R. Cruz v. WCAB (A.J. Bazzini Co., Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ricardo Cruz, :
Petitioner :
:
v. : No. 1966 C.D. 2015
: Submitted: April 29, 2016
Workers’ Compensation Appeal :
Board (A.J. Bazzini Co., Inc.), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 22, 2016
Petitioner Ricardo Cruz (Claimant) petitions for review of an order of
the Workers’ Compensation Appeal Board (Board). The Board affirmed a
decision of a Workers’ Compensation Judge (WCJ), granting the termination
petition filed by Claimant’s employer, A.J. Bazzini Co., Inc. (Employer). For the
reasons set forth herein, we affirm the Board’s order.
Claimant worked for Employer as a forklift operator. On
February 14, 2011, Claimant sustained a work-related injury in the nature of a
crushing injury to his right and left lower limbs. Employer accepted liability for
Claimant’s work-related injury pursuant to an Amended Notice of Compensation
Payable. On July 15, 2013, Employer filed a termination petition, asserting that
Claimant had fully recovered from his work-related injury as of June 13, 2013.
Before the WCJ, Claimant testified that on February 14, 2011, he was
involved in a forklift accident while working for Employer. (Reproduced Record
(R.R.) at 79a.) Claimant explained that he was driving a forklift down an aisle,
when the forklift slid on some type of liquid on the floor, causing the forklift to
slide into a handrail. (Id. at 79a-80a.) As a result of the accident, Claimant
sustained a crushing injury to his left ankle and right calf. (Id. at 80a-83a.)
Claimant was transported by ambulance to the Lehigh Valley Hospital emergency
room, where he was treated for swollen and bruised legs. (Id. at 84a-85a.)
Claimant was admitted to the hospital for observation for two days and then
released. (Id. at 84a.) Claimant was out of work for approximately two months
and returned to work part-time in the middle of April 2011, working four hours per
day. (Id. at 111a-12a.) Sometime thereafter, Claimant returned to full-time work
and continued to work full-time until March 2013. (Id. at 111a-12a.)
In January 2013, Claimant was treating with Dr. Ruht for his
work-related injury. (Id. at 86a.) During the course of his treatment, Dr. Ruht
ordered Claimant to undergo physical therapy for approximately five-to-six
months, provided Claimant with a brace for his left ankle, and prescribed
Neurontin, an anti-inflammatory, and a cream. (Id. at 86a-88a.) Dr. Ruht also
referred Claimant to Dr. Sorrento. (Id. at 91a.) Dr. Sorrento sent Claimant for a
bone scan and nerve testing and referred Claimant to Dr. Corba. (Id.) Claimant
waited for approximately one month to see Dr. Corba. (Id.) During that time, in
April 2013, Claimant began treating with Dr. Shingles. (Id. at 88a, 92a.)
Dr. Shingles sent Claimant to physical therapy and referred Claimant to Dr. Corba.
(Id. at 88a-89a.) Claimant eventually treated with Dr. Corba. (Id. at 92a.)
Claimant, however, indicated that there was nothing that Dr. Corba could do for
2
him, so Dr. Corba referred Claimant to Dr. Palumbo. (Id. at 89a, 92a.)
Dr. Palumbo recommended that Claimant undergo compartment pressure testing,
but the insurance company would not pay for it so it was not scheduled.
(Id. at 49a, 92a-93a.)
Claimant testified further that he continues to treat with Dr. Shingles
once a month. (Id. at 49a.) Dr. Shingles prescribes Neurontin and Vicodin and has
not sent Claimant for any additional testing. (Id. at 71a, 89a-90a.) Claimant’s
pain, which he described as burning and aching, remains the same as it was on the
date of his work-related injury. (Id. at 90a.) The pain is the worst in the morning,
and it keeps Claimant up at night. (Id. at 109a-10a.) Claimant sometimes
experiences numbness in his right calf down to his right foot and in his left ankle
down to his left foot. (Id. at 90a-91a.) Claimant also experiences an aching,
throbbing pain in both legs, worse in the left leg and left ankle, when he stands or
walks for a period of time and numbness in his right foot when he sits for a period
of time. (Id. at 100a-02a.) Claimant reported minimal to no difference in his pain
with or without the use of his left ankle brace. (Id. at 101a.) Claimant also
explained that he has difficulty traversing stairs; he walks up the stairs one at a
time to go to bed and then comes down the stairs in the morning and stays
downstairs until bedtime. (Id. at 103a-04a.) The WCJ personally observed and
compared Claimant’s legs and noted that there did not appear to be a difference in
hair growth or coloring, but that Claimant’s left ankle appeared slightly smaller
than his right ankle. (Id. at 98a.) The WCJ also observed Claimant ambulate fairly
freely in the courtroom, but noted that Claimant’s left leg appeared to be straighter
and slightly more rigid than his right leg. (Id. at 56a-57a.)
3
On cross-examination, Claimant testified that he treated with Lehigh
Valley Treatment Center for his work-related injury until September 23, 2011,
when he was discharged from its care. (Id. at 49a-50a.) Claimant did not seek any
additional treatment until June 2012. (Id. at 50a.) During this lapse in treatment,
Claimant did not sustain any additional trauma; Claimant explained that he sought
treatment because his legs started to hurt again. (Id. at 50a-51a.) Claimant
testified further that he was referred to Dr. Shingles by his attorney, who is
Dr. Shingles’ brother. (Id. at 51a.) Dr. Shingles took Claimant out of work on
March 14, 2013, and Claimant has not worked in any capacity since that time.
(Id. at 51a-52a.) Prior to March 14, 2013, Claimant worked regular duty.
(Id. at 51a-52a.) Claimant also testified on cross-examination that he is the
primary caretaker for his two-year-old daughter because his girlfriend works
nights. (Id. at 54a.) Claimant explained further that he tries to help his girlfriend
around the house by washing dishes and doing laundry. (Id. at 53a.)
On re-direct examination, Claimant indicated that during his lapse in
treatment, he continued to work, but he complained to Employer about the pain
and asked Employer for assistance in obtaining treatment. (Id. at 60a-61a.)
Claimant also indicated that at some point after he was released from the hospital,
he returned to the emergency room because his feet and legs were frozen/cold to
the touch. (Id. at 65a.) Claimant testified further that he has joint custody of his
nine-year-old son, and when his son is with him every other week, he has to drive
him back and forth to school. (Id. at 68a, 71a.) Claimant also has a
fourteen-year-old daughter, whom he cares for during the summer when she is out
of school. (Id. at 72a.)
4
Claimant presented the deposition testimony of Robert J. Corba, D.O.,
who is board certified in anesthesia and pain management. (Id. at 2a.) Dr. Corba
testified that he first treated Claimant on March 18, 2013, on a referral from
Dr. Sorrento, a podiatrist in Dr. Corba’s practice. (Id. at 3a-4a.) On that date,
Dr. Corba’s physical examination of Claimant revealed severe tenderness over
Claimant’s left lateral lower leg, abnormal range of motion, left foot drop, an
antalgic gait, and abnormal hair growth and discoloration in Claimant’s left lower
extremity. (Id. at 4a.) Dr. Corba indicated that Claimant was incapable of heel to
toe ambulation, particularly on the left, and that his left lower extremity was
abnormal to light touch. (Id.) Dr. Corba diagnosed Claimant with complex
regional pain syndrome (CRPS) with reflex sympathetic dystrophy (RSD) of the
left lower limb, pain in the limb, and contusion of the ankle. (Id. at 4a-5a, 13a,
20a, 22a.) Dr. Corba explained that a diagnosis of CRPS with RSD is made by
physical examination, patient history, and physician evaluation; there are no
diagnostic tests that would be inclusive or exclusive of diagnosing CRPS.
(Id. at 7a, 10a.) Dr. Corba explained further that pain is a subjective constant with
CRPS with RSD, but that the sympathetic tone evidenced by hyperpigmentation,
swelling, hair and nail changes, and dysesthesias can wax and wane. (Id.)
Dr. Corba treated Claimant again on April 24, 2013. (Id. at 5a.) At
that time, Dr. Corba prescribed a higher dosage of Neurontin, prescribed Elavil, a
tricyclic anti-depressant, and advised Claimant to continue the use of his topical
cream to numb the area. (Id.) Dr. Corba explained that Claimant was not
interested in pursuing interventional therapy such as a sympathetic block; rather,
Claimant desired a more conservative approach of increasing function and his
medication. (Id.) Claimant returned to Dr. Corba on June 6, 2013. (Id. at 6a.) On
5
that date, Claimant’s physical examination was similar to past physical
examinations, and Dr. Corba advised Claimant to continue with his Neurontin,
topical cream, anti-inflammatory, and Elavil. (Id.) Dr. Corba also recommended
that Claimant undergo aquatherapy and prescribed Ultram for pain as needed. (Id.)
Dr. Corba last treated Claimant in August 2013. (Id.) At that time, Dr. Corba did
not believe that there was anything else he could offer Claimant other than
continuing medication management. (Id. at 6a-7a.) When Claimant asked
Dr. Corba whether he was a surgical candidate, Dr. Corba referred Claimant to
Dr. Palumbo because surgery is not Dr. Corba’s area of expertise. (Id. at 6a-7a.)
Ultimately, Dr. Corba opined that Claimant did not have the capability of returning
to work as a forklift driver, but that he could return to some form of employment
that enabled him to change position from standing to sitting. (Id. at 13a.)
On cross-examination, Dr. Corba indicated that he treated Claimant
on only four occasions, the first time on March 18, 2013, more than two years after
Claimant sustained his work-related injury, and the last time on August 1, 2013.
(Id. at 14a.) Dr. Corba explained that he stopped treating Claimant because
Claimant had transportation issues, it was easier for Claimant to treat with his
primary care physician, and Claimant’s primary care physician would prescribe
Vicodin and Dr. Corba would not. (Id.) Dr. Corba testified further on
cross-examination that an individual can sustain a crush injury and recover without
developing CRPS. (Id. at 21a-22a.)
Employer presented the deposition testimony of Paul Horenstein,
M.D., a board certified orthopedic surgeon. (Id. at 28a.) Dr. Horenstein performed
an independent medical examination of Claimant on June 13, 2013. (Id. at 30a.)
On that date, Dr. Horenstein performed a physical examination, which revealed no
6
objective findings consistent with a diagnosis of RSD. (Id. at 34a.) Dr. Horenstein
also reviewed Claimant’s medical records, which revealed: (1) Dr. Ruht noted no
objective signs of CRPS as of April 8, 2013; (2) MRIs of Claimant’s lower legs
performed on June 8, 2012, and June 12, 2012, were normal; (3) x-rays of
Claimant’s left ankle performed on September 14, 2012, were normal; (4) x-rays of
Claimant’s tibia and fibula performed on June 8, 2012, and August 17, 2012, were
normal; (5) an EMG performed on the nerves of Claimant’s lower extremities on
March 5, 2013, was normal; and (6) a bone scan performed on February 27, 2013,
was normal and indicated no evidence of RSD. (Id. at 30a-31a, 33a.) In addition,
Dr. Horenstein noted that the type of pain described by Claimant was not
consistent with RSD, that RSD was not observed by Dr. Ruht, Dr. Sorrento,
Dr. Palumbo, or the hospital, and that RSD was not revealed by any diagnostic
testing. (Id.) Dr. Horenstein noted further that compartment testing was not
warranted because a diagnosis of compartment syndrome was not consistent with
Claimant’s history or physical examination. (Id. at 33a-34a, 38a-39a.) Ultimately,
Dr. Horenstein concluded that Claimant had fully recovered from his bilateral
lower extremity crush injuries and could return to work full duty as a forklift
operator without any restrictions. (Id. at 33a-34a.)
Employer and Claimant also jointly presented the deposition
testimony of Daniel J. Magaskie, a field investigator with F&M Investigations,
who conducted surveillance of Claimant on April 1, 2013, April 3, 2013, and
April 16, 2013. (Id. at 114a-17a.) During the surveillance, Mr. Magaskie observed
Claimant: (1) walk without a limp; (2) walk without the use of a cane or other
orthopedic or assistive device; (3) drive a vehicle freely to various destinations,
without any difficulty accelerating, turning, stopping, or performing any other
7
driving tasks; and (4) walk without his ankle brace on one occasion.1
(Id. at 115a-17a, 122a.) Mr. Magaskie indicated that he did not see Claimant favor
either leg or give any indication that he was in pain. (Id. at 117a.) Mr. Magaskie
explained that his notes were summarized in a report prepared by his supervisor,
and the report is consistent with his notes and his observations on April 1, 2013,
April 3, 2013, and April 16, 2013. (Id. at 117a-19a.) Mr. Magaskie testified
further that his total surveillance lasted approximately twelve and one-half hours
and that during that time, he observed Claimant outside of his home and outside of
his vehicle for a total of six minutes. (Id. at 121a.)
On September 16, 2014, the WCJ issued a decision granting
Employer’s termination petition. In so doing, the WCJ summarized the witnesses’
testimony and made the following credibility determinations:
8. This Judge has carefully and thoroughly reviewed the
testimony of Claimant as well as the opinions of the
medical providers and surveillance evidence in this
matter. Also carefully and thoroughly reviewed was the
documentary evidence.
9. Claimant’s testimony is rejected as less than credible
and is unpersuasive. This finding is based upon this
Judge’s personal observation of Claimant’s actions and
demeanor during his testimony. In addition, Claimant’s
testimony is rejected as not credible for the following
reasons:
1
When questioned about Claimant’s use of a brace, Mr. Magaskie explained that it never
appeared to him that Claimant was wearing a brace. (R.R. at 122a.) More specifically,
Mr. Magaskie explained that on April 3, 2013, Claimant’s ankles were visible because Claimant
was not wearing long pants, and he observed that Claimant was not wearing a brace. (Id.) In
addition, Mr. Magaskie indicated that on April 1, 2013, and April 16, 2013, he never saw a
brace, but Claimant was wearing long pants and, therefore, it was possible that Claimant was
wearing one underneath his long pants. (Id.)
8
a. Claimant’s testimony that his pain level
has remained the same since the date of
injury is simply not believable, especially
considering the fact that Claimant was able
to return to work from April of 2011 until
March 2013−almost 2 years;
b. Claimant’s testimony that he is primary
caregiver for his youngest daughter, half
time caregiver for his son and summertime
caregiver to his teenage daughter is
inconsistent with someone with the pain
levels Claimant claims;
c. Claimant’s rejection of the treatment
options provided by Dr. Corba as well as
Dr. Corba’s testimony that Claimant
preferred an increase in narcotic medication
to other treatments is troubling.
10. This Judge has carefully and thoroughly reviewed
the testimony of Robert J. Corba, D.O. and
Paul Horenstein, M.D. and finds the testimony of
Dr. Horenstien [sic] competent and credible and accepts
that testimony over the opinions of Dr. Corba where
those opinions differ. Dr. Horenstien’s [sic] testimony is
consistent with the diagnostic studies in this case. In
addition, Dr. Horenstien’s [sic] opinions are more
consistent with Claimant’s work history and treatment
history. Further, Claimant’s testimony has been deemed
not credible and, according to Dr. Corba’s testimony,
diagnosis of CRPS/RSD is made, at least in part, by
patient history therefore, the credibility of Dr. Corba’s
diagnosis can rise no higher than the credibility of
Claimant.
11. The testimony of Daniel J. Magaskie is deemed
credible but irrelevant to the issues before this Judge.
Mr. Magaskie is deemed credible because his testimony
was consistent with the images on the video surveillance.
(WCJ’s Decision at 7-8.) Based on these credibility determinations, the WCJ
concluded that Employer had met its burden of proving that Claimant had fully
recovered from his work-related injury as of June 13, 2013.
9
Claimant appealed to the Board, which affirmed the WCJ’s decision.
Claimant then petitioned this Court for review. On appeal,2 Claimant argues that:
(1) the WCJ failed to issue a reasoned decision because the WCJ’s findings of fact
are not supported by substantial evidence; (2) the WCJ capriciously disregarded
material, competent evidence of record; (3) the WCJ erred in finding the video
surveillance evidence irrelevant; and (4) the WCJ committed an error of law when
she refused to admit Claimant’s medical records into evidence.
First, we address Claimant’s argument that the WCJ failed to issue a
reasoned decision because the WCJ’s findings of fact are not supported by
substantial evidence. More specifically, Claimant argues that Dr. Corba’s
testimony should be found more credible than Dr. Horenstein’s testimony because
Dr. Corba is more qualified in the areas of CRPS and RSD than Dr. Horenstein and
Dr. Horenstein had less interaction with Claimant than Dr. Corba. It appears that
Claimant also argues that the reasons relied upon by the WCJ in finding
Dr. Horenstein’s testimony more credible than Dr. Corba’s testimony−i.e.,
Dr. Horenstein’s testimony is consistent with the diagnostic studies and
Dr. Horenstein’s opinions are more consistent with Claimant’s work and treatment
history−are not supported by the record because the record contains evidence to
rebut these statements. Employer, on the other hand, argues that Claimant is
essentially attempting to re-litigate the facts of this case and is asking this Court to
overturn the WCJ’s credibility determinations.
2
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.
10
Section 422(a) of the Workers’ Compensation Act (Act)3 requires a
WCJ to issue a reasoned decision such that it that permits an appellate court to
exercise adequate appellate review. Amandeo v. Workers’ Comp. Appeal Bd.
(Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012). To satisfy this standard, a
WCJ need not discuss every detail in the record. Id. “Rather, Section 422(a) of the
Act requires WCJs to issue reasoned decisions so that this Court does not have to
‘imagine’ the reasons why a WCJ finds that the conflicting testimony of one
witness was more credible than the testimony of another witness.” Id. (quoting
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 196
(Pa. Cmwlth. 2006), appeal denied, 916 A.2d 635 (Pa. 2007)). “The WCJ is free
to accept or reject, in whole or in part, the testimony of any witness, including
medical witnesses.” Leca v. Workers’ Comp. Appeal Bd. (Phila. Sch. Dist.),
39 A.3d 631, 634 n.2 (Pa. Cmwlth. 2012). “[W]here a WCJ summarizes testimony
and also objectively explains [her] credibility determinations, the decision will
satisfy the [reasoned decision] requirement.” Amandeo, 37 A.3d at 76.
Further, we note that in workers’ compensation proceedings, the WCJ
is the ultimate finder of fact. Williams v. Workers’ Comp. Appeal Bd. (USX
Corp.-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004). As fact-finder,
matters of credibility, conflicting medical evidence, and evidentiary weight are
within the WCJ’s exclusive province. Id. If the WCJ’s findings are supported by
substantial evidence, they are binding on appeal. Agresta v. Workers’ Comp.
Appeal Bd. (Borough of Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004).
It is irrelevant whether there is evidence to support contrary findings; the relevant
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
11
inquiry is whether substantial evidence supports the WCJ’s necessary findings.
Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721 A.2d 1152,
1155 (Pa. Cmwlth. 1998).
To succeed in a termination petition, the employer bears the burden to
prove that the claimant’s disability has ceased and/or that any current disability is
unrelated to the claimant’s work injury. Jones v. Workers’ Comp. Appeal Bd. (J.C.
Penney Co.), 747 A.2d 430, 432 (Pa. Cmwlth.), appeal denied, 764 A.2d 1074
(Pa. 2000). An employer may satisfy this burden by presenting unequivocal and
competent medical evidence of the claimant’s full recovery from his work-related
injuries. Koszowski v. Workmen’s Comp. Appeal Bd. (Greyhound Lines, Inc.),
595 A.2d 697, 699 (Pa. Cmwlth. 1991). Furthermore, in order to terminate
benefits, an employer must prove that all of a claimant’s work-related injuries have
ceased. Central Park Lodge v. Workers’ Comp. Appeal Bd. (Robinson),
718 A.2d 368, 370 (Pa. Cmwlth. 1998).
Here, Claimant seems to suggest that the WCJ’s decision is not
reasoned or supported by substantial evidence because the testimony of Dr. Corba
supports a finding that Claimant suffers from CRPS with RSD and has not fully
recovered from his work-related injury, and the WCJ should have accepted
Dr. Corba’s testimony as more credible than Dr. Horenstein’s testimony.
Claimant’s arguments, however, demonstrate Claimant’s lack of understanding
regarding the requirements for a reasoned decision and what constitutes substantial
evidence to support the WCJ’s findings. While Dr. Corba opined that Claimant
suffers from CRPS with RSD and is not capable of returning to work as a forklift
operator, Dr. Horenstein opined that Claimant’s physical examination and pain
complaints were not consistent with CRPS with RSD and that Claimant had fully
12
recovered from his work-related injury as of June 13, 2013. The WCJ credited
Dr. Horenstein’s testimony over Dr. Corba’s testimony on the basis that
Dr. Horenstein’s testimony is consistent with Claimant’s diagnostic studies and
more consistent with Claimant’s work and treatment history. (WCJ’s Decision
at 7.) Moreover, the WCJ found Dr. Corba’s diagnosis could rise no higher than
the credibility of Claimant because, according to Dr. Corba, a diagnosis of CRPS
with RSD is made, at least in part, by patient history. (WCJ’s Decision at 8.) In
addition, the WCJ rejected Claimant’s testimony as less than credible and
unpersuasive based on her personal observation of Claimant’s actions and
demeanor4 and other factors, such as that Claimant’s testimony that he was the
primary caregiver for his two-year-old daughter, half-time caregiver for his son,
and summertime caregiver for his daughter was inconsistent with someone with the
pain levels alleged by Claimant. (WCJ’s Decision at 7.)
The WCJ’s findings and credibility determinations constitute a
reasoned decision because the WCJ articulates a rationale for finding
Dr. Horenstein more credible than Dr. Corba and for discrediting Claimant’s
testimony. We stress that it does not matter if there is evidence in the record that
could support a finding contrary to that made by the WCJ; the only inquiry is
whether there is substantial evidence of record to support the WCJ’s findings.
Hoffmaster, 721 A.2d at 1155. The WCJ, as the ultimate fact-finder, had the
discretion to credit Dr. Horenstein’s testimony over Dr. Corba’s testimony
regarding whether Claimant suffers from CRPS with RSD and whether Claimant is
4
We note that “a WCJ’s observation of a witness’s demeanor alone is sufficient to satisfy
the reasoned decision requirement.” Amandeo, 37 A.3d at 77.
13
fully recovered from his February 14, 2011 work-related injury. Furthermore, this
finding is supported by substantial evidence because Dr. Horenstein opined that
Claimant’s physical examination and pain complaints were not consistent with
CRPS with RSD and that Claimant had fully recovered from his work-related
injury as of June 13, 2013. As a result, the Board properly concluded that the
WCJ’s decision granting Employer’s termination petition was reasoned and
supported by substantial evidence.
Next, we address Claimant’s argument that the WCJ capriciously
disregarded material, competent evidence of record. More specifically, Claimant
argues that the WCJ ignored: (1) the paper entitled “Reflex Sympathetic
Dystrophy and Complex Regional Pain Syndrome” published by the International
Research Foundation for RSD/CRPS; (2) Dr. Horenstein’s failure to address
Claimant’s left ankle brace; and (3) the video surveillance evidence. We
previously have held that a capricious disregard only occurs when the WCJ
deliberately ignores relevant, competent evidence. Capasso v. Workers’ Comp.
Appeal Bd. (RACS Assocs., Inc.), 851 A.2d 997, 1002 (Pa. Cmwlth. 2004).
Capricious disregard of evidence “is a deliberate and baseless disregard of
apparently trustworthy evidence.” Williams, 862 A.2d at 144. “[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 capricious disregard.” Leon E.
Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487
n.14 (Pa. 2002) (emphasis added).
First, Claimant has presented no evidence that the paper entitled
“Reflex Sympathetic Dystrophy and Complex Regional Pain Syndrome” published
14
by the International Research Foundation for RSD/CRPS was admitted into
evidence and, therefore, the WCJ could not have capriciously disregarded it.
Based upon our review of the record, the paper referenced by Claimant was not
introduced as an exhibit at a hearing before the WCJ or attached as an exhibit to
Dr. Corba’s deposition. Rather, the paper was merely discussed with Dr. Corba at
the time of his deposition. (R.R. at 11a-13a.) In addition, we note that the paper
itself does not provide any evidence relative to whether Claimant suffers from
CRPS with RSD or whether Claimant has fully recovered from his work-related
injury. Second, with respect to the video surveillance evidence, the WCJ did not
deliberately ignore or baselessly disregard relevant evidence. The WCJ took the
video surveillance evidence into consideration when she admitted it into the
record, but decided to give it little to no weight in reaching her decision. Lastly,
Claimant’s argument that the WCJ capriciously disregarded that Dr. Horenstein
failed to address Claimant’s left ankle brace essentially attacks the WCJ’s
credibility determinations. This Court will not overturn the WCJ’s credibility
determinations or reweigh the evidence for the reasons set forth above. As a result,
we cannot conclude that the WCJ capriciously disregarded evidence.
Next, we address Claimant’s argument that the WCJ erred in finding
the video surveillance evidence irrelevant. More specifically, Claimant argues that
“the video surveillance is relevant because it substantiates . . . Claimant’s
testimony that he leads an enforced sedentary life.” (Claimant’s Br. at 24.) While
the WCJ used the word “irrelevant” to describe her conclusion not to rely on
Mr. Magaskie’s testimony in reaching her decision, we believe that the WCJ
intended to indicate that she afforded the testimony little or no weight. The WCJ
determined that the video surveillance evidence was relevant when she admitted
15
Mr. Magaskie’s deposition testimony into the record and addressed such testimony
in her decision. By relying solely on the medical evidence and not considering the
video surveillance evidence in rendering her decision, the WCJ actually
determined that she would give the video surveillance little to no weight. “[T]he
WCJ is the sole arbiter of the credibility and the weight of testimony and other
evidence, and he or she is free to reject or accept the testimony of any witness in
whole or in part.” O’Donnell v. Workers’ Comp. Appeal Bd. (United Parcel Serv.),
831 A.2d 784, 789 (Pa. Cmwlth. 2003). By arguing that the WCJ erred in giving
the video surveillance evidence little to no weight in her decision, Claimant is
essentially asking this Court to reweigh the evidence, which we will not do for the
reasons set forth above. Therefore, we cannot conclude that the WCJ erred in
giving the video surveillance evidence little to no weight in her decision.
Finally, we address Claimant’s argument that the WCJ committed an
error of law when she refused to admit Claimant’s medical records into evidence.
The admission of evidence in workers’ compensation proceedings lies within the
sound discretion of the WCJ. Atkins v. Workers’ Comp. Appeal Bd. (Stapley in
Germantown), 735 A.2d 196, 199 (Pa. Cmwlth. 1999). The WCJ’s determination
to exclude evidence will not be overturned unless there was an abuse of discretion.
Id. Here, we find no abuse of discretion. Claimant’s medical records were
reviewed and explained by both Dr. Corba and Dr. Horenstein in their depositions.
In addition, the deposition testimony of Dr. Corba and Dr. Horenstein provided the
WCJ with the medical evidence necessary to issue a decision on Employer’s
termination petition. Accordingly, we cannot conclude that the WCJ committed an
error of law in refusing to admit Claimant’s medical records into evidence.
16
For the above stated reasons, we affirm the Board’s decision.
P. KEVIN BROBSON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ricardo Cruz, :
Petitioner :
:
v. : No. 1966 C.D. 2015
:
Workers’ Compensation Appeal :
Board (A.J. Bazzini Co., Inc.), :
Respondent :
ORDER
AND NOW, this 22nd day of August, 2016, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge