CeeMee, Inc. v. WCAB (Sowers) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CeeMee, Inc., :
Acadia Insurance Company/ :
W.R. Berkley Corporation/ :
Berkley Mid-Atlantic Group, :
Petitioners :
:
v. :
:
Workers’ Compensation :
Appeal Board (Sowers), : No. 1003 C.D. 2014
Respondent : Submitted: December 12, 2014
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 23, 2015
CeeMee, Inc. and Acadia Insurance Company/W.R. Berkley
Corporation/ Berkley Mid-Atlantic Group (collectively, Employer)1 petition this
Court for review of the Workers’ Compensation Appeal Board’s (Board) May 19,
2014 order affirming the Workers’ Compensation Judge’s (WCJ) decision granting
Donald Sowers’ (Claimant) claim petition and dismissing Employer’s joinder
petitions. Employer presents three issues for this Court’s review: (1) whether the
WCJ erred in granting Claimant’s claim petition; (2) whether the WCJ erred in
finding that Claimant was employed by Employer on May 25, 2006; and (3) whether
1
The petition for review provides: “The Petitioners are the Employer, CeeMee, Inc., . . .
and their workers’ compensation Insurance carrier/TPA, Acadia Insurance Company / W.R.
Berkley Corporation / Berkley Mid-Atlantic Group, . . . .” Petition for Review at 2 (emphasis
added).
the WCJ erred in calculating Claimant’s average weekly wage. After review, we
affirm.
On May 25, 2006, while attending a trade show in Las Vegas on behalf
of Employer, Claimant was moving a drum set weighing between 75 and 100 pounds
when he felt a sensation in his right eye. The incident was witnessed by Claimant’s
co-worker, Gabrielle Santulli. Claimant continued to work and, on his return from
Las Vegas, he advised Employer’s President Donald Procyk about the incident.
Claimant initially sought medical treatment for his eye from his family physician who
referred him to an ophthalmologist. After a failed surgery to reattach Claimant’s
retina, he came under the care of Allen Ho, M.D. (Dr. Ho) at Wills Eye Hospital. On
September 22, 2008, following a series of surgical attempts to permanently reattach
the retina, Dr. Ho advised Claimant that nothing further could be done and that
Claimant had lost sight in his right eye for all intents and purposes.
On June 30, 2010, Claimant filed a claim petition alleging that he injured
his right eye on May 25, 2006 during the course and scope of his employment with
Employer, which subsequently led to the loss of vision in that eye. The parties
agreed to bifurcate certain issues. By April 7, 2011 interlocutory decision and order,
the WCJ denied Employer’s affirmative defense of the statute of limitations, and
determined that if Claimant is successful on his claim petition, his average weekly
wage would be based on his earnings in 2008 when he was advised that he had lost
vision in his right eye. On April 25, 2011, Employer filed three joinder petitions
alleging that Claimant was employed by one of the joined parties. On October 17,
2011, Employer filed an additional joinder petition alleging that CeeLite, Inc. was
Claimant’s employer at the time of his work injury. By January 27, 2012 decision
and order, the WCJ granted Claimant’s claim petition and awarded Claimant benefits
for a specific loss commencing on September 22, 2008 and continuing for a period of
285 weeks and a ten-week healing period. The WCJ dismissed Employer’s joinder
2
petitions. Employer appealed to the Board. On May 19, 2014, the Board affirmed
the WCJ’s granting of Claimant’s claim petition and dismissal of Employer’s joinder
petitions, but reversed the WCJ’s granting of a ten-week healing period. Employer
appealed to this Court.2
Employer first argues that Dr. Ho’s medical opinion was equivocal and
speculative and, thus, not sufficient to support a workers’ compensation (WC) benefit
award. Specifically, Employer contends that because Dr. Ho used words such as
“possibly” and “could have been,” his causation testimony was equivocal.
The question of whether expert medical testimony is
unequivocal, and, thus, competent evidence to support
factual determinations is a question of law subject to our
review. In such cases, we review the testimony as a whole
and may not base our analysis on a few words taken out
of context. ‘Taking a medical expert’s testimony as a
whole, it will be found to be equivocal if it is based only
upon possibilities, is vague, and leaves doubt.’ Kurtz v.
Workers’ Comp. Appeal Bd. (Waynesburg [Coll.]), 794
A.2d 443, 449 (Pa.[]Cmwlth.[]2002). ‘[M]edical
testimony is unequivocal if a medical expert testifies,
after providing foundation for the testimony, that, in his
professional opinion, he believes or thinks a fact exists.’
O’Neill v. Workers’ Comp. Appeal Bd. (News Corp., Ltd.),
29 A.3d 50, 58 (Pa.[]Cmwlth.[]2011).
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa.
Cmwlth. 2012) (citations omitted; emphasis added). Employer asserts that “[i]n the
present[ case,] Dr. Ho never expressed an unequivocal opinion as to causation.”
Employer Br. at 12 (emphasis in original). We disagree.
During Dr. Ho’s deposition, the following exchange occurred between
Dr. Ho and Claimant’s counsel:
2
“Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence and whether constitutional rights
were violated.” Williams v. Workers’ Comp. Appeal Bd. (POHL Transp.), 4 A.3d 742, 744 n.1 (Pa.
Cmwlth. 2010).
3
Q Okay. And at the time that you first saw [Claimant]
going back to 2006, were you able to formulate an opinion -
- diagnosis, again, rendered within a reasonable degree of
medical certainty as to the condition of his right eye at that
time?
A Yes.
Q And what was that?
A He had a retinal tear and retinoschisis associated with
it.
Q Okay. And, again, within a reasonable degree of
medical certainty were you able to formulate an opinion as
to the cause of that diagnosis both at the time you first saw
him in 2006 and presently?
A Yes.
Q And what was that?
A I think his events started with the lifting of the
heavy equipment at the trade show in Las Vegas.
Reproduced Record (R.R.) at 485a-486a (emphasis added).
In addition, Dr. Ho’s February 25, 2009 letter expressly states in relevant
part: “[Claimant] has been a patient of mine since April 2007. Upon his initial
consultation he was found to have a macula-off retinal detachment in his right eye.
The detachment occurred while [Claimant] was moving some heavy equipment
for work at a [t]rade [s]how in Las Vegas.” R.R. at 538a (emphasis added). At his
deposition, Dr. Ho was questioned regarding the February 25, 2009 letter as follows:
Q If I can just ask you, Doctor, I’m just going to go
back to Exhibit-11 for one minute.
Doctor, Exhibit-11, which we went over earlier, is
your note of February [2]5th, 2009 and in the first
paragraph you stated the detachment occurred while
[Claimant] was moving some heavy equipment for work at
a trade show in Las Vegas.
Does that, in fact, remain your opinion?
4
A I need to see my notes, my chart. He, I believe, had
a retinal tear and subsequently was found to have a retinal
detachment.
Q So assuming he had a retinal tear at that time, would
it be your opinion that he had a -- that the retinal tear was
occurred [sic] when he was moving heavy equipment at the
trade show in Las Vegas?
A Based on his history and my exam, yeah, I would
say so.
Q And have all of the opinions you’ve provided with us
today been provided within a reasonable degree of medical
certainty?
A Yes.
R.R. at 500a-501a (emphasis added). Dr. Ho, after providing foundation for his
testimony, stated more than once that, in his professional opinion, he believes or
thinks that Claimant’s heavy lifting at the trade show in Las Vegas caused Claimant’s
injury. Accordingly, we find Dr. Ho’s testimony unequivocal.
Employer next contends that Claimant was not its employee at the time
of his injury because Claimant was working for CeeLite, LLC when the injury
occurred. However, Employer stipulated at the WCJ hearing that Employer and
CeeLite, LLC were one and the same. Specifically, during the direct examination of
Claimant, the WCJ interrupted and the following exchange occurred:
Q. Who’s your present employer?
A. Ceelite Technology.
Q. Can you explain for the judge what Ceelite
Technology does in general terms.
A. We manufacture flat light bulbs.
JUDGE BURMAN: Is that the same as Cee[M]ee or is that
a different company?
THE WITNESS: They were a combination. They merged.
5
JUDGE BURMAN: Oh, okay. So it’s the same
employer?
THE WITNESS: Yes.
MR. MAKARA [Claimant’s counsel]: That’s my
understanding. I meant to clarify that with Mr. Casey.
MR. CASEY [Employer’s counsel]: We’ll so stipulate.
R.R. at 143a-144a (emphasis added). It is axiomatic that “[a] counsel’s admissions
and representations are binding on a client.” Radhames v. Tax Review Bd., 994 A.2d
1170, 1177 n.14 (Pa. Cmwlth. 2010). Moreover, “[i]t is clear that [Employer] may
not, absent proof of justifying circumstances, simply discard its stipulation[] and have
a second opportunity to carry its burden of proof.” Commonwealth v. Daniels, 368
A.2d 1279, 1283 (Pa. 1975).
In its brief, Employer asserts that notwithstanding the stipulation
“CeeLite, LLC would still be liable as [Claimant’s] [e]mployer because two
exceptions to the rule on successor liability apply to the present case.” Employer Br.
at 16. However, this argument presumes Employer stipulated that Employer and
CeeLite, LLC merged. To the contrary, Claimant testified there was a merger, but the
WCJ asked counsel whether it was “the same employer,” to which Claimant’s
counsel replied: “That’s my understanding[,]” and Employer’s counsel responded:
“We’ll so stipulate.” R.R. at 144a (emphasis added). Accordingly, Employer’s
argument to the contrary cannot stand.
Lastly, Employer argues that the WCJ erred in calculating Claimant’s
average weekly wage. Specifically, Employer contends that Claimant’s weekly wage
should be based on his wages during the year preceding his injury - 2006 – which
would be zero. We disagree.
6
We recognize that Section 309 of the Pennsylvania Workers’
Compensation Act (Act)3 states in relevant part:
Wherever in this article the term ‘wages’ is used, it shall be
construed to mean the average weekly wages of the
employe[e], ascertained as follows:
(a) If at the time of the injury the wages are fixed by the
week, the amount so fixed shall be the average weekly
wage;
(b) If at the time of the injury the wages are fixed by the
month, the average weekly wage shall be the monthly wage
so fixed multiplied by twelve and divided by fifty-two;
(c) If at the time of the injury the wages are fixed by the
year, the average weekly wage shall be the yearly wage so
fixed divided by fifty-two;
(d) If at the time of the injury the wages are fixed by any
manner not enumerated in clause (a), (b) or (c), the average
weekly wage shall be calculated by dividing by thirteen the
total wages earned in the employ of the employer in each of
the highest three of the last four consecutive periods of
thirteen calendar weeks in the fifty-two weeks immediately
preceding the injury and by averaging the total amounts
earned during these three periods.
77 P.S. § 582. However, this action involves specific loss under Section 306(c)(7) of
the Act, 77 P.S. § 513.
The Act defines wages in terms of a claimant’s weekly pay
‘at the time of the injury.’ 77 P.S. § 582. This Court has
repeatedly held that ‘in specific loss cases under Section
306(c) of the Act, . . . the date of the injury is the date when
the claimant is notified by a doctor of the loss of use of the
member or faculty for ‘all practical intents and purposes’
and that the injury is job[-]related in nature.’ Roadway
Express, Inc. v. Workmen’s [Comp.] Appeal [Bd.], 708 A.2d
132 (Pa.[]Cmwlth.[]1998) (citing Eddy v. Workmen’s
[Comp.] Appeal [Bd.] (Bell Transit, Inc.), . . . 568 A.2d 279
([Pa. Cmwlth.] 1989)).
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582.
7
Lancaster Gen. Hosp. v. Workers’ Comp. Appeal Bd. (Weber-Brown), 987 A.2d 174,
180 (Pa. Cmwlth. 2009), aff’d, 47 A.3d 831 (Pa. 2012).
Employer asserts that this action is not a specific loss case because
Claimant suffered a retinal detachment on May 26, 2006,4 which diagnosis remained
the same through his final surgery on September 22, 2008 and, thus, Claimant’s
permanent vision loss began on May 26, 2006. However, the record evidence does
not support this conclusion. The May 26, 2006 injury did not cause the lack of
vision, but rather the “series of retinal detachment -- retinal reattachment surgeries[,]”
that culminated with Claimant’s last surgery on September 22, 2008, caused his
permanent vision loss. R.R. at 487a.
Dr. Ho testified that Claimant had lost vision in his right eye for all
practical intents and purposes. See R.R. at 487a. In addition, Dr. Ho and Claimant
both testified that Claimant’s loss of vision became permanent as of Claimant’s last
surgery when Dr. Ho determined that he could no longer operate. See R.R. at 158a,
487a. Finally, it is undisputed that Claimant’s last surgery occurred on September 22,
2008. See R.R. at 535a. Accordingly, we discern no error in the WCJ’s calculation
of Claimant’s weekly wage.
For all of the above reasons, the Board’s order is affirmed.
__________________________
ANNE E. COVEY, Judge
Judge McCullough did not participate in the decision in this matter.
4
Employer uses May 26, 2006 as Claimant’s date of alleged injury in its brief; however, the
Claimant’s claim petition states May 25, 2006 as the date of injury.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CeeMee, Inc., :
Acadia Insurance Company/ :
W.R. Berkley Corporation/ :
Berkley Mid-Atlantic Group, :
Petitioners :
:
v. :
:
Workers’ Compensation :
Appeal Board (Sowers), : No. 1003 C.D. 2014
Respondent :
ORDER
AND NOW, this 23rd day of September, 2015, the Workers’
Compensation Appeal Board’s May 19, 2014 order is affirmed.
___________________________
ANNE E. COVEY, Judge