D.L. Rowe v. WCAB (County of York) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debra L. Rowe, :
:
Petitioner :
:
v. : No. 106 C.D. 2016
: Submitted: September 30, 2016
Workers’ Compensation Appeal :
Board (County of York), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL J. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: December 16, 2016
Debra L. Rowe (Claimant) petitions for review of the December 29,
2015 order of the Workers’ Compensation Appeal Board (Board) that affirmed a
November 10, 2014 decision and order of a Workers’ Compensation Judge (WCJ).
Pursuant to the Workers’ Compensation Act (Act),1 the WCJ granted the
Termination Petition filed by the County of York (Employer), after concluding that
Claimant had fully recovered from work-related injuries consisting of cervical
sprain/strain and a cognitive disorder secondary to concussion. Claimant argues
before this Court that the Board erred in affirming the WCJ’s decision because the
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
WCJ failed to issue a reasoned decision and failed to base his findings upon
sufficient competent evidence. For the following reasons, we affirm the Board.2
Claimant, who was employed as a Social Service Aide, suffered a
work-related cervical strain to her neck as a result of a motor vehicle accident in
the course of her employment on September 26, 2012. (WCJ Decision, Findings
of Fact (F.F.) ¶1, Reproduced Record (R.R.) at 260a.) Employer issued a Notice of
Temporary Compensation Payable (NTCP) accepting Claimant’s injury as a
cervical strain on November 2, 2012; the NTCP converted to a Notice of
Compensation Payable on January 22, 2013. On May 13, 2013, Employer filed a
Termination Petition;3 Claimant answered, denying the allegations that she had
fully recovered from her work injury and was able to return to unrestricted work as
of March 12, 2013. (Id., F.F. ¶2, R.R. at 260a.) On June 28, 2013, Claimant filed
a Review Petition to amend the description of her injury to include concussion,
post-concussion syndrome including headaches, cognitive disorder, tinnitus,
dizziness, memory deficits, speech deficits, vision deficits, and balance deficits.
(WCJ Decision, F.F. ¶3.)
On September 10, 2013, Claimant testified before the WCJ.
(Hearing Transcript (H.T.), R.R. at 1a-65a.) Claimant also offered the deposition
2
Our review is limited to determining whether there has been any error of law or violation of
constitutional rights, and whether the WCJ’s necessary findings of fact are supported by
substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for
Rehab), 15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
3
Pennsylvania Courts have determined that to succeed in a termination petition, an employer
bears the burden of proving by substantial evidence that a claimant’s disability has ceased, or any
remaining conditions are unrelated to the work injury. Gillyard v. Workers’ Compensation
Appeal Board (Pa. Liquor Control Board), 865 A.2d 991, 995 (Pa. Cmwlth.) (en banc), appeal
denied, 882 A.2d 1007 (Pa. 2005). An employer may satisfy this burden by presenting
unequivocal and competent medical evidence of the claimant’s full recovery from her work-
related injuries. Id.2
testimony of Robert B. Frazier, Ph.D, a licensed psychologist with a specialization
in neuro-psychology in support of her Review Petition. (Frazier Deposition, R.R. at
116a-162a.) Employer offered the deposition testimony of John A. Kline, M.D., a
physician who is board-certified in physical medicine, rehabilitation, pain
management, and disability impairment, who opined that Claimant had recovered
from the work-related cervical sprain/strain or neck sprain/strain that she had
sustained. (Kline Deposition, R.R. at 68a-115a.) Employer also offered the
deposition testimony of Christopher King, Psy.D., a licensed psychologist
specializing in clinical neuropsychology, who opined that there was no evidence
that Claimant actually sustained a diagnosable concussion and no indication of any
identifiable post-concussive sequelae in the immediate aftermath of the work-
related accident that would have been readily evident had she actually sustained a
concussion. (King Deposition, R.R. at 205a.) Dr. King further opined that
presuming Claimant did suffer some type of concussion, with some type of post-
concussive symptomology, she had fully recovered at the time he saw her. (Id.,
R.R. at 208a.)
The WCJ issued a decision and order on November 7, 2014 granting
Claimant’s Review Petition and amending the description of injury to include
cognitive disorder secondary to concussion. The WCJ also granted Employer’s
Termination Petition for Claimant’s work-related cervical sprain/strain effective
March 12, 2013 and for the work-related cognitive disorder secondary to
concussion effective October 23, 2013. The WCJ found credible Claimant’s
testimony concerning the timeframe in which her symptoms developed, her pre-
existing conditions, and her non-work related outside stressors. (WCJ Decision,
F.F. ¶12a, R.R. at 268a.) The WCJ further found credible Claimant’s testimony as
3
to the development, following her work injury, of problems with dizziness,
concentration, memory, balance, and increased headaches. (Id.) However, the
WCJ rejected as not credible Claimant’s testimony that she continued to
experience problems related to her neck injury, finding as fact that she had fully
recovered from that injury as of March 12, 2013. (Id., F.F. ¶¶12a, 12b, R.R. at
268a-269a.) In that regard, the WCJ found the opinion of Dr. Kline to be credible,
noting that neither Dr. Frazier nor Dr. King was qualified to address the condition
of Claimant’s neck, and there was no evidence of record to refute Dr. Kline’s
opinion regarding the neck injury. (Id., F.F. ¶12b, R.R. at 269a.) As to the
question of whether Claimant sustained additional injuries as a result of the work-
related accident, the WCJ found the testimony of Dr. Frazier, Claimant’s treating
psychologist, to be the most credible and persuasive, finding as fact that
Claimant’s work injury included cognitive disorder secondary to concussion, and
specifically rejecting the testimony of Drs. King and Kline to the extent they
opined that Claimant did not sustain a concussion. (Id., F.F. ¶12c, R.R. at 269a.)
However, the WCJ rejected the testimony of Dr. Frazier that Claimant had not
fully recovered from the concussion and cognitive disorder,4 and found credible the
4
In the course of his deposition, Dr. Frazier testified that he began treating Claimant in March
2013, approximately six months following her work-related accident, when he was asked to
perform a neuro-psychological evaluation by Claimant’s neurologist; he diagnosed Claimant
with a cognitive disorder, not otherwise specified, secondary to concussion, and continued
treating Claimant, on approximately twelve occasions. (Frazier Deposition, R.R. at 122a; WCJ
Opinion, F.F. ¶¶9a-9b, R.R. at 262a-263a.) Dr. Frazier indicated that his neuro-psychological
evaluation of Claimant consisted of an interview, an examination of overall intelligence, areas of
memory, ability to track information and attention concentration, motor skills, and a personality
inventory. (Frazier Deposition, R.R. at 123a.) Dr. Frazier testified that his subsequent treatment
focused on reducing Claimant’s distractibility and increasing her attention and concentration; in
addition, he worked to improve Claimant’s stress management and recommended methods to
reduce auditory stimulation, increase activities around other people, and increase light household
activities. (Id., F.F. ¶9b, R.R. at 263a.)
4
testimony of Dr. King that Claimant was fully recovered from any concussion and
cognitive affects that she sustained on the date of the work injury as of October 23,
2013. (Id., F.F. ¶12e, R.R. at 269a-270a.) The WCJ found that Dr. King credibly
explained that the empirically validated neuropsychology test battery he
administered on October 23, 2013 provided an objective conclusion based upon
“standard decision rules,” and none of the tests revealed evidence of “any acquired
neurocognitive or neuropsychological abnormality that could be related to a
concussion.” (Id, R.R. at 269a.)
Claimant appealed the WCJ’s grant of the Termination Petition as to
the work-related cognitive disorder secondary to concussion to the Board and the
Board issued an opinion and order on December 29, 2015 affirming the WCJ.
(Board’s Opinion and Order, R.R. at 278a-276a.) In its decision, the Board
reviewed Dr. King’s testimony and concluded that it was competent to support a
termination of Claimant’s workers’ compensation benefits because the credible
objective evidence provided by the tests administered on October 23, 2013
constituted substantial evidence to support the conclusion that she “had fully
recovered from the cognitive disorder diagnosed by Dr. Frazier and accepted as
work related by the WCJ.” (Id., R.R. at 285a.) The Board addressed Claimant’s
contention that the WCJ’s decision was not a reasoned decision because the WCJ
failed to reconcile a conflict between the testimony of both Claimant and Dr.
Frazier, deemed credible, that Claimant’s condition was merely improving, and the
testimony of Dr. King, that Claimant had fully recovered. The Board found that
there was no irreconcilable conflict and concluded that the WCJ had issued a
reasoned decision.
5
Claimant appealed the Board’s decision and order to this Court.
Claimant argues, first, that the failure by Dr. King, Employer’s medical expert, to
accept the judicially established work-related injury of a cognitive disorder
secondary to concussion renders his testimony incompetent to satisfy Employer’s
burden of proof that her disability has ceased. We do not agree. In the course of
his testimony, Dr. King opined unequivocally that there was no indication that
Claimant actually sustained a concussion, with “no indication of any identifiable or
diagnostic post concussive sequelae in the immediate aftermath of the event which
would have been readily evident” had she done so. (King Deposition, R.R. at
206a.) Nevertheless, Dr. King was asked to presume both that Claimant did
sustain some type of concussion, regardless of degree, and that she did have some
type of post-concussive symptomology, regardless of degree, and accordingly, to
opine as to whether, at the time Dr. King examined Claimant, Claimant was fully
recovered. (Id., R.R. at 208a.) Dr. King responded that Claimant was in fact fully
recovered and stated, “[i]t is evident by my test findings that there is no indication
of any cognitive difficulties or neuropsychology impairment.” (Id.) Throughout
the deposition, Dr. King made clear that he fully understood the nature of the
injury asserted in Claimant’s Petition for Review. His examination of Claimant
included the performance of a neurophysical evaluation, which involved an
interview with, and the taking of history from Claimant, an evaluation through
standardized neuropsychology testing, and a review of Claimant’s medical
records.5
5
Dr. King found no indication of any problems with Claimant’s vision, hearing, speech or
language; he indicated there was no indication of acute distress, and her mental stamina and
physical endurance was normal. (King Deposition, R.R. at 172a, 188a, 190a-191a.) Dr. King
stated that his review of Claimant’s medical records confirmed that Claimant did not hit her head
or lose consciousness during the motor vehicle accident, and did not report headaches or
6
In Westmoreland County v. Workers’ Compensation Appeal Board
(Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008), a medical expert’s testimony was
found inadequate to support a termination of benefits where the expert testified that
the claimant did not sustain the recognized injury, and also failed to testify that the
claimant was fully recovered or no longer exhibited findings consistent with the
recognized injury. Id. at 218-19. In Westmoreland, our Court distinguished our
decisions in both Jackson v. Workers’ Compensation Appeal Board (Resources for
Human Development), 877 A.2d 498 (Pa. Cmwlth. 2005), and To v. Workers’
Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003),
noting that in To, the employer’s doctor was not incompetent where he opined that
he was unable to see how the work injury could possibly happen, but further
opined that there was no evidence of medical impairment and claimant made a full
recovery from any injury sustained on the date of the work incident. 819 A.2d at
1225. Similarly, in Jackson, the employer’s doctor did not acknowledge that the
claimant suffered a disabling knee injury, but went on to opine, in the alternative
and based on the assumption that the injury in fact occurred, that the injury had
resolved, and the Court found his testimony competent to support a termination of
benefits. 877 A.2d at 503. In order for a medical expert’s opinion to be competent
to support a termination of benefits, it is not necessary that the expert believe that
the work-related injury occurred or that it occurred in the manner found by the
WCJ; rather, it is sufficient that the expert assumes the presence of the injury and
bases any opinions regarding recovery on the question of whether or not the
photophobia, or any symptoms other than a burning sensation in her neck when she was initially
seen for the work injury. (Id., R.R. at 194a-195a.) He noted that Claimant’s brother passed
away two days following the accident, which he indicated would be a significant stressor. (Id.,
R.R. at 197a.)
7
accepted injury continues to disable the claimant. Hall v. Workers’ Compensation
Appeal Board (America Service Group), 3 A.3d 734, 741 (Pa. Cmwlth. 2010).
Because he addressed the cognitive injury in Claimant’s Review Petition and
opined that she no longer suffered from any such injury, Dr. King’s opinion here is
clearly competent and sufficient to support a termination of benefits.
Claimant argues that the WCJ failed to issue a reasoned decision by
failing to explain why he accepted as credible both Claimant’s and Dr. Frazier’s
testimony that Claimant was improving, but not fully recovered, and then accepted
Dr. King’s opinion that Claimant had fully recovered as of October 23, 2013.
Claimant further argues that the decision is not reasoned because the WCJ failed to
discuss Dr. King’s “total confusion over the basic concept of a concussion”
(Claimant’s Brief at 16), failed to discuss the difference in the types of testing
conducted by Drs. Frazier and King, and failed to acknowledge that as Claimant’s
treating psychologist, Dr. Frazier was clearly in a better position to evaluate
Claimant’s recovery. We find no merit in these arguments.
Section 422(a) of the Act, 77 P.S. §834, requires that the WCJ render
a reasoned decision containing findings of fact and conclusions of law, based upon
the record as a whole, that clearly and concisely state and explain the rationale for
the decision, and when faced with conflicting evidence, the WCJ must adequately
explain the reasons for rejecting or discrediting competent evidence. Daniels v.
Workers’ Compensation Board of Appeals (Tristate Transport), 828 A.2d 1043,
1046 (Pa. 2003).
The WCJ accepted Claimant’s testimony as being generally credible,
and found that at the time she testified, in July 2013, Claimant indicated that she
was improving. The WCJ accepted as credible Dr. Frazier’s testimony regarding
8
his opinion that Claimant sustained additional injuries beyond the cervical
sprain/strain; however, although the WCJ noted that Dr. Frazier testified that
Claimant was not fully recovered from her cognitive disorder as of September
2013, he did not make a credibility determination as to that aspect of Dr. Frazier’s
testimony. The WCJ clearly set forth his reasons for accepting the opinion of Dr.
King over that of Dr. Frazier with regard to whether Claimant had fully recovered
and in doing so, the WCJ provided extensive detail with regard to the manner of
tests administered by each psychologist.
Claimant’s assertion that Dr. King evidenced confusion during cross-
examination over the basic concept of a concussion is baseless. Dr. King indicated
that most people who sustain a concussion experience a strike to the head and
many lose consciousness, but many do not; he stated that a concussion is
evidenced by some disruption to normal neurological activity and if that disruption
is great enough, a person may lose consciousness, but all individuals who sustain a
concussion have some disruption as evidenced by abnormal mental status or post-
concussive symptoms seconds or minutes afterwards. (King Deposition, R.R. at
212a-214a.) In his opinion, the WCJ discussed in detail the testimony of all three
medical experts as to whether or not Claimant sustained a concussion. The WCJ
offered a detailed analysis of the testimony of each medical expert, the nature of
the diagnosis and treatment recommended and the tests performed by each, and
made comprehensive credibility determinations and findings of fact that fully
explain his reasons for: (i) accepting Claimant’s testimony as being generally
credible; (ii) accepting Dr. Kline’s unrefuted medical opinion regarding Claimant’s
full recovery from her neck injury; (iii) accepting Dr. Frazier’s opinion that
Claimant’s work injury included cognitive disorder secondary to concussion; and
9
(iv) accepting Dr. King’s opinion that Claimant was fully recovered from any
concussion she sustained on the date of the accident. (WCJ Decision, F.F. ¶¶ 12a,
12b, 12c, 12e.) Notwithstanding Dr. King’s opinion that there was no evidence of
any acquired neurocognitive or neuropsychological abnormality that could be
related to a concussion (Frazier Deposition, R.R. at 206a-207a), the WCJ found,
based on Dr. Frazier’s credible testimony, that Claimant’s work injury included
cognitive disorder secondary to concussion, noting that Dr. Frazier credibly
explained that the mechanism of Claimant’s work injury was consistent with
concussion. (WCJ Decision, F.F. ¶12c.) However, the WCJ found credible Dr.
King’s opinion that even assuming Claimant had sustained a concussion, when
Claimant was evaluated on October 23, 2013, she had fully recovered and was
capable of performing her pre-injury job. The WCJ is free to accept or reject all or
a portion of the testimony of any witness, lay or medical, and is the ultimate finder
of fact and the exclusive arbiter of credibility and evidentiary weight in workers’
compensation proceedings. Daniels, 828 A.2d at 1052; SCI-Waymart v. Workers’
Compensation Appeal Board (Feldman), 766 A.2d 900, 902 (Pa. Cmwlth. 2000).
Therefore, we hold that the WCJ rendered a reasoned decision and that the
testimony offered by Employer’s medical expert is legally sufficient to support
granting Employer’s Termination Petition.
Accordingly, we affirm the Board’s order.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debra L. Rowe, :
:
Petitioner :
:
v. : No. 106 C.D. 2016
:
Workers’ Compensation Appeal :
Board (County of York), :
:
Respondent :
ORDER
AND NOW this 16th day of December, 2016, the order of the
Workers’ Compensation Appeal Board in the above-captioned matter is
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge