Opinion
No. 15 C.D. 2012
09-07-2012
Faustino De Los Santos, Petitioner v. Workers' Compensation Appeal Board (Burlington Coat Factory), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Faustino De Los Santos (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated December 9, 2011. The Board affirmed the decision of a Workers' Compensation Judge (WCJ), denying Claimant's reinstatement petition and granting Burlington Coat Factory's (Employer) termination petition pursuant to the Workers' Compensation Act (Act). For the reasons set forth below, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041, 2501-2708.
Claimant worked for Employer as a shipper/receiver. On July 28, 2005, Claimant suffered a work-related bilateral inguinal hernia while lifting a box. Employer accepted Claimant's injury pursuant to a Notice of Compensation Payable (NCP), and Claimant subsequently underwent hernia surgery. Claimant returned to light duty work and Employer filed a suspension petition. As a result, Claimant's benefits were suspended on October 10, 2005. Claimant filed a claim petition seeking total disability for the closed period from July 28, 2005, to October 4, 2005. Employer filed an answer denying the averments in the claim petition. Employer also filed a termination petition, alleging that Claimant fully recovered from his July 28, 2005 work injury as of April 24, 2006.
We note that Claimant's claim petition was ultimately amended to a petition to reinstate compensation benefits because Claimant had to stop working on January 13, 2006.
Before the WCJ, Claimant testified that, as part of his responsibilities with Employer, he filled trailer-trucks with boxes weighing up to one hundred (100) pounds. (Reproduced Record (R.R.) at 20a.) On July 28, 2005, while lifting a large box, Claimant felt a sharp pain in his groin. (Id. at 20a-21a.) Claimant underwent two surgeries for his hernia injury and returned to light duty work in October 2005. (Id. at 22a.) Claimant was released to full duty work on January 11, 2006, after an examination with the company physician. (Id.) The very next day, Claimant alleged that he reinjured himself while lifting boxes and told Employer he would be unable to continue lifting. (Id. at 23a.) On direct examination, Claimant alleged that he felt groin pain and back pain when lifting the boxes on January 12, 2006. (Id. at 24a, 28a.) Claimant visited George Rodriguez, M.D. on January 12, 2006. (Id.) Dr. Rodriguez filled out a physical capacities form, and Claimant gave the form to his supervisor the next day, January 13, 2006. (Id. at 26a.) Claimant testified that his supervisor informed him that he could not return to work until he presented a note indicating that he could perform heavy duty work. (Id. at 27a.)
On cross-examination, however, Claimant testified that his back pain began with his initial injury on July 28, 2005. (R.R. at 31a.)
Claimant presented the testimony of Dr. Rodriguez, a board certified physician in physical medicine and rehabilitation and pain management. (R.R. at 47a.) Dr. Rodriguez testified that he first examined Claimant on September 20, 2005, and that Claimant suffered from a bilateral inguinal hernia for which he underwent surgery on August 25, 2005. (Id. at 48a.) Claimant complained of inguinal post-operative pain. (Id.) Dr. Rodriguez testified that Claimant related lower back pain on his October 6, 2005 visit. (Id. at 50a.) Dr. Rodriguez also examined Claimant after the January 12, 2006 alleged injury. (Id. at 51a.) Dr. Rodriguez concluded that Claimant suffered from a right-sided neuropathic pain and postural lower back tightness in the nature of a lumbar strain secondary to abnormal posture due to his lower pelvic pain which he related to the original July 28, 2005 injury. (Id.) Dr. Rodriguez noted that a CAT scan performed on February 4, 2006 was normal. (Id.) Dr. Rodriguez also testified that even though Claimant's CAT scan was normal, the post-surgical syndrome Dr. Rodriquez diagnosed Claimant with was a microscopic condition. (Id.) Dr. Rodriguez diagnosed Claimant with a post-surgical syndrome based on his opinion that scar tissue may have formed as a result of the hernia surgery. (Id.)
Dr. Rodriguez admitted, however, that he had no objective evidence to support a pain diagnosis relating to the hernia operation. (R.R. at 55a.)
Employer presented the testimony of David Bosacco, M.D., a board certified orthopedic surgeon and the chief orthopedic surgeon at Riddle Memorial Hospital in Media, Pennsylvania. (Id. at 116a.) Dr. Bosacco was unaware of Claimant's complaints of inguinal pain and ultimately concluded that Claimant had fully recovered from his hernia surgery upon his examination of Claimant on April 24, 2006. (Id. at 127a, 131a.) At his initial examination, Dr. Bosacco diagnosed Claimant with a lumbar sprain and strain based on Claimant's history of lifting, but also testified that Claimant had recovered from any sprain or strain by the April 24, 2006 visit. (Id. at 123a.) Dr. Bosacco did not place restrictions on Claimant with respect to any lumbar injury. (Id. at 128a.) Dr. Bosacco also reviewed an EMG performed by Dr. Rodriguez, and Dr. Bosacco concluded that the EMG did not add additional evidence to a lumbar injury and that the results were consistent with Claimant's hernia injury. (Id. at 220a-21a.)
It appears that the parties are referring to an electromyography test, which is commonly referred to as an EMG.
Employer also presented the testimony of Lorenz Iannarone, M.D., a board certified physician in general surgery. (Id. at 78a.) Dr. Iannarone examined Claimant on April 24, 2006, and Claimant related pain of the inguinal nerve. (Id. at 79a.) Dr. Iannarone noted that there was absolutely no swelling of the inguinal nerves, canals, and no evidence of a hernia reoccurrence. (Id.) Dr. Iannarone concluded that Claimant recovered from his hernia surgery, and he did not believe that Claimant's back pain resulted from his hernia operation. (Id. at 81a, 234a, 239a.) Dr. Iannarone also agreed with Claimant's surgeon's opinion that Claimant was capable of full duty work as of October 27, 2005. (Id.) When testifying for a second time in 2009, Dr. Iannarone confirmed that he placed Claimant on light duty work subsequent to his examination, because he assumed that Claimant had post-operative pain based on his subjective complaints. (Id. at 80a, 242a.) Dr. Iannarone, however, testified that Claimant's subjective complaints did not correlate with his physical examination. (Id. at 80a, 242a.) Dr. Iannarone specifically addressed how Claimant's surgery would not cause the pain of which Claimant complained. (Id. at 80a, 234a.)
In her February 24, 2010 decision, the WCJ found as follows:
20. Based upon a review of the evidentiary record as a whole, this Judge rejects Claimant's testimony of sustaining a low back injury in the course and scope of employment with [Employer] resulting in disability as not credible and persuasive. This Judge further rejects Claimant's testimony of an on going work related hernia/groin pain. Significant in reaching these determinations is this Judge's observation of Claimant's demeanor while testifying and hearing his testimony first hand. Also significant is a careful and considered review of the medical evidence of record. Notably, the history Claimant provided regarding his low back pain is not consistent. At the hearing on February 7, 2006, he testified on direct that his low back pain was related to lifting on January 12, 2006 and then on cross-examination testified that he had low back pain on July 28, 2005. Claimant related to Dr. Bosacco that on July 28, 2005, he had severe pain in both his groin areas and low back pain after lifting. Claimant first reported the low back pain to Dr. Rodriquez in October 2006, before he returned to work. Dr. Rodriguez does not causally relate Claimant's low back pain to a lifting episode on either July 28, 2005 or January 12, 2006 as Claimant does. At no time did Claimant testify to or provide a history of his back pain being the result of holding his body in a certain way due to his groin pain.(WCJ opinion, attached to Claimant's brief at 40.) The WCJ also accepted the expert testimony of Dr. Iannarone over Dr. Rodriguez. The WCJ accepted Dr. Iannarone's testimony because Dr. Iannarone is a general surgeon who performs the type of surgery Claimant had, unlike Dr. Rodriguez who is not a surgeon. (Id.) Further, the WCJ noted that Dr. Iannarone's testimony was supported by his examination of Claimant and his review of the medical evidence. (Id.) Dr. Iannarone also pointed out inconsistencies with Dr. Rodriguez's testimony reflecting, in the WCJ's mind, a lack of knowledge regarding Claimant's condition. (Id.) Further, the WCJ rejected Dr. Rodriguez's opinion of inguinal pain suffered by Claimant and concluded that the only evidence Dr. Rodriguez had for that conclusion was Claimant's subjective pain complaints. (Id.) The WCJ accepted Dr. Iannarone's view that Claimant's inguinal canals were unaffected. (Id. at 41.) The WCJ also credited the testimony of Dr. Bosacco as opposed to Dr. Rodriguez, based on Dr. Bosacco's experience as an orthopedic surgeon. (Id.) The WCJ found that based on Dr. Bosacco's testimony, Claimant had fully recovered from his work-related injury based on Dr. Bosacco's physical examination and observation of Claimant. (Id.) The WCJ noted, however, that Dr. Bosacco diagnosed Claimant with a lumbar sprain or strain based on Claimant's work history as reported by Claimant. (Id.) The WCJ rejected Claimant's testimony and, in addition, did not credit Dr. Bosacco's testimony of a lumbar strain or sprain because it was based solely on Claimant's rejected testimony. (Id.)
Based on the chronology of this case, it appears that the WCJ may have been attempting to state October 2005.
The WCJ concluded that Employer sustained its burden of proving that the disability related to the work injury ceased. (Id. at 42.) The WCJ also concluded that the Claimant failed to sustain his burden of proving that Claimant had a continued disability. (Id.) Accordingly, the WCJ granted Employer's termination petition and denied Claimant's reinstatement petition. (Id. at 43.) The Board affirmed the WCJ's decision.
On appeal, Claimant argues that the WCJ's decision, granting Employer's termination petition and denying Claimant's reinstatement petition, is not supported by substantial evidence. With this argument, Claimant essentially argues that Employer's expert testimony, on which the WCJ relied, is equivocal and cannot be relied upon to support Employer's termination petition, because Claimant's work release was dependent upon restrictions. Claimant also argues that because the WCJ did not find Claimant's testimony to be credible in light of the medical evidence presented, the WCJ's decision is not reasoned under Section 422(a) of the Act. Finally, Claimant argues that even if we affirm the grant of Employer's termination petition, Claimant is nevertheless entitled to benefits from January 12, 2006, through April 24, 2006.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
77 P.S. § 834(a).
We first address Claimant's argument that the WCJ's decision is not supported by substantial evidence because Employer's medical testimony is equivocal. Specifically, Claimant argues that expert testimony imposing work restrictions on a claimant's return to work is not consistent with a diagnosis of full recovery. We disagree.
An employer seeking to terminate workers' compensation benefits bears the burden of proving, by substantial evidence, either that an employee's disability has ceased, or that any current disability arises from a cause unrelated to an employee's work injury. Davis v. Workers' Comp. Appeal Bd. (Mercy Douglas), 749 A.2d 1033, 1035 (Pa. Cmwlth. 2000) (en banc) (citing Parker v. Workers' Comp. Appeal Bd. (Dock Terrace Nursing Home), 729 A.2d 102 (Pa. Cmwlth. 1999)). In a case where the claimant complains of pain, the burden of proof in a termination petition is met when "an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there is no objective medical findings which substantiate the claims of pain or connect them to the work injury." Udvari v. Workmen's Comp. Appeal Bd. (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997). A claimant's subjective complaints of pain are a question of fact for the WCJ, and absent objective medical testimony, the WCJ is not required to accept claimant's assertions. Id. at 327, 705 A.2d at 1293. "If a medical expert's testimony is less than positive or is based on possibilities, it does not constitute unequivocal testimony." Cyclops Corp./Sawhill Tubular Div. v. Workmen's Comp. Appeal Bd. (Paulsen), 632 A.2d 617, 621 (Pa. Cmwlth. 1993), appeal denied, 538 Pa. 617, 645 A.2d 1320 (1994). Expert testimony is unequivocal if, after providing a foundation, the expert testifies that he believes or thinks the facts exist. Bemis v. Workers' Comp. Appeal Bd. (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011). Expert testimony is not equivocal where a doctor opines that minimal restrictions should apply to a claimant's employment based on a claimant's length of time removed from the work force. Davis, 749 A.2d at 1035.
We find this case most similar to Davis. In Davis, the employer presented expert testimony in support of its termination petition. Davis, 749 A.2d at 1033. The doctor in Davis testified that based on a review of the medical records, the claimant suffered a low back strain/sprain from her work-related injury but her exam revealed no continued disability with respect to that injury. Id. at 1033-34. The doctor opined that the claimant's complaints of pain were not supported by the examination or medical reports reviewed. Id. at 1034. On redirect examination, the doctor testified as to work restrictions placed on the claimant. The doctor testified that he placed work restrictions on the claimant based on her length of time removed from the work force. Id. In addition, the doctor noted that she would be able to go back to full time work and the restrictions would allow her to recondition herself. Id. In an en banc decision, we held that this testimony was sufficient to support a termination of benefits. Specifically we stated that:
[The doctor's] opinion that minimal restrictions should apply on [the claimant's] immediate return to work did not render his opinion equivocal or insufficient because such restrictions were not related to her work injury. Rather, [the doctor] opined that such restrictions were necessary because [the] claimant had been out of the work force for such a long period of time. Moreover, [the doctor] indicated that he would apply such restrictions to any person who had been out of the work force for a significant period of time and was returning to a moderately heavy job. He never opined that such restrictions were necessary because of the injury itself.Id. at 1035.
Here, Dr. Iannarone's testimony nearly mirrors the expert testimony in Davis. Dr. Iannarone opined that Claimant had fully recovered and he would place him on light duty work to start based on his nine month leave from the work force. Specifically, Dr. Iannarone stated as follows: "I thought he was at full recovery and since he hadn't worked for nine months, I recommended light duty to start. I don't think that's a [contradiction] in this particular case." (R.R. at 238a.) On cross-examination, Dr. Iannarone expanded on this point in the following exchange:
Q: And again, counsel kept bringing up the fact that you had released him on light duty also in your report and, I believe, testified to the fact that even though you felt he had fully recovered from the hernia, that in your practice that would be your way of doing things.(R.R. at 244a-45a.) Moreover, Dr. Iannarone testified that Claimant's subjective complaints did not correlate with his physical examination, much like the claimant in Davis. Specifically, Dr. Iannarone testified that Claimant's complaints of severe tenderness along the incision line from his hernia surgery and tenderness in his testicles did not correlate with his physical examination. (R.R. at 79a, 80a.) We stress that testimony by an employer's medical expert as to the existence of a claimant's complaints of pain does not require a WCJ to find for the claimant. Udvari, 550 Pa. at 327, 705 A.2d at 1293. Rather, the issue of whether a claimant suffers from subjective complaints of pain is a question of fact for the WCJ. Id., 705 A.2d at 1293. Here, Dr. Iannarone never opined that the restrictions were related to the injury itself; rather, he imposed the restrictions only because Claimant had been out of work for nine months. Accordingly, the holding in Davis applies. Moreover, based on the credited expert testimony, there is evidence that Claimant has fully recovered from his work-related injury and that Claimant's complaints of pain are not supported by objective medical evidence. We believe, therefore, that Employer met its burden of proof for the termination petition.
A: Yes, I'll use an example. If I have a patient who I perform a hernia repair on, straight routine hernia, and they do heavy lifting, whatever the case is, take his case he works in Burlington Coat Factory, he lifts mattresses. At four weeks I would let him-up to four weeks nothing less than 20 pounds. Four weeks to-
Q: You mean nothing more than?
A: Nothing more than 20 pounds. And then over the course of the next two weeks, increase so by six weeks they can do anything they want. Now this guy was operated on and he was out of work for nine months and didn't work, there's no way I'm going to send him back to work, although he's fully recovered. Now, there's two ways you can do it. You can either say, all right, he can go on light duty and I want a work strengthening program or you can fill out an Affidavit of Recovery and say I want him on light duty for two to four weeks, whatever.
Q: But it was your opinion that at that time he had fully recovered he just needed to-
A: I was being nice, I thought he was fully recovered . . . .[Based on his complaints], I gave him the benefit of the doubt. I don't think his exam corroborated.
To the extent that Claimant argues that substantial evidence does not exist to support the WCJ's denial of Claimant's reinstatement petition, we disagree. The WCJ is the ultimate fact finder in workers' compensation cases, and we are bound by the WCJ's findings of fact if they are supported by substantial evidence. General Electric Co. v. Workmen's Comp. Appeal Bd. (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth.), appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). It does not matter that there is evidence of record which could support a finding contrary to that made by the WCJ, the only inquiry is whether there is evidence of record which supports the WCJ's finding. Hoffmaster v. Workers' Comp. Appeal Bd. (Senco Products Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). Claimant argues that the EMG report stands as objective support for Claimant's ongoing injury. (Claimant's brief at 17-18.) Specifically, Claimant cites to parts of Drs. Iannarone and Bosacco's testimony to support the theory that Claimant suffered an ongoing injury. Expert testimony, however, must be examined as a whole. See City of Philadelphia v. Workers' Comp. Appeal Bd. (Kriebel), 29 A.3d 762 (Pa. Cmwlth. 2011). Claimant argues that Dr. Bosacco's opinion on the EMG results supports an ongoing injury. To the contrary, Dr. Bosacco testified that the EMG "could be consistent with his hernia diagnoses, but they do not add anything referable to a lumbar sprain or strain." (R.R. at 220a-21a.) It is evident from the record that Employer did not dispute Claimant's hernia injury. It is further evident that Claimant underwent a successful hernia operation. Additionally, it is evident from the expert testimony that Claimant had fully recovered from that work-related hernia injury as of April 24, 2006. (R.R. at 127a, 244a-45a.)
With respect to Dr. Iannarone's testimony, Claimant argues that his testimony supports post-operative pain. To the contrary, while he stated that it is "possible" for Claimant to have pain related to his surgery, Dr. Iannarone did not believe that Claimant's complaints correlated to his physical examination and he "[stood] by that opinion." (R.R. at 243a.) Furthermore, Dr. Iannarone concluded that Claimant's alleged back pain was not the result of Claimant's hernia operation. The WCJ credited the testimony of both Dr. Bosacco and Dr. Iannarone with respect to Claimant's recovery. The WCJ also rejected Claimant's and Dr. Rodriguez's testimony. Additionally, while there may be a question that Claimant suffers from back pain, there is no testimony which relates Claimant's back injury to a work-related incident or his hernia surgery. It is evident, therefore, based on the accepted medical testimony of Drs. Iannarone and Bosacco taken as a whole, that Claimant reached maximum recovery from his work-related injury, did not suffer another work-related injury, and, therefore, he is not entitled to reinstatement of benefits.
This Court notes that both parties discuss Thompson v. Workers' Compensation Appeal Board (Sacred Heart Medical Center), 720 A.2d 1074 (Pa. Cmwlth. 1998), appeal denied, 559 Pa. 699, 739 A.2d 1062 (1999), in an attempt to support their arguments. The issue in Thompson was whether substantial evidence existed to support the expert's finding that the claimant had fully recovered from her work-related injury. In Thompson, we concluded that while the expert opined that he placed the claimant on light duty work based solely on the fact that she had been removed from the work force, the expert actually placed the claimant on light duty work for a variety of reasons, including the fact that she had been out of the work force. Thompson, 720 A.2d at 1078. Here, there is no evidence by either credited medical expert that Claimant's light duty restrictions were the result of anything other than his absence from the work force. We, therefore, find Thompson distinguishable.
To the extent Claimant argues that Parker v. Workers' Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102 (Pa. Cmwlth. 1999), should apply, we disagree. The claimant in Parker received treatment from a chiropractor in an attempt to assist the recovery of her workrelated injury. Parker, 729 A.2d at 104. The treatment actually "deconditioned" the claimant and left her unable to return to her preinjury position. Id. In that case, we concluded that the expert testimony was insufficient to support a termination petition, because, even though the claimant had recovered from the workrelated injury, the claimant's deconditioned state was a result of the medical treatment for the workrelated injury. Id. at 105. In Parker, therefore, a causal connection was established between the light duty work and the workrelated injury. Such is not the case here, and Parker, therefore, is distinguishable.
Next, we address Claimant's argument that the WCJ's decision is not reasoned under Section 422(a) of the Act. Section 422(a) of the Act requires a WCJ to issue a reasoned decision such that it that permits an appellate court to exercise adequate appellate review. Amendeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012). To satisfy this standard, a WCJ need not discuss every detail in the record. Id. "Rather, Section 422(a) of the Act requires WCJs to issue reasoned decisions so that this Court does not have to 'imagine' the reasons why a WCJ finds that the conflicting testimony of one witness was more credible than the testimony of another witness." Id. (citations omitted). "The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses." Leca v. Workers' Comp. Appeal Bd. (Philadelphia Sch. Dist.), 39 A.3d 631, 634 n.2 (Pa. Cmwlth. 2012).
Here, the WCJ did not find Claimant's testimony credible based on Claimant's demeanor as well as the inconsistencies in his testimony regarding his alleged pain. The credibility of a claimant is a factual determination for the WCJ. Udvari, 550 Pa. at 327, 705 A.2d at 1293. The WCJ noted that Claimant testified on direct examination to back pain on one particular date, but on cross-examination Claimant testified to back pain on a different date. Further, the WCJ noted that Claimant did not testify or provide a history of back pain associated with his injury or his hernia surgery. This testimony, coupled with the accepted medical testimony, reasonably calls Claimant's credibility into question. The WCJ explained her reasons for rejecting Claimant's testimony and, as the fact finder, the WCJ has the discretion to discredit Claimant's testimony. The WCJ's credibility determinations, therefore, are reasoned under Section 422(a) of the Act.
Finally, we address Claimant's argument that he should have been awarded benefits from January 12, 2006, through April 24, 2006. Claimant argues that Employer failed to address Claimant's eligibility for benefits between January 12, 2006, and April 24, 2006. When a claimant seeks reinstatement, however, it is the claimant's burden to prove that, through no fault of his own, his earning power is once again adversely affected by his disability. Bufford v. Workers' Comp. Appeal Bd. (North American Telecom), 606 Pa 621, 627, 2 A.3d 548, 552 (2010) (emphasis added). Second, the claimant must prove that the disability which gave rise to his original claim, in fact, continues. Bufford, 606 Pa. at 627, 2 A.3d at 552. Since October of 2005, Employer was under no obligation to pay Claimant benefits based on Claimant's return to work and the filed suspension or modification petition. The WCJ considered the evidence presented by Claimant and Claimant's expert but rejected it. The WCJ specifically found that Claimant failed to prove a low back injury or residual hernia pain. (WCJ's opinion, attached to Claimant's brief at 40.) Accordingly, contrary to Claimant's contention that Employer failed to present testimony on this issue, Claimant failed to meet his burden of proof under the reinstatement petition. Claimant's argument, therefore, is without merit.
Because we find no error on behalf of the WCJ or the Board, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 7th day of September, 2012, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge