Opinion
No. 767 C.D. 2012
02-12-2013
Joan Kastenbaum, Petitioner v. Workers' Compensation Appeal Board (Teleflex Marine), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Joan Kastenbaum (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ), which (1) denied her review petition seeking to amend the description of injury on the Notice of Compensation Payable, and (2) denied her penalty petition against Teleflex Marine (Employer) in which she argued that Employer had violated the Workers' Compensation Act (Act) by unilaterally ceasing payment of her medical expenses. The WCJ's decision also denied Employer's petition to terminate compensation benefits, which Employer did not appeal. We vacate and remand.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Our scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, board procedures violated, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 950 A.2d 358 (Pa. Cmwlth. 2008).
I. Background
Claimant suffered a work-related, lower back injury on December 1, 2008, while she was pushing a large, 568-pound spool up a ramp. (Board Opinion at 1.) Employer first issued a medical-only Notice of Temporary Compensation Payable (NTCP) on December 9, 2008, describing the injury as a "low back strain," which converted by law to a Notice of Compensation Payable (NCP) on March 9, 2009, and was later amended on March 18, 2009, to initiate indemnity benefits. (NTCP, Supplemental Reproduced Record (S.R.R.) at 3b-5b; March 9, 2009 Notice of Conversion, Reproduced Record (R.R.) at 69a.) Following her injury, Claimant was referred by Employer to a Careplex facility in Pottstown, Pennsylvania, where she received treatment for severe pain in her lower back and legs for approximately three weeks, during which she was placed on light-duty work. Her condition did not improve and the panel physician referred her for magnetic resonance imaging (MRI) of her lower back, which was conducted on December 29, 2008. The report from that MRI indicates that Claimant had a disc herniation at the L5-S1 level and protrusion at the L4-5 level, corresponding to the same area of Claimant's lower back strain. (MRI Report, Dec. 29, 2008, R.R. at 65a.) Claimant was on light-duty work from December 1, 2008, until the first MRI on December 29, 2008, and was deemed totally disabled thereafter.
Section 406.1(d)(6) of the Act dictates that if an employer does not file a Notice Stopping within the 90-day period allocated for a NTCP, the NTCP automatically converts to a Notice of Compensation Payable and the employer is deemed to have admitted liability for the work injury recognized in the NTCP. Act of June 2, 1915, P.L. 736, as amended, added by Act of Feb. 8, 1972, P.L. 25, 77 P.S. § 717.1(d)(6); Galizia v. Workers' Compensation Appeal Board (Woodlock Pines, Inc.), 933 A.2d 146 (Pa. Cmwlth. 2007).
Claimant was referred to Dr. Linda D'Andrea, an orthopedic surgeon. Dr. D'Andrea treated Claimant initially with epidural steroid injections and, on April 2, 2009, after her pain had not improved, Dr. D'Andrea performed a lumbar spinal microdiscectomy on Claimant's L5-S1 vertebrae and lysis of epidural adhesions. The surgery did not improve Claimant's condition and her pain worsened. More treatment and tests were conducted, including another MRI on August 11, 2009, which again indicated a herniation and protrusion at the L5-S1 and L4-5 levels, respectively. (MRI Report, Aug. 11, 2009, R.R. at 77a-78a.)
On September 17, 2009, over nine months after her work injury, Claimant treated for the first time with Dr. Frederick S. Lieberman, an orthopedic surgeon, who became Claimant's treating physician and ultimately the expert who testified on her behalf in this case. (Dec. 17, 2009 Hearing Transcript (H.T.) at 14-15, R.R. at 33a-34a.) Dr. Lieberman referred Claimant to Dr. Tariq Saddiqi, an orthopedic surgeon, to be evaluated for a second surgery. A third MRI was conducted on September 30, 2009, which indicated the same disc herniation and protrusion, and Dr. Saddiqi performed surgery on November 3, 2009. (Id.; MRI Report, Sept. 30, 2009, R.R. at 84a-85a.) Dr. Saddiqi performed an L5-S1 anterior lumbar discectomy and fusion, installing a cage at that level.
Claimant filed her Petition to Review Compensation Benefits (Review Petition) on November 3, 2009, the day of her second back surgery, seeking to correct the description of injury on the NCP from "low back strain" to include herniated discs at the L5-S1 and L4-5 levels and neuropathy. (S.R.R. at 7b.) Employer had been paying for Claimant's medical care under the NCP, including claims for her first back surgery conducted on April 2, 2009. However, at about the same time Claimant filed her Review Petition, just prior to Claimant's second back surgery, Employer unilaterally and without notice ceased paying for Claimant's medical care. As a result, Claimant filed the Penalty Petition on January 19, 2010, alleging that Employer violated the Act by refusing to pay for over $240,000 in medical expenses. (S.R.R. at 12b.) On May 27, 2010, Employer filed a Petition to Terminate Compensation Benefits (Termination Petition) alleging that Claimant had fully recovered from her lower back strain. Answers were filed denying the substantive allegations in all three petitions.
Although the record does not indicate the precise date when Employer ceased payment, Employer does not dispute that its decision to cease payment was unilateral and without notice to Claimant.
The WCJ held two hearings. At the first, on December 17, 2009, Claimant testified on her own behalf regarding the circumstances of her injury, her symptoms, her treatment, and her continuing disability. Claimant testified that when she suffered her work injury she felt sharp pain in her lower back that radiated down her legs and that her symptoms have not changed since that time despite extensive medical treatment. (WCJ Findings of Fact (F.F.) ¶4.c; Dec. 17, 2009 H.T. at 16, R.R. at 35a.) Claimant testified that she was aware of no medical conditions that pre-existed her work injury on December 1, 2008, and that she had never before suffered from back pain. (Dec. 17, 2009 H.T. at 17, R.R. at 36a.)
The second hearing was conducted on June 1, 2010, after Employer had filed its Termination Petition. Claimant offered the deposition testimony of Dr. Lieberman taken on March 22, 2010, and, after the hearing, submitted his rebuttal deposition testimony taken on July 6, 2010. Employer offered the deposition testimony of Dr. Francis Kralick, also taken after the second hearing. Dr. Lieberman reviewed and testified regarding, inter alia, the medical records from Careplex and Dr. D'Andrea, which were created immediately following Claimant's work injury and which pre-dated the time when Dr. Lieberman began treating Claimant in September 2009. Employer raised hearsay objections to those records during the deposition and properly preserved the objections by letter. At the second hearing, the WCJ sustained the hearsay objections to all the records that pre-dated Dr. Lieberman's involvement except for the MRI report of December 29, 2008. Dr. Lieberman's own reports and records were admitted. (June 1, 2010 H.T. at 6, R.R. at 53a; March 22, 2010 Lieberman Dep. (Lieberman Dep. I) at 3, 90, R.R. at 91a, 113a.)
The WCJ admitted Lieberman Exhibits 4, 6, 8, and 9, which were, respectively, (4) the December 29, 2009 MRI report (R.R. at 65a); (6) a set of Dr. Lieberman's records; (8) the August 11, 2009 MRI report (R.R. at 77a-78a); and (9) Dr. Lieberman's written reports of January 13, 2010, and September 17, 2009 (R.R. at 387a-393a).
The sum of Dr. Lieberman's testimony is that he found, to a reasonable degree of medical certainty, that Claimant's disc herniations and the back and leg pain she continued to experience were a direct result of the work injury on December 1, 2008, and that the NCP limited to a low back strain was incorrect. (Lieberman Dep. I at 58-59, R.R. at 105a.) He testified that although it is possible to have disc herniations that pre-exist a traumatic injury, he competently concluded that Claimant's disc herniations did not pre-date her work injury. (Lieberman Dep. I at 88, R.R. at 112a.) He also testified that even if that were the case, he would still conclude that the work injury was the trigger and cause of her ongoing injuries, not a supposed pre-existing, latent condition. (Id.) Dr. Lieberman also testified that the first surgery only made matters worse and that he would not have recommended the surgery that was performed. (Lieberman Dep. I. at 27, R.R. at 97a.)
Employer's expert, Dr. Kralick, testified, based on his own review of the medical records and his independent medical examination, that Claimant's diagnosis related to the work injury was properly limited to a lower back strain. (Kralick Dep. at 18-19, R.R. at 916a-917a.) When questioned regarding the December 29, 2008 MRI Report, Dr. Kralick equivocated from his ultimate conclusion, testifying that there was a disc herniation at the L5-S1 level, but that he would "assume" that the herniation did not occur on December 1, 2008 (Kralick Dep. at 31, R.R. at 929a), and he could not rule out that the herniations formed sometime after December 1, 2008, but prior to the December 29, 2008 MRI, while Claimant was on light duty work (Kralick Dep. at 30-32, R.R. at 928a-30a). Dr. Kralick also testified that there was no evidence that would have merited the back surgery performed on April 2, 2009, which he concluded only harmed Claimant. (Kralick Dep. at 16-19, R.R. at 914a-17a.) Dr. Kralick concluded that Claimant was fully recovered from the back strain as of September 10, 2009, the date he examined her, but he did not provide a reason for Claimant's ongoing symptoms. (WCJ Op. at 2; Kralick Dep. at 21, R.R. at 919a.)
The WCJ issued his opinion on December 16, 2010, denying Claimant's Review Petition and her Penalty Petition, finding that Claimant failed to establish through unequivocal medical evidence that the description of her injury should be amended or corrected to include any condition beyond the accepted lumbar sprain and strain, and that she failed to prove that Employer had violated the Act. (WCJ Conclusions of Law (C.L.) ¶¶4-5.) The WCJ also denied Employer's Termination Petition, ruling that Employer had failed to establish through unequivocal medical evidence that Claimant was fully recovered and capable of returning to work. (C.L. ¶¶6-7.) As a result, the WCJ's decision ratified Employer's decision to cease paying for Claimant's medical treatment, including bills related to Claimant's second back surgery, to the extent the treatment was for her disc herniations and not her lower back strain. The WCJ made no ruling regarding any specific medical bill.
The WCJ found Claimant's testimony credible, but found the testimony of Dr. Lieberman not credible. (WCJ Opinion at 2.) The WCJ reasoned that Dr. Lieberman's testimony was based on hearsay documents from other medical providers and was "nothing more tha[n] recitals of the findings and opinion of other providers" and that he would have "preferred" testimony from "a provider with direct knowledge, such as Dr. D'Andrea." (Id.) The WCJ also found that Dr. Kralick's testimony was not credible because his opinion failed to provide an explanation for Claimant's ongoing symptoms. (Id.) The WCJ again sustained Employer's hearsay objections to the medical records that Claimant sought to admit at the first hearing, including the records from Careplex and Dr. D'Andrea. (WCJ Opinion at 2; F.F. ¶5 & n.21.) However, even though the WCJ had previously admitted the December 29, 2008 MRI report and Dr. Lieberman's records and reports, the WCJ's decision noted, incorrectly, that those records were excluded. (F.F. ¶2 & n.21.)
Claimant appealed to the Board and the Board affirmed. Claimant argued, inter alia, that the WCJ's conclusion that she had failed to meet her burden was erroneous because the WCJ incorrectly found that the December 29, 2008 MRI report had been excluded, when in fact the WCJ had previously admitted the report over Employer's hearsay objections. The Board ruled that the error was harmless because the report did not establish conclusively a causal link between Claimant's disc herniations and the work incident. (Board Op. at 4.) This appeal followed. Claimant raises five, interrelated issues, which we address below.
II. Discussion
Claimant first contends that the Board misapplied the burden of proof when it required Claimant to prove, through unequivocal medical evidence, the causal connection between her spinal injury and the accepted work injury (i.e., the lower back strain). Claimant argues that the connection between her injuries is "obvious" and, as a result, the Board should have required Employer to prove either an independent cause for the spinal injury or that the spinal injury was not causally related to the work injury.
In Kurtz v. Workers' Compensation Appeal Board (Waynesburg College), 794 A.2d 443 (Pa. Cmwlth. 2002), we addressed the appropriate burden to be used in a case, such as this one, where a claimant suffers new symptoms that are potentially related to a previously accepted work injury. Given Claimant's arguments, our discussion in Kurtz merits repeating here:
It is accepted that, pursuant to the [Act], an employer is only liable to pay for a claimant's medical expenses that arise from and are caused by a work-related injury. [Section 301(c)(1) of the Act,] 77 P.S. § 411(1); McDonnell Douglas Truck Services, Inc. v. Workmen's Compensation Appeal Board (Feldman), 655 A.2d 655 (Pa. Cmwlth. 1995). The burden is on the claimant to establish that an injury is indeed work-related. McDonnell Douglas; Tobias v. Workmen's Compensation Appeal Board (Nature's Way Nursery, Inc.), 595 A.2d 781 (Pa. Cmwlth.), appeal denied, 529 Pa. 628, 600 A.2d 543 (1991). Once a claimant has established that the injury is causally related to his employment, or liability for the injury has been acknowledged by an employer through a NCP, and there has not been a termination of benefits, the claimant is not required to continually establish that medical treatment of that compensable injury is causally related because the injury for which the claimant is treating has already been established. See Gens v. Workmen's Compensation Appeal Board
(Rehabilitation Hospital of Mechanicsburg/AETNA Life and Casualty), 631 A.2d 804 (Pa. Cmwlth. 1993), appeal denied, 538 Pa. 618, 645 A.2d 1321 (1994); Lehigh Valley Refrigeration Services v. Workmen's Compensation Appeal Board (Nichol), 548 A.2d 1321 (Pa. Cmwlth. 1988). Rather, in this regard, it is the employer's burden to establish that medical treatment associated with the injury was unreasonable or unnecessary. If, however, a claimant receives medical treatment for new symptoms that allegedly arise from the compensated injury, and the employer refuses to pay the associated bills, the burden of establishing that the symptoms and treatments are related to the compensable injury turns on whether the connection is obvious. See e.g., Hilton Hotel Corp. v. Workmen's Compensation Appeal Board (Totin), 518 A.2d 1316 (Pa. Cmwlth. 1986). . . .Kurtz, 794 A.2d at 447-48 (internal footnotes omitted).
If the new symptoms and the compensable injury are obviously related, and benefits have not been terminated, then the claimant will benefit from the presumption that the new symptoms are related to the compensable injury and, thus, his employment, and it will be the burden of the employer to prove that the new symptoms complained of are unrelated to the compensable injury. If, however, the connection is not obvious, then the burden will be on the claimant to establish the connection through unequivocal medical testimony. McDonnell Douglas; Tobias; Hilton Hotel.
Thus, once the employer's liability has been established through issuance of an NCP, whether the burden of proof in a review petition rests with the claimant or the employer depends on whether the allegedly new injury or symptoms are obviously connected to the accepted work injury. "This Court has held that where new, seemingly unrelated symptoms develop, allegedly stemming from compensated injuries, but not having an obvious connection, unequivocal medical testimony is required to establish the nexus. . . . 'Obvious' in [the workers' compensation] setting involves a nexus that is so clear that an untrained layperson would not have a problem in making the connection between the injury and a disability. This discernment often involves a 'natural and probable' development . . . and could sometimes involve an immediacy of occurrence such as an immediate back injury following heavy lifting." Tobias, 595 A.2d at 784-85; see also Kurtz, 794 A.2d at 447-48.
Here, Employer accepted liability for Claimant's December 1, 2008 lower back strain when the NTCP converted by law to an NCP on March 9, 2009. In her Review Petition filed on November 3, 2009, Claimant sought to amend the description of her injury to include disc herniations and neuropathy. In accordance with clear precedent, we find that the connection between a back strain and a disc herniation is not obvious and that Claimant is required to show unequivocal medical evidence to establish the nexus between the new symptoms and the compensable injury. Accordingly, we find no error in the burden of proof applied by the Board.
See Pryor v. Workers' Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1200 (Pa. Cmwlth. 2007) (requiring medical evidence to establish connection between "low back strain/sprain" and disc disease); Marks v. Workers' Compensation Appeal Board (Dana Corp.), 898 A.2d 689, 690 (Pa. Cmwlth. 2006) (requiring medical evidence to establish connection between accepted "lumbar strain and sprain" and "lumbar disc injury"); see also City of Philadelphia v. Workers' Compensation Appeal Board (Smith), 946 A.2d 130, 137 & n.15 (Pa. Cmwlth. 2008) (treating disc herniation and nerve impingement as injuries distinct from lumbar strain); Indian Creek Supply v. Workers' Compensation Appeal Board (Anderson), 729 A.2d 157, 161-62 (Pa. Cmwlth. 1999) (treating lumbosacral strain as distinct from disc herniation).
Claimant contends throughout her brief that she merely sought to correct a mistaken description of injury in the NCP, rather than to add a new, albeit potentially connected, condition. She asserts that the December 29, 2008 MRI report, taken soon after the work injury, is objective evidence that her disc herniations and related pain were obviously connected to the work injury. She also asserts that, because she was seeking to make a corrective amendment to the NCP, rather than seeking to expand the description of injury, the WCJ should have accepted the objective evidence of record that her injuries were connected. We disagree.
Whether Claimant was seeking to correct a mistake in the NCP or amend it to include new symptoms, the burden was on her to prove her case. In Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), our Supreme Court discussed the two methods under the Act for changing the description of an injury in an NCP, an amendment to correct an erroneous description of injury and an amendment to add a subsequent injury:
Corrective amendments and amendments to address consequential conditions require independent consideration, since the Legislature treated them in separate and distinct passages of Section 413(a). Corrective amendments are covered by the first paragraph [of Section 413(a)], . . . 77 P.S. § 771, which applies only in circumstances in which there was an inaccuracy in the identification of an existing injury. . . . Amendments pertaining to an increase, decrease, recurrence, or cessation of disability are addressed in the second paragraph of Section 413(a), . . . 77 P.S. § 772.601 Pa. 524, 530-32, 975 A.2d 577, 580-81 (2009). In either situation, the burden is on the claimant "to establish the existence of additional compensable injuries." Id. at 533, 975 A.2d at 582; see also Commercial Credit Claims v. Workmen's Compensation Appeal Board (Lancaster), 556 Pa. 325, 331, 728 A.2d 902, 905 (1999) (discussing burden under Section 413(a), 77 P.S. §§ 771, 772).
Here, Claimant was diagnosed with a lower back sprain immediately following the work incident on December 1, 2008, and the disc herniations were not diagnosed until 25 days later. Although Claimant credibly testified that she did not suffer from any pre-existing back pain and suffered no intervening trauma, we are not convinced that a 25-day period is so immediate that we can rule, as a matter of law, that Claimant was entitled to a corrective amendment due to a mistaken NCP. As previously stated, the connection between Claimant's injuries is not obvious and the burden was on her to prove the connection. Claimant's real complaint is with how the WCJ evaluated the medical evidence, which we address below.
Claimant's second issue is that the Board erred when it denied her Penalty Petition, finding that Employer did not violate the Act when it ceased paying certain medical bills without first seeking approval from the Board. Claimant argues that Employer accepted her spine injury when it agreed to pay for her first surgery and that Employer thereafter could not unilaterally cease paying for medical treatment of that injury.
It is well-settled that an employer's voluntary payment of the employee's medical expenses is not an admission of liability. Securitas Sec. Services USA, Inc. v. Workers' Compensation Appeal Board (Schuh), 16 A.3d 1221 (Pa. Cmwlth. 2011) (en banc); Findlay Township v. Workers' Compensation Appeal Board (Phillis), 996 A.2d 1111 (Pa. Cmwlth. 2010); Bailey v. Workers' Compensation Appeal Board (ABEX Corp.), 717 A.2d 17 (Pa. Cmwlth. 1998) (en banc). In Bailey, we rejected the argument that Claimant raises here, that an employer should be barred from litigating whether a claimant's medical treatment was related to an accepted work injury because the employer had accepted liability for the work injury, had never contested the causal relationship of the treatment to that injury, and had already paid for the treatment. 717 A.2d at 19. We held that an employer's voluntary payment of a claimant's medical bills should not be considered an admission of liability, explaining that a contrary holding would force employers to abandon a long-established practice that benefits injured employees. Id. ("encourage[ing] employers to continue the practice of voluntarily paying medical expenses of injured employees without fear of later penalty for those payments") (quoting Dennis v. E.J. Lavino & Co., 201 A.2d 276, 279 (Pa. Super. 1964)). "The employer who questions 'causation' and the subsequent medical bills, may escape penalty provision liability for unilaterally ceasing to pay for these medical benefits, if a referee later determines that these medical bills are indeed not causally related to the work-related injury. In such a situation, the employer is (1) not subject to penalties under the Act and (2) is not responsible to pay retroactively for a claimant's medical treatments." Listino v. Workmen's Compensation Appeal Board (INA Life Ins. Co.), 659 A.2d 45, 47 (Pa. Cmwlth. 1995).
Here, Employer unilaterally ceased payment of Claimant's medical bills because it believed that Claimant's ongoing treatment was not causally related to her work injury. Employer is permitted to take that risk. Employer did not admit ongoing liability for Claimant's spine injury when it paid for medical treatment related to that injury.
Claimant challenges the notion that Employer was a mere volunteer when it paid for her first spine surgery and argues that our Supreme Court's holdings in Berwick Industries v. Workmen's Compensation Appeal Board (Staid), 537 Pa. 326, 643 A.2d 1066 (1994), and Schreffler v. Workers' Compensation Appeal Board (Kocher Coal Co.), 567 Pa. 527, 788 A.2d 963 (2002), established that the payment of medical bills constitutes "compensation" under the Act, which Employer may not terminate unilaterally. Claimant also argues that, to the extent employers are permitted to cease payment for medical benefits mid-stream, without notice to the claimant, and without Board approval, employees are placed in the untenable situation of accepting necessary medical treatment in an effort to return to work only to face devastating economic consequences, which flies in the face of the remedial purpose of the Act.
Claimant's reliance on Berwick Industries and Schreffler is misplaced as those cases addressed whether medical expenses are "compensation" for purposes of interpreting Section 315 of the Act, 77 P.S. § 602, which sets forth the time period within which a claimant may seek compensation. See Berwick, 537 Pa. at 329, 643 A.2d at 1067 (noting that the Act does not define the term "compensation" and that what the term encompasses has been decided on a section-by-section basis). Those cases did not address, and did not overturn, the separate line of cases discussed above, which hold that an employer does not admit liability when it pays for medical treatment. The other cases that Claimant cites to support her contention that an employer may not unilaterally terminate benefits are also inapposite, as they address employers who ceased paying medical bills arguing that treatment was not reasonable and necessary, not that treatment was not causally related to the work injury. (Claimant's Brief at 30-33 (citing, inter alia, Brenner v. Workers' Compensation Appeal Board (Drexel Industries), 856 A.2d 213 (Pa. Cmwlth. 2004); Loose v. Workmen's Compensation Appeal Board (John H. Smith Arco Station), 601 A.2d 491 (Pa. Cmwlth. 1991); Johnson v. Workmen's Compensation Appeal Board (Albert Einstein Medical Center), 586 A.2d 991 (Pa. Cmwlth. 1991).) See also Bloom v. Workmen's Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa. Cmwlth.), appeal denied, 546 Pa. 657, 684 A.2d 558 (1996) (explaining that a petition to review medical treatment goes to the question of causal connection, whereas utilization review goes to the question of reasonableness and necessity of medical treatment); Listino, 659 A.2d at 47-48 (explaining same distinction).
Regarding Claimant's policy argument, we recognize that Employer's sudden decision to cease paying for medical treatment of Claimant's disc problems on the eve of surgery has placed Claimant in the unfortunate and difficult position of being personally responsible for the cost of the surgery, which she thought, at the time surgery was proposed to her, would be covered under the Act. Nevertheless, our prior cases make clear that employers are permitted to volunteer payment of medical expenses without risking admitting ongoing liability, and that the benefits of that policy to employees outweigh the risks. See Bailey, 717 A.2d at 19. We decline Claimant's invitation to create a new rule that would require an employer to explain to its employee, in advance, that it will cease paying medical bills due to a lack of causation. Accordingly, we find no error in the denial of Claimant's Penalty Petition based on the Board's reasoning that Employer's payment of Claimant's first surgery was not an admission of liability and that the burden was on Claimant to prove that subsequent treatment was causally related to her work injury.
Third, Claimant contends that the Board erred when it found that the WCJ committed harmless error regarding his evidentiary ruling on the December 29, 2008 MRI report. The WCJ admitted the report into evidence over Employer's hearsay objections at the hearing on June 1, 2010. (June 1, 2010 H.T. at 6, R.R. at 53a.) However, the WCJ misstated the record in his final decision, finding that the MRI report was excluded as hearsay. (F.F. ¶5 & n.12.) Claimant stresses that the MRI report is the "fundamental basis" of her claim and that the error was compounded by the WCJ's rejection of the testimony of her expert, Dr. Lieberman, based on the conclusion that Dr. Lieberman's testimony was not credible because it was based on hearsay documents.
The finding that the MRI report was excluded was clearly an error, as the Board noted. Whether the error was harmless depends on a determination of Claimant's next two issues, asserting that the WCJ disregarded competent evidence without a reasonable explanation and that the WCJ's decision was not reasoned.
Section 422(a) of the Act aids meaningful appellate review by requiring the WCJ to issue a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole and clearly stating the rationale for the decision. 77 P.S. § 834. When the WCJ is faced with conflicting evidence, Section 422(a) of the Act further requires that his or her reasons for rejecting or discrediting competent evidence be explained. Id. This does not mean that the requirement of a reasoned decision permits a party to challenge or second-guess the WCJ's reasons for credibility determinations; determining the credibility of the witnesses remains the quintessential function of the fact finder. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007).
The WCJ is free to accept, in whole or in part, the testimony of any witness, including expert medical witnesses. Remaley v. Workers' Compensation Appeal Board (Turner Dairy Farms, Inc.), 861 A.2d 405, 409 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 720, 872 A.2d 1200 (2005). However, the WCJ's findings of fact and conclusions of law must be supported by "substantial evidence" or "such relevant evidence as a reasonable mind might accept to support a conclusion." Ryan v. Workmen's Compensation Appeal Board (Community Health Services), 550 Pa. 550, 559, 707 A.2d 1130, 1134 (1998). The appellate role in a workers' compensation case is not to reweigh the evidence or review the credibility of witnesses, but to determine whether the WCJ's findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmens' Compensation Appeal Board (Skirpan), 531 Pa. 287, 291-92, 612 A.2d 434, 436-37 (1992).
In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 78, 828 A.2d 1043, 1052, 1053 (2003), our Supreme Court examined the statutory directive of Section 422(a) and distinguished between appellate review of credibility determinations based on an assessment of deposition testimony and those based on the inherently subjective assessment of live testimony. The Court explained:
The complication here - and in many cases like this - is that, although appellant appeared live before the WCJ, the medical experts, whose evidence concerning the persistence of appellant's work injury was conflicting, testified only by deposition. Since the WCJ did not observe the respective demeanors of the experts, her resolution of the conflicting evidence cannot be supported by a mere announcement that she deemed one expert more "credible and persuasive" than another. . . . [A]s the cases that we have canvassed above demonstrate, there are countless objective factors which may support the decision to accept certain evidence while "rejecting or discrediting competent [conflicting] evidence." For example, an expert witness's opinion may be based upon erroneous factual assumptions . . .; or an expert may have had less interaction with the subject . . .; or the interaction was in a less timely fashion . . .; or the expert may betray a bias or interest in the matter. . . . In addition, an expert witness may be unqualified or less qualified than the opposing party's expert; or may be impeached with inconsistencies or contradictions in his or her testimony or reports; or may be impeached in some other convincing fashion. But these are relevant factors which are readily capable of identification and easy articulation by the WCJ. The point is that, absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstance of witness
demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a "reasoned" one which facilitates effective appellate review.Daniels, 574 Pa. at 78-79, 828 A.2d at 1053-54 (citations omitted, emphasis added); see also Dorsey, 893 A.2d at 194 n.4 ("The WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision."). The Court in Daniels concluded that the WCJ failed to articulate a reasoned decision, and that remand was appropriate, where she articulated no objective basis for preferring one doctor's opinion to another and warned that it was inappropriate for an appellate court to "imagine reasons" for that preference, even if they could be drawn from the record. Daniels, 574 Pa. at 79, 828 A.2d at 1054.
Here, the WCJ witnessed Claimant's testimony live and found her credible. Her testimony establishes that she has suffered from the same physical symptoms since her work injury on December 1, 2008, and that she had no symptoms prior to that time. (F.F. ¶4.c.) The WCJ reviewed the testimony of Claimant's expert in two deposition transcripts. Dr. Lieberman competently testified to a reasonable degree of medical certainty that Claimant's ongoing back pain and her disc herniations were caused by her work injury on December 1, 2008. His opinion was based on his own observations and other medical records, including the December 29, 2008 MRI report, which recorded that Claimant suffered from a disc herniation at the L5-S1 level and protrusion at the L4-5 level. (MRI Report, Dec. 29, 2008, R.R. at 65a.) Dr. Lieberman concluded that the herniations did not pre-date the work-related trauma Claimant suffered on December 1, 2008, but that even if they did, he would still conclude that it was the trauma that exacerbated the herniations and was the cause of Claimant's ongoing pain and disability.
Claimant argues that she also credibly testified that she had no pre-existing conditions, which should prove, ipso facto, Employer's liability. As explained above, because Claimant's disc herniations are not obviously related to her work injury, she must provide medical evidence of causation. Although the WCJ found her credible, she is not competent to testify regarding the medical cause of her disability. --------
The entirety of the WCJ's decision as it relates to Dr. Lieberman's testimony states:
The deposition testimony of Frederick S. Lieberman MD is not credible. He testified on two occasions. Both instances found the majority of his testimony based on hearsay documentation from other medical facilities or providers. While Dr. Lieberman is Claimant's treating doctor, his opinions were nothing more that [sic] recitals of findings and opinions of other providers. While Dr. Lieberman may certainly offer an opinion based on documentation from other providers and facilities, testimony from a provider with direct knowledge, such as Dr. D'Andrea who performed surgery would have been preferred.(WCJ Op. at 6.)
The WCJ's explanation regarding why he discredited Dr. Lieberman's testimony was the WCJ's conclusion that the testimony was based on hearsay documents. That rationale is erroneous as Dr. Lieberman's opinion was based on his own observations and the MRI report that the WCJ admitted into evidence and later erroneously excluded from consideration. Given the WCJ's rationale, it is possible that the inclusion of the MRI report could change his ultimate finding that Claimant failed to offer any credible evidence regarding the alleged description of her work injury. (F.F. ¶7; C.L. ¶4.) Accordingly, the exclusion of the MRI report from consideration was not harmless error.
Further, the WCJ did not rely on any of the myriad objective factors of credibility that the Supreme Court described in Daniels and that we have repeatedly found may form the basis of a reasoned decision. In particular, the Supreme Court in Daniels rejected the kind of analysis undertaken here, where the WCJ simply stated he would have "preferred" the testimony of another physician. 574 Pa. at 74, 828 A.2d at 1051 (rejecting statement that one doctor was "more credible and persuasive" than another). Claimant correctly argues that in order to satisfy the WCJ's test for credibility, a claimant would be required to obtain testimony from all treating physicians who played a part in documenting her medical history. That kind of requirement was rejected in Daniels, where the Court recognized the importance of maintaining economic and efficient workers' compensation adjudications. 574 Pa. at 75-76, 828 A.2d at 1052. Finally, we note that the decision fails to summarize, even briefly, Dr. Lieberman's competent testimony or the competing medical evidence adduced by either party, which the Supreme Court in Daniels noted was indicative of a failure to grasp the evidentiary record as a whole. 574 Pa. at 79, 828 A.2d at 1054.
Without some explanation of why the WCJ found Dr. Lieberman's conclusions not credible, we cannot engage in any meaningful appellate review of his decision, which fails "to make the findings necessary to resolve the issues raised by the evidence." Dorsey, 893 A.2d at 194 n.4. Accordingly, we must vacate the denials of Claimant's Review and Penalty Petitions and remand to the Board with an instruction to remand to the WCJ to assess Dr. Lieberman's testimony in light of the competent medical evidence that the WCJ admitted during the hearings, which includes the MRI report erroneously excluded from consideration. An appropriate order follows.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 12th day of February, 2013, the order of the Workers' Compensation Appeal Board is VACATED to the extent that it denied Petitioner's review petition and penalty petition and REMANDED to the Board with instructions to remand to the workers' compensation judge for a reasoned opinion and proceedings consistent with this opinion.
Jurisdiction relinquished.
/s/ _________
JAMES GARDNER COLINS, Senior Judge