County of Allegheny v. WCAB (Nicini) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, :
: No. 2602 C.D. 2015
: Submitted: August 5, 2016
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Nicini), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 3, 2017
County of Allegheny (Employer) petitions for review of the
November 18, 2015 order of the Workers’ Compensation Appeal Board (Board),
affirming in part, reversing in part, and vacating in part the decision of a workers’
compensation judge (WCJ),1 which granted the review petition filed by Nicholas
Nicini (Claimant), denied Employer’s termination petition, and ordered Employer
to continue paying Claimant weekly benefits of $732.46 per week. The Board
affirmed the grant of Claimant’s review petition, reversed the denial of Employer’s
1
The decision was issued by WCJ Eric Jones, to whom the matter was reassigned
following the retirement of WCJ Susan Cercone.
termination petition in part, and vacated the WCJ’s award of ongoing
compensation. We affirm.
Claimant suffered a work injury on February 23, 2013, during the
course of his employment as a corrections officer. He was treated in the
emergency room, and he returned to light duty work with no wage loss. Employer
issued a medical-only notice of temporary compensation payable, which converted
to a medical-only notice of compensation payable (NCP),2 recognizing closed
fractures of the third and fourth fingers of Claimant’s left hand and a lumbar strain.
On January 20, 2014, Claimant filed a review petition seeking to
expand the description of the work injuries in the NCP to include an aggravation of
underlying spondylolisthesis/spinal stenosis. Employer subsequently filed a
termination petition alleging that Claimant was fully recovered from his work-
related injuries as of June 16, 2013.
Claimant testified that he worked as a corrections officer at the
Allegheny County Jail.3 He said that he was injured on February 23, 2013, after he
responded to a call from another officer who complained that an inmate was giving
2
Generally, an employer must issue a notice of compensation payable or a notice of
compensation denial within twenty-one days of notice of a work injury. Section 406.1(a) of the
Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act
of February 8, 1972, P.L. 25, as amended, 77 P.S. §717.1(a). However, where there is
uncertainty regarding compensability or the extent of liability, an employer may initiate
compensation payments for a period not exceeding 90 days without prejudice or without
admitting liability, by issuing a notice of temporary compensation payable. Section 406.1(d) of
the Act, 77 P.S. §717.1(d)(1). Both the notice of temporary compensation payable, LIBC-501,
and the notice of compensation payable, LIBC-495, provide an option for payment for medical
treatment only.
3
Claimant testified before WCJ Jones on July 28, 2014. Reproduced Record (R.R.) at
77-98.
2
him a hard time. Claimant stated that he was escorting the inmate back to his cell,
with his hand on the inmate’s back, and the inmate tried to smack Claimant’s hand
away as they ascended the stairs. Claimant grabbed the inmate’s shirt tightly and,
as Claimant walked up one or two steps, the inmate suddenly stopped and pulled
Claimant back, causing him to strike his hand and lose his balance, but not fall.
Claimant returned the inmate to his cell and continued working. He awoke during
the night with back pain and found his hand bruised and swollen.
Claimant testified that he first sought treatment from Paul Liefeld,
M.D., a panel physician, and he currently sees Gerard J. Werries, M.D., every six
weeks. He also sees David A. Provenzano, M.D., who provides him injections for
pain relief. Claimant stated that surgery had been recommended, but he was
waiting for a determination of whether it would be covered by workers’
compensation so that his credit would not be affected. He explained that he has an
excellent credit score and, while he has health insurance, he did not want to be off
work without income. R.R. at 79-94.
Claimant submitted medical records and reports, including records of
Dr. Werries, Dr. Provenzano, and David L. Kaufmann, M.D., whom Claimant saw
on July 9, 2013, for a neurosurgical evaluation.4 Employer offered into evidence
4
Section 422 of the Act, added by the Act of June 26, 1919, P.L. 642, 77 P.S. §835,
provides in part:
Where any claim for compensation at issue before a workers’
compensation judge involves fifty-two weeks or less of disability,
either the employe or the employer may submit a certificate by any
health care provider as to the history, examination, treatment,
diagnosis, cause of the condition and extent of disability, if any,
and sworn reports by other witnesses as to any other facts and such
statements shall be admissible as evidence of medical and surgical
or other matters therein stated and findings of fact may be based
upon such certificates or such reports. . . .
3
the deposition testimony of Daniel Kelly Agnew, M.D., who performed an
independent medical evaluation (IME) of Claimant on June 26, 2013. Dr. Agnew
opined that Claimant’s work injury did not aggravate his pre-existing conditions
and that Claimant was fully recovered from the work injury. R.R. at 104-58.
Claimant acknowledged during the hearing that he had fully recovered
from his hand injury. There also was no dispute that Claimant previously was
diagnosed with a grade I spondylolisthesis at L5-S1 in 2010.
By decision and order dated October 24, 2014, the WCJ granted
Claimant’s review petition and amended the description of the work injury to
include a “low back injury that substantially contributed to left sciatica,
spondylolisthesis, and degenerative disc disease.” WCJ’s decision at 11. The
WCJ denied Employer’s termination petition, finding that Claimant had recovered
from the hand injury, but Employer had not met its burden of proving that
Claimant fully recovered from the work injury.5 In making these determinations,
the WCJ resolved conflicts in the evidence in Claimant’s favor. WCJ’s Finding of
Fact No. 9.
Employer appealed to the Board, arguing, inter alia, that the WCJ
erred in denying Employer’s termination petition and failed to issue a reasoned
decision. The Board agreed with Employer’s first argument and ordered that the
termination petition be granted in part.6
5
Although Claimant was not receiving wage loss benefits, the WCJ further concluded
that Claimant remained entitled to receive weekly compensation at the rate of $742.46, less
attorney fees. The Board corrected this error on appeal and vacated that portion of the WCJ’s
order.
6
As the Board recognized, however, an employer “must prove that all of the claimant’s
work-related disability has ceased” in order to be entitled to a termination of medical and wage
(Footnote continued on next page…)
4
However, the Board rejected Employer’s contentions that the WCJ’s
credibility determinations reflect a misapprehension of the facts and the law.
According to the Board:
The WCJ accepted Claimant’s evidence over that of
[Employer’s] and stated numerous actual objective
reasons for this determination, including the fact that Dr.
Werries saw Claimant shortly after the work incident and
was his treating physician, that Dr. Agnew did not have
certain qualifications, and that Dr. Agnew did not
(continued…)
loss benefits related to the work injury. Central Park Lodge v. Workers’ Compensation Appeal
Board (Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998) (emphasis in original) (citations
omitted). Pennsylvania courts have repeatedly held that in a termination proceeding, an
employer bears the burden of proving by substantial evidence that a claimant’s disability has
ceased, “or that any remaining conditions are unrelated to the work injury. An employer may
satisfy this burden by presenting unequivocal and competent medical evidence of the claimant’s
full recovery from her work-related injuries.” Westmoreland County v. Workers’ Compensation
Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2007) (emphasis added) (citation
omitted).
The Board interpreted the decision in Indian Creek Supply v. Workers’ Compensation
Appeal Board (Anderson), 729 A.2d 157 (Pa. Cmwlth. 1999) as inviting a departure from our
case law. In that case we held that the employer satisfied its burden with respect to the
claimant’s lumbosacral strain but not the residual problems from his disc herniation. We find no
support for the Board’s analysis in Indian Creek Supply. More important, we believe that the
Board is fashioning a “cure” for a problem that does not exist: it is by now well-settled that a
finding of fact that is not challenged on appeal is binding on the parties in subsequent
proceedings. Mino v. Workers’ Compensation Appeal Board (Crime Prevention Association),
990 A.2d 832, 839 (Pa. Cmwlth. 2010); Temple University Hospital v. Workers’ Compensation
Appeal Board (Sinnot), 866 A.2d 489, 494 n.4 (Pa. Cmwlth. 2005). Here, the WCJ’s
unchallenged finding that Claimant was fully recovered from the hand injury is sufficient, in
itself, to entitle Employer to the relief the Board seeks to supply. We conclude that the Board’s
piecemeal approach is both unnecessary and ill-advised, and we direct the Board’s attention to
our decision in Ingram Micro v. Workers’ Compensation Appeal Board (Heim), (Pa. Cmwlth.,
No 1716 C.D. 2013, filed May 23 2014) (holding that termination of benefits in part was
improper).
5
persuasively cite to any medical theory or literature to
support his opinions.
Board’s opinion at 10. Thus, the Board affirmed the grant of Claimant’s review
petition.
On appeal to this Court,7 Employer argues that the WCJ failed to issue
a reasoned decision. Section 422(a) of the Act states that
[a]ll 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
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.
77 P.S. §834.
Employer asserts that: the WCJ did not sufficiently address the
credibility of Claimant’s testimony; the WCJ failed to consider all of the evidence
7
Our scope of review is limited to determining whether constitutional rights were
violated, an error of law was committed, or necessary findings of fact are supported by
substantial evidence. Milner v. Workers’ Compensation Appeal Board (Main Line Endoscopy
Ctr.), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010). Substantial evidence is such relevant evidence
as a reasonable person might accept as adequate to support a conclusion. Waldameer Park, Inc.
v. Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
6
of record; the WCJ’s credibility determination concerning Dr. Agnew’s testimony
reflects a misapprehension of the facts and the law; the WCJ relied on incompetent
medical testimony; and the WCJ’s ruling on Dr. Provenzano’s testimony is not
supported by substantial evidence.
We first address Employer’s contention that the WCJ’s decision was
not reasoned because he failed to consider all of the evidence of record,
specifically, three diagnostic reports that Employer submitted as exhibits.
Employer complains that the WCJ made no reference to these reports. He did not
note that they were uploaded in WCAIS,8 indicate whether they were admitted, or
list the reports as exhibits in his decision. Employer further complains that the
WCJ failed to consider Employer’s argument that the reports showed little change
in Claimant’s preexisting condition.
However, we have previously explained that “in providing an
adequate basis for appellate review, the WCJ is not required to address all of the
evidence presented in a proceeding” in his written adjudication. Daniels v.
Workers’ Compensation Appeal Board (Tristate Transport), 753 A.2d 293, 304
(Pa. Cmwlth. 2000), aff’d, 828 A.2d 1043 (Pa. 2003). Instead, to satisfy the
“reasoned decision” requirement, a WCJ must only make findings necessary to
resolve the issues raised by the evidence and relevant to the decision. Pryor v.
Workers’ Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197,
1202 (Pa. Cmwlth. 2006); Montgomery Tank Lines v. Workers’ Compensation
Appeal Board (Humphries), 792 A.2d 6, 13 n.10 (Pa. Cmwlth. 2002). Because the
8
WCAIS is the acronym for the Workers’ Compensation Automation and Integration
System, the Pennsylvania Department of Labor and Industry’s electronic case management
system.
7
WCJ was not required to discuss all of the evidence presented, Employer’s
argument in this regard necessarily fails.
Employer’s remaining arguments relate to the WCJ’s credibility
determinations, which are set forth in Finding of Fact No. 9. In its entirety, that
finding states:
9. Resolution of the conflict of evidence, analysis of
the evidence and discussions. Based on a weighing of
all of the evidence in the case, I make the following
findings of fact.
a. When claimant testified before me on July 28, 2014,
his testimony, overall, was very believable. He
confirmed that he returned to work based on Dr. Werries
restrictions. Claimant confirmed that the employer was
honoring the restrictions for claimant as a corrections
officer at employer. [ ]
b. The claimant’s medical experts, Dr. Werries and Dr.
Provenzano both were treating physicians of the
claimant. Dr. Kaufmann saw claimant for a consultation.
Dr. Werries saw the claimant shortly after claimant’s
February 23, 2013 injury and had continued to treat the
claimant. Dr. Werries obviously had gotten the claimant
to the point of returning to work at modified duty, but
opining claimant could not return to his regular job. That
is very reasonable, especially in view of Dr. Werries
returning the claimant to modified duty work and there
would be no wage loss involved in this litigation. Dr.
Provenzano was a pain management physician referred to
by an associate physician of Dr. Werries and apparently
continuing with Dr. Werries for the referrals. Therefore,
there are two physicians who support the claimant who
support that claimant [sic] had a low back injury that
included an aggravation of the pre-existing conditions.
Both physicians agree that it was claimant’s February 23,
2013 low back injury that caused the aggravation. Dr.
Provenzano obviously does not support the opinion of
Dr. Agnew as employer’s medical expert. There is
8
obviously a coordination of treatment between Dr.
Provenzano and Dr. Werries and especially as far as
returning claimant to modify to work [sic]. The evidence
is very persuasive that claimant’s symptoms of an
underlying low back condition became for [sic]
symptomatic following his February 23, 2013 work
injury. Clearly, the causally [sic] relationship is there
and is persuasive since employer relies on Dr. Agnew,
who opines claimant did not have a significant injury,
when obviously Dr. Werries and Dr. Provenzano have
opinions to the contrary and are continuing to treat
claimant more than a year and a half following his work
injury. Therefore, the opinions of Dr. Agnew, as
discussed previously, [are] not creditable. Dr. Agnew’s
qualifications do not establish him as any expert in
medical forensics. In fact, he does not even cite any
medical theory persuasively or any medical literature that
support his opinion that the mechanism of injury was not
significant. Rather, the evidence is very persuasive that
claimant had an underlying low back condition without
significant symptoms before his work injury and those
became more symptomatic after the work injury. Dr.
Agnew’s opinion to the contrary is not found persuasive
in view of the opinions of two treating physicians and
taking into account that claimant has returned to work at
modify [sic] duty based on the treatment of Dr.
Provenzano and Dr. Werries.
c. Even though claimant has treated for the symptoms
since the work injury, Dr. Agnew was unwilling to
acknowledge an aggravation that produced those
symptoms. Again, this appears as though advocacy by
Dr. Agnew rather than the opinion objectively analyzing
the evidence in the case (p47).
d. The physicians both agreed that claimant’s low back
injury was a substantial contributing factor to left
sciatica, spondylolisthesis and degenerative disc disease.
WCJ’s decision at 8-9.
Relying on Canavan v. Workers’ Compensation Appeal Board (B & D
Mining Co.), 769 A.2d 1250, 1252 (Pa. Cmwlth. 2001), Employer contends that
9
the WCJ’s decision is not reasoned because his ruling on Claimant’s credibility
was not sufficiently definite. In Canavan, the WCJ found that the opinions of the
claimant’s medical witness were “unpersuasive.” On appeal, this Court stated that
it could not determine whether the WCJ found the doctor’s testimony not credible
or unequivocal,9 and the employer conceded that the WCJ did not make the
specific credibility findings that were required by the Court’s prior remand order.
Here, Employer asserts that the WCJ’s statement that Claimant’s
testimony was “very believable” is insufficient for purposes of meaningful
appellate review. However, Employer does not suggest that Claimant’s testimony
was in any respect equivocal, or otherwise incompetent. We conclude that
Employer’s reliance on Canavan is misplaced, and we reject Employer’s
contention that the WCJ’s finding as to Claimant’s testimony rendered his decision
inadequate for purposes of appellate review.
Employer next argues that the WCJ’s decision is not reasoned because
his credibility determination concerning Dr. Agnew’s testimony reflects a
misapprehension of the facts and the law. Specifically, Employer complains that
the WCJ erred in rejecting Dr. Agnew’s testimony on the grounds that Dr. Agnew
was not an expert in medical forensics, he did not cite any medical theory or
literature in support of his opinion, and his testimony appeared to be advocacy
rather than an objective opinion. Employer asserts that Dr. Agnew is a qualified
9
In workers’ compensation cases, the issue of whether testimony is equivocal generally
arises with respect to medical testimony. Where the cause of a claimant’s medical condition is
not obvious, unequivocal medical testimony is required, Albert Einstein Healthcare v. Workers’
Compensation Appeal Board (Stanford), 955 A.2d 478, 482 (Pa. Cmwlth. 2008), and medical
testimony that is equivocal will be deemed incompetent. Campbell v. Workers’ Compensation
Appeal Board (Pittsburgh Post-Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). Whether
medical testimony is equivocal is a question of law subject to plenary review. Id.
10
medical expert in the field of orthopedic surgery and, as such, was not required to
cite authority for his medical opinions but properly relied on the facts and his
observations during the IME. Employer further argues that the WCJ did not apply
the same standards in evaluating the opinions of Claimant’s medical witnesses.
It is well settled that where medical experts testify by deposition, a
WCJ’s resolution of conflicting evidence must be supported by more than a
statement that one expert is deemed more credible than another. Dorsey v.
Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d
191, 194-95 (Pa. Cmwlth. 2006). “Some articulation of the actual objective basis
for the credibility determination must be offered for the decision to be a 'reasoned'
one which facilitates effective appellate review.” Id. at 194-95 (quoting Daniels,
828 A.2d at 1053). There are countless objective factors that may support a WCJ’s
credibility determinations, and such factors must be identified in the WCJ’s
decision. Dorsey, 893 A.2d 195.
Nevertheless, we have repeatedly stressed that Section 422(a) of the
Act does not permit a party to challenge or second-guess a WCJ’s reasons for
credibility determinations. Id.; Kasper v. Workers’ Compensation Appeal Board
(Perloff Brothers, Inc.), 769 A.2d 1242, 1244 (Pa. Cmwlth. 2001). In Kasper, we
declined the claimant’s “invitation to individually scrutinize each of the WCJ's
reasons for his credibility determination.” Id. We explained that
[d]eciding credibility is the quintessential function of the
fact-finder, particularly one who sees and hears the
testimony. It is not an exact science, and the ultimate
conclusion comprises far more than a tally sheet of its
various components. We will not take the statutory
mandate that a WCJ explain reasons for discrediting
evidence as a license to undermine the exercise of this
11
critical function by second guessing one or more of its
constituent parts.
Id. (footnote omitted). In sum then, unless made arbitrarily or capriciously, a
WCJ’s credibility determinations will not be disturbed on appeal. Empire Steel
Castings, Inc. v. Workers’ Compensation Appeal Board (Cruceta), 749 A.2d 1021,
1027 (Pa. Cmwlth. 2000); PEC Contracting Engineers v. Workers’ Compensation
Appeal Board (Hutchinson), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998).
Here, the WCJ credited Claimant’s medical evidence, noting that Dr.
Werries saw Claimant shortly after the incident and was Claimant’s treating
physician. The WCJ’s reasons for rejecting Dr. Agnew’s testimony include the
fact that his testimony conflicts with Claimant’s medical evidence. The WCJ also
cited Dr. Agnew’s testimony that Claimant did not have a significant injury as
indicative of bias rather than an objective opinion. Because the WCJ provided
objective reasons for these credibility determinations, we cannot conclude that the
WCJ acted arbitrarily or capriciously in this instance.
Employer further argues that Dr. Werries’ testimony was incompetent.
“A physician’s assumption that an injury is caused by a recent event because of the
temporal proximity is not a sufficiently competent opinion to establish a causal
relationship.” Lewis v. Workmen’s Compensation Appeal Board, 498 A.2d 800,
803 (Pa. 1985). However, we reject Employer’s contention that the crux of Dr.
Werries’ opinion as to causation was the temporal proximity of Claimant’s
complaints to the work event. In his report, R.R. at 203-206, Dr. Werries states
that a twisting injury to Claimant’s low back on February 23, 2013, caused
radiating pain to the left calf that continued to the time of Claimant’s first visit on
February 27, 2013. R.R. at 203. He reviews the course of Claimant’s medical
treatment, including diagnostic studies performed, and he concludes:
12
1. My diagnosis for [Claimant] is left sciatica, acquired
spondylolisthesis, and degenerative disc disease of the
lumbar spine.
2. My opinion, within a reasonable degree of medical
certainty, is that the accident was a substantial
contributing factor to [Claimant’s] current low back
problems. The injury represents an aggravating event.
He had no symptoms and no disability prior to his injury
on February 23, 2013.
R.R. at 205.
The medical report reflects that, when taken as a whole, Dr. Werries’
opinion did not rest solely on a temporal relationship between the work incident
and Claimant’s worsening back condition. See Lewis, 498 A.2d at 803-804
(testimony of a medical witness must be reviewed and taken as a whole). See,
also, Budd Co. v. Workers’ Compensation Appeal Board (Kan), 858 A.2d 170,
179-80 (Pa. Cmwlth. 2004) (concluding that a medical report is competent
evidence where disability of 52 weeks or less is at issue and stating that “[w]hether
the content of the report sufficiently addresses matters at issue and whether the
report is persuasive are questions relating to credibility and to weight rather than to
admissibility.”).
Finally, we reject Employer’s assertion that the WCJ’s decision is not
reasoned because his credibility ruling on Dr. Provenzano’s testimony is not
supported by substantial evidence. Employer argues that, contrary to the WCJ’s
statements that Drs. Werries and Provenzano both found a causal relationship
between Claimant’s work injury and his worsened medical condition, Dr.
Provenzano’s records do not address the issue of causation. However, Employer
concedes that such an opinion may have been submitted by Dr. Kaufmann, but not
discussed by the WCJ. More important, the WCJ articulated additional objective
13
bases for accepting Claimant’s medical evidence that are supported by the record.
See Dorsey, 893 A.2d at 196 (“this reason permits verification during appellate
review, and it is alone sufficient to support a credibility finding.”).
Based on the foregoing, we conclude that while the WCJ’s analysis is
not a model of clarity, it is adequate for purposes of appellate review and, thus, it
satisfies the reasoned decision requirement of Section 422(a) of the Act.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
Judge McCullough did not participate in this decision of this case.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, :
: No. 2602 C.D. 2015
:
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Nicini), :
:
Respondent :
ORDER
AND NOW, this 3rd day of February, 2017, the order of the Workers’
Compensation Appeal Board, dated November 18, 2015, is affirmed.
__________________________________
MICHAEL H. WOJCIK, Judge