R.L. Ford Contractor and Flagship Ins. Co. v. WCAB (Petersen) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ryan L. Ford Contractor and :
Flagship City Insurance Company, :
Petitioners :
:
v. : No. 703 C.D. 2017
: Submitted: November 9, 2017
Workers’ Compensation Appeal :
Board (Petersen), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: June 4, 2018
Petitioners Ryan L. Ford Contractor and Flagship City Insurance
Company (collectively, Employer) petition for review of an order of the Workers’
Compensation Appeal Board (Board), dated May 5, 2017. The Board affirmed the
decision of a Workers’ Compensation Judge (WCJ), granting the claim and review
petitions filed by Steen Petersen (Claimant). For the reasons set forth herein, we
affirm.
Claimant worked for Employer as a skilled craftsman, performing a
variety of construction-related tasks, including carpentry, plumbing, and flooring.
On October 16, 2014, Claimant sustained a work-related injury in the nature of a
right knee laceration and infection. Employer accepted liability for Claimant’s
work-related injury pursuant to a medical-only Notice of Temporary Compensation
Payable, which was subsequently converted to a Notice of Compensation Payable.
On March 23, 2015, Claimant filed: (1) a claim petition, asserting that he had
sustained a right knee laceration, a right knee infection, avascular necrosis in the
medial femoral condyle of his right knee, and an oblique tear of the posterior horn
of the medial meniscus in his right knee, while working for Employer on
October 16, 2014, and that he is disabled as of December 5, 2014; and (2) a petition
to review, seeking to amend Claimant’s injury description to include right knee
avascular necrosis in the medial femoral condyle and a right knee oblique tear of the
posterior horn of the medial meniscus.1
Claimant testified before the WCJ at the hearing held on May 19, 2015.
At that time, Claimant explained that on October 16, 2014, he was using a
reciprocating saw, also known as a sawzall, with a six-inch blade to cut out a floor
joist that had fire damage. (Reproduced Record (R.R.) at 26a-28a, 47a.) Claimant
explained further that as he was cutting the floor joist, the sawzall’s blade pinched,
jumped up, and entered his right knee. (Id. at 28a-29a.) After the sawzall’s blade
exited his knee, Claimant laid the sawzall down and noticed that his pants were torn
and his knee was bleeding. (Id. at 29a.) Claimant stated that he stopped the bleeding
using a first-aid kit provided by Employer, went back into the building and collected
his tools, and then returned to the shop. (Id. at 29a-30a, 48a.) After he arrived at
the shop, Claimant reported the incident to Employer and went home.
1
On March 25, 2015, Claimant also filed a penalty petition, alleging that Employer had
violated Section 406.1 of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, added
by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 717.1. The WCJ determined that
no penalty was warranted, and Claimant did not appeal the WCJ’s determination. As such, the
WCJ’s decision denying Claimant’s penalty petition is not an issue in this case, and, therefore, the
penalty petition will not be addressed in any further detail.
2
(Id. at 30a-31a.) Approximately two hours after he had arrived at home, Claimant
could not walk and was experiencing pain, swelling, and stiffness in his right knee.
(Id. at 31a.) As a result, Claimant sought treatment from Lewistown Hospital, where
he underwent an x-ray, had his right knee “washed out” with a machine and
immobilized, and was released. (Id. at 31a-32a.) Claimant explained that the day
after the incident, he was in excruciating pain, so he returned to Lewistown Hospital.
(Id. at 32a.) At the hospital, Claimant was admitted and treated by Paul R. Sensiba,
M.D., who performed surgery on Claimant’s right knee. (Id. at 32a-33a.)
Claimant testified that a couple days after the surgery, he returned to
work with Employer in a light-duty capacity, performing odd jobs such as pulling
numbers for a job, repairing a sink drain, and installing laminate flooring.
(Id. at 33a-35a.) Claimant explained that the kneeling and up and down movement
required to perform some of these jobs caused him to experience pain in his right
knee. (Id. at 35a.) On November 26, 2014, Dr. Sensiba released Claimant to return
to work without restrictions. (Id. at 34a, 50a.) Claimant stated that upon his return
to full-duty work with Employer, he was required to perform a job at the Northwest
Bank Building in Lewistown. (Id. at 39a.) When asked whether the job had any
effect on his symptoms, Claimant explained: “[I]t took me three days to do a
day-and-a-half job, and by the time I got done carrying those two five gallon buckets
of tar across the room that night was excruciating. I just couldn’t do it.” (Id. at 40a.)
Claimant explained further that when he returned to work on December 5, 2014, the
Monday after he had completed the Northwest Bank Building job, Employer laid
him off. (Id. at 40a, 44a.)
Claimant testified further that following his lay-off, he continued to
treat with Dr. Sensiba. (Id. at 40a-41a.) Claimant explained that Dr. Sensiba
3
restricted him to sedentary duty as of January 7, 2015. (Id. at 41a.) Thereafter, on
January 10, 2015, Claimant underwent an MRI of his right knee. (Id. at 42a.)
Claimant explained that he continues to experience stiffness in his right knee, he has
to use a cane to walk, and when he walks too far, his right knee aches and he has to
sit down. (Id. at 43a.) He stated that he does not believe that he is capable of
returning to a job in construction. (Id. at 44a.)
Claimant also testified that prior to the October 16, 2014 work-related
incident, he did not have any physical difficulties, problems, or issues with his right
or left knee. (Id. at 26a, 47a.) Claimant explained that he also did not seek any
treatment for his knees at any time prior to the October 16, 2014 work-related
incident. (Id. at 47a.) Claimant explained further that he had not sustained any
injuries working as a self-employed carpenter in the ten years prior to working for
Employer. (Id. at 46a.) Claimant testified that in late December 2014 or early
January 2015, he was walking in the rain at home, slipped on some mud, and fell
down. (Id. at 51a.) Claimant initially testified that he did not injure himself in the
fall, but he later indicated that he did hurt his knee. (Id. at 51a, 56a.) Claimant stated
further that he did not seek any treatment in connection with the slip and fall incident.
(Id. at 51a.) Claimant also indicated that he was involved in a motor vehicle accident
on October 23, 2014, and sustained injuries to his neck and back as a result thereof.2
(Id. at 53a-54a.)
2
Claimant again testified before the WCJ at the hearing held on November 17, 2015. At
that time, Claimant indicated that he had not worked in any capacity since the May 19, 2015
hearing. (R.R. at 88a-89a.) Following Claimant’s testimony at the November 17, 2015 hearing,
the parties stipulated that Claimant had performed a flooring job on November 3, 2015, as
referenced in a surveillance report prepared by Gittings Investigations and Security and the
deposition testimony of William Stevens. (Id. at 175a.)
4
Claimant presented the deposition testimony of Dr. Sensiba, who is
board certified in orthopedic surgery. (Id. at 96a.) Dr. Sensiba testified that he first
treated Claimant on October 17, 2014, at Lewistown Hospital. (Id. at 97a.)
Dr. Sensiba stated that medical professionals evaluated Claimant in the emergency
room the evening before, at which time such medical professionals washed out
Claimant’s knee, treated Claimant with IV antibiotics, and sent Claimant home. (Id.)
Dr. Sensiba stated further that Claimant returned to Lewistown Hospital because his
symptoms—i.e., pain and swelling in his right knee—had not improved. (Id.)
Dr. Sensiba performed a physical examination, which revealed a laceration on
Claimant’s right leg, swelling in Claimant’s right knee, and pain with range of
motion and upon palpation. (Id.) Due to the amount of swelling in Claimant’s knee,
Dr. Sensiba aspirated Claimant’s knee so that the fluid could be analyzed to rule out
an infection. (Id.) Dr. Sensiba explained that the fluid that he removed from
Claimant’s right knee was mostly blood, which indicated that there was something
traumatic going on inside the knee. (Id.) Dr. Sensiba explained that “you don’t get
as much blood as I pulled out of [Claimant’s] knee without some sort of
intra-articular injury happening.” (Id. at 98a.) Dr. Sensiba explained further that
even though the blade may not have penetrated all the way into the knee, something
happened intra-articularly from the force of the sawzall coming down onto
Claimant’s knee. (Id. at 98a, 101a.)
Dr. Sensiba testified further that he performed surgery on Claimant’s
right knee because he was concerned about debris getting inside the knee joint and
causing infection. (Id. at 97a-98a.) Even though Claimant’s knee was not red or
hot, Dr. Sensiba was concerned about infection, because Claimant was not
responding to IV antibiotics and his knee continued to be painful and swollen.
5
(Id. at 98a.) Dr. Sensiba also indicated that Claimant’s pain and swelling was out of
proportion to what he would expect for a superficial laceration. (Id.) During the
surgery, Dr. Sensiba explored and cleaned the laceration, repaired the tendon fascia,
and performed an arthroscopy. (Id. at 99a.) Dr. Sensiba explained that the laceration
went through the quadriceps fascia, but not the tendon or the knee joint.
(Id. at 98a-99a, 103a.) Dr. Sensiba also evacuated a hematoma in the knee joint,
cauterized active bleeding in the suprapatellar pouch, repaired tearing in the medial
and lateral menisci, and performed chondroplasty on the patella. (Id. at 99a.) Dr.
Sensiba opined that the medial and lateral meniscus tears were likely preexisting,
but that they had been aggravated by the October 16, 2014 work injury. (Id.) Dr.
Sensiba also indicated that chondromalacia of the patella can be aggravated by acute
trauma. (Id.) Dr. Sensiba stated that following the surgery, Claimant improved, but
he continued to have pain in his knee. (Id. at 99a-100a.) Thereafter,
in December 2014, following a period of sedentary duty and light duty work,
Dr. Sensiba released Claimant to return to work full duty without restrictions.
(Id. at 99a-100a.) Dr. Sensiba explained that even though Claimant continued to
experience pain, Claimant wanted to return to his pre-injury job. (Id. at 100a.)
Dr. Sensiba stated that he treated Claimant again on January 7, 2015.
(Id.) At that time, Claimant reported that his condition had worsened and that he
was experiencing more pain in his knee. (Id.) Dr. Sensiba ordered an MRI of
Claimant’s knee, which revealed changes in the medial meniscus and avascular
necrosis in the medial femoral condyle. (Id.) Dr. Sensiba explained that avascular
necrosis essentially means that part of Claimant’s knee had died because it did not
have the proper blood flow. (Id.) When asked whether the avascular necrosis was
consistent with Claimant’s October 16, 2014 work-related injury, Dr. Sensiba stated:
6
“[H]e had some traumatic injury to his knee that caused him to have fairly large
bloody effusion and hemarthrosis in his knee, so I think it is, yes.” (Id.) Based upon
his visit with Claimant on January 7, 2015, Dr. Sensiba returned Claimant to
sedentary duty restrictions. (Id.)
Dr. Sensiba opined within a reasonable degree of medical certainty that
Claimant’s right knee problems are related to the October 16, 2014 work injury. (Id.)
Dr. Sensiba opined further that all of the work restrictions that he has imposed upon
Claimant are also related to the October 16, 2014 work-related incident. (Id.)
Dr. Sensiba indicated that Claimant has not fully recovered from his
October 16, 2014 work injury, and he did not have any plans to release Claimant
from his care in the immediate future. (Id.) When asked about his opinion regarding
the conclusions of Barry A. Ruht, M.D., Employer’s expert, that any extra-articular
injury was caused by Claimant’s subsequent slip in the mud and not the
October 16, 2014 work-related injury, Dr. Sensiba indicated that he believed that
Claimant’s subsequent slip and fall occurred after he had obtained the MRI of
Claimant’s right knee in January 2015. (Id.) Dr. Sensiba further indicated that, even
though the sawzall blade did not go all the way into the knee joint, the degree of
bleeding inside the knee was evidence of trauma that extended into the intra-articular
space. (Id.)
On cross-examination, Dr. Sensiba admitted that Claimant had fully
recovered from and does not need any further treatment with respect to the right knee
laceration. (Id. at 104a.) Dr. Sensiba also admitted that, during surgery, he did not
discover any objective evidence of trauma to the meniscus or medial lateral gutters,
an acute anterior cruciate ligament (ACL) rupture, or loose bodies.3 (Id.) When
3
Although asked about medial lateral gutters, Claimant’s ACL, and loose bodies, those
structures do not appear to be at issue in this matter.
7
questioned about the cause of the trauma to Claimant’s right knee, if it was not the
saw blade, Dr. Sensiba said he could speculate but did not know for sure. (Id.) Dr.
Sensiba indicated that he did not specifically know when the subsequent slip and fall
incident had occurred, but he would not disagree with Claimant’s statements
regarding the timing thereof. (Id.) Dr. Sensiba admitted that a slip and fall with a
representation that the knee was hurt could have caused further injury to the knee.
(Id. at 105a.) Dr. Sensiba also confirmed that he first diagnosed Claimant with
avascular necrosis in January 2015, after he released Claimant to return to full duty
work without restrictions in December 2014. (Id.) Dr. Sensiba indicated that when
he released Claimant to return to full duty work in December 2014, Claimant
continued to experience pain and swelling in his right knee. (Id.) Dr. Sensiba,
admitted, however, that Claimant’s pain and swelling had improved postoperatively.
(Id.)
Employer presented the deposition testimony of Dr. Ruht, a board
certified orthopedic surgeon. (Id. at 112a.) Dr. Ruht performed an independent
medical examination of Claimant on June 2, 2015. (Id. at 114a.) As part of his
independent medical examination, Dr. Ruht reviewed Claimant’s medical records,
obtained a history, and performed a physical examination. (Id. at 115a-29a.) Dr.
Ruht explained that Dr. Sensiba, in his operative report, indicated that there did not
appear to be any traumatic or acute injury in the region of the medial femoral
condyle, which is the area that Dr. Sensiba later diagnosed to have avascular
necrosis. (Id. at 119a, 135a-36a.) Dr. Ruht explained further that he would describe
Claimant’s October 16, 2014 work-related injury as a small, superficial laceration
that was debrided and repaired, with bruising to the blood vessels within the knee
that had caused some bleeding. (Id. at 120a.) Dr. Ruht also explained that
8
Dr. Sensiba’s treatment notes from October 29, 2014, and November 26, 2014,
evidenced normal examinations despite Claimant’s subjective complaints of pain.
(Id. at 122a-23a.) Dr. Ruht testified further that following a physical examination
of Claimant on January 7, 2015, Dr. Sensiba ordered an MRI of Claimant’s right
knee. (Id. at 123a.) The MRI, which was performed on January 10, 2015, revealed,
inter alia, avascular necrosis in the medial femoral condyle and an oblique tear of
the posterior horn of the medial meniscus. (Id. at 124a-25a.) Dr. Ruht also stated
that Claimant’s physical therapy note from January 9, 2015, indicated that Claimant
had slipped and fell in the mud at home on an unknown date. (Id. at 123a-24a.)
Dr. Ruht confirmed, however, that based on the timeline, he believed that Claimant’s
slip and fall incident had occurred sometime prior to the MRI. (Id. at 124a.)
Based on his review of Claimant’s medical records, the history he
obtained from Claimant, and his physical examination of Claimant, Dr. Ruht opined
that Claimant had sustained a laceration to his right thigh as a result of the
October 16, 2014 work-related incident. (Id. at 129a.) Dr. Ruht opined further that
Claimant had fully recovered from the laceration and would have no restrictions
based upon the October 16, 2014 work-related injury. (Id. at 129a, 132a, 137a.)
Dr. Ruht opined further that the avascular necrosis in Claimant’s right knee was
unrelated to Claimant’s October 16, 2014 work-related injury. (Id. at 129a-30a,
132a-33a.) Dr. Ruht attributed the avascular necrosis to the slip and fall incident
that occurred prior to January 10, 2015. (Id. at 125a, 130a, 134a.) Dr. Ruht
explained that this conclusion was based upon: (1) the x-ray of Claimant’s right
knee performed on October 16, 2014, which showed no evidence of avascular
necrosis; (2) the lack of fatty globules or droplets contained within the fluid obtained
from the two aspirations of Claimant’s right knee performed on October 17, 2014;
9
and (3) Dr. Sensiba’s indication in his operative report that there did not appear to
be any traumatic injury in the region of the medial femoral condyle. (Id. at 118a,
120a-21a, 133a-34a.) Dr. Ruht also opined that Claimant did not sustain an
aggravation of any preexisting problem as a result of the October 16, 2014
work-related incident. (Id. at 134a-35a.)
On cross-examination, Dr. Ruht admitted that Claimant’s medical
records indicated that both an emergency room doctor and Dr. Sensiba aspirated a
significant amount of bloody fluid from Claimant’s right knee following the
October 16, 2014 work-related injury. (Id. at 139a-41a.) Dr. Ruht also admitted that
Dr. Sensiba’s operative report indicated the presence of a hematoma and active
bleeding in the suprapatellar pouch that required cauterization. (Id. at 140a,
142a-43a.) Dr. Ruht confirmed that the October 16, 2014 work-related injury caused
the hematoma, the bleeding in the suprapatellar pouch, and the need for the
aspiration of blood. (Id. at 143a-44a.) Dr. Ruht also confirmed that each of these
conditions are examples of an interruption of blood flow to the area of the laceration.
(Id. at 143a-44a.) Dr. Ruht confirmed further that other than the physical therapy
note, he did not see any medical records attributing any injury to Claimant’s slip and
fall incident. (Id. at 145a.) Dr. Ruht agreed that he had no knowledge of the body
part on which Claimant fell or the mechanism of injury relative to Claimant’s slip
and fall incident. (Id. at 146a.) Dr. Ruht also acknowledged that any conclusions
that he made regarding the slip and fall incident were based on his supposition of
what had occurred.4 (Id.) On redirect, Dr. Ruht clarified that the part of Claimant’s
4
Employer also presented the testimony of Ryan Ford, Employer’s owner, who testified
regarding, inter alia, the particulars of Claimant’s employment with Employer, Claimant’s return
to work under light-duty restrictions following his October 16, 2014 work-related injury,
Claimant’s return to full-duty work thereafter, and the particulars of Claimant’s layoff from
employment with Employer. (R.R. at 64a-77a.)
10
right knee where there had been an interruption in blood flow does not provide the
blood supply to the medial femoral condyle. (Id. at 147a.) Dr. Ruht also clarified
that Dr. Sensiba’s operative report indicated that there was no damage to the blood
supply of the medial femoral condyle as of the date of surgery. (Id. at 147a-48a.)
On October 21, 2016,5 the WCJ issued a decision, granting Claimant’s
claim and review petitions. In so doing, the WCJ summarized the witnesses’
testimony and made the following relevant credibility determinations:
9. Based upon a thorough review of the evidence and
testimony of record, this Judge finds Claimant to be
credible to establish the history of the incident, and
the presence of knee pain and difficulties with
performing the duties of his employment whether
they were light-duty or full-duty. I base this
assessment of Claimant’s credibility in large part on
my observation of his demeanor. I acknowledge
that Claimant is not credible with regard to his work
capacity near the close of the record because he
clearly was able to work in some capacity and did
so. However, I find no error in Claimant attempting
to return to work. There was no evidence of a job
offer after Claimant was laid off in December 2014.
10. Based upon a thorough review of the evidence and
testimony of record, this Judge finds the testimony
of Dr. Sensiba to be credible in large part. In so
holding, I rely on the fact that Dr. Sensiba was
sufficiently qualified to render an opinion regarding
a knee condition, and he has been acting as a
treating physician which, in this Judge’s
assessment, puts him in a slightly better position to
assess Claimant’s condition rather than Dr. Ruht,
who saw the Claimant on only one occasion. The
testimony of Dr. Sensiba is credible to establish that
Claimant sustained a laceration to his knee, as well
as an aggravation of his pre-existing lateral and
5
While the WCJ’s order is dated October 20, 2016, the decision was not circulated until
October 21, 2016.
11
medial meniscus tears. Dr. Sensiba provided a clear
explanation of his opinions in this regard. Further,
I find it credible that Claimant has not recovered
from his injury, based upon the testimony of
Dr. Sensiba, who rendered an opinion within a
reasonable degree of medical certainty and
adequately explained his opinion. I further note that
Dr. Sensiba’s opinion regarding the existence of an
aggravation of the meniscal tears was not directly
addressed by the testimony of Dr. Ruht. Rather, he
seemed to focus specifically on the avascular
necrosis.
I do not accept any testimony as credible or
sufficient that Claimant sustained an aggravation of
any pre-existing chondromalacia of the patella.
Dr. Sensiba opined that this is something that “can”
be aggravated by trauma. He did not specifically
state that the patella findings were aggravated by the
incident. Also, Dr. Sensiba has not testified or
credibly established that any alleged new tear of the
posterior horn of the medial meniscus is related to
the October 16, 2014 injury.
Finally, with respect to the avascular necrosis, while
it is a difficult issue, this Judge feels compelled to
find that the avascular necrosis in the medial
condyle arose as a result of the work injury as
testified to by Dr. Sensiba. While it is true that the
incident involving Claimant’s slip and fall may
have occurred before January 9, 2015, and before
the January 10, 2015 MRI, it is unclear exactly
when it occurred. Further, reliance on this slip and
fall by Dr. Ruht to establish that the avascular
necrosis occurred as a result of same seems to be
quite a stretch. There is no evidence of medical
treatment for this slip and fall. There is no evidence
regarding the mechanism of injury for this slip and
fall. There is ample evidence of a knee injury of
significance causing both swelling and bleeding on
October 16, 2014. As a result, I feel compelled to
find Dr. Sensiba credible to establish that the
Claimant’s avascular necrosis arose as a result of
this work injury. Claimant has no prior knee
12
problems and Dr. Sensiba explained that there was
a sufficient blow to the knee under the
circumstances.
11. Based upon a thorough review of the evidence and
testimony of record, this Judge finds the testimony
of Dr. Ruht not credible to the extent it contradicts
that of Dr. Sensiba. Dr. Ruht saw the Claimant on
only one occasion and was not in as good a position
to assess Claimant’s condition as Dr. Sensiba.
Further, the testimony of Dr. Ruht relied heavily on
Dr. Sensiba’s operative report, but failed to accept
the opinions given by Dr. Sensiba under oath. It
seems that he chose to be selective as to which
opinions, testimony, or findings of Dr. Sensiba he
would rely on. In addition, this Judge notes that
Dr. Ruht did not directly address the issue regarding
Claimant’s lateral and medial meniscus tears. He
found Claimant recovered from the laceration,
which I can accept based upon the testimony of both
witnesses, but did not address the meniscal tears
that were repaired. He further did not adequately
explain his reliance on the January 9, 2015 physical
therapy note, which failed to explain any
mechanism of injury or the significance of any
impact. I cannot accept his opinions regarding
Claimant’s condition except for the status of the
laceration itself.
(WCJ’s Decision at 7-9.) Based on these credibility determinations, the WCJ
concluded that Claimant met his burden of proving that his October 16, 2014
work-related injury caused him to sustain a right knee laceration, an aggravation of
the pre-existing lateral and medial meniscus tears in his right knee, and the onset of
avascular necrosis in his right knee and to be disabled beginning December 5, 2014,
and continuing thereafter. Employer appealed to the Board, which affirmed the
WCJ’s decision. Employer then petitioned this Court for review.
13
On appeal,6 Employer argues that the Board committed an error of law
by affirming the WCJ’s decision because the WCJ’s decision is not supported by
substantial evidence.7 More specifically, Employer argues that Dr. Sensiba’s
testimony was equivocal and incompetent because: (1) Dr. Sensiba’s opinion that
Claimant sustained an aggravation of pre-existing lateral and medial meniscus tears8
and the onset of avascular necrosis in his right knee as a result of the
October 16, 2014 work-related injury is based on a mechanism of injury—i.e.,
impact to Claimant’s knee from the sawzall itself—that is not supported by the
evidentiary record; and (2) Dr. Sensiba admitted that he could only speculate and
was not sure what had caused intra-articular trauma to Claimant’s right knee.
Employer argues further that even assuming that Dr. Sensiba’s testimony is
unequivocal and competent, the WCJ’s opinion is not supported by substantial
evidence.
In response, Claimant argues that Employer is essentially asking this
Court to reweigh the evidence and overturn the WCJ’s credibility determinations on
6
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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
7
In its brief, Employer presented three issues for our consideration, all of which relate to
whether the WCJ’s decision to expand Claimant’s injury description to include an aggravation of
pre-existing lateral and medial meniscus tears and the onset of avascular necrosis in Claimant’s
right knee is supported by substantial evidence. Because all of Employer’s arguments are
interrelated, we will address them together.
8
While Employer appears to challenge the WCJ’s determination with respect to the finding
that Claimant had sustained an aggravation of preexisting tears to the lateral and medial menisci,
Dr. Ruht’s testimony and Employer’s brief focus on whether there is substantial evidence of record
to support the WCJ’s finding that Claimant sustained avascular necrosis in his right knee as a result
of the October 16, 2014 work-related incident. For these reasons, the remainder of this opinion
will only address the avascular necrosis injury.
14
appeal. More specifically, Claimant argues that Dr. Sensiba’s testimony as a whole
“is clear and unequivocal in establishing causation between the work injury and
Claimant’s ongoing disability[] and, therefore, is sufficient to support” the WCJ’s
decision. (Claimant’s Br. at 14.) Claimant argues further that the trauma to
Claimant’s right knee occurred when the “reciprocating saw blade punctured
Claimant’s leg directly above his knee,” and, therefore, “Dr. Sensiba did not
‘speculate’ an additional trauma to Claimant’s knee.” (Claimant’s Br. at 20-21.)
Claimant also argues that even if Dr. Sensiba had expressed uncertainty regarding
the trauma to Claimant’s right knee, his opinion was still unequivocal because he
“maintained throughout his testimony that Claimant’s avascular necrosis is the result
of the October 16, 2014 work injury [and a]ny expression of uncertainty regarding
the medical details would go to the credibility of [his] opinion, not his competency.”
(Claimant’s Br. at 22.)
At the outset, we note that it is well settled that the WCJ is the sole
arbiter of credibility and evidentiary weight. Womack v. Workers’ Comp. Appeal
Bd. (Sch. Dist. of Phila.), 83 A.3d 1139, 1154 (Pa. Cmwlth.), appeal denied,
94 A.3d 1011 (Pa. 2014). In determining whether the WCJ’s findings are supported
by substantial evidence, we may not reweigh the evidence or the credibility of the
witnesses but must simply determine whether the WCJ’s findings have the requisite
measure of support in the record as a whole. Elk Mountain Ski Resort, Inc. v.
Workers’ Comp. Appeal Bd. (Tietz, deceased), 114 A.3d 27, 32 n.5
(Pa. Cmwlth. 2015). It is irrelevant whether there is evidence to support a contrary
finding; if substantial evidence supports the WCJ’s necessary findings, we may not
disturb those findings on appeal. Williams v. Workers’ Comp. Appeal Bd.
(USX Corp.-Fairless Works), 862 A.2d 137, 143-44 (Pa. Cmwlth. 2004).
15
It is also well settled that with respect to a claim petition, the claimant
bears the burden of proving all elements necessary for an award. Inglis House v.
Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993). Pursuant to
Section 301(c)(1) of the Workers’ Compensation Act,9 an employee’s injuries are
compensable if they “(1) arise[] in the course of employment and (2) [are] causally
related thereto.” ICT Group v. Workers’ Comp. Appeal Bd. (Churchray˗Woytunick),
995 A.2d 927, 930 (Pa. Cmwlth. 2010). Further, an employee must demonstrate that
he is disabled as a consequence of the work-related injury. Cromie v. Workmen’s
Comp. Appeal Bd. (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991).
Unequivocal medical evidence is required where it is not obvious that an injury is
causally related to the work incident. Id. “The question of whether expert medical
testimony is unequivocal, and, thus, competent evidence to support factual
determinations is a question of law subject to our review.” Amandeo v. Workers’
Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa. Cmwlth. 2012). “In such
cases, we review the testimony as a whole and may not base our analysis on a few
words taken out of context.” Id. “Taking a medical expert’s testimony as a whole,
it will be found to be equivocal if it is based only upon possibilities, is vague, and
leaves doubt.” Kurtz v. Workers’ Comp. Appeal Bd. (Waynesburg College),
794 A.2d 443, 449 (Pa. Cmwlth. 2002). “[M]edical testimony is unequivocal if a
medical expert testifies, after providing a foundation for the testimony, that, in his
professional opinion, he believes or thinks a fact exists.” O’Neill v. Workers’ Comp.
Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 57 (Pa. Cmwlth. 2011).
In addition to this requirement that a medical expert’s testimony be
unequivocal, the medical expert’s testimony also must reflect the expert’s adequate
9
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
16
understanding of the facts to be competent. Sears, Roebuck & Co. v. Workmen’s
Comp. Appeal Bd., 409 A.2d 486, 490 (Pa. Cmwlth. 1979). In reviewing an expert’s
testimony on this basis, we must consider whether the expert “had sufficient facts
before him upon which to express” his medical opinion. Id. A medical expert’s
opinion will be held to be incompetent only when the opinion is based solely on
inaccurate or false information; when the record as a whole contains factual support
for an expert’s opinion, the opinion is not incompetent. Am. Contracting Enters.,
Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001).
Furthermore, answers given during cross-examination in a workers’ compensation
proceeding “do not, as a matter of law, destroy the effectiveness of [the] previous
opinions expressed by a physician.” Hannigan v. Workmen’s Comp. Appeal Bd.
(Asplundh Tree Expert Co.), 616 A.2d 764, 767 (Pa. Cmwlth. 1992), appeal denied,
634 A.2d 1118 (Pa. 1993). Instead, such statements go to the weight, not the
competency, of the expert’s opinion. Corcoran v. Workers’ Comp. Appeal Bd.
(Capital Cities/Times Leader), 725 A.2d 868, 872 (Pa. Cmwlth. 1999).
Here, Employer contends that Dr. Sensiba’s opinion regarding the
cause of the avascular necrosis in Claimant’s right knee is equivocal and
incompetent, because the record does not contain any evidence of a specific blow or
impact to Claimant’s right knee from the sawzall itself, other than the sawzall blade,
and Dr. Sensiba admitted that he could only speculate and was not sure what had
caused the trauma to Claimant’s right knee. We disagree. First, Dr. Sensiba’s
opinion on causation is based on a traumatic injury to Claimant’s right knee, which
is supported by the record. Dr. Sensiba testified that, even though the sawzall blade
may not have penetrated all the way into the knee, the degree of bleeding inside the
knee was evidence of intra-articular trauma from the force of the sawzall coming
17
down onto Claimant’s knee. (R.R. at 98a, 100a-01a.) Employer’s suggestion that
the penetration of the sawzall blade into Claimant’s knee was not of sufficient force
to cause trauma to Claimant’s right knee is just that, a suggestion. Claimant testified
that he was using a sawzall to cut out a fire-damaged floor joist, when the sawzall’s
blade pinched, jumped up, and entered his right knee. (Id. at 26a-28a.) The sawzall
blade had to have contacted Claimant’s knee with some measure of force for it to
have penetrated into Claimant’s knee. Thus, Claimant’s description of the
October 16, 2014 work injury provides the necessary factual support in the record
for Dr. Sensiba’s opinion regarding the causal connection between the
October 16, 2014 work-related incident and the avascular necrosis in Claimant’s
right knee.
Second, when taken as a whole, Dr. Sensiba’s testimony on causation
is not speculative. In an attempt to demonstrate the speculative nature of
Dr. Sensiba’s opinion, Employer directs our attention to a single exchange between
Employer’s counsel and Dr. Sensiba during cross-examination:
Q. And you believe there was some kind of
trauma to his knee, but you’re not exactly sure what
specifically caused that, if it wasn’t the blade, correct?
A. I can speculate.
Q. But you’re not sure, right?
A. But I’m not sure.
(Id. at 104a.) This single exchange during cross-examination does not destroy the
effectiveness of Dr. Sensiba’s overall opinion. See Hannigan, 616 A.2d at 767. If
we were to conclude otherwise, we would be taking a few of Dr. Sensiba’s words
out of context and not considering Dr. Sensiba’s testimony as a whole. See
Amandeo, 37 A.3d at 80. In addition, Employer’s counsel’s question asks
Dr. Sensiba to speculate as to a potential cause of the trauma to Claimant’s right
18
knee “if it wasn’t the blade.” In other words, Employer’s counsel asked Dr. Sensiba
to speculate not about the cause attributed by Dr. Sensiba—i.e., the force of the
sawzall blade entering Claimant’s right knee—but rather, a potential alternative
cause. For these reasons, Dr. Sensiba’s testimony is unequivocal and competent.
Employer also contends that even assuming that Dr. Sensiba’s
testimony is unequivocal and competent, the WCJ’s decision that Claimant sustained
avascular necrosis in his right knee as a result of the October 16, 2014 work-related
incident is not supported by substantial evidence because: (1) Dr. Sensiba did not
diagnose Claimant with the onset of avascular necrosis until after Claimant
recovered from the right knee laceration, was released to return to full-duty work,
was laid off by Employer, and slipped and fell and sustained a non-work related
injury to his right knee; (2) the WCJ ignored the existence, timing, and significance
of Claimant’s slip and fall injury to his right knee; (3) Claimant’s current symptoms
and complaints are related to the onset of avascular necrosis, not the right knee
laceration, and Claimant recovered from the right knee laceration and was released
to return to full-duty work as of November 26, 2014; (4) Dr. Ruht provided the only
credible and competent expert opinion in this matter; and (5) Claimant provided
false testimony to the WCJ regarding work that he performed. In making this
argument, Employer is essentially asking this Court to reweigh the evidence and
reconsider the WCJ’s credibility determinations, which we will not do.
Dr. Ruht opined that the avascular necrosis in Claimant’s right knee
was unrelated to Claimant’s October 16, 2014 work-related injury. Dr. Ruht
attributed the avascular necrosis to Claimant’s slip and fall incident. Dr. Sensiba,
on the other hand, opined that the avascular necrosis in Claimant’s right knee is
related to and was caused by the October 16, 2014 work-related incident. The WCJ
19
credited Dr. Sensiba’s testimony over Dr. Ruht’s testimony on the basis that
Dr. Sensiba “was sufficiently qualified to render an opinion regarding a knee
condition” and had been acting as Claimant’s treating physician, whereas Dr. Ruht
had treated Claimant on only one occasion. (WCJ’s Decision at 8.) In addition, the
WCJ found that Dr. Ruht’s reliance on the slip and fall incident as the cause of
Claimant’s avascular necrosis was a stretch. The WCJ noted that even though the
slip and fall incident may have occurred before the January 10, 2015 MRI of
Claimant’s right knee, there was no evidence regarding the mechanism of injury for
such slip and fall incident or that Claimant had sought medical treatment as a result
of such slip and fall incident. (Id.) The WCJ, as the ultimate fact-finder, had the
discretion to credit Dr. Sensiba’s testimony over Dr. Ruht’s testimony. As set forth
more fully above, Dr. Sensiba’s testimony supports the WCJ’s determination that
Claimant had sustained an aggravation of his preexisting lateral and medial meniscus
tears and avascular necrosis in his right knee.
For all of the above-stated reasons, the WCJ’s determination that the
avascular necrosis in Claimant’s right knee was caused by the October 16, 2014
work injury is supported by substantial evidence, and, therefore, the Board did not
commit an error of law in affirming the WCJ’s decision. Accordingly, we affirm the
Board’s order.
P. KEVIN BROBSON, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ryan L. Ford Contractor and :
Flagship City Insurance Company, :
Petitioners :
:
v. : No. 703 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Petersen), :
Respondent :
ORDER
AND NOW, this 4th day of June, 2018, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge