claimant's work injury that he began to experience extensive pain in his right knee, which ultimately necessitated multiple operations. (Id.) During his deposition, Dr. Beatty testified that he reviewed Claimant's medical records, including Dr. Hussain's operative report. (Id. at 182a-84a.) Ultimately, Dr. Beatty concluded that Claimant's disability was a direct result of his work injury, not pre-existing osteoarthritis. (Id. at 228a.) Again, this reflects a mere difference of opinion which does not render Dr. Beatty's opinion incompetent. Accordingly, we reject Employer's argument that Dr. Tom and Dr. Beatty's medical opinions are incompetent because they are not based on established medical facts.
Finally, we address Employer's argument that Claimant is not entitled to simultaneous payment of both specific loss and total disability benefits. Generally, "an employee who sustains an injury adjudged compensable under Section 306(c) of the Act[, relating to specific loss,] is not entitled to additional compensation beyond that provided under 306(c) even though he may be totally disabled by the injury." BCNR Mining Corp. v. Workers' Comp. Appeal Board (Hileman), 597 A.2d 1268, 1270 (Pa. Cmwlth. 1991), appeal denied, 607 A.2d 256 (Pa. 1992). Section 306(d) of the Workers' Compensation Act (Act) provides:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513.
Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries enumerated in [Section 306(c) of the Act] . . . , the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability which results from the other separate injuries, but in that event the employe shall not receive compensation provided in [Section 306(c) of the Act] . . . for the specific healing period.In Crews v. Workers' Compensation Appeal Board (Ripkin), 767 A.2d 626 (Pa. Cmwlth. 2001), this Court provided:
There are two scenarios in which an injured worker may receive multiple compensation benefit awards for injuries
arising out of a single work incident. In the first instance, a claimant may sustain a single work-related injury resulting in specific loss of a body part, which later causes disability to some other part of the body, and in the second instance, a claimant may sustain multiple, separate and distinct injuries from a single work-related incident.Crews, 767 A.2d at 631. Employer contends that claimants are only entitled to the concurrent payment of specific loss and temporary total disability benefits under the first Crews scenario. Employer further argues that the instant matter falls under the second Crews scenario, and, thus, Claimant is not entitled to the concurrent payment of both forms of benefits. Rather, in accordance with Section 306(d) of the Act, Employer need not pay specific loss benefits until Claimant's temporary total disability benefits end.
We note that Section 306(d) of the Act expressly prohibits a claimant from receiving compensation for a specific healing period when that claimant is receiving specific loss and temporary total disability benefits. See also Turner v. Jones & Laughlin Steel Corp., 389 A.2d 42, 47 (Pa. 1978) ("Section 306(d) eliminates compensation for a healing period when temporary total disability payments have preceded the specific loss benefits. . . ."). Here, Claimant was awarded compensation for a 25 week healing period for the loss of his right leg in addition to specific loss and temporary total disability benefits. Employer, however, does not challenge the award of compensation for both specific loss and a healing period. --------
It is unnecessary to determine which Crews scenario is applicable to Claimant's injuries. This Court has recently concluded:
While a claimant may be entitled to receive both specific loss and disability benefits . . . , Section 306(d) of the Act explicitly prohibits these benefits from being paid concurrently but instead provides that the total or partial disability period runs first and the specific loss benefits do not begin to be paid until after the disability payments end.Arnold v. Workers' Comp. Appeal Bd. (Lacour Painting, Inc.), ___ A.3d ___, ___ (Pa. Cmwlth., No. 565 C.D. 2014, filed Jan. 28, 2015), slip op. at 20. In so concluding, this Court specifically referenced a class of cases that fall under the first scenario in Crews. Id. Crews simply identifies the scenarios in which a claimant may receive both specific loss and total disability benefits, not the scenarios in which a claimant is entitled to simultaneous payment of both forms of benefits.
Here, however, the WCJ has not ordered Employer to pay specific loss and temporary total disability benefits concurrently; rather, the WCJ merely concluded that Claimant is entitled to both. Further, there is no evidence that Employer has actually paid both forms of benefits concurrently. Employer need only act in accordance with Section 306(d) of the Act and initiate specific loss benefits after Claimant's temporary total disability benefits have ended. Thus, we reject Employer's argument.
Accordingly, we affirm the Board's orders.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 23rd day of April, 2015, the two consolidated orders of the Workers' Compensation Appeal Board (Board), docketed by the Board at A13-0627 and A13-0628, are hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge