Opinion
No. 1090 C.D. 2011
04-17-2012
Gerald McGoldrick, Petitioner v. Workers' Compensation Appeal Board (Marq Steel Services), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Gerald McGoldrick (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board), affirming the Order of the Workers' Compensation Judge (WCJ) which granted Claimant's Claim Petition for a closed period, and granted Marq Steel Services' (Employer) Termination Petition. Claimant argues that the WCJ's decision to terminate his workers' compensation benefits is not supported by substantial evidence. Upon review, we affirm.
Claimant was employed as a journeyman/iron worker for Employer. On March 11, 2009, Claimant and his father were on a job site when there was a hydrofluoric acid fume release. Claimant was transported to a hospital emergency room where he underwent medical testing including blood testing, x-rays and an EKG, all of which were normal. Claimant received follow-up medical care from Employer's panel physicians for the period March 12, 2009 through March 19, 2009. Employer issued a Medical Only Notice of Compensation Payable (Medical Only NCP) on March 31, 2009, acknowledging that Claimant suffered an injury as a result of the March 11, 2009 incident. Therein, Claimant's injury was described as a "chemical exposure due to hydrofluoric acid inhalation, which injury affected the head, throat and eyes." (WCJ Decision, Findings of Fact (FOF) ¶ 2.)
Claimant filed a Claim Petition on April 19, 2009, alleging that he suffered a work-related injury on March 11, 2009, described as '"Toxic exposure to [hydrofluoric] acid with residual headaches, chest pains, dizziness, nausea, fatigue and visual changes.'" (WCJ Decision/Order at 1.) Employer filed a timely answer denying the material allegations set forth in the Claim Petition. On September 15, 2009, Employer filed a Termination Petition alleging that Claimant had fully recovered from his work-related injury as of March 27, 2009. Hearings on the petitions ensued before the WCJ. (WCJ Decision/Order at 1.)
In support of the Claim Petition, Claimant testified before the WCJ on June 3, 2009 and October 7, 2009. Claimant also presented documentary evidence in addition to the August 24, 2009 and January 18, 2010 deposition testimony of Bruce Grossinger, D.O., who is board certified in the field of neurology. In opposition to the Claim Petition, and in support of its Termination Petition, Employer presented documentary evidence and the deposition testimony of Louis Lam, M.D., who specializes in internal medicine, and John A. Curtis, M.D., who is a board certified toxicologist.
The WCJ found Claimant's testimony credible with respect to the chronology of the events of March 11, 2009, when Claimant suffered a chemical exposure while at work, and the course of treatment Claimant underwent as a result. However, the WCJ rejected Claimant's testimony with respect to the severity and extent of Claimant's disability as a result of the chemical exposure. (FOF ¶ 7a.) Given "the significant lack of objective findings on multiple tests," the WCJ rejected Dr. Grossinger's testimony, finding as follows:
[7]b. This Judge has carefully reviewed the deposition testimony of Dr. Grossinger, who testified on two occasions in this case and finds the testimony of Dr. Grossinger to be competent but less than credible and/or persuasive as to the causal nexus between the constellation of symptoms with which Claimant presented and his exposure to hydrofluoric acid fumes on March 11, 2009. Specifically, this Judge notes that the first evaluation performed by Dr. Grossinger on April 1, 2009 reported the cranial nerve analysis revealed pupils which were equally reactive to light and accommodation, which the doctor acknowledged pointed to the fact that the autonomic nervous system did not appear to be impaired. In addition, the doctor also memorialized that Claimant's extra ocular movements were intact as well. Further, there were no visual field cuts meaning that the part of the brain that relates to visual acuity and somatotopic representation of visual fields such as the
optic radiations, portions of the temporal lobes and particular parts of the brain appeared to have been "spared." Notwithstanding, the doctor testified that Claimant suffered from the inhalatory systemic [e]ffects of hydrofluoric acid with respect to his respiratory system, his visual system, and his neurologic system. Yet, Dr. Grossinger acknowledged that Dr. Howarth, to whom he referred Claimant, did not specifically state that Claimant's symptom of dizziness was related to an acid inhalation exposure. In addition, Dr. Grossinger acknowledged that the examination performed by Dr. Ruckenstein during July 2009 was within normal limits. This included no evidence of altered vision, double vision, pain or redness in the area of the eyes. Finally, the doctor also agreed that the report of Dr. Rotz provided an impression of no objective indications of either peripheral or central vestibular system involvement and stated that "there w[ere] no anatomic defects." When viewing the medical evidence in this case as a whole and noting the significant lack of objective findings on multiple tests, this Judge does not find the opinions of Dr. Grossinger to be credible or persuasive concerning his diagnosis he provides in this case as well as the opinion of disability. To the extent that the testimony of Dr. Grossinger differs or conflicts in any material respect with the testimony of either Dr. Curtis or Dr. Lam, the testimony of Dr. Grossinger is specifically rejected.(FOF ¶ 7b.)
The WCJ found both Dr. Lam's and Dr. Curtis' testimony to be competent, credible and persuasive and found the following facts based on their testimony:
[8]c. . . . The clinical evaluations performed by [Employer's panel physicians, Dr. Hudes and Dr. Lam,] failed to reveal objective clinical findings of injury as a result of hydrofluoric acid inhalation. In addition, follow-up laboratory tests and diagnostic studies performed by or at the request of these physicians were reported as normal;
d. Based upon the credible testimony of Dr. Lam, this Judge finds, as a fact, that by March 19, 2009, Claimant had fully recovered from the [e]ffects of the hydrofluoric acid inhalation exposure to which Claimant was subjected on March 11, 2009. This finding of fact is based upon the
testimony of Dr. Lam, which this Judge found to be credible in its entirety;(FOF ¶¶ 8c-g.) Based on the findings, the WCJ concluded that Claimant failed to sustain his burden that he suffered ongoing disability beyond March 19, 2009, as a result of the chemical exposure Claimant experienced on March 11, 2009. The WCJ did not find Dr. Grossinger's testimony credible with respect to the doctor's ongoing diagnosis and opinion of Claimant's disability; therefore, the WCJ concluded that Claimant "failed to establish by credible medical evidence that he was disabled and/or suffered any residual [e]ffects from the hydrofluoric acid inhalation exposure beyond March 19, 2009." (WCJ Decision, Conclusions of Law (COL) ¶ 3.) The WCJ concluded further that Employer established that Clamant had fully recovered as of March 19, 2009 from the effects of his March 11, 2009 work-related injury. (COL ¶ 5.)
e. This Judge finds, as a fact, that by July 27, 2009, the date that Claimant was seen and evaluated by Dr. Curtis, a Board certified toxicologist, Claimant still did not present with any objective clinical findings of injury that was directly related to or caused by the hydrofluoric acid inhalation incident of March 11, 2009. This finding of fact is supported by and based upon not only the credible testimony of Dr. Curtis, but also the diagnostic and laboratory studies to which Dr. Curtis referred to and relied upon during his evaluation of Claimant and when formulating his ultimate opinion;
f. This Judge finds, as a fact, that as of March 19, 2009, Claimant was capable of performing his pre-injury job as a journeyman/iron worker as Claimant had fully recovered from the [e]ffects of the March 11, 2009 hydrofluoric inhalation exposure;
g. This Judge finds, as a fact, that the constellation of subjective symptoms with which Claimant presents and reports to various physicians in this matter, were not caused by or related to the hydrofluoric acid inhalation that Claimant may have experienced on March 11, 2009. This finding of fact is based upon the credible testimony presented by Dr. Curtis in this case.
Accordingly, the WCJ granted Claimant's Claim Petition for the closed period March 11, 2009 through March 19, 2009, and further granted Employer's Termination Petition effective March 20, 2009. Claimant appealed the WCJ's Decision and Order to the Board, which affirmed. Claimant now petitions this Court for review.
"This Court's scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated." Peters Township School District v. Workers' Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008). "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). The appellate role is not to reweigh the evidence or review the credibility of witnesses, but to "determine whether, upon consideration of the evidence as a whole, the [WCJ's] findings have the requisite measure of support in the record." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992).
We initially note that Claimant does not contest the WCJ's grant of his Claim Petition for a closed period. Generally, to sustain an award of benefits, a claimant has the burden to establish that he "suffered a work-related injury and that this injury resulted in" disability. Ruhl v. Workmen's Compensation Appeal Board (Mac-It Parts, Inc.), 611 A.2d 327, 329 (Pa. Cmwlth. 1992). Where an employer has issued a medical only notice of compensation payable, the burden would be on the employee who files a claim petition seeking wage loss benefits to prove that the injury has resolved into a disability causing loss of earning power. Orenich v. Workers' Compensation Appeal Board (Geisinger Wyoming Valley Medical Center), 863 A.2d 165, 170 (Pa. Cmwlth. 2004). During the pendency of the claim petition, the claimant must demonstrate "that the injury continues to cause disability." Ohm v. Workers' Compensation Appeal Board (Caloric Corporation), 663 A.2d 883, 886 (Pa. Cmwlth. 1995). "[A] WCJ is authorized, when considering a claim petition, to award compensation for a work-related injury, and, in addition, to terminate benefits as of the date the disability ceased . . . if the claimant has not carried [his] burden of proof to establish a continuing disability." Id. An employer has no obligation to present any evidence during a claim petition. Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939, 954 (Pa. Cmwlth. 2008).
As our Supreme Court recently explained in Heller v. Pennsylvania League of Cities and Municipalities, ___ Pa. ___, ___, 32 A.3d 1213, 1224 (2011):
Workers' compensation pays for an injured individual's medical expenses and, in the event that the individual is unable to work, provides wage-loss compensation. Workers' compensation is not restricted to disabling injuries. It is possible to recover under the Workers' Compensation Act[, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708,] exclusively for medical expenses in "no lost time/medical only" claims. See Orenich v. [Workers' Compensation Appeal Board] (Geisinger Wyoming Valley Medical Center), 863 A.2d 165 (Pa. Cmwlth. 2004) []. Thus, to the extent that an individual suffers an injury during the course and scope of his employment, but is not disabled or caused to miss work, he may still recover medical benefits under the Workers' Compensation Act.
In this matter, the WCJ recognized that Claimant suffered a work-related injury "described as a chemical exposure due to hydrofluoric acid inhalation, which injury affected the head, throat and eyes" for which Employer issued a Medical Only NCP. (FOF ¶ 2.) In the Claim Petition, Claimant alleged that he suffered total disability as a result of the work-related injury suffered on March 11, 2009, which he described as "[t]oxic exposure to hydrophoric acid with residual headaches, chest pains, dizziness, nausea, fatigue and visual changes." (Claim Petition at 1-2.) Therefore, Claimant was required to prove that his work-related injury had resolved into a disability or loss of earning power, as set forth in his Claim Petition, and that the injury continued to cause him disability. Ohm, 663 A.2d at 886. However, the WCJ rejected Claimant's evidence and specifically concluded that Claimant "failed to establish by credible medical evidence that he was disabled and/or suffered any residual [e]ffects from the hydrofluoric acid inhalation exposure beyond March 19, 2009." (COL ¶ 3.) As a result, the WCJ ordered Employer to pay Claimant wage loss benefits for March 18, 2009 and March 19, 2009, and "to pay for reasonable, necessary and causally related medical expenses as a result of the March 11, 2009 work injury from March 11, 2009 through and including March 19, 2009." (WCJ Order at ¶¶ 1-2.) In other words, the WCJ effectively terminated Claimant's wage loss benefits and medical expenses due to his March 11, 2009 work-related injury, as described in the Claim Petition, on March 20, 2009, when the WCJ granted Claimant's Claim Petition for a closed period.
We now turn to Claimant's argument that the WCJ erred in granting Employer's Termination Petition. In support of this appeal, Claimant argues that the WCJ's grant of Employer's Termination Petition was not supported by substantial competent evidence of record because Dr. Lam and Dr. Curtis did not provide unequivocal testimony that Claimant's work injuries, as recognized in the Medical Only NCP, all resolved by March 20, 2009. Claimant points out that Dr. Lam and the other panel physician never released him to full duty but, instead, only released him to light duty work as a result of his hydrofluoric acid exposure. Claimant also points out that Dr. Lam recommended that Claimant see an eye doctor because of his blurred vision; therefore, the doctor's opinion that he fully recovered is undermined by this recommendation. Claimant argues further that Dr. Curtis' testimony is also unreliable because the doctor described Claimant's work injury as "local irritative effects primarily affecting eyes, throat, and respiratory system" and did not acknowledge that the Medical Only NCP included a head injury. (Claimant's Br. at 13.) Claimant also argues that Dr. Curtis' testimony, that Claimant should be restricted from working at heights until Claimant was evaluated for vertigo and cleared by a specialist as being safe to return to work at full capacity, shows that the doctor did not believe that Claimant had fully recovered from his work-related injury.
"To succeed in a termination petition, the employer bears the burden of proving that the claimant's disability has ceased and/or that any current disability is unrelated to the claimant's work injury." Paul v. Workers' Compensation Appeal Board (Integrated Health Services), 950 A.2d 1101, 1104 (Pa. Cmwth. 2008). An employer satisfies its burden of proof to show that a claimant is fully recovered when the employer provides unequivocal medical testimony "that it is [the medical expert's] 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). "The question of the competency of evidence is one of law and fully subject to our review." Taylor v. Workers' Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). "Where an expert's opinion is based on an assumption that is contrary to the established facts of record, that opinion is [incompetent]." Id. However, "[a] medical expert's opinion is not rendered incompetent unless it is solely based on inaccurate or false information." American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (emphasis in original). "[I]t is well established that the opinion of a medical expert must be viewed as a whole, and that inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies." Id.
A review of Dr. Lam's and Dr. Curtis' entire deposition testimony shows that Claimant's arguments, that the doctors' opinions of full recovery were equivocal and unreliable, are based on an incorrect characterization of the testimony. Dr. Lam testified that, as of March 19, 2009, there were no objective findings to substantiate Claimant's complaints. (Lam's Dep. at 22, R.R. at 227A.) When Dr. Lam was asked whether Claimant could return to full duty as of March 19, 2009, the doctor explained that he was ready to release Claimant to full duty at his pre-injury job, and that he was ready to be released to full duty from day one; however, the doctor had to give Claimant the benefit of the doubt because he was complaining of several subjective symptoms. (Lam's Dep. at 22, R.R. at 227A.) Dr. Lam testified further that Claimant was functionally able to return to full duty, but the doctor put Claimant on light duty as a precaution until all Claimant's test results had been received by the doctor. (Lam's Dep. at 23, R.R. at 227A.) Dr. Lam testified that he asked Claimant to return for a follow-up visit, but that Claimant never returned. (Lam's Dep. at 24, R.R. at 227A.) Finally, Dr. Lam unequivocally testified that Claimant "was fully capable of returning back to his pre-injury job full-duty, no restrictions." (Lam's Dep. at 25, R.R. at 227A.) Claimant is correct that Dr. Lam recommended that Claimant see any eye doctor for his blurred vision. (Lam's Dep. at 26, R.R. at 228A.) However, the doctor explained that he advised Claimant to visit an eye doctor because Claimant may need glasses due to the fact that Claimant's eye exams were normal in that "there was no sign of any irritation, infection, redness, discharge, [or] pus coming out." (Lam's Dep. 26, R.R. 228A.)
Claimant argues that Dr. Curtis' testimony was unreliable because he did not recognize that Claimant suffered an injury to his head as accepted by Employer when it issued the Medical Only NCP. However, Claimant misunderstands his work-related injury as described on the Medical Only NCP. Claimant's injury on the Medical Only NCP was described as "chemical exposure due to hydrofluoric acid inhalation, which injury affected the head, throat and eyes." (FOF ¶ 2 (emphasis added).) The description does not indicate that Claimant suffered a "head injury" in the normal sense. The WCJ found that Claimant testified that he experienced, inter alia, dizziness and headaches as result of the March 11, 2009 chemical exposure. (FOF ¶¶ 3d-e.) Dr. Curtis specifically testified as to Claimant's complaints of dizziness and headaches, and opined unequivocally that Claimant's complaints were subjective and not due to hydrofluoric acid. (Curtis' Dep. at 38-41, R.R. at 167A.) Dr. Curtis testified further that there was nothing in his examination of Claimant "that would suggest that he's at an increased risk of falls", and the doctor could not document objectively whether Claimant was suffering from dizziness or vertigo. (Curtis' Dep. at 41, R.R. at 167A.) Finally, while Dr. Curtis testified that he would recommend that Claimant have an evaluation for dizziness or vertigo if he felt unsafe due to those complaints, the doctor further testified unequivocally that the alleged vertigo and dizziness were "completely unrelated to any hydrofluoric acid exposure." (Curtis' Dep. at 42, R.R. at 168A.)
As such, Claimant's arguments, that Dr. Lam's and Dr. Curtis' testimony is equivocal, unreliable or undermines the doctors' opinions of full recovery, are based on his selective excerpts of the doctors' testimony and not on the credited testimony viewed as a whole. We conclude that the WCJ's finding that Claimant had fully recovered from his March 11, 2009 work-related injury as of March 19, 2009, is supported by substantial competent evidence. The WCJ found that: (1) both doctors credibly and persuasively testified that Claimant was fully recovered from the effects of the March 11, 2009 work-related injury; and (2) the doctors' examinations of Claimant revealed that there were no objective clinical findings of injury as a result of the hydrofluoric acid inhalation suffered by Claimant on March 11, 2009. (FOF ¶ 7.) As noted herein, our role is not to reweigh the evidence or review the credibility of witnesses, but to "determine whether, upon consideration of the evidence as a whole, the [WCJ's] findings have the requisite measure of support in the record." Bethenergy, 531 Pa. at 293, 612 A.2d at 437.
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 17, 2012, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge