Opinion
No. 738 C.D. 2012
02-21-2013
Howard Johnson, Petitioner v. Workers' Compensation Appeal Board (Home Depot), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Howard Johnson (Claimant) petitions for review of the April 5, 2012 order of the Workers' Compensation Appeal Board (Board) affirming the decision of a workers' compensation judge (WCJ) to deny Claimant's claim petition. We affirm.
On January 28, 2010, Claimant filed a claim petition alleging that he tore his left rotator cuff on December 24, 2009, while in the course and scope of his employment as a Lot Tech and Loader for Home Depot (Employer). On February 22, 2010, Employer filed an answer denying all material allegations in the claim petition, and hearings before the WCJ ensued.
Before the WCJ, Claimant testified that his job duties with Employer included assisting customers load purchases into vehicles and ensuring that carts and other materials were cleared from the parking lot and doorways. Claimant stated that on December 24, 2009, he was in Employer's parking lot, helping a co-worker, Darryl Perez (Perez), load cabinets onto a truck. While walking back to the store, Claimant reached out and pulled two lumber carts. Claimant testified that he heard a snap and felt pain in his left shoulder, but he finished working his shift and did not report his injury to Employer. Four days later, on December 28, 2009, Claimant's next scheduled day of work, Claimant noticed increased pain in his shoulder, which caused him to call off work; however, Claimant did not tell Employer that his condition may be work-related. Claimant then sought treatment with his family doctor, who provided Claimant with a medical excuse taking him out of work. Claimant delivered the medical excuse to Employer on December 30, 2009, and informed Employer for the first time that his injury was work-related. In February 2010, Claimant began treatment with Joseph P. Guagliardo, M.D., a board-certified orthopedic surgeon. (WCJ's Finding of Fact, No. 2.)
Perez testified that while he was faced away from Claimant, he heard a snap as Claimant moved the lumber carts. Perez stated that after hearing the snap, he turned around and saw Claimant holding his left shoulder. Perez said that Claimant appeared to be in pain and told him that the snap noise was his shoulder. (WCJ's Finding of Fact No. 3.)
Claimant presented the deposition testimony of Dr. Guagliardo. Dr. Guagliardo testified that when he first examined Claimant on February 3, 2010, Claimant told him that he injured his shoulder at work on December 24, 2009. Dr. Guagliardo's examination of Claimant suggested that Claimant had a torn left rotator cuff and internal derangement of the left shoulder. Dr. Guagliardo referred Claimant to another surgeon, who performed a left rotator cuff repair and acromioplasty surgery on May 6, 2010. Ultimately, Dr. Guagliardo opined that Claimant tore his left rotator cuff at work on December 24, 2009. He explained that a torn rotator cuff is initially painful and becomes increasingly painful over time as one moves or puts pressure on the shoulder, such as sleeping on it. Dr. Guagliardo further opined that Claimant's injury rendered him totally disabled and incapable of returning to his position with Employer. (WCJ's Finding of Fact No. 4.)
In rebuttal, Employer presented the deposition testimony of David L. Rubenstein, M.D., a board-certified orthopedic surgeon who specializes in rotator cuff injuries and surgeries. Dr. Rubenstein testified that he examined Claimant on August 19, 2010, and reviewed various medical records. He stated that Claimant's MRI from December 31, 2009, revealed that Claimant had a large subacromial spur and acromial clavicular arthritis, which predisposed Claimant to rotator cuff problems. Dr. Rubenstein noted that certain medical records indicated that Claimant did not experience any pain or symptoms until December 28, 2009. Dr. Rubenstein opined that Claimant did not tear his left rotator cuff at work on December 24, 2009, because such an injury would have caused intense pain in the first 24 hours and would have caused Claimant to stop work immediately. Dr. Rubenstein disagreed with Dr. Guagliardo's opinion that an individual who feels a pop or snap and tears a rotator cuff gradually experiences increased pain and symptoms over a period of time; according to Dr. Rubenstein, Dr. Guagliardo's opinion was "against conventional orthopedic wisdom and did not make sense." (WCJ's Finding of Fact No. 5.)
At the conclusion of the hearings, the WCJ rejected the testimony of Claimant, Perez, and Dr. Guagliardo and accepted the testimony of Dr. Rubenstein as credible and persuasive. In Finding of Fact No. 6, the WCJ set forth his credibility determinations as follows:
6. ... This Judge makes the following witness credibility determinations.
a. Claimant's live testimony is not credible.(WCJ's Finding of Fact No. 6.)
b. [Perez's] live testimony is not credible.
c. The deposition testimony of Dr. Guagliardo is credible regarding his opinions that Claimant sustained a torn left rotator cuff. The records and even Dr. Rubenstein confirm such a condition and the need for surgical repair. However, Dr. Guagliardo's opinion that Claimant tore his left rotator cuff at work on December 24, 2009, is not credible. Dr. Rubenstein's opinion that the injury did not occur as Claimant alleges is more credible. Dr. Rubenstein explained such an injury would be painful immediately warranting Claimant to have at least reported it. Dr. Guagliardo's opinion that Claimant suffered his torn rotator cuff on December 24, 2009, is based on tainted information from Claimant and does not make medical sense.
d. Dr. Rubenstein's opinion that Claimant did not suffer his torn left rotator cuff at work on December 24, 2009, is credible for the reasons discussed above.
Based upon these findings and credibility determinations, the WCJ concluded that Claimant failed to prove that he suffered an injury while in the course of his employment with Employer on December 24, 2009, or any other date. (WCJ's Conclusion of Law No. 4.) Consequently, the WCJ denied Claimant's claim petition. The Board affirmed.
It is well settled that, with respect to a claim petition, a claimant bears the burden of establishing an entitlement to benefits and establishing all the elements necessary to support an award. Dandenault v. Workers' Compensation Appeal Board (Philadelphia Flyers, Ltd.), 728 A.2d 1001 (Pa. Cmwlth. 1999). Specifically, a claimant has the burden of proving that his injury arose in the course of his employment and was related thereto. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981).
On appeal to this Court, Claimant argues that the WCJ's decision is not supported by substantial evidence, does not satisfy section 422(a) of the Workers' Compensation Act (Act), and reflects a capricious disregard of competent evidence. We disagree.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
In assessing the evidence, the WCJ is the ultimate fact-finder and has complete authority over questions of credibility and evidentiary weight. Davis v. Workers' Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). The WCJ is free to accept, in whole or in part, the testimony of any witness, including medical witnesses. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). Indeed, the WCJ may reject the testimony of any witness even if it is uncontradicted. Capuano v. Workers' Compensation Appeal Board (Boeing Helicopter Company), 724 A.2d 407, 410 (Pa. Cmwlth. 1999). The WCJ's determinations as to credibility and evidentiary weight are binding on appeal unless made arbitrarily and capriciously. PEC Contracting Engineers v. Workers' Compensation Appeal Board (Hutchison), 717 A.2d 1086 (Pa. Cmwlth. 1998).
Section 422(a) of the Act provides, in pertinent part, that:
[a]ll parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached.77 P.S. §834. To comply with section 422(a), a WCJ's decision must permit adequate appellate review; the purpose of the reasoned decision requirement "is to spare the reviewing court from having to imagine why the WCJ believed one witness over another." Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 194-96 (Pa. Cmwlth. 2006) (emphasis in original).
Under section 422(a) of the Act, a WCJ must adequately explain the reasons for rejecting or discrediting competent evidence when conflicting evidence is presented. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 68, 828 A.2d 1043, 1047 (2003). In addition, the WCJ may not reject uncontroverted evidence without reason or for an irrational reason, but must identify such evidence and sufficiently explain the reasons for its rejection. Id. For witnesses testifying before the WCJ, it is appropriate for the WCJ to base his or her determination upon the demeanor of the witnesses and, in the absence of "some special circumstance," a mere conclusion as to which witnesses were credible is sufficient for a reasoned decision. Id. at 77, 828 A.2d at 1052-53; PPL v. Workers' Compensation Appeal Board (Rebo), 5 A.3d 839 (Pa. Cmwlth. 2010). However, when witnesses testify only by deposition, the WCJ must articulate an actual objective basis for the credibility determination. Daniels, 574 Pa. at 78, 828 A.2d at 1053.
Although our Supreme Court in Daniels suggested that more might be required under special circumstances, we reject Claimant's contention that uncontroverted testimony constitutes such a special circumstance. Capuano.
In this case, the WCJ observed the testimony of Claimant and Perez first-hand and found their testimony not credible. The WCJ's statement that his assessment of Claimant's and Perez's credibility was based on their demeanor while testifying is sufficient to satisfy the reasoned decision requirement of section 422(a). Daniels; PPL.
The WCJ also found that Dr. Guagliardo's opinion that Claimant's injury was work-related was not credible because Dr. Guagliardo based this opinion "on tainted information from Claimant" and it "did not make medical sense." (WCJ's Finding of Fact No. 6.) Claimant complains that this explanation is vague and inadequate. However, the record reflects that Dr. Guagliardo relied predominately, if not exclusively, upon Claimant's description of how, when and where the alleged December 24, 2009 injury occurred. As explained above, the WCJ found Claimant's testimony, as well as his description of the incident, not credible. Therefore, despite Claimant's assertions to the contrary, it is apparent that his incredible testimony is the "tainted information" to which the WCJ referred in his decision.
Similarly, in noting that Dr. Guagliardo's opinion relied on the incredible testimony of Claimant, the WCJ articulated an actual and objective basis for finding Dr. Guagliardo's expert testimony not credible. See Daniels, 574 Pa. at 78, 828 A.2d at 1053 (stating that a WCJ may find an expert's deposition testimony not credible if the "opinion [is] based upon erroneous factual assumptions"). The WCJ further explained that he credited Dr. Rubenstein's expert opinion over Dr. Guagliardo's because he found persuasive Dr. Rubenstein's testimony that Dr. Guagliardo's opinion concerning the symptomatic presentation of a rotator cuff injury "did not make medical sense." In this regard, the WCJ's rationale sets forth an objective basis for his rejection of Dr. Guagliardo's opinion. We conclude, therefore, that the WCJ provided sufficient reasons for finding Dr. Guagliardo's opinion not credible and satisfied the reasoned decision requirement of section 422(a).
Compare Gumm v. Workers' Compensation Appeal Board (J. Allan Steel), 942 A.2d 222, 228 (Pa. Cmwlth. 2008) (concluding that the WCJ articulated a reasoned basis for discrediting the deposition testimony of the employer's medical witness in favor of the deposition testimony of the claimant's medical witness because the latter's opinion was more consistent with the claimant's testimony which the WCJ accepted as credible).
In a related argument, Claimant cites Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 600 A.2d 677 (Pa. Cmwlth. 1991), and asserts that in stating that Dr. Guagliardo's expert opinion "did not make medical sense," the WCJ rendered a medical conclusion that was beyond his authority and was not supported by substantial evidence.
In Cromie, the WCJ issued a finding that the claimant sustained a lumbo-sacral sprain based solely upon the claimant's testimony and statements he made to doctors regarding the nature of his injury. On appeal, this Court held that the WCJ improperly assumed the role of a medical expert by rendering his own medical opinion, and we reversed the WCJ's finding because it was not based on any medical evidence of the record. Unlike Cromie, the WCJ's allegedly improper statement in this case is supported by the expert testimony of Dr. Rubenstein. Therefore, the WCJ's statement is supported by substantial evidence, the WCJ did not proffer his own medical opinion, and Cromie is inapplicable.
"Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion." Wells-Moore v. Workmen's Compensation Appeal Board (McNeil Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). --------
Finally, Claimant contends that the WCJ capriciously disregarded the evidence because his testimony was uncontroverted and it was corroborated by the uncontroverted testimony of Perez. In Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), our Supreme Court stated that the capricious disregard standard is an appropriate component of appellate review in every case in which it is raised. However, this Court has emphasized that "[c]apricious disregard occurs only when the fact-finder deliberately ignores relevant, competent evidence." Williams v. Workers' Compensation Appeal Board (USX Corporation-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004) (emphasis added). Accordingly, under the capricious disregard standard, a WCJ may generally disregard the testimony of any witness, even if the testimony is uncontradicted, but does not have the discretion to disregard competent evidence without a reasonable explanation or without specifically discrediting it. Green v. Workers' Compensation Appeal Board (U.S. Airways), 28 A.3d 936, 942 (Pa. Cmwlth. 2011).
In this case, the WCJ summarized each witness' testimony and properly explained the reasons underlying his credibility determinations. Under the capricious disregard standard, this is all that is required. See Capasso v. Workers' Compensation Appeal Board (RACS Associates, Inc.), 851 A.2d 997, 1002 (Pa. Cmwlth. 2004) (concluding that WCJ did not capriciously disregard evidence where the WCJ did not ignore the uncontradicted testimony of claimant and his expert witness, but instead chose not to believe it, and the WCJ explained the reasons for his decision and why he rejected claimant's evidence).
Having concluded that Claimant's arguments lack merit, we affirm the Board's order.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 21st day of February, 2013, the April 5, 2012 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge