Opinion
No. 1433 C.D. 2011
07-19-2012
BEFORE: HONORABLE BERNARD McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Janet Clark (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which granted a termination petition filed by Mestek/Anemostat Products (Employer). We now affirm the Board.
WCJ William J. Hall issued a decision on January 26, 2005, in which he granted Claimant's claim petition. WCJ Hall determined that Claimant established that she sustained a work injury on June 16, 2003, to her low back and left hip in the nature of lumbar facet arthropathy of the L3-L4, L4-L5, L5-S1 levels. (Reproduced Record (R.R.) at 9a.) WCJ Hall ordered Employer to pay temporary total disability benefits to Claimant from June 17, 2003, through September 1, 2003, and partial disability benefits from September 2, 2003 onward.
Employer filed an initial petition to terminate, and, on May 25, 2007, WCJ Howard Spizer issued a decision, denying that termination petition, but suspending Claimant's benefits as of April 21, 2006. In that decision, WCJ Spizer found credible the opinions of Claimant's medical expert, Dr. Paul Horchos, M.D., and Employer's medical expert, Dr. John Nolan, to support a finding that Claimant had recovered sufficiently to enable her to return to employment without restriction. (R.R. at 16a-17a.) WCJ Spizer also stated in that decision that "[t]his WCJ is neither convinced nor persuaded, at this time, that [C]laimant's work related injuries have ceased and terminated." The WCJ rejected Dr. Nolan's opinion to the extent that Dr. Nolan opined that Claimant had fully recovered from her work injury. (R.R. at 17a.)
Employer filed a second petition to terminate on or about July 21, 2008, in which Employer asserted that Claimant had completely recovered from her work-related injuries as of June 12, 2008. Employer and Claimant again offered medical deposition testimony of Dr. Nolan and Dr. Horchos, respectively.
Dr. Nolan testified that he most recently examined Claimant in June 2008. He testified that Claimant indicated that she had been asymptomatic since her last examination by Dr. Horchos in 2007, but that she was having discomfort and similar symptoms on her right side. He referenced results from an MRI performed on January 23, 2007, which showed some degenerative disease in the discs and lumbar spine, but no disc herniation or significant arthritis in the facet joints. Dr. Nolan testified that Claimant's examination was normal. While acknowledging that Claimant had an injection treatment for her right side, he testified that he did not believe there was a causal connection between Claimant's work-related injury and the new pain she was experiencing on her right side. Dr. Nolan expressed his opinion that facet joint problems, such as Claimant's, could be unilateral, rather than bi-lateral. Further, he opined that Claimant was fully recovered from her work-related injuries.
Dr. Horchos testified that when he saw Claimant on March 5, 2008, she complained of low back pain, which he described as involving the right lumbar facets at L4-5 and L5-S1. Dr. Horchos opined that Claimant's work-related injury caused this new pain. In expressing this opinion, Dr. Horchos referred to a note of his from 2003 that indicated his belief that the facet joints were injured bilaterally. Dr. Horchos, however, also admitted on cross-examination that when he last examined Claimant in July 2008, her examination was normal with no pain.
The WCJ accepted Dr. Nolan's testimony as credible. (R.R. at 149a.) The WCJ did not find Claimant's testimony credible and described the testimony of Dr. Horchos as not credible or less credible than the testimony of Dr. Nolan. In discussing the credibility of Claimant and Dr. Horchos in Finding of Fact number 11, the WCJ opined that Claimant, by raising the issue of the pain associated with the lumbar region on her right side, was referencing a condition that was not identified in the earlier claim petition and termination petition. In discussing his determination that the testimony of Dr. Horchos was not credible, the WCJ explained that he did not believe Dr. Horchos' testimony that it would take five years for Claimant to require treatment on her right side after the original injuries to her left side. Also, in Finding of Fact number 13, the WCJ further rejected Dr. Horchos' testimony, noting that Claimant did not seek treatment with Dr. Horchos between July 2008 and March 2009 and did not schedule a future appointment with him.
Based upon these credibility findings, as well as other findings pertaining to Claimant's condition, the WCJ granted Employer's termination petition, and Claimant appealed to the Board. The Board affirmed the WCJ, observing that Claimant's challenges related largely to the WCJ's credibility determinations and the weight the WCJ accorded certain aspects of the evidence. The Board also rejected Claimant's contention that the WCJ misunderstood the nature of Claimant's work-related injuries.
Claimant filed a petition for review with this Court, raising the following issues in her appeal: (1) whether the WCJ's decision is supported by substantial evidence; (2) whether the WCJ disregarded, ignored, or took evidence out of context, and, thereby, erred as a matter of law; and (3) whether the WCJ failed to render a reasoned decision.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
An employer seeking to have a claimant's workers' compensation benefits terminated bears the burden to establish "either that the claimant's disability has ceased or that any current disability arises from a cause unrelated to the claimant's work injury." Miller v. Workers' Comp. Appeal Bd. (Peoplease Corp.), 29 A.2d 869, 871 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 38 A.3d 827 (2012). In order to satisfy its burden, an employer generally must offer medical evidence—usually the unequivocal testimony of a medical expert—that a claimant has fully recovered from her work-related injury, is able to return to work without restriction, and that there are no objective medical findings that substantiate claims of pain or connect such pain to the work-related injury. Id. (quoting Udvari v. Workmen's Comp. Appeal Bd. (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997)).
We also recognize that, where, as in this case, an employer files sequential termination petitions, an employer also bears a burden to demonstrate that a change in a claimant's physical condition has occurred between the time an earlier termination petition has been resolved and the subsequent termination petition is filed. Folmer v. Workers' Comp. Appeal Bd. (Swift Transp.), 958 A.2d 1137, 1142 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 690, 971 A.2d 493 (2009). Claimant has not contended that Employer failed to make such a demonstration, and, consequently we need not consider whether Employer satisfied this requirement.
Claimant challenges several aspects of Finding of Fact number 11 of the WCJ's decision, which provides:
After reviewing the evidence presented by both parties, this WCJ cannot find as credible, persuasive nor convincing the testimony of Dr. Horchos nor the claimant that she continues to suffer from any discomfort or further need of medical treatment as a result of the work injury of June 16, 2003. On the contrary, the testimony of Dr. Horchos establishes that this claimant has had no contact with him from July 2008 to March 2009, reporting any pain or discomfort as a result of her work injury of June 2003. Further, there has never been a petition to review filed by the claimant despite the fact that there have been two prior decisions issued in this matter to seek a review of the work related injuries found by former WCJ Hall, to include treatment for claimant's right sided lumbar facet. On the contrary, claimant seeks to expand the nature of her work injury to include the right side for treatment in June 2008, which is approximately five years after the original work injury. This WCJ cannot consider Dr. Horchos' testimony as credible that it would take five years for her to have treatment on her right side after the original injuries to her left side.(R.R. at 149a.)
This finding of fact is a credibility determination primarily regarding Dr. Horchos' opinion that, as a result of Claimant's work-related injury, Claimant continues to suffer pain and requires further treatment. Thus, we will review Claimant's challenges to this factual finding in accordance with the law that has developed relating to credibility determinations.
Under Section 422(a) of the Workers' Compensation Act, a WCJ must render a reasoned decision that permits an appellate court to exercise adequate appellate review. Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). A fundamental part of this requirement is that, when there is conflicting testimony on a particular issue and a witness does not testify live before a WCJ, the WCJ must articulate some objective reason why such a witness' testimony is credible or not credible. Id. at 196. WCJs may rely upon other evidence of record in seeking to articulate an objective basis for a credibility determination. See Gumm v. Workers' Comp. Appeal Bd. (J. Allan Steel), 942 A.2d 222 (Pa. Cmwlth. 2008) (holding that contrasting description of injury by opposing party's medical experts provided adequate basis for articulation of credibility rationale).
Act of June 2, 1915, P.L. as amended, 77 P.S. § 834.
Claimant seeks to challenge various aspects of Finding of Fact number 11, claiming that the WCJ's proffered reasons for finding Dr. Horchos' testimony not credible reflects an unfair reading of Dr. Horchos' testimony. Claimant contends that the WCJ reviewed Dr. Horchos' testimony out of context and/or capriciously disregarded pertinent parts of his testimony. We believe, however, that, because this is a credibility determination, the key to resolving this issue is whether any of the reasons the WCJ advanced for rejecting Dr. Horchos' testimony have an objective basis. Diluted down to its essence, the reasons the WCJ identified for rejecting Dr. Horchos' testimony may be summarized as follows: Claimant did not seek treatment from Dr. Horchos for approximately eight or nine months, and when she did seek treatment, it was for pain that she had not previously had during the five years following her work-related injury. While the WCJ also concluded that Claimant was seeking treatment for a distinct injury that was not identified in the earlier proceedings, it is clear that his primary basis for the credibility determination was the fact that Dr. Horchos had not seen Claimant for a relatively long period of time, and when he did see her, he treated a discrete pain that was occurring in an area he had not previously treated during the five-year period that followed the occurrence of her work-related injury. Thus, we believe that the WCJ articulated an objective basis upon which to reach his credibility determination regarding Dr. Horchos' opinion.
Claimant also asserts that the WCJ erred in relying upon the fact that throughout the period leading up to Employer's second termination petition, Dr. Horchos only treated Claimant's left facet joint area to conclude that Claimant had no pain on the right side during this period. It is true that the identified work injury does not specifically refer to the left facet joint only, but the record clearly establishes that Dr. Horchos treated only the left area. Claimant asserts that the earlier decisions of WCJ Hall and WCJ Spizer include findings that support Claimant's assertion that Dr. Horchos' treatment also pertained to Claimant's right facet joint area, because the findings in those decisions refer to pain radiating in "[C]laimant's back and into her gluteal regions." (R.R. at 7a (emphasis added).) Claimant argues that the WCJ should have concluded that both sides were affected because of the use of the plural in reference to Claimant's gluteal area. We note, however, that the key finding in WCJ Hall's decision on the claim petition did not refer to left and right areas, and the use of the plural in reference to Claimant's gluteal regions could simply be a reference to different regions in the left gluteal area. Thus, we do not find this argument persuasive.
Claimant also challenges a reference in Finding of Fact number 12, where the WCJ found as follows:
This WCJ was impressed at this time by the testimony and opinion of Dr. John Nolan, finding his testimony to be credible, persuasive and convincing, based upon his comprehensive physical examination,
review of medical records and the MRI film, which was interpreted by a radiologist, Dr. Sullum, which showed no findings on that film of any MRI [sic] traumatically induced findings.(R.R. at 149a.)
Claimant contends that the WCJ impermissibly failed to resolve a conflict in testimony between Dr. Nolan and Dr. Horchos concerning the MRI upon which Dr. Nolan based his opinion. Dr. Nolan reviewed the MRI and relied in part upon the MRI in opining that Claimant had fully recovered from her work-related injuries. Dr. Horchos testified that MRIs are not useful in diagnosing facet joint injuries. (R.R. at 128a.) Claimant argues that the WCJ's failure to address Dr. Horchos' testimony that MRIs are not a proper diagnostic method constitutes a violation of Section 422(a) of the Act. Claimant relies upon the requirement of Section 422(a) of the Act that WCJs must base findings of fact on the evidence in the record "as a whole."
Claimant appears to misapprehend the meaning of the requirement that a WCJ base his findings on the "record as a whole," arguing that the WCJ "failed to consider the entire evidentiary record as he is required to do pursuant to . . . Section 422(a)." (Claimant's Brief at 19.) We note again that Finding of Fact number 12 was in the nature of a credibility determination. The WCJ identified Dr. Nolan's review of the MRI as one of the bases for concluding that Dr. Nolan's testimony was credible. Here, the WCJ thoroughly summarized the testimony of both experts and provided objective bases for crediting Dr. Nolan's testimony over that of Dr. Horchos. (See R.R. at 143a; Findings of Fact Nos. 5-6, 9-13.) Section 422(a) of the Act does not require a WCJ to resolve every evidentiary conflict, but only those necessary to resolve the issues relevant to the WCJ's decision. Montgomery Tank Lines and Protective Ins. Co. v. Workers' Comp. Appeal Bd. (Humphries), 792 A.2d 6, 13 (Pa. Cmwlth. 2002). The reasoned decision requirement simply requires a WCJ to review the record as a whole in resolving such conflicts.
We note further that, given the credibility determinations the WCJ made, there is substantial evidence to support the WCJ's determination that Claimant has fully recovered. Dr. Nolan explained that the ablution treatment provided to Claimant works by deadening the nerves (and the nerves' signals to the brain) that cause a person to feel pain. He testified that ablution sometimes provides only temporary relief, but that when a person is free from pain for a period longer than two-to-three months, the ablution is considered to be successful in permanently treating the pain associated with the facet joint condition. In this case, because Claimant was asymptomatic for a period exceeding three months, and because the pain she recently complained of was associated with her right rather than left side, Dr. Nolan's credited testimony (which also included his opinion that the work-injury would not cause right-sided pain five years later) supports the WCJ's decision to grant Employer's termination petition. --------
Consequently, we conclude that the WCJ articulated objective bases for the credibility determinations he made regarding the deposition testimony of the two medical experts, such that the WCJ issued a reasoned decision pursuant to Section 422(a) of the Act and did not err as a matter of law. Moreover, as discussed above, Findings of Fact numbers 11 and 12 are supported by substantial evidence of record. Accordingly, we will affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 19th day of July, 2012, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge