Opinion
No. 2328 C.D. 2014
07-14-2015
Robert Hyman, Petitioner v. Workers' Compensation Appeal Board (School District of Philadelphia), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Robert Hyman (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting the termination petition filed by the School District of Philadelphia (Employer). Claimant argues the WCJ erred in crediting the testimony of Employer's medical expert, asserting his opinion was incompetent because it did not recognize Claimant's accepted psychological injuries. Claimant also asserts the WCJ erred in failing to award litigation costs and unreasonable contest attorney fees. Discerning no error below, we affirm.
I. Background
Claimant worked for Employer as a special education teacher until 1990 when he sustained work injuries in the nature of a chest wall contusion/left shoulder, acute phobia, depression and anxiety disorder. Another WCJ later expanded the description of the work injury to include chronic depression and post-traumatic stress disorder (PTSD). As Claimant has not worked since the date of the work injury, he received workers' compensation (WC) benefits for over 23 years.
The physical injuries, which have resolved, are not at issue in this appeal.
Last year, this Court rejected Employer's challenge to the grant of Claimant's modification petition to expand the injury to include these additional psychological injuries in School District of Philadelphia v. Workers' Compensation Appeal Board (Hyman), (Pa. Cmwlth., No. 1083 C.D. 2013, filed March 7, 2014) (unreported).
In February 2012, Dr. Stephen Mechanick, who is board certified in psychiatry (Employer's Psychiatrist), performed an independent medical examination (IME) of Claimant to assess his psychological injuries. Subsequently, he prepared a report based on the IME, Claimant's history of treatment and Employer's Psychiatrist's discussions with Claimant's prior treating mental health professionals (Report). Employer's Psychiatrist opined Claimant fully recovered from his psychological injuries attributable to the work injury. He also noted Claimant's anxiety disorder predated the work injury, and Claimant continued to take medications for it. After receiving the report, Employer filed a termination petition in March 2012.
The WCJ held two hearings on the petition. Employer submitted the Report, the deposition testimony of its Psychiatrist, and Claimant's June 2012 deposition testimony. As to his mental health, Claimant submitted the deposition testimony of George S. Bell, his treating psychiatrist who is board certified in psychiatry and neurology (Claimant's Psychiatrist). Claimant also testified in person at the final hearing.
In his Report, Employer's Psychiatrist opined Claimant did not suffer from a phobia. He also opined Claimant did not meet the diagnostic criteria for PTSD. After reviewing Claimant's June 2012 deposition testimony, Employer's Psychiatrist wrote an addendum to the Report. He confirmed his prior opinion that Claimant's testimony supported his opinions that Claimant did not have PTSD, depressive disorder or any other psychiatric disorder related to the work injury.
Employer's Psychiatrist testified Claimant was frustrated with the lack of prosecution of the student whose assault caused the work injuries and the outcome of the disciplinary hearing. In particular, as to the effect of the work incident, Claimant told Employer's Psychiatrist: "I feel I've been dealt a rotten hand over the past 20 years. All they had to do was get rid of this football player and put me back at Frankford High." Reproduced Record (R.R.) at 97a (Employer's Psychiatrist's deposition). He observed Claimant was angry regarding Employer's response to his requests for placement and frustration with the WC process generally, not the incident itself. Id. at 108a, 110a, 113a, 122a. As to relevant medical history, he noted Claimant took Valium for anxiety for a number of years before the work injury.
Employer's Psychiatrist testified Claimant described the full activities he performed during the day, including an hour to an hour-and-a-half at the gym daily, walking, and going out to dinner with friends once or twice a week. He reported Claimant travels and enjoys visiting family. Claimant "denied feeling hopeless or having wishes to die." Id. at 94a.
Of particular import here, Employer's Psychiatrist acknowledged each of the accepted work injuries, PTSD, depression, acute phobia and anxiety disorder, before opining Claimant no longer suffered from those conditions. He opined Claimant no longer suffers from a depressive disorder based on the reported symptoms, and lack of symptoms indicative of depression, such as sleep, appetite, interest in sex and good humor. Id. at 114a-15a. He opined Claimant does not suffer from PTSD because he does not report intrusive memories of the incident or avoid situations that remind him of the incident, and he does not have an exaggerated startle response. Id. at 116a-17a. He opined that, to the extent Claimant has anxiety, it predated the work injury, and it is controlled by medication. As a result, he concluded Claimant is able to return to full-time employment.
In response, Claimant's Psychiatrist testified he diagnosed Claimant with depression, anxiety disorder and PTSD when he began treating him in December 2003. He treated Claimant regularly for almost 10 years. He explained Claimant was angry about the WC case and was moody, "disappointed, and bothered by this case being dragged on for [23] years." WCJ Op., 4/15/13, Finding of Fact (F.F.) No. 6(e). He opined that as of September 2012, Claimant continues to suffer PTSD, anxiety disorder and depression.
Claimant's Psychiatrist attributed the PTSD, depression and anxiety to the 1990 work injury. F.F. No. 6(h); R.R. at 213a. He explained that, while Claimant does not suffer frequent flashbacks that preclude him from working, it is "Claimant's reaction to them, [sic] which is his ongoing anxiety and irritability, agitation, et cetera, which are related to the event which is disabling him." F.F. No. 6(m). He agreed with Employer's Psychiatrist that Claimant does not suffer from a phobia. F.F. No. 6(o).
As to Claimant's depression, Claimant's Psychiatrist surmised it is "related to that incident and to the subsequent handling of things." F.F. No. 6(p). Specifically, he testified his more recent treatment of Claimant related "primarily [to] his anger about the case, his anxiety, and his preoccupation that if they had only made an accommodation and sent him back to his school or to a reasonable substitute for his school that he possibly could've gotten on with his life." R.R. at 208a (Claimant's Psychiatrist's deposition). When asked to quantify it, Claimant's Psychiatrist testified he would attribute about 40 percent of his condition to the work incident, and 60 percent to Employer's handling of the incident. R.R. at 228a-29a.
As to Claimant's daily life, Claimant's Psychiatrist was surprised Claimant went out to dinner with friends and exercised as much as he did. Id. at 218a. Claimant's Psychiatrist also admitted he did not review Claimant's medical history or the notes of his treating physician in 1989 and 1990, noting depression and anxiety prior to the work injury. Id. at 230a-31a.
For his part, Claimant testified he did not believe he could return to work as a special education teacher because he has a fear of returning to a high school setting, and he does not feel able to control a classroom or teach the subject matter. Claimant also explained he thinks about the work incident constantly. He described his daily life over the past several years, including one year where he served as president of his condominium association.
Ultimately, the WCJ granted Employer's termination petition and denied Claimant's requests for unreasonable contest fees and litigation costs. The WCJ accepted as credible the testimony of Employer's Psychiatrist and rejected the conflicting testimony of Claimant's Psychiatrist. F.F. No. 9. The WCJ credited Claimant's testimony only in part. Specifically, he stated "Claimant is found to be not credible as to his ongoing psychiatric issues." F.F. No. 10. Based on these findings, the WCJ determined Employer proved Claimant fully recovered from his work injury, and terminated Claimant's WC benefits as of February 27, 2012.
On Claimant's appeal, the Board affirmed. The Board rejected Claimant's challenge to Employer's Psychiatrist's testimony as incompetent based on To v. Workers' Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003). The Board reasoned that while Employer's Psychiatrist questioned the accuracy of Claimant's diagnosis, he recognized each diagnosed condition and credibly opined Claimant fully recovered from those conditions. The Board also noted Claimant testified he attempted to return to work in 1993 or 1994 as a teacher. Bd. Op. at 5 (citing Notes of Testimony, 10/17/12, at 17-20, 24-26, 29-31, 36-37).
II. Discussion
On appeal, Claimant argues the WCJ erred in finding Employer's Psychiatrist's testimony competent when he did not recognize Claimant's accepted injuries. He also seeks unreasonable contest attorney fees and litigation costs.
Our review is limited to determining whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, and whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
Although Claimant also asserted the WCJ did not issue a reasoned decision in his petition for review, Claimant did not develop this issue in his brief. Thus, it is waived. Pa. State Univ. v. Workers' Comp. Appeal Bd. (Sox), 83 A.3d 1081 (Pa. Cmwlth. 2013).
It is solely for the WCJ as fact-finder to assess credibility and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the WCJ may reject the testimony of any witness, in whole or in part. Id. This principle applies equally to the testimony of medical experts. Griffiths v. Workers' Comp. Appeal Bd. (Red Lobster), 760 A.2d 72 (Pa. Cmwlth. 2000). A single medical expert's testimony is a reasonable basis upon which a WCJ may base a finding of fact despite conflicting evidence. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 572 A.2d 838 (Pa. Cmwlth. 1990), aff'd, 612 A.2d 434 (Pa. 1992). As the prevailing party, Employer is entitled to the benefit of the most favorable inferences drawn from the record. See Lehigh Cnty. Vo-Tech Sch. v. Workmen's Comp. Appeal Bd. (Wolfe), 652 A.2d 797 (Pa. 1995).
To terminate a claimant's benefits, the employer bears the burden of establishing either the claimant's disability ceased or his remaining disability was unrelated to the work injury. Gillyard v. Workers' Comp. Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth. 2005) (en banc). An employer may satisfy this burden by submitting unequivocal, competent medical evidence of the claimant's full recovery from his work injury. Jackson v. Workers' Comp. Appeal Bd. (Res. for Human Dev.), 877 A.2d 498 (Pa. Cmwlth. 2005).
Medical testimony is considered unequivocal and competent if the medical expert, after establishing a proper foundation, testifies within his professional opinion that a certain fact or condition exists. Campbell v. Workers' Comp. Appeal Bd. (Pittsburgh Post-Gazette), 954 A.2d 726 (Pa. Cmwlth. 2008). Whether medical testimony is unequivocal and competent to support a WCJ's findings is a question of law subject to our plenary review. City of Phila. v. Workers' Comp. Appeal Bd. (Kriebel), 29 A.3d 762 (Pa. 2011).
A. Competency of Credited Medical Evidence
Claimant first argues the WCJ erred in basing his decision on Employer's Psychiatrist's opinion as to his full recovery because that opinion was incompetent. Claimant contends Employer's Psychiatrist did not accept his psychological injuries, which were previously adjudicated, and, as a result, his opinion is not competent evidence. He also challenges the basis for Employer's Psychiatrist's testimony that he had a preexisting anxiety disorder for which he still needs medication.
Claimant relies on our holding in Gillyard that a medical expert's failure to acknowledge accepted injuries renders his opinion incompetent. While we agree with Claimant's citation of the general legal principle, we find the factual predicate for its application absent here.
In Gillyard, this Court held the medical expert's opinion was an insufficient basis to support the grant of a termination petition. We reached this conclusion because the medical expert improperly characterized the claimant's injury. Importantly, the expert opined the claimant recovered from his back strains and sprains only, not from any other condition of the back. However, the claimant in Gillyard also suffered from chronic sciatica at the L5-S1 and a bulging disc, which were recognized as part of his work injury. We reasoned it was "impossible" for the medical expert to opine the claimant fully recovered from the sciatica and bulging disc when the expert never acknowledged the claimant suffered from those accepted injuries. Id. at 996. In so holding, we distinguished To. We explained that in To, the expert's testimony that claimant "fully recovered from any injury he may have sustained in the course of his employment" sufficed. Id. (emphasis in original). In Gillyard, the medical expert did not render an analogous opinion that claimant recovered from any back injury.
Recognizing that his position is in tension with this Court's precedent, Claimant asks this Court to overrule our decisions in To and Jackson. Pet'r's Br. at 24, 38. We decline. An overview of these cases supports our conclusion.
In To, an employer petitioned to terminate a claimant's benefits based on a full recovery. The claimant argued the Board erred in affirming the WCJ's grant of the termination petition because it was based on the employer's medical expert's testimony. Like Claimant here, the claimant there contended the expert's testimony was incompetent because the expert did not believe the injury acknowledged in the notice of compensation payable ever occurred. We rejected that argument, reasoning that a medical expert is not required to believe an accepted injury occurred. Despite the fact that the expert in To testified he could not conceive how the injury occurred, he did not deny the claimant ever had a work injury. The expert also believed the complaints were unconnected to the work incident. Nonetheless, we held his testimony was sufficient because he testified as to the claimant's full recovery from any injury he may have sustained.
Similarly, in Jackson, we upheld the WCJ's findings, and affirmed the Board's grant of a termination petition. There, the medical expert testified he did not believe the claimant suffered more than a bruise to her knee. Nevertheless, his opinion had a proper foundation because he testified that "'if' there was an injury to her knee, it resolved." Id. at 502 (bold in original).
Significant to our analysis here, in both To and Jackson, we deemed the medical experts' personal beliefs as to the accuracy of the original diagnoses unnecessary to a proper foundation for their opinions. Of relevance was whether the experts acknowledged each of the accepted or adjudicated injuries. Then, recognizing each accepted injury, regardless of his agreement with it, the experts testified within a reasonable degree of medical certainty that the claimants recovered from each accepted work injury. Employer's Psychiatrist's testimony here surpasses this threshold.
More particularly, Employer's Psychiatrist testified Claimant fully recovered from his psychological conditions attributable to the work injury. R.R. at 114a-17a. He testified unequivocally that Claimant did not exhibit symptoms of PTSD or depression, and he did not currently suffer from either of those conditions. Id. He also testified Claimant did not suffer from an acute phobia, an opinion shared by Claimant's Psychiatrist. R.R. at 114a, 171a (Employer's Psychiatrist's deposition), 226a (Claimant's Psychiatrist's deposition).
In addition, Employer's Psychiatrist opined that Claimant did not suffer anxiety related to the work incident. R.R. at 170a. He noted Claimant received treatment in the form of medication from his treating physician for anxiety prior to the work injury. R.R. at 118a, 146a. Notably, Claimant's Psychiatrist was unaware that Claimant began taking Valium, which he continues to take, prior to the work incident. R.R. at 197a, 218a. Employer's Psychiatrist also unequivocally testified that Claimant could resume full-time work. R.R. at 117a-18a, 153a.
From our review, the record contains substantial, competent evidence to support the WCJ's determination that Claimant fully recovered from his work injuries. The WCJ found the testimony of Employer's Psychiatrist credible and rejected the conflicting testimony of Claimant's Psychiatrist as to Claimant's full recovery from the work injuries. F.F. No. 9. He found: "[W]hen the testimony of [Claimant's Psychiatrist] conflicts and/or disagrees with the testimony of [Employer's Psychiatrist] it is particularly rejected as not credible." Id. (emphasis added). We cannot disturb the WCJ's decisions as to credibility or weight afforded the evidence. Waldameer Park.
Regarding Claimant's ongoing anxiety, the WCJ credited Employer's Psychiatrist's testimony that his anxiety is no longer related to the work incident. F.F. Nos. 5(g), 9. An employer is entitled to a termination of benefits if it shows any remaining disability is due to a pre-existing condition. Carpentertown Coal & Coke Co. v. Workmen's Comp. Appeal Bd. (Seybert), 623 A.2d 955 (Pa. Cmwlth. 1993). There is no dispute Claimant suffered from anxiety and took Valium prior to the work incident. F.F. No. 5(f). Claimant's testimony attributes his more recent anxiety to his wife's retirement and to his reaction when he receives correspondence related to his WC claim. The WCJ expressly rejected Claimant's testimony as to his ongoing psychological conditions. F.F. No. 10. For example, Claimant believed he has an ongoing phobia when neither psychiatrist shared that opinion. Compare F.F. No. 7(e) (Claimant's testimony), with F.F. No. 5(h) (Employer's Psychiatrist's deposition), and F.F. No. 6(o) (Claimant's Psychiatrist's deposition).
Contrary to Claimant's characterization, the WCJ did not conclude Claimant fully recovered because Employer's Psychiatrist opined Claimant's anxiety was never related to the work incident. Employer's Psychiatrist opined that Claimant's anxiety, which was a pre-existing condition, was no greater than it was prior to the work incident. R.R. at 118a. In doing so, he was not contradicting established facts as Claimant asserts. Indeed, Employer's Psychiatrist was careful to qualify that he did not consider Claimant's anxiety disorder "currently" related to the work injury. R.R. at 155a. To the extent Claimant would need ongoing treatment related to his anxiety, it did not relate to the work incident. R.R. at 118a.
In sum, the record as a whole supports the WCJ's findings that Claimant fully recovered from his work injuries. Thus, we conclude the WCJ's grant of the termination petition is supported by substantial, competent evidence.
B. Unreasonable Contest Attorney Fees/Litigation Costs
Claimant also asserts the WCJ erred in failing to award unreasonable contest attorney fees under Section 440(a) of the Act, which states as follows:
Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996(a). --------
In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.77 P.S. §996(a) (emphasis added). Significantly, Section 440(a) is reserved to those cases where a claimant succeeds in a litigated case. U.S. Steel Corp. v. Workers' Comp. Appeal Bd. (Luczki), 887 A.2d 817 (Pa. Cmwlth. 2006). Here, Claimant did not succeed in his litigated case. Thus, Claimant does not meet the threshold qualifier for an award of reasonable attorney fees. Id.
Similarly, "in order for a claimant to recover litigation costs, the claimant must first show that he prevailed in whole or in part on an issue that was actually contested before the WCJ." Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037, 1050 (Pa. Cmwlth. 2011). In addition, "to be ... reimbursable under Section 440(a), [the litigation costs] must 'relate to the 'matter at issue' on which [the] [c]laimant prevailed.'" O'Neill v. Workers' Comp. Appeal Bd. (News Corp. Ltd.), 29 A.3d 50, 58 (Pa. Cmwlth. 2011) (quotation omitted). As we uphold the Board's order affirming the WCJ's granting of Employer's termination petition, Claimant did not prevail. Because Claimant did not prevail on his litigated claim, he is not entitled to litigation costs.
III. Conclusion
For the foregoing reasons, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 14th day of July, 2015, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge