S.R. Neustein v. WCAB (PNC Financial Services Group, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Seth R. Neustein, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (PNC Financial Services :
Group, Inc.), : No. 11 C.D. 2016
Respondent : Submitted: September 16, 2016
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: October 13, 2016
Seth R. Neustein (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) decision granting in part and denying in part
Claimant’s claim petition and terminating his benefits as of October 14, 2010. For
the reasons that follow, we affirm.
I.
As of July 2010, Claimant was employed by PNC Financial Services
Group, Inc. (Employer) as a technical support specialist II, responsible for fixing
computer equipment and aiding with software problems. At that time, Claimant
was experiencing respiratory problems and was working under the restrictions
imposed upon him by his primary care physician, Joseph I. Trompeter, M.D. (Dr.
Trompeter). Claimant had also completed a Family and Medical Leave Act
(FMLA), 29 U.S.C. §§ 2601-2654, application due to his breathing issues.
On July 23, 2010, Claimant was moving his work station to a new
location which required him to disconnect and move his computer. While engaged
in these activities, Claimant started coughing, collapsed to the floor and was taken
to the emergency room at Allegheny General Hospital. He was treated and
released the same day, but was off work through September 2010. Claimant filed a
claim petition on February 14, 2013, alleging that he sustained a work-related
injury, which Employer denied.
II.
Before the WCJ, Claimant testified1 that in the fall of 2009, there was
a leak in the ceiling that dripped directly behind where Claimant sat in his cubicle.
He also testified that during the summer of 2010, he experienced water damage at
his home, had to rip out carpeting and padding inside his closet, and eventually
moved out of the house for a period of time. Claimant began treating with Dr.
Trompeter in June 2010 for coughing episodes that caused him to become short of
breath. In July 2010, Claimant was working under restrictions imposed upon him
by Dr. Trompeter due to his respiratory problems, including severe episodic
coughing, shortness of breath and fatigue. Claimant was restricted from heavy
1
Claimant also testified via deposition held on June 12, 2013.
2
lifting and working in dusty areas. Dr. Trompeter diagnosed him with a possible
lung infection due to exposure to mold. Claimant told David Byers (Byers), his
immediate supervisor, that his doctor told him he was deathly ill.
On July 23, 2010, Byers directed Claimant to move his office to
another building, which entailed lifting and carrying heavy equipment and
disconnecting equipment in a dusty area under his desk. Claimant began coughing,
had pain and tightness in his chest, and had difficulty breathing. He collapsed to
the floor and was taken to the hospital by paramedics. Claimant testified that while
in transit to the hospital, his lungs collapsed and he was suffocating. He was
admitted to the hospital, treated and released the same day. Claimant was out of
work until September 2010, during which time he received his regular wages.
Claimant returned to work for Employer as a project manager and since December
2010, he has been performing this job from home. 2
Claimant has continued under the care of Dr. Trompeter since June
2010 and has also been referred to other specialists. He takes prescribed
medications and engages in physical therapy sessions four to five days per week to
build up his endurance. These sessions include working on an elliptical machine
as well as with weights.
2
Claimant stipulated that he was not seeking any disability or wage loss benefits as a
result of his alleged work-related injury, and that his claim was limited to medical benefits. He
admitted that he earns more now as a project manager than he did in his previous position.
3
Claimant submitted into evidence two narrative reports from Dr.
Trompeter, dated October 9, 2013, and February 26, 2014. In the first report, Dr.
Trompeter, a pediatrician, noted that Claimant began treating with him on
December 10, 2003, and that Claimant was a rather healthy man until an onset of
illness in June 2010 when he developed respiratory problems. As of July 8, 2010,
Dr. Trompeter noted paroxysmal coughing and shortness of breath. Claimant
underwent an x-ray on July 10, 2010, which was negative. Dr. Trompeter later
determined that Claimant was suffering from pertussis or whooping cough, which
was confirmed through testing.
Dr. Trompeter noted that it appeared Claimant’s supervisor ignored
the limitations the doctor placed on Claimant’s physical activities and
environment, as the supervisor had Claimant engage in heavy lifting in a very
dusty environment. Dr. Trompeter opined that Claimant suffered an aggravating
event when he collapsed at work on July 23, 2010, and from that day forward he
noted a complete decrease in Claimant’s ability to function. He stated, but for this
incident, that Claimant’s whooping cough would have cleared within weeks. In his
2014 report, Dr. Trompeter opined that Claimant’s ongoing problems were a direct
result of the July 23, 2010 work incident, and that Claimant was in need of
extensive ongoing therapy.
Dr. Trompeter reviewed the independent medical report prepared for
Employer by Gregory J. Fino, M.D. (Dr. Fino). He disagreed with Dr. Fino’s
conclusions that Claimant did not suffer a work-related injury and that the
respiratory problems he was having were unrelated to the July 23, 2010 work
4
incident. Dr. Trompeter noted that he had been treating Claimant and was able to
notice the deterioration, whereas Dr. Fino could not have done so. He further
noted that Dr. Fino relied on invalid pulmonary function studies in reaching his
conclusions.
Claimant also offered into evidence two medical reports authored by
Joel H. Weinberg, M.D. (Dr. Weinberg), dated January 31 and August 26, 2013.
In his first report, Dr. Weinberg indicated that Claimant suffered from recurrent
bronchospasm and chest wall pain, and that this condition was triggered on July
23, 2010, when Claimant was exposed to dust during physical labor. Dr. Weinberg
noted that Claimant needed ongoing treatment for airway reactivity after this
incident. In his second report, Dr. Weinberg noted that Claimant had been under
his care since March 2011. He diagnosed Claimant as suffering from
costochondritis, hyperactive airway disease and, most likely, laryngopharyngeal
reflux and paradoxical vocal cord motion (PVCM) disorder. Dr. Weinberg opined
that these conditions were the result of Claimant’s work activities on July 23, 2010.
Dr. Weinberg had Claimant undergo pulmonary function studies which showed
moderate airway obstruction with some response to bronchodilators.
Claimant submitted three prescription pad notes from C. Vaughn
Strimlan, M.D. (Dr. Strimlan), all dated August 3, 2010. These notes indicate that
Dr. Strimlan examined Claimant and noted a cough and vocal cord dysfunction.
Dr. Strimlan ordered a chest x-ray and diagnosed Claimant with acute
tracheobronchitis.
5
Dr. Fino, board certified in internal medicine and pulmonary
medicine, testified on behalf of Employer. Dr. Fino examined Claimant on May
23, 2013, received a history from Claimant, and reviewed his medical records. Dr.
Fino found no respiratory impairments during the physical examination and noted
that evaluations of Claimant’s chest sounds did not reveal any wheezing, crackles
or rhonchi. He performed an x-ray on the day of the evaluation, which was
normal. Dr. Fino attempted to have Claimant undergo pulmonary function studies,
but those studies were invalid due to inadequate effort. Dr. Fino testified there was
no reason that an individual with a pulmonary problem would not be able to
complete the studies. He also attempted to perform lung volume testing and a
diffusing capacity, but Claimant was not cooperative.
Dr. Fino testified that his review of Claimant’s prior diagnostic
studies, including chest x-rays and a CT scan, were all normal. He also found that
the only valid pulmonary function study was that performed by Dr. Strimlan on
October 14, 2010, which was also normal. His review of Claimant’s emergency
room records revealed that he was treated for acute bronchospasms, and that
Claimant never had a collapsed or deflated lung. Dr. Fino stated that
costochondritis has nothing to do with a lung problem and that PVCM was not a
condition caused by dust exposure. Dr. Fino also testified that there was no
objective testing to confirm Claimant’s subjective symptoms.
Based upon his evaluation of Claimant and review of his records, Dr.
Fino opined that as of the date of his evaluation, Claimant was not suffering from
any respiratory or pulmonary impairment. But he also testified it was clear that
6
Claimant was suffering from some sort of respiratory problem prior to July 23,
2010. Dr. Fino admitted that, giving Claimant the benefit of the doubt, he may
have suffered an aggravation of his symptomology as a result of his work activities
on July 23, 2010. However, he noted that the normal pulmonary function studies
performed by Dr. Strimlan on October 10, 2010, clearly established that as of that
date, Claimant had recovered from any aggravation of his lung condition.
Byers testified that he was Claimant’s immediate supervisor in 2010,
but he was not located in the same building where Claimant worked. Byers stated,
though, that Claimant was having respiratory problems at work prior to the
incident as Claimant was coughing and seemed to have breathing difficulties.
Claimant did not indicate to Byers that he believed his condition might have been
due to wet carpet in the workplace; rather, Claimant said he thought it might be
related to mold at his home due to water damage. In late June 2010, Byers called
Claimant to inquire how his scheduled doctor’s appointment had gone. Claimant
told him that he was deathly ill and his doctor said it might be from a lung
infection. Byers asked Claimant if he was serious, and Claimant responded that he
was.
Byers confirmed that in July 2010, Claimant’s work location was
being moved and that he became aware of the fact that Claimant collapsed and was
taken to the hospital by paramedics. Byers confirmed that Claimant never returned
to work under him subsequent to the work incident, and that Claimant eventually
returned to work for Employer in a different capacity.
7
The WCJ found Claimant to be credible in part and not credible in
part. Specifically, he found that Claimant engaged in embellishments of his
condition as he claimed that he had a collapsed lung, which was not supported by
the emergency room records and not diagnosed by any of his physicians. Claimant
also told Byers3 prior to the July 23, 2010 incident that he had a life-threatening
condition when, according to Dr. Trompeter, his respiratory problems were
improving at that time.
The WCJ found the testimony of Dr. Fino to be credible, and noted
that the symptomology referred to Dr. Trompeter by Claimant was embellished at
times. While Dr. Trompeter attacked the foundations upon which Dr. Fino relied,
he failed to offer any of his own as to why he was diagnosing such a severe
condition. Despite Dr. Trompeter’s assertions, Dr. Fino did not rely upon an
invalid study to make his conclusions. To the contrary, Dr. Fino testified that the
only pulmonary function test that was valid was the one performed on October 14,
2010. Dr. Fino relied upon this particular test, which was normal, as well as other
diagnostic studies of record. The WCJ noted that he was not sure what diagnoses
Dr. Trompeter and Dr. Weinberg were making.
The WCJ found, however, that Claimant met his burden of proving
that he sustained a work-related injury on July 23, 2010. However, Claimant only
established that he suffered a temporary exacerbation of a pre-existing condition at
3
Based upon his personal observation of the witness, the WCJ found Byers to be
credible.
8
that time. The WCJ further found that the evidence of record established that
Claimant had fully recovered from the temporary exacerbation of his pre-existing
respiratory problems as of October 14, 2010. Based on that finding, the WCJ
found that Claimant was entitled to benefits commencing July 23, 2010, and
continuing through October 14, 2010. Because Claimant was successful, at least in
part, the WCJ found that he was entitled to reimbursement of costs. The WCJ also
found that Employer met its burden of proving it had a reasonable basis to contest
this matter.
III.
Claimant appealed to the Board, arguing that the WCJ erred in finding
that his injury was limited to a temporary aggravation of a pre-existing respiratory
problem and that he had fully recovered from that temporary aggravation as of
October 14, 2010. Claimant argued that Dr. Fino improperly relied on only one
pulmonary function test, ignoring other valid and objective tests, and that he failed
to address other reliably reported injuries or conditions of Claimant. He also
argued that the WCJ ignored competent, uncontested evidence regarding his
condition, specifically the findings and reports of Drs. Strimlan, Trompeter and
Weinberg. Finally, Claimant argued that the WCJ erred in finding that Employer
met its burden of proving it had a reasonable basis for contest and failing to award
him attorney’s fees. The Board affirmed the decision of the WCJ and this appeal
followed.4
4
In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether errors of law were committed, whether constitutional rights were violated,
and whether necessary findings of fact are supported by substantial evidence. Roundtree v.
Workers’ Compensation Appeal Board (City of Philadelphia), 116 A.3d 140, 143 n.4 (Pa.
(Footnote continued on next page…)
9
IV.
Claimant’s main argument on appeal is that there is no substantial
evidence in the record to support the WCJ’s determinations that his work injury
was limited to an exacerbation of a pre-existing lung condition and that he had
fully recovered effective October 14, 2010. In a related argument, Claimant also
claims that the WCJ capriciously disregarded evidence he presented from his
treating physicians. These arguments are without merit.
It is well established that a claimant in a workers’ compensation case
bears the burden of proving all of the elements necessary to support an award.
Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592(Pa. 1993). This includes proving that the claimant sustained an injury during the
course and scope of employment, causation, and the length or duration of the
claimant’s disability. Coyne v. Workers’ Compensation Appeal Board (Villanova
University and PMA Group), 942 A.2d 939, 945 (Pa. Cmwlth. 2008). A claimant
is no longer entitled to benefits where substantial competent evidence establishes
that he had fully recovered from a temporary work-related aggravation of a pre-
existing condition. See Bethlehem Steel Corporation v. Workmen’s Compensation
(continued…)
Cmwlth. 2015). Substantial evidence has been defined as “such relevant evidence as a
reasonable person might accept as adequate to support a conclusion. . . . In performing a
substantial evidence analysis, this [C]ourt must view the evidence in a light most favorable to the
party who prevailed before the factfinder.” Waldemeer Park, Inc. v. Workers’ Compensation
Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citation omitted).
10
Appeal Board (Baxter), 708 A.2d 801 (Pa. 1998); Giant Eagle, Inc. v. Workers’
Compensation Appeal Board (Thomas), 725 A.2d 873 (Pa. Cmwlth. 1999).
Here, it is undisputed that Claimant was suffering from respiratory
issues, specifically, whooping cough, prior to the work incident. Claimant admits
that Dr. Trompeter placed him on work restrictions due to his pre-existing
condition and that he had applied for FMLA prior to the incident. Dr. Fino
testified within a reasonable degree of medical certainty that Claimant, at the most,
suffered an aggravation of this pre-existing condition when he was exposed to dust
at work on July 23, 2010. He testified that costochondritis is an inflammation of
the area where the ribs attach to the breastbone and has nothing to do with a lung
problem. He also testified that Claimant’s PVCM was not something that would
be caused by exposure to dust at work. Dr. Fino testified that there was no
objective evidence or studies to support Claimant’s subjective complaints.
Specifically, Dr. Fino pointed out that Claimant’s only valid pulmonary function
test, performed on October 14, 2010, was normal, and that Claimant had fully
recovered as of that date. It is also undisputed that Claimant returned to work for
Employer in a new position in September 2010, and that he earns more in this new
position than he did previously.
The WCJ found the testimony of Dr. Fino to be credible and, to the
extent it differed from Dr. Fino’s testimony and opinions, the evidence from
Claimant’s treating physicians was deemed not credible. As we have stated over
and over again, “[t]he WCJ, as the ultimate fact-finder in workers’ compensation
cases, ‘has exclusive province over questions of credibility and evidentiary
11
weight.’” A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi),
78 A.3d 1233, 1238 (Pa. Cmwlth. 2013) (quoting Anderson v. Workers’
Compensation Appeal Board (Penn Center for Rehab), 15 A.3d 944, 949 (Pa.
Cmwlth. 2010)). The WCJ is free to accept or reject the testimony of any witness
in whole or in part, including a medical witness. US Airways v. Workers’
Compensation Appeal Board (Johnston), 713 A.2d 1192, 1195 (Pa. Cmwlth.
1998). We are bound by these credibility determinations and cannot overturn them
on appeal. As such, there was substantial credible evidence in the record to
support the WCJ’s findings that Claimant’s work injury was limited to an
exacerbation of his pre-existing respiratory condition and that he had fully
recovered effective October 14, 2010.
Contrary to Claimant’s assertions, the WCJ did not disregard the
opinions of his treating physicians – he simply found them to not be credible. Dr.
Fino reviewed Claimant’s prior medical records, including the reports of Drs.
Strimlan, Trompeter and Weinberg, and testified as to why he did not agree with
their diagnoses. This conflict in the evidence was adequately addressed in the
WCJ’s opinion. “Moreover, it is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the critical inquiry is whether
there is evidence to support the findings actually made.” Verdi, 78 A.3d at 1238.5
5
Citing to Greenwich Collieries v. Workmen’s Compensation Appeal Board (Buck), 664
A.2d 703 (Pa. Cmwlth. 1995), Claimant argues that given the conflict in the medical evidence,
the WCJ should have appointed an impartial physician to examine him and provide his own
medical opinions. Because this issue was not raised before the WCJ and the Board, it is waived.
See Budd Baer, Inc. v. Workers’ Compensation Appeal Board (Butcher), 892 A.2d 64, 67 (Pa.
Cmwlth. 2006) (citation omitted).
12
Accordingly, the order of the Board is affirmed.
___________________________________
DAN PELLEGRINI, Senior Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Seth R. Neustein, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (PNC Financial Services :
Group, Inc.), :
Respondent : No. 11 C.D. 2016
ORDER
AND NOW, this 13th day of October, 2016, the order of the Workers’
Compensation Appeal Board dated December 8, 2015, at No. A14-0839, is hereby
affirmed.
___________________________________
DAN PELLEGRINI, Senior Judge