R. Argro v. WCAB (Ardmore Automotive, Inc.) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Argro, :
Petitioner :
:
v. : No. 1954 C.D. 2014
: Submitted: April 2, 2015
Workers’ Compensation Appeal :
Board (Ardmore Automotive, Inc.), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 12, 2015
Raymond Argro (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board). The Board affirmed the decision
of a Workers’ Compensation Judge (WCJ), which denied Claimant’s claim
petition. We now affirm.
I. BACKGROUND
On January 23, 2012, Claimant’s employer, Ardmore Automotive,
Inc. (Employer), directed Claimant to shovel snow from a sidewalk. (Reproduced
Record (R.R. at 1.) On January 24, 2012, Claimant lifted boxes for Employer.
(Id.) On January 25, 2012, Claimant sought treatment from his primary care
physician, Edward Stankiewicz, M.D. (Id. at 66.) Claimant complained of severe
lower back, left hip, left leg, and left knee pain. (Id.) Claimant filed a claim
petition seeking workers’ compensation benefits. Claimant alleged that he
sustained an injury during his work on January 23, 2012, and January 24, 2012.
(Id. at 1.) Employer filed an answer, denying that Claimant’s pain was caused by a
work-related injury. The matter was assigned to a WCJ, who conducted a hearing.
At the hearing before the WCJ, Claimant testified that on
January 23, 2012, he felt a pulling pain in his back after he had been shoveling for
approximately three-to-four hours. (Id. at 16.) Claimant informed his supervisor,
Tim Moore, that he was in pain, and Mr. Moore instructed Claimant to “take a
break.” (Id.) Claimant attempted to return to shoveling, but the pain in his back
increased. (Id. at 16-17.) The following day, January 24, 2012, Claimant
continued to feel pain in his back. (Id. at 17.) Another employee of Employer
asked Claimant to help her move some boxes. (Id.) As he was picking up the
boxes, Claimant’s back pain increased. (Id.) Claimant informed Maureen Mandia,
Employer’s office manager, of the injury. (Id. at 17-18, 353.) On
January 25, 2012, Claimant’s pain had increased to the point where he was unable
to go to work. (Id. at 18.) Claimant went to Dr. Stankiewicz for treatment. (Id.)
Claimant stated that he takes Percocet for his ongoing back pain. (Id. at 44.) He
explained that he did not take any pain medication, other than over-the-counter
medication, prior to January 25, 2012. (Id.) Claimant also uses a cane when
walking. (Id. at 311.)
Claimant indicated that he had sustained a back injury in 2006, which
ultimately required surgery. (Id. at 21, 38.) He received workers’ compensation
benefits for that injury and was out of work for three-to-four years. (Id. at 22.)
Claimant testified that he did not continue to have back pain after his surgery.
(Id. at 39.) Claimant also admitted that he had suffered back injuries in 2009 and
2010. (Id. at 327.) After a series of other jobs, Claimant applied to work for
2
Employer. (Id. at 23-24.) Claimant’s application for employment contained
inaccurate information. Specifically, Claimant misrepresented how long he had
worked for a previous employer as well as his criminal history. (Id. at 322-23.)
Tim Moore, Jennifer Hoy, and Maureen Mandia testified before the
WCJ on behalf of Employer. Mr. Moore testified that Claimant did not inform him
that he had injured himself. (Id. at 345.) Claimant was asked to shovel a fifty to
seventy-five foot sidewalk. (Id.) There was approximately one-to-two inches of
snow, and Mr. Moore did not think it would have taken Claimant four hours to
shovel. (Id.) Jennifer Hoy testified that she asked Claimant to help her move
boxes on January 24, 2012. (Id. at 349.) Ms. Hoy and Claimant moved six or
seven boxes in approximately five-to-ten minutes. (Id. at 350.) The boxes
weighed about fifteen pounds. (Id. at 352.) Claimant did not indicate that he was
in pain after moving the boxes. (Id. at 350-51.) Ms. Mandia testified that when
Claimant was hired, Employer discovered that Claimant’s employment application
incorrectly indicated that Claimant did not have a criminal background. (Id. at
355.) Despite this inaccuracy, Employer did not terminate Claimant’s
employment. (Id.) Claimant never stated that he was unable to perform his work
duties prior to his injury. (Id. at 357.) Ms. Mandia saw Claimant and Ms. Hoy
carrying boxes, but she did not witness Claimant’s injury. (Id. at 367.) Claimant
reported his injury on January 30, 2012. (Id. at 354.)
Claimant presented the deposition testimony and medical report of
Dr. Stankiewicz. Dr. Stankiewicz testified that he is a general practitioner. (Id. at
61.) He is not board certified. (Id. at 62.) Dr. Stankiewicz first treated Claimant
for back pain in 2007. (Id. at 63.) Dr. Stankiewicz continued to treat Claimant for
back pain until March 2011, after which he did not see Claimant again for six
3
months. (Id. at 64.) Claimant had chronic back pain, but he was “fully functional
from a physical respect.” (Id.) Claimant returned and sought treatment for a back
injury in September 2011. (Id.) Claimant informed Dr. Stankiewicz that he had
injured his back while detailing a car for Employer. (Id. at 64-65.)
Dr. Stankiewicz diagnosed Claimant with a sprain of his lumbrosacral spine and
back pain caused by an exacerbation of his preexisting back condition. (Id. at 65.)
Dr. Stankiewicz next treated Claimant for back pain on January 25,
2012. (Id. at 66.) At that visit, Claimant did not provide Dr. Stankiewicz with any
information concerning the injury on January 23, 2012, and January 24, 2012.
(Id. at 68.) Claimant later told Dr. Stankiewicz that Claimant shoveled snow for
four hours on January 23, 2012, and carried boxes on January 24, 2012. (Id. at 69.)
Dr. Stankiewicz opined that Claimant sustained a low back injury while shoveling
snow and lifting boxes. (Id. at 71.) Based on the MRIs obtained before and after
Claimant’s work injury, Claimant developed a “new L5, S1 disc extrusion, which
was compromising his left S1 nerve root” after his work injury. (Id. at 71, 73.)
Dr. Stankiewicz has not released Claimant to return to work. (Id. at 73.) Claimant
receives physical therapy, anti-inflammatories, and Percocet. (Id. at 73-74.)
Claimant was also treated by a neurosurgeon and he received steroid epidural
injections from a pain management specialist. (Id. at 74.)
Employer presented the deposition and medical testimony of Ira
Sachs, D.O. Dr. Sachs testified that he is a board-certified orthopedic surgeon.
(Id. at 158.) Dr. Sachs reviewed Claimant’s medical records and performed an
independent medical examination (IME) of Claimant on April 11, 2012. (Id. at
161.) Dr. Sachs opined that Claimant did not sustain a work-related injury or
aggravate a preexisting injury on January 23, 2012, and January 24, 2012. (Id. at
4
162, 180.) During the IME, Dr. Sachs attempted to determine Claimant’s range of
motion, but Claimant would not flex or extend. (Id. at 169.) Dr. Sachs explained
that even with his worst back patients, “they would be able to exhibit something,
they would just not refuse to move at all.” (Id.) Dr. Sachs could not find an
objective reason for Claimant’s refusal to move. (Id. at 169-70.) Claimant
performed sitting straight leg raises which caused leg pain, but when Dr. Sachs
performed a different test to corroborate those results, Claimant did not experience
any pain. (Id. at 172.) Dr. Sachs noted that there was progression of Claimant’s
back injury from 2008 to 2009, but no progression between 2009 and 2012. (Id. at
174, 178-79.)
The WCJ issued a decision denying Claimant’s claim petition. In so
doing, the WCJ determined that Claimant’s testimony was not credible. The
testimony of Ms. Mandia, Mr. Moore, and Ms. Hoy was credible. The WCJ
determined that Dr. Stankiewicz’s testimony was not credible, and Dr. Sachs’
testimony was credible. Claimant appealed to the Board, which affirmed the
WCJ’s decision. Claimant then petitioned this Court for review.
II. DISCUSSION
On appeal,1 Claimant argues that the WCJ’s credibility determinations
are not reasoned, that the WCJ’s opinion constitutes a “patchwork of findings”
1
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. Further, “review for capricious disregard of material, competent evidence is an
appropriate consideration in every case in which such question is properly brought before the
court.” Leon E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487
(Pa. 2002).
5
with no rational basis, that the WCJ capriciously disregarded evidence, and that the
overwhelming weight of the evidence supports reversal.2
A. Credibility Determinations3
Claimant first argues that the WCJ’s credibility determinations are not
reasoned as required by Section 422(a) of the Workers’ Compensation Act (Act),
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.4 “[I]t has long been
2
Claimant, in his statement of questions presented, identified the issues set forth above.
Claimant does not discuss these issues in separate sections; but, rather, intersperses them
throughout the entirety of his brief. See Pa. R.A.P. 2119(a) (“The argument shall be divided into
as many parts as there are questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctively displayed—the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.”). Nevertheless, the Court
has attempted to glean the arguments for each issue from Claimant’s brief.
3
Throughout his brief, Claimant identifies a number of findings of fact with which he
takes issue. His arguments concerning these findings relate to the WCJ’s credibility
determinations and the WCJ’s supposed capricious disregard of evidence. Claimant does,
however, appear to argue that finding of fact number 2 is not supported by substantial evidence.
Finding of fact number 2 provides:
Claimant, by and through counsel, filed a [c]laim [p]etition on or
about February 7, 2012 setting forth the specific allegations of his
work related injury, disability and timely notice to his employer.
[Employer] filed a timely [a]nswer denying all material allegations
in the [p]etition.
(WCJ Decision at 1.) Claimant contends that Employer admitted that Claimant had back pain
and that Claimant was an employee of Employer. Although Claimant is correct that Employer
did not deny all allegations, the WCJ’s finding is harmless error. Employer’s admissions are
irrelevant to the determination of whether Claimant’s pain was caused by a work-related injury.
4
Section 422(a) of the Act provides, in relevant part:
All parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based
upon the evidence as a whole which clearly and concisely states
and explains the rationale for the decisions so that all can
determine why and how a particular result was reached. The
workers’ compensation judge shall specify the evidence upon
(Footnote continued on next page…)
6
recognized that the WCJ has the exclusive authority to make findings of fact and
credibility determinations.” Daniels v. Workers’ Comp. Appeal Bd. (Tristate
Transp.), 828 A.2d 1043, 1052 (Pa. 2003). These findings, however, must be
supported by adequate reasons for accepting or rejecting conflicting evidence. Id.Where the WCJ has observed witnesses testify, “it is appropriate for the [WCJ] to
base his or her determination upon the demeanor of the witnesses.” Id. If a WCJ
does not observe a witness’s demeanor, the WCJ must articulate an actual
objective basis which supports the credibility determination. Id.Claimant contends that the WCJ’s determination regarding Claimant’s
credibility is not reasoned. The credibility determination provided:
This WCJ has considered the testimony of . . . Claimant,
together with all other evidence of record in this matter,
and finds . . . Claimant’s testimony not credible. In
making the aforesaid credibility determination, the
following is noted: (a) this WCJ had the opportunity to
observe . . . Claimant’s manner and demeanor at the
hearing of November 27, 2012 and determined that such
was not that of a credible witness; (b) Dr. Stankiewicz
admitted that when he saw Claimant on January 25,
2012, the Claimant did not tell him about the alleged
work incidents/injuries of January 23, 2012 and
(continued…)
which the workers’ compensation judge relies and state the reasons
for accepting it in conformity with this section. When faced with
conflicting evidence, the workers’ compensation judge must
adequately explain the reasons for rejecting or discrediting
competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’
compensation judge must identify that evidence and explain
adequately the reasons for its rejection. The adjudication shall
provide the basis for meaningful appellate review.
7
January 24, 2012; (c) . . . Claimant admitted at the
hearing of November 27, 2012 that his written responses
to questions contained in the application for employment
presented to him by . . . [Employer] concerning criminal
conviction and length of employment with [Claimant’s
previous employer, Installation Material Corporation,]
were untrue; (d) . . . Claimant was less than forthcoming
concerning Dr. Stankiewicz’s treatment of his back
condition from January 26, 2009 until January 25, 2012
and the use of the prescribed medication Percocet during
that period; and, (e) . . . Claimant’s testimony is not
consistent with the credible testimonies of Ms. Mandia,
Ms. Hoy and Mr. Moore.
(WCJ Decision at 6.) Claimant acknowledges that a WCJ may base a credibility
determination on a witness’s demeanor, but he asserts that the determination
regarding Claimant’s credibility was made contrary to undisputed facts.5
Claimant testified before the WCJ, and, therefore, it was in the WCJ’s
purview to reject Claimant’s testimony based solely on Claimant’s demeanor.
Daniels, 828 A.2d at 1052. The WCJ, in fact, went further by providing a number
of objective reasons supporting his determination that Claimant was not credible.
Claimant seems to suggest that because some of these reasons were “confirmed”
by Claimant during his testimony before the WCJ, Claimant must be considered
credible. Claimant does not, however, point to a rule which precludes a WCJ from
finding a claimant not credible based on the claimant’s own testimony. Moreover,
the WCJ was not required to list objective reasons for his determination, because
his determination was supported by his observation of Claimant’s demeanor.
5
Claimant also appears to assert that, because portions of Claimant’s testimony were the
same as some of the credible witnesses, the WCJ must articulate which portions of Claimant’s
testimony were not credible and provide reasons for each portion of Claimant’s testimony
deemed not to be credible. Claimant, however, provides no support for this assertion.
8
Accordingly, we reject Claimant’s argument that the WCJ’s determination
concerning Claimant’s credibility was not reasoned.6
Claimant also asserts that the WCJ did not provide adequate reasons
for finding Dr. Stankiewicz not credible. The credibility determination relating to
Dr. Stankiewicz provides:
This WCJ has considered the testimony of Dr.
Stankiewicz, together with all other evidence of record in
this matter, and finds Dr. Stankiewicz’s testimony not
credible. In making the aforesaid credibility
determination, the following is noted: (a) the doctor
admits that when he saw and examined . . . Claimant on
January 25, 2012, . . . Claimant did not tell him about the
January 23, 2012 and January 24, 2012 alleged work
incidents; (b) in formulating his opinion as to the cause
of . . . Claimant’s alleged disability, the doctor in relevant
part relied on the faulty history given to him by . . .
Claimant at the visit of February 6, 2012 concerning the
alleged January 23, 2012 and January 24, 2012 work
incidents/injuries. (This WCJ has determined that . . .
Claimant failed to prove that such work incidents/injuries
in fact occurred.)
(WCJ Decision at 6.) Claimant suggests that Dr. Stankiewicz’s failure to obtain
Claimant’s history on January 25, 2012, is not a sufficient basis to reject
Dr. Stankiewicz’s testimony. Claimant also argues that Claimant’s history was
accurate, rather than “faulty.” Claimant’s contentions thus concern whether
6
Within this argument, Claimant also appears to contend that substantial evidence does
not support the finding that “Claimant was less than forthcoming concerning Dr. Stankiewicz’s
treatment of his back condition.” (WCJ Decision at 6.) As noted above, however, the WCJ’s
observation of Claimant’s demeanor alone is enough to support his finding that Claimant was not
credible.
9
substantial evidence supports the WCJ’s reasons for finding Dr. Stankiewicz not
credible.7
Here, Dr. Stankiewicz’s testimony supports the WCJ’s finding that
Claimant did not provide a full history on January 25, 2012. Dr. Stankiewicz
testified as follows:
Q. January 25, 2012. You agree with me that he
makes no reference to a work-related incident in that
note.
A. Well, he complained of left hip, left leg and left
knee pain at that point and he indicated it started to hurt
the week prior to that in the note
Q. Right. He doesn’t mention – this is January 25.
He doesn’t mention the day before, January 24, 201[2].
He doesn’t mention the day before that January 23, 2012.
. . . He doesn’t mention either an event occurring on
January 23, 2012 or an event occurring on
January 24, 2012.
A. Correct.
(R.R. at 126.) Testimony also supports the WCJ’s finding that Claimant
subsequently provided Dr. Stankiewicz with a faulty history. Dr. Stankiewicz
testified that Claimant ultimately informed him that on January 23, 2012, Claimant
began to feel pain after he had been shoveling for four hours. (Id. at 69.)
Mr. Moore, however, testified that Claimant would not have been shoveling for
that long because Claimant only had to shovel “an inch or two” of snow from a
fifty to seventy-five foot sidewalk. (Id. at 345.) The WCJ found that Mr. Moore’s
testimony was credible and that Claimant had not been shoveling snow for four
7
“Substantial evidence is evidence which a reasonable mind would accept as adequate to
support a conclusion.” Cinram Manufacturing, Inc. v. Workers’ Comp. Appeal Bd. (Hill),
975 A.2d 577, 583 (Pa. 2009).
10
hours as he told Dr. Stankiewicz. This supports the finding that Dr. Stankiewicz
relied on a faulty history. We, therefore, find no error in the WCJ’s credibility
determination concerning Dr. Stankiewicz.
Claimant next argues that the WCJ did not provide adequate reasons
for finding Dr. Sachs’ testimony credible.8 The credibility determination
concerning Dr. Sachs provides:
This WCJ has considered the testimony of Dr. Sachs,
together with all other evidence of record in this matter,
and finds Dr. Sachs’ testimony credible in its entirety.
Such testimony is corroborated by his clinical findings or
lack thereof during his April 11, 2012 examination of . . .
Claimant, the doctor’s review of relevant medical records
and report[s], and the doctor’s expertise as a Board-
certified orthopedic surgeon.
(WCJ Decision at 6.) Claimant argues that the only objective factor listed by the
WCJ is Dr. Sachs’ board certification, which is not a sufficient reason because of
various inconsistencies in Dr. Sachs’ testimony.
Evidentiary inconsistencies go to the weight to be accorded to the
evidence. Visteon Sys. v. Workers’ Comp. Appeal Bd. (Steglik), 938 A.2d 547, 554
n.9 (Pa. Cmwlth. 2007). Even if inconsistencies did exist, it was the WCJ’s
prerogative to assign little weight to any inconsistencies in Dr. Sachs’ testimony.
The WCJ was only required to provide an objective basis for his credibility
determination, which he did. As noted above, the WCJ based his credibility
determination on Dr. Sachs’ lack of clinical findings during his examination of
8
Claimant also takes issue with the WCJ’s summarization of Dr. Sachs’ testimony,
which incorrectly provides that Dr. Sachs was deposed on October 21, 2012, rather than
October 11, 2012. This is harmless error, as the date of Dr. Sachs’ deposition is irrelevant to the
outcome of this matter.
11
Claimant, his review of the medical records, and his board certification. These
reasons are sufficiently objective for the WCJ to find that Dr. Sachs’ testimony
was credible despite any inconsistencies. We, therefore, reject Claimant’s
argument concerning the WCJ’s credibility determinations.9
B. Capricious Disregard of Evidence
Claimant next argues that the WCJ capriciously disregarded evidence
pertaining to Ms. Mandia and Dr. Sachs. As stated above, “capricious disregard of
material, competent evidence is an appropriate component of appellate
consideration in every case in which such question is properly brought before the
court.” Wintermyer, 812 A.2d at 487. Capricious disregard, however, is found
only where a WCJ deliberately and baselessly disregards evidence that is
apparently trustworthy. Williams v. Workers’ Comp. Appeal Bd. (USX Corp.–
Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004). “[W]here there is
substantial evidence to support an agency’s factual findings, and those findings in
turn support the conclusions, it should remain a rare instance in which an appellate
court would disturb an adjudication based upon the capricious disregard of
material, competent evidence.” Id.9
Claimant also appears to argue that the WCJ did not provide adequate reasons for his
determinations as to the credibility of Mr. Moore, Ms. Mandia, and Ms. Hoy. Claimant does not
explain how the WCJ erred in rendering credibility determinations concerning these witnesses;
rather, he seems to take issue with the WCJ’s finding that no injury occurred. None of these
witnesses, however, testified that Claimant was injured on January 23, 2012, or January 24,
2012. Mr. Moore and Ms. Hoy testified that he shoveled snow on January 23, 2012, and moved
boxes on January 24, 2012. (R.R. 345, 349-50.) Ms. Mandia testified that Claimant reported a
work injury to her on January 30, 2012, and, although she observed Claimant carrying boxes, she
did not witness Claimant sustain an injury. (Id. at 354, 367.)
12
Claimant first asserts that the WCJ capriciously disregarded an
admission made by Ms. Mandia, in Employer’s response to Claimant’s application
for unemployment compensation benefits. Claimant argues that in the response,
Ms. Mandia admitted that Claimant sustained a work-related injury. Claimant,
however, mischaracterizes Ms. Mandia’s statement. Ms. Mandia testified, in
response to the unemployment compensation claim, she “wrote Ray injured his
back at the end of January. We filed a workers’ comp[ensation] claim on him.”
(R.R. at 358.) She did not admit that Claimant injured his back at work but, rather,
that Claimant injured his back and a workers’ compensation claim was filed.
Accordingly, we reject Claimant’s argument that the WCJ capriciously disregarded
evidence pertaining to Ms. Mandia.
Claimant next argues that the WCJ capriciously disregarded portions
of Dr. Sachs’ testimony and medical report. First, Claimant suggests that the WCJ
capriciously disregarded all of Dr. Sachs’ testimony establishing bias, Dr. Sachs’
admission that Claimant sustained an injury at work, Dr. Sachs’ differing opinions
on Claimant’s ability to return to work, and Dr. Sachs’ contradictory statements
concerning the progression of Claimant’s injury.
Claimant argues that the WCJ disregarded all of Dr. Sachs’
cross-examination testimony. Specifically, Claimant takes issue with the WCJ’s
alleged failure to consider evidence establishing that Dr. Sachs was biased.
Claimant contends that Dr. Sachs’ income from IMEs, his former employment
with an insurance company, and his brief, but expensive, examination of Claimant
establish bias. Claimant, however, does not explain why he believes that the WCJ
capriciously disregarded this evidence. A WCJ does not need to discuss every
detail of the evidence in the record. Dorsey v. Workers’ Comp. Appeal Bd.
13
(Crossing Constr. Co.), 893 A.2d 191, 194 n.4 (Pa. Cmwlth. 2006), appeal denied,
916 A.2d 635 (Pa. 2007). Both experts were paid for their testimony concerning
Claimant’s injury. There is no indication that the WCJ, in rendering his credibility
determinations, acted with bias. Accordingly, we reject Claimant’s contention that
the WCJ capriciously disregarded Dr. Sachs’ cross-examination testimony.
We next address Claimant’s argument that the WCJ capriciously
disregarded Dr. Sachs’ admission that Claimant sustained a work injury. Despite
Claimant’s contention, Dr. Sachs’ testimony reveals that his statement regarding
Claimant’s work injury was based upon supposition:
Q. Supposing for a moment that he did suffer an
injury that day or on those days, January 23, 2012 and/or
January 24, 2012, how would you characterize the
supposed injury?
A. There may have been a soft tissue type injury, but
again, that is speculative, and largely based on the
history.
(R.R. at 162.) Further, Dr. Sachs definitively stated that Claimant’s records “do
not support a specific injury.” (Id.) Accordingly, we reject Claimant’s argument
that the WCJ capriciously disregarded Dr. Sachs’ admission that Claimant
sustained a work injury.
We next address Claimant’s argument that the WCJ capriciously
disregarded Dr. Sachs’ differing opinions on Claimant’s ability to return to work.10
10
Claimant also appears to argue that Dr. Sachs’ testimony in this regard is equivocal.
“Medical testimony will be found unequivocal if the medical expert, after providing a
foundation, testifies that in his professional opinion that he believes a certain fact or condition
exists.” Coyne v. Workers’ Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 954 (Pa.
Cmwlth.), appeal denied, 960 A.2d 457 (Pa. 2008). “The equivocality of medical testimony is to
be judged upon review of the entire testimony.” Carpenter Tech. Corp. v. Workers’ Comp.
Appeal Bd. (Wisniewski), 600 A.2d 694, 696 (Pa. Cmwlth. 1991). “Taking a medical expert’s
(Footnote continued on next page…)
14
Claimant asserts that, during Dr. Sachs’ deposition, Dr. Sachs opined that Claimant
was capable of performing the activities he was capable of performing prior to
January 23, 2012. In his medical report, however, Dr. Sachs opines that Claimant
could not return to work. A review of the testimony as a whole demonstrates that,
rather than changing his opinion, Dr. Sachs simply clarified the opinion in his
medical report during his deposition:
Q. In your report you indicate that you did not feel
that [C]laimant would be capable of returning to work in
the type of job he was performing for . . . [Employer] in
2011 and 2012. Explain to the [WCJ] what you meant by
that.
A. In my practice, and my own patients who would
present this way, I would not advise them to return to that
type of employment; however, he was working at that
type of employment with his back, with his
radiculopathy, with his chronic postoperative changes, so
just without him being my patient and looking at the fact
that he was doing that, there is no reason why he
shouldn’t be able to do that.
(Id. at 178-79.) Accordingly, we reject Claimant’s argument that the WCJ
capriciously disregarded Dr. Sachs’ inconsistent opinions concerning Claimant’s
ability to return to work.
(continued…)
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). As noted above, Dr. Sachs simply clarified the opinion
in his medical report. This does not render his testimony equivocal.
15
Lastly, we address Claimant’s argument that the WCJ capriciously
disregarded Dr. Sachs’ contradictory statements concerning the progression of
Claimant’s injury. Dr. Sachs testified:
Q. Do you see any progression from January 2009 to
April 2012?
A. No.
...
A. We know that it didn’t resolve. We know that he
has had MRI scans in 2008, and MRI scans in 2009, that
show progression, and that progression continues
unchanged, albeit in the latest MRI scans.
(Id. at 174, 178-79.) Claimant mischaracterizes Dr. Sachs’ testimony. Dr. Sachs
noted that there was progression from 2008 to 2009. The results of that
progression were still visible on an MRI in 2012, although there had been no
further progression since 2009. Accordingly, we reject Claimant’s argument that
the WCJ capriciously disregarded Dr. Sachs’ testimony concerning the progression
of Claimant’s injury.
C. “Patchwork of Findings”
Claimant next argues that the WCJ’s opinion is without rational basis
and, therefore, must be reversed. Claimant cites Giant Eagle, Inc. v. Workmen’s
Compensation Appeal Board (Bensy), 651 A.2d 212 (Pa. Cmwlth. 1994), for the
proposition that a WCJ’s decision is erroneous where a “patchwork of findings
together” results in credibility determinations that are illogical. (Cl.’s Br. at 11.)
In Giant Eagle, this Court recognized that “[w]here the [WCJ’s] opinion is without
a rational basis or scheme so as to be capricious, we are bound to reverse.” Giant
Eagle, 651 A.2d at 218. Noting that an opinion would rarely meet those criteria,
this Court explained the particular circumstances under which the case arose:
16
The [WCJ] failed to set forth any findings of fact with
respect to the medical witnesses who testified. Instead,
he inexplicably states that he finds the direct testimony of
all of these witnesses as being not believable and not
credible and picks and chooses as to the credibility of
parts of testimony of other witnesses with no rhyme or
reason. The [WCJ] found that he does believe the
cross-examination testimony of Dr. Durning and
Dr. Merkow, despite the fact that there are very few
relevant facts contained in these portions of the
testimony. In essence, we can make no sense of the
patchwork of credibility findings as to portions of each
individual’s testimony.
Id.The instant matter is distinguishable from Giant Eagle. As noted
above, the WCJ provided sufficient reasons for his credibility determinations and
those reasons were supported by the testimony of the witnesses. The WCJ made
findings for each witness that testified. He did not pick and choose specific
portions of a witness’s testimony to find credible; rather, he accepted or rejected
the credibility of a witness’s testimony as a whole. The WCJ considered the
conflicting evidence and properly found that Employer’s witnesses were more
credible than Claimant’s. This is a proper function of the WCJ’s role as factfinder.
See Cittrich v. Workmen’s Comp. Appeal Bd. (Laurel Living Ctr.), 688 A.2d 1258,
1259 (Pa. Cmwlth. 1997) (explaining that determinations concerning weight given
to conflicting evidence are solely for WCJ). Accordingly, we reject Claimant’s
argument that the WCJ’s opinion is without a rational basis.
D. Weight of the Evidence
Lastly, Claimant contends that the overwhelming weight of the
evidence supports reversal. Reweighing the evidence presented before the WCJ is
not an appropriate role of an appellate court. Bethenergy Mines, Inc. v. Workmen’s
Comp. Appeal Bd. (Skirpan), 612 A.2d 434, 436 (Pa. 1992) (“[T]he appellate role
17
is not to reweigh the evidence or to review the credibility of the witnesses.”).
Although Claimant contends that the evidence supports reversal of this matter, the
WCJ weighed the evidence in favor of Employer more heavily than that which
favored Claimant. This is a proper exercise of the WCJ’s role as factfinder, and it
is not for this Court to assume the WCJ’s role in this matter. We, therefore, reject
Claimant’s argument that the overwhelming weight of the evidence supports
reversal.
III. CONCLUSION
For the reasons set forth above, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Argro, :
Petitioner :
:
v. : No. 1954 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Ardmore Automotive, Inc.), :
Respondent :
ORDER
AND NOW, this 12th day of August, 2015, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge