A.H. Butz, Inc. v. WCAB (Wesnak) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alvin H. Butz, Inc., :
Petitioner :
:
v. : No. 1682 C.D. 2016
: Submitted: January 27, 2017
Workers' Compensation Appeal :
Board (Wesnak), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: May 12, 2017
Alvin H. Butz, Inc. (Employer) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the order of a
Workers’ Compensation Judge (WCJ). The WCJ’s order denied Employer’s
termination and modification petitions, and granted Drew Wesnak’s (Claimant)
review petition expanding the work injury description. Employer argues the
WCJ’s decision is not supported by substantial evidence, and it is not reasoned.
Employer also asserts the WCJ disregarded its medical evidence supporting
termination. Upon review, we affirm.
I. Background
In May 2014, while working for Employer as a construction laborer,
Claimant suffered a work injury. Employer issued a notice of compensation
payable (NCP) on July 24, 2014, accepting liability, and describing the work injury
as a sprain/strain to the right knee. Claimant’s average weekly wage (AWW) was
$939.60, corresponding to a compensation rate of $626.40.
After Employer engaged in self-help and unilaterally reduced the
AWW by $160.40 per week, Claimant filed reinstatement and penalty petitions.
The WCJ granted the reinstatement petition, and ordered Employer to reinstate
Claimant’s compensation rate to $626.40 retroactive to when Employer first reduced
the rate. See WCJ Op., 12/19/14; Reproduced Record (R.R.) 148a (December
Order). The WCJ also awarded penalties and unreasonable contest fees to Claimant.
At Employer’s request, Claimant attended an independent medical
examination (IME) with Dr. Eric B. Lebby (Employer’s Expert), a board-certified
orthopedic surgeon. Employer’s Expert opined Claimant fully recovered from a
degenerative medial meniscus tear and osteoarthritis of the right knee.
In October 2014, Claimant filed a review petition seeking an
amendment of the injury description to include a right knee medial meniscus tear
and aggravation of osteoarthritis of the right knee. Also, Claimant filed a penalty
petition based on Employer’s non-compliance with the WCJ’s December Order.
Based upon the IME, Employer filed a termination petition. The same
day, Employer filed a modification petition, alleging the AWW set forth in the
NCP was incorrect because it presumed a 40-hour work week. Employer asserted
the correct compensation rate was $466.00, and it sought a credit for any
overpayment of compensation benefits.
2
The WCJ held several hearings on the three petitions.1 In support of
his review petition, Claimant submitted the deposition testimony of his treating
physician, Dr. Nicholas Slenker (Treating Physician). Claimant also testified on
his own behalf.
Claimant testified his right knee buckled after performing demolition
work for Employer. He has had constant pain in his right knee while walking or
climbing stairs ever since. He did not experience such pain before the work injury.
Treating Physician began treating Claimant on a monthly basis in June
2014, with injections and physical therapy, for right knee pain. He observed
Claimant had tenderness in the medial aspect of the right knee with decreased
range of motion. WCJ’s Op., 10/8/15, Finding of Fact (F.F.) No. 8(c). He noted
Claimant reported no history of right knee pain before the injury. Treating
Physician confirmed that diagnostic studies showed severe degenerative conditions
in the right knee. He opined the work injury aggravated Claimant’s preexisting
degenerative conditions in his right knee. After more recent injection therapies
offered little relief (August and September 2014), Treating Physician
recommended a total knee replacement as a result of the aggravation. F.F. No. 8(g).
In support of its modification petition, Employer presented the testimony
of General Superintendent Thomas Grannetino (Superintendent). In support of its
termination petition, it submitted the deposition testimony of Employer’s Expert.
1
Claimant withdrew his penalty petition during the last hearing; thus, it is not before this
Court.
3
Superintendent testified as to Claimant’s dates of employment. He
confirmed Claimant was employed on a full-time basis, with the expectation that
he would be available to work 40 hours per week. However, Claimant only
worked for more than 40 hours in one of his nine weeks of employment.
Employer’s Expert acknowledged he examined Claimant once, when
he performed an IME in September 2014. He opined Claimant’s right knee pain
related to pre-existing osteoarthritis, and any restrictions were caused by the
osteoarthritis, not the work injury. He further opined Claimant fully recovered
from the work-related sprain of his right knee.
Ultimately, the WCJ granted Claimant’s review petition, and denied
Employer’s termination and modification petitions. Because Claimant established
his arthritis related to the work injury, the WCJ amended the injury description to
include “aggravation of osteoarthritis of the right knee.” Conclusion of Law (C.L.)
No. 3. The WCJ determined Claimant did not fully recover from his work injury.
He also concluded Employer expected Claimant to work a 40-hour week. The WCJ
credited both Claimant’s testimony and Superintendent’s testimony. He also found
Treating Physician’s opinion more persuasive than that of Employer’s Expert.
Employer appealed to the Board, arguing the WCJ did not issue a
reasoned decision, and the decision was not supported by substantial, competent
medical evidence. Further, Employer asserted the WCJ capriciously disregarded
its medical expert’s opinion regarding Claimant’s recovery. Employer also
challenged the AWW calculation.
4
The Board affirmed the WCJ, concluding the WCJ’s findings were
supported by substantial evidence. The Board reasoned the WCJ was within his
prerogative as fact-finder to credit one medical expert over another. The Board
determined the AWW calculation was appropriate because Claimant was expected
to work a 40-hour work week. Bd. Op., 9/13/16, at 11.
Employer now petitions for review. After argument, this Court denied
Employer’s request for a supersedeas, reasoning Employer did not show a strong
likelihood of success on the merits.
II. Discussion
On appeal,2 Employer contends the Board erred in concluding
Treating Physician’s opinion was competent evidence supporting expansion of the
work injury. Employer also asserts the WCJ’s decision was not supported by
substantial evidence and was not reasoned.
A. Review Petition
To establish a work-related aggravation of a pre-existing condition, a
claimant must show a causal connection between the work injury and the
aggravation. Chick–Fil–A v. Workers’ Comp. Appeal Bd. (Mollick), 792 A.2d
678 (Pa. Cmwlth. 2002). Where there is no obvious connection between work and
the aggravation, unequivocal medical evidence is required. Id.
2
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d
1037 (Pa. Cmwlth. 2011).
5
Medical evidence is competent when “[an] [expert’s] opinion is
sufficiently definite and unequivocal to render it admissible.” Pryor v. Workers’
Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1203 (Pa. Cmwlth. 2006).
The competency of medical evidence is a legal conclusion reviewable on appeal. Id.
By contrast, it is solely for the WCJ as fact-finder to assess credibility
and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers’ Comp.
Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). A WCJ may reject the
testimony of any witness, in whole or in part, including medical experts. Griffiths
v. Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72 (Pa. Cmwlth. 2000).
A WCJ’s acceptance of one medical expert’s opinion over that of another cannot
serve as a basis for reversible error. Jenkins v. Workmen’s Comp. Appeal Bd.
(Woodville State Hosp.), 677 A.2d 1288 (Pa. Cmwlth. 1996). Indeed, a single
medical expert’s testimony is a reasonable basis upon which a WCJ may base a
finding of fact despite conflicting evidence. Bethenergy Mines, Inc. v. Workmen’s
Comp. Appeal Bd. (Skirpan), 572 A.2d 838 (Pa. Cmwlth. 1990), aff’d, 612 A.2d
434 (Pa. 1992).
Here, Claimant submitted the deposition testimony of Treating
Physician who opined that the work injury aggravated Claimant’s pre-existing
osteoarthritis of the knee, which was previously asymptomatic. Specifically, as to
aggravation, Treating Physician testified:
[Claimant] described to me never having difficulties with the
knee, being able to perform his job without limitations prior to
this day. And after this day [that he sustained the work injury],
he’s had dramatic and significant pains. And while he
certainly didn’t develop the arthritis after this injury, I believe
6
that the injury – there’s a direct correlation with the
aggravation of the arthritis that is not relenting.
R.R. at 26a (emphasis added). Treating Physician also opined “the majority of his
pain is coming from an aggravation of his arthritis. He continues to have persistent
pain which he denied having prior to this injury, therefore I would say that he most
certainly aggravated this preexisting condition that day and his pain has not
subsided since.” R.R. at 27a (emphasis added). Because injection therapy ceased
reducing his right knee pain, Claimant underwent total knee replacement surgery.
First, Employer challenges Treating Physician’s testimony as equivocal.
We determine equivocality by reviewing a medical expert’s testimony in its entirety.
Lewis v. Workmen’s Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 498 A.2d 800
(Pa. 1985). “A medical witness’s use of words such as ‘probably,’ ‘likely,’ and
‘somewhat’ will not render an opinion equivocal so long as the testimony, read in
its entirety, is unequivocal and the witness does not recant the opinion or belief first
expressed.” Bemis v. Workers’ Comp. Appeal Bd. (Perkiomen Grille Corp.), 35
A.3d 69, 72 (Pa. Cmwlth. 2011). Here, throughout his testimony, Treating Physician
used decisive language that was unequivocal. R.R. 27a (“certainly aggravated”).
Next, Employer contends an expert’s opinion is not sufficient unless it
clearly conveys the aggravation was a “substantial” factor as opposed to merely a
contributing factor. Chicoine v. Workmen’s Comp. Appeal Bd. (Transit Mgmt.
Serv.), 633 A.2d 658, 662 (Pa. Cmwlth. 1993). However, an expert is not required to
use specific phrases provided his testimony permits a valid inference of causation. Pa.
State Univ. v. Workers’ Comp. Appeal Bd. (Rabin), 53 A.3d 126 (Pa. Cmwlth. 2012).
Treating Physician’s “direct correlation” language meets the standard. R.R. at 26a.
7
Employer also argues Treating Physician’s opinion is based on an
assumption that Claimant did not have prior knee pain, such that it is contrary to
established facts of record. We discern no merit in Employer’s argument.
The cases Employer cites for the proposition that Treating Physician’s
opinions are incompetent as a matter of law are easily distinguished. See, e.g.,
Newcomer v. Workmen’s Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d
1062 (Pa. 1997); Lewis; Williams v. Workers’ Comp. Appeal Bd. (Hahnemann
Univ.), 834 A.2d 679 (Pa. Cmwlth. 2003). Significantly, in each case, the medical
expert’s opinion relies on an assumption. In Newcomer, the expert’s testimony
was inconsistent with claimant’s medical history and earlier testimony regarding
the mechanism of injury. In Lewis, the expert presumed a causal connection based
on temporal proximity between the work incident and claimed injury. In Williams,
the experts’ opinions were contrary to a WCJ’s finding in an earlier proceeding.
Thus, the experts disregarded established facts in the case.
Here, Employer identifies no assumption that lacks evidentiary basis,
or any established facts with which Treating Physician’s opinion conflicts.
Contrary to Employer’s characterization, Treating Physician’s opinion that
Claimant’s “current pain is proof of an aggravation that made the degenerative
findings symptomatic” is not “an assumption based on nothing.” Pet’r’s Br. at 17.
Rather, the foundation for Treating Physician’s opinion is contained in the record
and consistent with Claimant’s testimony. R.R. at 25a-27a. Employer suggests it
is an established fact that Claimant experienced pain before the work injury despite
his definitive testimony that he did not have right knee pain before. R.R. at 176a-77a.
8
A claimant’s testimony of pain, credited by the fact-finder, may be
sufficient as a matter of law to justify expansion of an injury. Meadow Lakes
Apartments v. Workers’ Comp. Appeal Bd. (Spencer), 894 A.2d 214 (Pa. Cmwlth.
2006). The WCJ credited Claimant’s complaints of pain, and his testimony that he
did not experience knee pain before the work injury. F.F. Nos. 7, 11.
We deem Treating Physician’s opinion as to Claimant’s aggravation,
connecting his osteoarthritis to the work injury, competent and unequivocal
medical evidence in support of the WCJ’s findings. Lewis. His testimony
establishes causation without using the phrase “substantial contributing factor.”
Rabin. Moreover, the WCJ credited the opinion of Treating Physician, finding him
more persuasive than Employer’s Expert. F.F. No. 12. That is the prerogative of
the WCJ as fact-finder. Bethenergy Mines.
Because the expansion of the injury is supported by substantial,
competent evidence, we affirm the Board’s grant of Claimant’s review petition.
B. Modification
Next, we consider whether the Board erred in affirming the WCJ’s
denial of Employer’s modification petition seeking credit for an alleged
overpayment of benefits. Employer contends Claimant’s AWW was calculated
incorrectly in the NCP. Specifically, it asserts that the WCJ erred in using an
expectation of earnings calculation premised on a 40-hour work week.
9
Section 309(d.2) of the Workers’ Compensation Act (Act),3 provides
that “if the employe has worked less than a complete period of thirteen calendar
weeks and does not have fixed weekly wages, the [AWW] shall be the hourly wage
rate multiplied by the number of hours the employee was expected to work per
week under the terms of employment.” 77 P.S. §582(d.2). Section 309(d.2) covers
“recently-hired employees for whom there was ... no accurate measure of AWW
other than taking the existing hourly wage and projecting forward on the basis of
the hours of work expected under the employment agreement.” Anderson v.
Workers’ Comp. Appeal Bd. (F.O. Transp.), 111 A.3d 238, 244 (Pa. Cmwlth.
2015) (italics in original) (quoting Reifsnyder v. Workers’ Comp. Appeal Bd.
(Dana Corp.), 883 A.2d 537, 547 (Pa. 2005)). The determination of a claimant’s
hourly wage for calculation of the AWW is a question of fact to be answered by
the WCJ. Laher Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095
(Pa. Cmwlth. 2007).
There is no dispute as to Claimant’s hourly wage, $23.49 per hour.
See R.R. at 81a; 178a. Employer challenges only the method of calculation, which
assumed a 40-hour work week.
Claimant had an intermittent work schedule. F.F. No. 7. He had not
completed a full 13-week quarter with Employer. R.R. at 178a-79a. As a result,
Section 309(d.2) of the Act, required the WCJ to calculate Claimant’s wages based
on an expectation of earnings. Anderson. Superintendent confirmed Claimant had
an expectation of a 40-hour work week. F.F. No. 10; R.R. at 205a.
3
Added by Act of June 24, 1996, P.L. 350.
10
Using the expectation of a 40-hour work week, Claimant is entitled to
an AWW of $939.60 ($23.49 x 40). Therefore, the AWW rate in the NCP was
correct, and the Board properly denied Employer’s modification petition.
C. Termination
To succeed in a termination petition, an employer bears the burden of
proving by substantial evidence that a claimant’s disability ceased, or any
remaining conditions are unrelated to the work injury. Gillyard v. Workers’ Comp.
Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth.) (en banc),
appeal denied, 882 A.2d 1007 (Pa. 2005). An employer may satisfy this burden by
presenting unequivocal and competent medical evidence of the claimant’s full
recovery from his work-related injuries. Westmoreland Cnty. v. Workers’ Comp.
Appeal Bd. (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008).
Employer admits Claimant continues to suffer pain in his right knee;
however, it maintains his pain is not attributable to the work injury because it is
caused by his pre-existing osteoarthritis. Thus, Employer does not account for the
WCJ’s crediting of Treating Physician’s opinion that Claimant’s injury included
aggravation of his osteoarthritis. In fact, Employer’s Expert did not offer a
medical opinion as to Claimant’s recovery from the aggravation.
The WCJ found Treating Physician more persuasive than Employer’s
expert, emphasizing his monthly treatment history in contrast to Employer’s
Expert’s single examination. F.F. Nos. 8, 9, 12. Moreover, the WCJ did not credit
11
Employer’s Expert’s opinions as to Claimant’s recovery. Indeed, the WCJ stated
his opinions “defie[d] logic.” F.F. No. 12.
Essentially, Employer asks this Court to reweigh the credibility of the
medical experts. On appeal, neither the Board nor a reviewing court may reweigh
a WCJ’s credibility determinations. Furnari v. Workers’ Comp. Appeal Bd.
(Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014). In addition, an adverse
credibility determination is not a capricious disregard of that testimony. Williams v.
Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137 (Pa. 2004).
The WCJ’s finding that “Claimant has not fully recovered from his
5/27/2014 work injury,” F.F. No. 22, is amply supported by Treating Physician’s
testimony, and is consistent with Claimant’s complaints of pain. Lewis; Meadow
Lakes. Accordingly, Employer did not prove Claimant fully recovered.
D. Reasoned Decision
Section 422(a) of the Act provides, in pertinent part, 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,” and that “[t]he
adjudication shall provide the basis for meaningful appellate review.” Section
422(a) of the Act requires a WCJ to set forth the rationale for the decision by
specifying the evidence relied upon and reasons for accepting it. Daniels v.
Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003). When
12
presented with conflicting evidence, the WCJ must adequately explain the reasons
for rejecting or discrediting competent evidence. Id. at 1047. The WCJ may not
reject uncontroverted evidence without reason or for an irrational reason, but must
identify such evidence and adequately explain the reasons for its rejection. Id.
Employer contends the WCJ’s decision is not reasoned because the
WCJ credited Treating Physician’s opinion that the work injury caused an
aggravation of Claimant’s pre-existing arthritis, and so expanded the injury to
include that aggravation. The WCJ’s decision to credit one expert over another is
not grounds for holding a decision not reasoned. PEC Contr’g Eng’rs v. Workers’
Comp. Appeal Bd. (Hutchison), 717 A.2d 1086, 1088 (Pa. Cmwlth. 1998)
(reasoned decision where WCJ credited claimant’s expert because of treatment
history and rejecting employer’s expert who saw claimant twice).
Relevant here, the WCJ explained his credibility determination. He
noted Treating Physician followed Claimant’s progress monthly since June 2014;
thus, he found “Treating Physician more credible and persuasive than [Employer’s
Expert].” F.F. No. 12. Moreover, the WCJ offered sufficient explanation to allow
adequate appellate review by the Board and this Court.
We also determine the WCJ’s opinion is reasoned because the WCJ’s
findings are supported by competent, substantial evidence of record. As explained
above, Treating Physician’s opinion was competent, unequivocal, and sufficiently
definitive as to causation. Lewis. Further, his opinion was consistent with
Claimant’s knee pain complaints and symptomology.
13
III. Conclusion
For the foregoing reasons, the Board’s order is affirmed.
ROBERT SIMPSON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alvin H. Butz, Inc., :
Petitioner :
:
v. : No. 1682 C.D. 2016
:
Workers' Compensation Appeal :
Board (Wesnak), :
Respondent :
ORDER
AND NOW, this 12th day of May, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge