Opinion
No. 1020 C.D. 2012
10-16-2012
Leigh Godusky, Petitioner v. Workers' Compensation Appeal Board (Vallos Bakery), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Leigh Godusky (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) grant of the termination petition of Vallos Bakery (Employer).
Claimant worked as a delivery driver for Employer. On June 21, 2007, Claimant suffered an injury to her ankle in the course and scope of her employment when her left foot and ankle became caught between her van and the curb as she exited the side door of the van with a box of hot dog rolls. Claimant was diagnosed with an anterior talofibular ligament tear and a trimalleolar fracture of the left ankle. Claimant underwent three surgeries in connection with the injury. The first surgery was to insert pins in the injured ankle, while the next two involved the removal of the pins. Pursuant to a temporary notice of compensation payable which was converted to a notice of compensation payable, Employer identified Claimant's injury as a trimalleolar fracture of the left ankle.
Claimant returned to work in a limited capacity on December 16, 2007. Notes of Testimony, January 13, 2010, (N.T.) at 6. Claimant returned to full time work with Employer in December 2008, as a "panner." The duties of a panner included rolling dough balls, putting the balls into pans and then pushing the pans toward an oven. Once Claimant returned to work she received partial disability benefits pursuant to supplemental agreement because she did not earn as much as she did as a driver.
On October 26, 2009, Employer petitioned to terminate Claimant's benefits on the basis that Claimant was fully recovered from her work-related injury.
In support of its petition, Employer presented Claimant as of cross-examination. Claimant testified that she had not sought treatment for her left ankle injury since the end of 2008. N.T. at 9. Claimant last took pain medication in February 2009, following her third surgery on October 22, 2008. N.T. at 10. Claimant estimated that her left ankle had improved seventy or eighty percent since the injury took place. She explained that when "I point my toe or try to move my foot side-by-side, I have pain right inside the bone itself. Like, when I point my toes, the pain goes down into my foot from around my ankle." N.T. at 12. She continued to experience pain daily. N.T. at 12. Because of the injury, Claimant no longer roller skated, ice skated, or snowmobiled. N.T. at 13. Claimant did not believe she could return to her job as a delivery driver because "of going up and down the steps; I don't have my full balance yet. I go up steps better than down steps." N.T. at 18. Claimant did not believe she fully recovered from the injury. N.T. at 19.
Employer presented the deposition testimony of Barry A. Ruht, M.D. (Dr. Ruht), a board-certified orthopedic surgeon. Dr. Ruht examined Claimant on September 29, 2009, took a history, and reviewed medical records. As part of the examination, Dr. Ruht noted that "dorsiflexion is to neutral, lacking five degrees compared to the uninjured right ankle." Deposition of Barry A. Ruht, M.D., February 4, 2010, (Dr. Ruht Deposition) at 14; Reproduced Record (R.R.) at 55a. Dr. Ruht explained that "the exam of the left ankle was virtually identical to the exam of the right ankle with the exception of some surgical incisions." Dr. Ruht Deposition at 15; R.R. at 56a. Dr. Ruht diagnosed Claimant with a "fracture of her left ankle with complete recovery, maximal medical recovery." Dr. Ruht Deposition at 18; R.R. at 59a. Dr. Ruht testified to a reasonable degree of medical certainty that Claimant was fully recovered from her work-related injury. Dr. Ruht Deposition at 19; R.R. at 60a. Dr. Ruht found that Claimant had no restrictions or limitations with respect to her left ankle. Dr. Ruht Deposition at 21; R.R. at 62a. Dr. Ruht explained that he recommended an ankle brace "to address her subjective complaints, some reassurance, perhaps, that the ankle was strong enough and coordinated enough to withstand the demands of her previous job. I felt that it could without the brace, but it might give her some reassurance physiologically." N.T. at 24; R.R. at 65a. He explained that Claimant only needed the brace for a "placebo effect or psychological." Dr. Ruht Deposition at 33-34; R.R. at 74a-75a.
The WCJ granted the termination petition as of September 27, 2009, and made the following relevant findings of fact:
7. Although the claimant's testimony is generally credible, it is unpersuasive as to whether claimant has fully recovered from her work related injury for the following reasons: 1) the claimant has not undergone medical treatment to address her ankle complaints since late 2008; 2) the claimant has not taken pain medication since late 2008; 3) radiographically, the claimant's fractures have healed; 4) the opinion of the defendant's medical expert is more credible and persuasive in this regard.WCJ's Decision, December 30, 2010, Findings of Fact Nos. 7-8 at 5; R.R. at 118a.
8. The opinions of Dr. Ruht that the claimant fully recovered from her work related injuries as of September 27, 2009, is accepted as credible, persuasive and uncontradicted by any other medical expert.
Claimant appealed to the Board which affirmed.
Claimant contends that Dr. Ruht did not unequivocally testify that Claimant fully recovered from her work-related injury.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
The employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met if an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997).
Here, Dr. Ruht unequivocally testified that Claimant fully recovered, that she could return to work without restrictions, and that Claimant's pain was unsupported by medical findings which substantiated her claims or connected them to the work injury. The WCJ found Dr. Ruht credible. The WCJ, as the ultimate finder of fact in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
Medical testimony offered to meet the burden of proof must be offered unequivocally. Jones v. Workers' Compensation Appeal Board (J.C. Penny Co.), 747 A.2d 430 (Pa. Cmwlth. 2000). "In order for medical testimony to constitute competent medical evidence, such testimony must be unequivocal." Moore v. Workers' Compensation Appeal Board (American Sintered Technologies, Inc.), 759 A.2d 945, 949 (Pa. Cmwlth. 2000), appeal denied 566 Pa. 653, 781 A.2d 150 (2001). "Medical evidence is unequivocal if the medical expert, after providing a foundation, testifies that in his medical opinion he believes or thinks the facts exist." Frye v. Workers' Compensation Appeal Board (Super Moche), 762 A.2d 428, 430 (Pa. Cmwlth. 2000). "Whether medical testimony is equivocal is a question of law, fully reviewable by this Court, and is to be determined by reviewing the entire testimony of the medical witness." Moore, 759 A.2d at 949.
Claimant asserts that Dr. Ruht credited Claimant's subjective complaints of pain. After reviewing Dr. Ruht's testimony, this Court must disagree. Dr. Ruht suggested that Claimant wear an ankle brace to serve as a "placebo" to ease her mind about the strength of her ankle. Dr. Ruht specifically found no objective findings to substantiate Claimant's subjective complaints of pain. Dr. Ruht Deposition at 24-25; R.R. at 65a-66a. Further, in Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939 (Pa. Cmwlth. 2008), this Court noted that an employer's medical expert may note a claimant's subjective complaints, but if that expert testifies that a claimant is able to return to work without restrictions, the employer's burden under Udvari is satisfied. Here, Dr. Ruht stated that Claimant voiced subjective complaints to him. However, he found no objective basis for the complaints, found Claimant fully recovered, and found Claimant able to return to work without restrictions.
Claimant adds that Dr. Ruht testified that Claimant had a loss of five degrees of dorsiflexion in her injured left ankle. However, Dr. Ruht also testified that the five degrees was insignificant. Dr. Ruht Deposition at 34-35; R.R. at 75a-76a.
Claimant further argues that the WCJ credited her subjective complaints of pain. Claimant misreads the WCJ's findings. The WCJ specifically found that Claimant was not credible regarding whether she fully recovered from her work-related injury. The Board did not err when it affirmed the WCJ's termination of benefits on the basis that Employer shouldered its burden.
Claimant set forth in her "Statement of the Questions Presented" that the Board and WCJ erred when each placed the burden on Claimant to show a continuation of her work-related injury. Claimant failed to address this issue in the argument section of her brief. Therefore, it is waived. See Pa.R.A.P. 2116(a); Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). (Issues not briefed are waived) --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 16th day of October, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge