C. Quinn v. WCAB (McGrath Technical Staffing, Inc.) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine Quinn, :
Petitioner :
:
v. : No. 618 C.D. 2017
: Submitted: September 29, 2017
Workers’ Compensation Appeal :
Board (McGrath Technical :
Staffing Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: January 26, 2018
Catherine Quinn (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision of a
Workers’ Compensation Judge (WCJ). The WCJ granted the termination petition
filed by McGrath Technical Staffing Inc. (Employer) and denied Claimant’s review
petition seeking to amend the description of Claimant’s accepted work injury.
Claimant contends that the Board’s decision contains errors of law, capriciously
disregards competent evidence, is inconsistent and unsupported by the record, and
is not well-reasoned. Claimant also challenges the Board’s denial of litigation costs.
Upon review, we affirm.
I. Background
Claimant worked for Employer as a program manager. In September
2014, Claimant fell on a set of stairs at work and hit her head. WCJ’s Op., 8/4/16,
Finding of Fact (F.F.) No. 1.b. Employer issued a notice of temporary compensation
payable (NTCP) for her injury, described as a head and neck contusion. WCJ’s Op.
at 1. The NTCP later converted to a notice of compensation payable (NCP). Id.
Although Claimant’s head and neck injury largely resolved over time,
she stated she had ongoing problems with focus and short-term memory. F.F. No.
1.h, k. She attributed those problems to her head injury. F.F. No. 1.k. Notably,
however, Claimant’s doctors prescribed several daily medications, including
narcotic pain relievers and medications for bipolar disorder, from which she suffered
beginning in 2005. F.F. Nos.1.e, h, j, l.
While attending physical therapy for her neck injury the month after
her injury, Claimant began having back pain radiating down her left leg. F.F. No.
1.d. The pain persisted and worsened, later spreading to Claimant’s right leg as well.
F.F. No. 1.f. She also reported swelling and discoloration in her legs. Id. She
described these symptoms as occurring in periodic flare-ups. Id. She took
photographs of her legs during flare-ups to document the problems. Id. During
periods between flare-ups, Claimant’s legs had a normal appearance. F.F. No. 1.n.
In May 2015, Claimant filed a review petition, seeking an amendment
to the description of her accepted injury to include a concussion, reflex sympathetic
dystrophy, and complex regional pain syndrome (CRPS).1 In September 2015,
1
The medical experts for both parties stated that reflex sympathetic dystrophy is merely
an older name for the condition now known as complex regional pain syndrome. We therefore use
the designation CRPS throughout this opinion to refer to the condition at issue.
2
Employer filed a termination petition, alleging Claimant fully recovered from her
work injury. The petitions were consolidated for litigation purposes.
Claimant testified live before the WCJ. She stated she began physical
therapy the month after her injury. WCJ’s Hr’g, Notes of Testimony (N.T.),
10/22/15, at 13. Immediately after starting physical therapy, she began having pain
in her back and down her left leg. Id. At the time of the hearing, Claimant stated
her back pain was subsiding, but her leg pain moved to her right leg. N.T. at 15.
She stated her leg “turns bright pink and purple” and swells. Id. She described her
symptoms as occurring in “flares” that “happen very often within every two weeks
and they can last up to two weeks.” Id. She stated she took photos every time she
experienced a flare-up, “just in case I need to prove it and go to court.” Id. However,
she did not submit any photos in evidence. She further stated she showed photos of
her left leg to Dr. Richard Katz, who conducted an independent medical examination
(IME) at Employer’s request. N.T. at 16. She also described “spasms” of “shooting
pain” in her leg, during which her leg would appear normal, but she could not tolerate
sheets or even air on her leg. N.T. at 15.
Claimant takes Lyrica and Oxycodone daily for pain. N.T. at 16-17;
Reproduced Record (R.R.) at 133a. She also takes Baclofen, an antispasticity agent.
R.R. at 133a. In addition, she takes Seroquel, Promethazine, and Klonopin to treat
bipolar disorder. N.T. at 19. She stated, “[m]y case is caused by stress.” N.T. at
23. She claimed she was in pain during the hearing, solely because of stress. N.T.
at 24.
3
Claimant testified she was incapable of returning to work because of
short-term memory loss and taking narcotic pain medication. N.T. at 16. She stated
that she cannot “be on narcotics and driving.” N.T. at 24. Nevertheless, she does
drive a car, and she can drive up to an hour without serious pain. N.T. at 20. She
drove herself to the hearing. N.T. at 25.
Claimant submitted depositions from two medical experts. Jeffrey
Heebner, D.O., is board certified in family practice, geriatrics, hospice, and palliative
care medicine (Claimant’s Family Doctor). Stephen Sacks, D.O., is board certified
in neurology and psychiatry (Claimant’s Neurologist). Claimant’s two medical
experts were not in full agreement with each other. Claimant’s Family Doctor
testified that Claimant was not yet fully recovered from her head and neck injury
and still suffered short-term memory problems. R.R. at 131a-33a. However,
Claimant’s Neurologist stated that by the time he saw Claimant three months after
her injury, he believed the symptoms from her concussion were gone and her issues
with focus and concentration resulted from her leg pain, not her concussion. R.R. at
173a-76a. Claimant’s Neurologist also opined that Claimant was capable of
returning to work in an office environment, although her medications might create
ongoing concentration issues. R.R. at 178a-79a.
Claimants’ experts also testified that the symptoms in Claimant’s low
back and legs were consistent with CRPS. R.R. at 131a-33a, 174a. They opined
further that although the symptoms presented in her low back and legs, Claimant
developed CRPS as a result of injuring her head and neck at work. R.R. at 133a,
175a-76a. Claimant’s Neurologist explained that he believed Claimant developed
4
CRPS not directly from her work injury, but rather, as a result of the physical therapy
she received after the injury. R.R. at 177a.
Claimant’s Family Doctor acknowledged he was not an expert on
CRPS; he merely supported the diagnosis made by others. R.R. at 132a-33a, 136a.
In addition, Claimant’s Family Doctor testified the possible causal link between an
injury and subsequent remote CRPS symptoms is “a poorly understood medical
phenomenon where really the symptomatology and presentation – we have a paucity
of studies that can confirm and say a hundred precent [sic] this is the diagnosis and
the causality is actually poorly understood.” R.R. at 135a. Claimant’s Family
Doctor acknowledged it was possible some other minor trauma more proximate to
her legs, rather than Claimant’s work injury, caused her chronic leg pain. R.R. at
136a.
Claimant’s Neurologist similarly acknowledged that it was possible
some other minor trauma, not the work injury to her head and neck, caused
Claimant’s leg pain. R.R. at 178a. Claimant’s Neurologist further testified that any
additional trauma could exacerbate Claimant’s CRPS, and that Claimant suffered
such trauma when a dog bit her sometime after her work injury. R.R. at 175a.
Employer submitted depositions from two medical experts. Karl
Rosenfeld, M.D., F.A.C.S., is board certified in orthopedic surgery (Employer’s
Orthopedist). Richard Katz, M.D., is board certified in psychiatry and neurology, as
well as in neurophysiology and electrodiagnosis (Employer’s Neurologist).
Employer’s Orthopedist performed an IME of Claimant in March 2015. Employer’s
5
Neurologist performed an IME in August 2015. Both opined that Claimant fully
recovered from her work injury. Employer’s Orthopedist opined that Claimant was
capable of returning to work without restrictions. R.R. at 37a, 49a. Employer’s
Orthopedist referenced the opinion of Claimant’s Neurologist that Claimant’s
problems with mental focus were due to her leg pain rather than any residual effects
of a concussion. R.R. at 20a. Employer’s Neurologist opined that any memory
issues resulted from Claimant’s various medications, not from her head injury. R.R.
at 102a, 106a.
Employer’s experts both opined that Claimant did not suffer from
CRPS, based on the absence of objectively verifiable symptoms and on negative
tests and studies. R.R. at 25a, 29a, 91a-94a. Employer’s Orthopedist also opined
that Claimant’s leg pain was not causally related to her work injury. R.R. at 53a.
The WCJ found Claimant not credible or persuasive, based largely on
Claimant’s affect and demeanor during her testimony before the WCJ. F.F. No. 8.
The WCJ also based her determination on the absence of any objective symptoms of
CRPS during the two IMEs conducted by Employer’s Experts. Id. Further, the WCJ
noted that although Claimant stated she had extreme sensitivity in her legs during
flare-ups, she was able to shave her legs and they were clean-shaven during her
IMEs. Id. In addition, the WCJ noted that Claimant testified that she had ongoing
concussion symptoms from her head injury, yet she told her own treating physician
that those symptoms resolved. Id.
6
The WCJ also rejected the testimony of Claimant’s Experts as not
credible. She rejected Claimant’s Family Doctor’s opinion that Claimant developed
CRPS related to her work injury, because Claimant’s Family Doctor did not
personally see any symptoms of CRPS until three months after the injury. F.F. No.
9. Further, he did not ask Claimant about other potential trauma that might have
caused CRPS. Id. Moreover, Claimant’s Family Doctor did not diagnose CRPS
himself, but referred Claimant to Claimant’s Neurologist for a diagnosis. Id.
The WCJ similarly rejected the testimony of Claimant’s Neurologist,
except for his opinion that Claimant recovered from her head injury. F.F. No. 10.
The WCJ noted that although Claimant’s Neurologist testified Claimant developed
CRPS from physical therapy related to her work injury, he never reviewed
Claimant’s physical therapy treatment records. Id.
The WCJ accepted the testimony of Employer’s Experts as credible and
persuasive. F.F. No. 11. The WCJ found Employer’s Neurologist’s opinion was
consistent with that of Claimant’s Neurologist that Claimant fully recovered from
her concussion. Id. The WCJ also credited Employer’s Orthopedist’s testimony that
Claimant’s bone scan and MRI studies were normal and that there were no objective
findings in his IME of Claimant to support a diagnosis of CRPS. Id.
Based on the evidence as a whole, the WCJ found Employer sustained
its burden of proof on the termination petition, and Claimant failed to sustain her
burden of proof on the review petition. Accordingly, the WCJ granted the
termination petition and denied the review petition.
7
Claimant appealed to the Board, which affirmed the WCJ’s decision.
Claimant then filed a petition for review with this Court.
II. Issues
On appeal,2 Claimant argues that the Board erred by affirming the
WCJ’s grant of the termination petition and denial of the review petition. Claimant
also asserts entitlement to an award of litigation costs.
III. Discussion
A claimant who files a review petition to include additional injuries in
an NCP bears the same burden as for the initial claim petition. See Jeanes Hosp. v.
Workers’ Comp. Appeal Bd. (Hass), 872 A.2d 159 (Pa. 2005), overruled in part on
other grounds by Cinram Mfg., Inc. v. Workers’ Comp. Appeal Bd. (Hill), 975 A.2d
577 (Pa. 2009). The claimant must prove a causal relationship between a
subsequently claimed condition and the accepted work injury. Degraw v. Workers’
Comp. Appeal Bd. (Redner’s Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth.
2007). Where causation is not obvious, the claimant must present unequivocal
medical evidence in support of the review petition. Chick–Fil–A v. Workers’ Comp.
Appeal Bd. (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002).
An employer who files a termination petition bears the burden of
establishing either that the claimant’s disability ceased or that any remaining
disability is unrelated to the work injury. Gillyard v. Workers’ Comp. Appeal Bd.
2
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 1037
(Pa. Cmwlth. 2011).
8
(Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth.) (en banc), appeal denied, 882
A.2d 1007 (Pa. 2005). An employer may satisfy this burden by submitting
unequivocal medical evidence that the claimant fully recovered from the work-
related injury. Westmoreland Cty. v. Workers’ Comp. Appeal Bd. (Fuller), 942
A.2d 213 (Pa. Cmwlth. 2008).
A. Credibility Determinations
The WCJ is the ultimate finder of fact in workers’ compensation cases.
Thus, questions of credibility and evidentiary weight are the exclusive province of
the WCJ. A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d
1233 (Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of any
witness in whole or in part. Id.
To allow effective appellate review where testimony is presented by
deposition, the WCJ must articulate an objective basis for a credibility
determination. Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893
A.2d 191 (Pa. Cmwlth. 2006). However, we will not second-guess the WCJ’s
reasons for credibility determinations and will uphold those determinations unless
they are arbitrary or capricious. Id. An adverse credibility determination is not a
capricious disregard of rejected testimony. Williams v. Workers’ Comp. Appeal Bd.
(USX Corp.–Fairless Works), 862 A.2d 137 (Pa. 2004).
Moreover, “[i]t is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the critical inquiry is whether
the record contains evidence to support the findings actually made.” Furnari v.
9
Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014).
We examine the entire record to see if it contains evidence a reasonable person might
find sufficient to support the WCJ’s findings. Id. If the record contains such
evidence, the findings must be upheld, even though the record may contain
conflicting evidence. Id. Additionally, we must view the evidence in the light most
favorable to the prevailing party and give it the benefit of all inferences reasonably
deduced from the evidence. Id.
1. Claimant’s Credibility
A WCJ may base a credibility determination solely on a witness’s
demeanor when the witness testifies live before the WCJ. Daniels v. Workers’
Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003).
Here, Claimant testified live before the WCJ. The WCJ expressly based
her credibility determination largely on Claimant’s affect and demeanor during the
hearing. F.F. No. 8. Thus, the WCJ properly rejected Claimant’s testimony on this
basis. Daniels.
Nevertheless, Claimant challenges two specific findings by the WCJ as
not supported by the record. First, the WCJ stated Claimant’s legs were clean-
shaven at both of the IMEs performed by Employer’s Experts, F.F. No. 8, but
Claimant contends only Employer’s Orthopedist so testified. Second, Claimant
insists there is no record support for the WCJ’s finding that Claimant told her treating
physician her concussion symptoms resolved, F.F. No. 8.
10
Claimant characterizes these alleged factual errors as critical to the
issue of credibility. A review of the WCJ’s decision as a whole demonstrates they
were not. See Pa. SSJI (Civ.) 4.20 (4th ed., 2013 Supp.) (believability of witnesses
generally; factfinder “should consider whether the inaccuracy is in an important
matter or a minor detail”). Rather, they were only additional support for the WCJ’s
credibility determination, which she based mainly on Claimant’s affect and
demeanor.
Moreover, Claimant does not challenge the WCJ’s finding that
Claimant exhibited no objective symptoms of CRPS during either IME. We note
Claimant’s contention that she experienced CRPS flare-ups about every two weeks,
lasting up to two weeks each. This testimony, which was unsupported by objective
medical evidence, stood in contrast to the absence of observable symptoms in two
separate IMEs and several tests and studies. That contrast further supported the
WCJ’s rejection of Claimant’s testimony as not credible. We also note that although
Claimant stated she took photos of discoloration and swelling in her leg, she did not
seek to enter any such photos in evidence.
2. Experts’ Credibility
Claimant also challenges the WCJ’s credibility assessments of the
parties’ medical experts. Claimant suggests the WCJ erred in crediting the opinions
of Employer’s Experts and rejecting those of Claimant’s Experts. We disagree.
Regarding medical experts who testify by deposition, the WCJ must
support her resolution of conflicting evidence with more than a statement that one
11
expert is more credible than another. Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). However, a WCJ’s
acceptance of one medical expert’s opinion over that of another does not constitute
reversible error. Jenkins v. Workmen’s Comp. Appeal Bd. (Woodville State Hosp.),
677 A.2d 1288 (Pa. Cmwlth. 1996). Indeed, a single medical expert’s testimony is
a reasonable basis upon which a WCJ may base a finding of fact despite conflicting
evidence. Bethenergy Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 572
A.2d 838 (Pa. Cmwlth. 1990), aff’d, 612 A.2d 434 (Pa. 1992).
Here, Claimant argues the WCJ misstated the testimony of Employer’s
Orthopedist, one of Employer’s Experts, by purportedly citing incorrect starting and
ending dates for Claimant’s physical therapy. However, the WCJ based her
credibility determinations on the record as a whole; any error in citing Claimant’s
therapy dates was inconsequential. Further, Claimant fails to explain what bearing
the WCJ’s error in reciting the physical therapy dates had on Employer’s
Orthopedist’s credibility.
Notably, Claimant does not challenge the WCJ’s credibility
determination regarding Employer’s Neurologist, Employer’s other expert.
Employer’s Neurologist opined that Claimant fully recovered from her work injury.
F.F. No. 11. Thus, even relying solely on Employer’s Neurologist, the record
contained sufficient evidence to sustain Employer’s burden of proof. See
Bethenergy Mines.
12
B. Reasoned Decision
Claimant also contends the WCJ did not display a grasp of the facts,
and thus did not provide a reasoned decision. We discern no merit in this argument.
To satisfy the reasoned decision requirements of Section 422(a) of the
Workers’ Compensation Act (Act),3 a WCJ must set forth the rationale for the
decision by specifying the evidence relied upon and reasons for accepting it.
Daniels; Dorsey. When conflicting evidence is presented, the WCJ must adequately
explain the reason for rejecting or discrediting competent evidence. Daniels. The
WCJ may not reject uncontroverted evidence without reason or for an irrational
reason, but must identify such evidence and adequately explain the reasons for its
rejection. Id. “[T]he purpose of a reasoned decision is to spare the reviewing court
from having to imagine why the WCJ believed one witness over another.” Dorsey,
893 A.2d at 196 (citation omitted).
Claimant contends the WCJ erred in finding that Claimant’s leg
symptoms did not first appear in recorded notes until December 2014. Claimant
insists she complained of leg pain beginning in October 2014. However, Employer’s
Experts observed no objective symptoms of CRPS during their IMEs performed in
March and August 2015. See, e.g., R.R. at 35a, 69a, 93a, 122a-25a. In addition,
none of the medical tests and studies performed on Claimant offered any objective
findings to support a diagnosis of CRPS. See, e.g., R.R. at 17a, 88a, 90a, 92a-95a,
122a-25a. In any event, the WCJ rejected Claimant’s testimony as not credible.
3
Act of June 2, 1915, P.L. 726, as amended, 77 P.S. §834.
13
Under these circumstances, Claimant has not explained how the date when she first
complained of leg pain was material to the WCJ’s decision.
The WCJ’s decision satisfies the reasoned decision requirements of
Section 422(a) of the Act, and the WCJ did not capriciously disregard the evidence
Claimant presented. Because the record contains substantial evidence supporting
the WCJ’s credibility determinations, we will not disturb them.
C. Litigation Costs
As a final issue, Claimant argues the WCJ erred in declining to award
litigation costs. Despite the WCJ’s denial of her review petition, Claimant contends
the WCJ effectively amended the NCP by implicitly adding a concussion and a
cervical sprain to the accepted injuries of head and neck contusions.
Section 440(a) of the Act, 77 P.S. §996(a),4 authorizes an award of
litigation costs to a claimant who prevails in whole or in part. However, the claimant
must prevail on a contested issue in order to receive an award of litigation costs.
Reyes v. Workers’ Comp. Appeal Bd. (AMTEC), 967 A.2d 1071 (Pa. Cmwlth.
2009) (en banc).
Claimant argues that by finding Employer’s Experts credible, the WCJ
implicitly found Claimant suffered a concussion and a cervical sprain. However,
Claimant does not point to anything in the record indicating either that Employer
was disputing that fact, or that it had any effect on the outcome of either party’s
4
Section 440 was added by the Act of February 8, 1972, P.L. 25, as amended.
14
petition. In fact, the testimony of Employer’s Experts demonstrated their
assumption that Claimant suffered a concussion. See, e.g., R.R. at 15a, 17a-18a,
20a, 22a, 36a, 40a, 46a, 90a-92a, 95a, 97a-98a. That was not a contested issue for
purposes of an award of litigation costs.
The gravamen of the termination petition was that Claimant fully
recovered from her work injury to her head and neck. The gravamen of the review
petition was that Claimant developed CRPS in her legs as a result of the work injury
to her head and neck. Whether to describe the work injury as a contusion and neck
strain or a concussion and cervical sprain was not at issue. Regardless, the WCJ
found Employer sustained its burden to show that Claimant recovered fully.
Claimant did not prevail before the WCJ or the Board, either in
pursuing her review petition or in opposing Employer’s termination petition.
Further, she did not prevail on any contested issue material to the WCJ’s decision.
Therefore, she is not entitled to an award of litigation costs. Reyes.
IV. Conclusion
Based on the foregoing, we affirm the order of the Board.
ROBERT SIMPSON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine Quinn, :
Petitioner :
:
v. : No. 618 C.D. 2017
:
Workers’ Compensation Appeal :
Board (McGrath Technical :
Staffing Inc.), :
Respondent :
ORDER
AND NOW, this 26th day of January, 2018, the decision of the
Workers’ Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge