Devault Group, Inc. v. J. Brice (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Devault Group, Inc., :
Petitioner :
: No. 794 C.D. 2021
v. :
: Submitted: December 30, 2021
Jesse Brice (Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: September 14, 2022
Devault Group, Inc. (Employer) petitions for review of a June 30, 2021
order of the Workers’ Compensation Appeal Board (Board) that affirmed an order of a
Workers’ Compensation Judge (WCJ) granting a claim petition filed by Jesse Brice
(Claimant). Upon review, we affirm.
Background and Procedural History
The relevant facts and procedural history of this case are as follows.
In 2007, Claimant had “some hardware put into [his] right ankle.” (Notes
of Testimony (N.T.) at 20.) In 2011, Claimant had an x-ray of his right ankle.
(Reproduced Record (R.R.) at 201a.) The x-ray indicated Claimant had “[two] screws
traversing the talus [from] prior trauma to this location. The more inferior of the [two]
screws is fractured.” Id.
On October 8, 2019, Claimant filed a claim petition alleging that he
sustained a right leg and right ankle injury during the course and scope of his
employment on September 17, 2019. Claimant worked as a mixer truck driver for
Employer, and he alleged that he stepped on a rock and rolled his ankle while washing
his truck. Employer filed an answer denying the material allegations and the matter
was assigned to WCJ Scott Olin for hearings. (R.R. at 5a.)
Several hearings were held from November 12, 2019, to June 25, 2020.
(R.R. at 10a.) Before the WCJ, Claimant offered into evidence the deposition
testimony of Claimant’s medical expert, Glenn Rosen, M.D., who testified that
Claimant suffered a posterior talus screw fracture of his right ankle as a direct result of
the September 17, 2019 incident at work. (R.R. at 143a-201a.) Dr. Rosen further
testified that Claimant underwent surgery for this injury, and his ankle had not fully
recovered. (R.R. at 157a.) Additionally, Dr. Rosen testified the screw fracture
happened because of the work incident. (R.R. at 158a.) Employer submitted into
evidence the deposition testimony of Paul Horenstein, M.D., who performed an
independent medical examination of Claimant on January 8, 2020. (R.R. at 264a-
267a.) Dr. Horenstein explained that all of Claimant’s ongoing ankle complaints were
related to Claimant’s preexisting arthritis of the subtalar joint and ankle joint. (R.R. at
212a-268a.) Dr. Horenstein believes that Claimant’s right ankle injury has resolved
and all that remains is Claimant’s preexisting arthritis.
In his October 1, 2020 decision, the WCJ found the testimony of Dr.
Rosen more credible than the testimony of Dr. Horenstein. (R.R. at 18a.) Importantly,
the WCJ accepted as credible a portion of Dr. Rosen’s testimony and rejected other
portions as not credible. (R.R. at 17a.) Specifically, the WCJ noted that Dr. Rosen
testified that a February 1, 2011 x-ray revealed that the interior screw from a prior ankle
surgery, which was unrelated to the work injury, was already fractured, and that Dr.
Rosen was, therefore, incorrect that the screw fracture happened as a result of the
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September 17, 2019 incident at work. Id. Nevertheless, the WCJ found portions of Dr.
Rosen’s testimony regarding Claimant’s increase in pain following the incident at
work, and the need to address this injury with surgery, as credible and persuasive, and
found that the increase in pain from an underlying condition constituted a new injury.
(R.R. at 18a.)
The WCJ noted that many of the physical findings identified by Dr.
Horenstein would require a finding that Claimant’s swelling, high pain, and inability
to ambulate from the work incident were resolved, and then “magically reappeared”
immediately prior to Dr. Horenstein’s examination. Id. Accordingly, the WCJ
concluded that Claimant has established he sustained a work-related injury on
September 17, 2019. (R.R. at 19a; WCJ’s Conclusions of Law (C.L.) No. 3.) The WCJ
ordered Employer to pay Claimant total disability benefits starting on September 18,
2019. (R.R. at 20a.)
Employer appealed to the Board, arguing that the WCJ’s decision was not
supported by substantial, competent evidence. (R.R. at 21a-30a.) In its decision, the
Board noted that the WCJ accepted the testimony of Dr. Rosen as more credible than
the testimony of Dr. Horenstein and that determinations of credibility are the
prerogative of the WCJ. (R.R. at 35a.) Specifically, the Board stated:
Claimant was able to meet his burden because the WCJ accepted
both Claimant’s own testimony regarding the circumstances of
his work incident, and accepted, in part, Dr. Rosen’s testimony
regarding Claimant’s right ankle work injury.FN1 The WCJ
further rejected Dr. Horenstein’s testimony that Claimant was
fully recovered from only a right ankle sprain and that all his
symptoms were related to his preexisting arthritis. While
[Employer] makes numerous arguments as to why the WCJ
should have decided differently based on the evidence, the
relevant inquiry in a substantial evidence analysis is not whether
the record contains evidence to support facts other than those
made by the WCJ; the critical inquiry is whether there is
evidence to support the findings actually made. [(Citation
omitted)].
3
FN1
We note the WCJ rejected Dr. Rosen’s full
diagnosis of Claimant’s injury and only accepted it
for the more limited diagnosis of a right ankle
injury that required surgery. Because a WCJ is free
to accept or reject, in whole or in part, the
testimony of any witness, including medical
witnesses, we determine no error in the WCJ’s
finding concerning the diagnosis of the work.
[Greenwich Collieries v. Workmen’s
Compensation Appeal Board (Buck), 664 A.2d 703(Pa. Cmwlth. 1995)].
(R.R. at 36a-37a.)
On August 10, 2021, Employer filed a Request for Supersedeas with this
Court. We found that Employer did not satisfy all four criteria set forth in Pennsylvania
Public Utility Commission v. Process Gas Consumer Group, 467 A.2d 805, 808-09
(Pa. 1983), and therefore, denied the Request for Supersedeas.
Employer’s petition for review is before the Court.
Issues
On appeal,1 Employer raises the following two issues:
1) Whether the WCJ decision and description of the injury is not
supported by substantial evidence, and whether the WCJ erred as a
matter of law by substituting his personal medical knowledge for
evidence in order to grant the Claim Petition?
2) Whether the WCJ’s decision and findings are erroneous as they are
based solely on Claimant’s physician’s equivocal assumptions and
1
This Court reviews the WCJ’s adjudication to determine whether the necessary findings of
fact are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. MV Transportation v.
Workers’ Compensation Appeal Board (Harrington), 990 A.2d 118, 120 n.3 (Pa. Cmwlth. 2010); see
also Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. “Substantial evidence is such
relevant evidence a reasonable person might find sufficient to support the WCJ’s findings.” Frog,
Switch & Manufacturing Company v. Workers’ Compensation Appeal Board (Johnson), 106 A.3d
202, 206 (Pa. Cmwlth. 2014.)
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opinions that an injury occurred and was caused by a recent event
because of the temporal proximity of the event?2
(Employer’s Brief at 4.)
Discussion
In its first issue, Employer asserts the WCJ’s decision is not supported by
substantial evidence as the WCJ substituted his own personal medical knowledge for
evidence. Employer argues there is “no evidence to support the finding or diagnosis
that there was a ‘right ankle injury [which] required surgery.’” (Employer’s Br. at 26.)
It is well settled that the WCJ is the ultimate finder of fact and the
exclusive arbiter of credibility and evidentiary weight. LTV Steel Company, Inc. v.
Workers’ Compensation Appeal Board (Mozena), 754 A.2d 666, 676 (Pa. 2000). The
WCJ is free to accept or reject, in whole or in part, the testimony of any witness. Id.As ultimate factfinder, the WCJ has exclusive authority to resolve conflicts in
testimony. Pennsylvania Turnpike Commission v. Workers’ Compensation Appeal
Board (Collins), 709 A.2d 460, 464 (Pa. Cmwlth. 1998). However, resolution of
conflicting evidence cannot be supported by a mere announcement that the WCJ
deemed one expert more credible and persuasive than another. Daniels v. Workers’
Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 2003).
Rather, there must be some articulation of the actual objective basis for the credibility
determination. Id. The standard of review does not permit the Board or this Court to
reassess which evidence is more persuasive; this determination is only for the WCJ as
the factfinder. Bedford Somerset MHMR v. Workers’ Compensation Appeal Board
(Turner), 51 A.3d 267, 272 (Pa. Cmwlth. 2012).
2
In its brief, Employer makes several arguments as to why the WCJ should have decided this
case differently, but that is of no moment. (Employer’s Br. at 25-30.) Rather, this Court’s standard
of review is whether there is substantial evidence in the record to support the WCJ’s findings.
Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa.
Cmwth. 1998).
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Importantly, no authority requires a workers’ compensation injury to carry
a professional diagnosis or descriptive tag. Meadow Lakes Apartment v. Workers’
Compensation Appeal Board (Spencer), 894 A.2d 214 (Pa. Cmwlth. 2006). Pain itself,
if causally related to employment, may be compensable as an injury. Id. at 217. A
diagnosis may impact the credibility of testimony addressing the existence of pain or
its relationship to employment, but it is not a legal precondition. Id. Moreover, “a
WCJ can give more credence to a claimant’s testimony regarding incapacitating pain
than to a doctor’s testimony.” Campbell v. Workers’ Compensation Appeal Board
(Antietam Valley Animal Hospital), 705 A.2d 503, 507 (Pa. Cmwlth. 1998).
Here, the WCJ accepted in part Dr. Rosen’s testimony and rejected Dr.
Rosen’s testimony as to the work incident causing the screw fracture. During his
testimony, Dr. Rosen testified that he diagnosed Claimant with a “posterior talus screw
fracture of the right ankle” and that it was a direct result of the work incident on
September 17, 2019. (N.T. at 15.) However, later in his testimony, Dr. Rosen stated
that the same screw fracture was found on a 2011 x-ray of Claimant’s right ankle.3 The
WCJ clarified this discrepancy in Dr. Rosen’s testimony by stating “Dr. Rosen is
wrong. A February 1, 2011 x-ray reveals the inferior screw from Claimant’s prior
ankle surgery was already fractured.” (R.R. at 17a; N.T. at 34.) Moreover, the
radiography reports from 2011 and 2019 were submitted into evidence, which include
statements about the more inferior of the two screws being fractured. (R.R. at 193a,
201a.) Because the WCJ made this finding based on the discrepancy in Dr. Rosen’s
testimony and the 2011 and 2019 x-ray radiograph evidence before him, the WCJ did
not substitute his personal knowledge for the medical evidence presented.
3
The x-ray is mislabeled as an x-ray of Claimant’s left ankle; however, Dr. Rosen testified
that this is a typographical error and the x-ray is in fact of Claimant’s right ankle. (N.T. at 33.)
6
Moreover, the WCJ credited the testimony of both Claimant and Dr.
Rosen to find the work injury caused Claimant’s increase in pain of his underlying
condition in his right ankle. The WCJ noted Claimant did not have a highly
symptomatic right ankle before the work incident and found his increase in pain
thereafter credible. (R.R. at 17a.) Specifically, the WCJ relied upon Claimant’s
testimony that following the work incident, Claimant could not put any pressure on his
right ankle because “it hurt[ ] to[o] bad.” (R.R. at 21a.) Claimant further testified that
he can only ambulate with a boot and crutches and his pain level is an eight out of ten.
Id. Claimant stated he is “immobile” and unable to drive any motor vehicle. Id.Claimant testified he was able to perform all job tasks and was never reprimanded by
Employer for failure to perform such tasks; however, after the work injury, Claimant
was unable to perform his job. Id.Similarly, the WCJ found portions of Dr. Rosen’s testimony regarding
Claimant’s increase in pain following the work incident and the need to address the
same with surgery persuasive, credible, and well-supported. Id. Notably, prior to
September 17, 2019, Dr. Rosen had not treated Claimant’s right ankle and had no prior
workers’ compensation issues with Employer. Id. Dr. Rosen testified that Claimant
“should urgently see an orthopedic physician and no longer weight bear or carry on
with his normal duties at work, which involved heavy lifting and climbing.” (N.T. at
10-11.) In Dr. Rosen’s opinion, the surgery Claimant had on his right ankle was
directly related to the work injury. (N.T. at 16.) Therefore, the WCJ found Claimant’s
increase in pain from an underlying condition constituted a new injury that required
surgery. (R.R. at 18a.)
Furthermore, the WCJ found “major credibility issues” with the testimony
of Dr. Horenstein. (R.R. at 18a.) The WCJ then described his reasoning why Dr.
Horenstein’s testimony was not credible. (R.R. at 18a; N.T. at 21.) Specifically, the
WCJ referenced that Dr. Horenstein agreed Claimant injured his ankle on September
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17, 2019, during the work incident, but opined the sprain had “fully recovered” and all
of Claimant’s present physical findings were related to his preexisting arthritis that
required surgery. Id. The WCJ called this “counter-intuitive logic” and stated “[t]o
deem Dr. Horenstein credible, the [WCJ] would have to find that [Claimant’s] swelling,
high pain level, and inability to ambulate from the September 17, 2019 work incident
resolved, and then these same symptoms mystically and magically reappeared
immediately prior to Dr. Horenstein’s examination.” (R.R. at 18a.) Therefore,
Employer could not satisfy its burden of proving that Claimant’s disability had ended,
nor could Employer meet its burden of proving that Claimant’s current disability was
not work related.
In its second issue, Employer asserts the WCJ’s findings and decision are
erroneous as they are based on Claimant’s physician, Dr. Rosen. (Employer’s Br. at
30.) Specifically, Employer argues that Dr. Rosen’s opinions are equivocal medical
testimony as to the causation of Claimant’s injury. Id. Additionally, Employer argues
that the WCJ erred as a matter of law in finding that because of the temporal proximity
of the September 17, 2019 work incident, Claimant suffered a right ankle work injury
that required surgery. (Employer’s Br. at 30-31.) Employer argues Dr. Rosen’s
testimony is equivocal as Dr. Rosen stated, “certainly something happened to his
ankle” and “certainly something must have happened.” (Employer’s Br. at 33.)
When the connection between the injury and the alleged work incident is
not obvious, unequivocal medical evidence is required that an injury is causally related
to the work incident. Cromie v. Workmen’s Compensation Appeal Board (Anchor
Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). “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.” Amandeo v.
Workers’ Compensation Appeal Board (Conagra Foods), 38 A.3d 72, 80 (Pa. Cmwlth.
2012). “In such cases, we review the testimony as a whole and may not base our
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analysis on a few words taken out of context.” Id. “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’ Compensation Appeal
Board (Waynesburg College), 794 A.2d 443, 449 (Pa. Cmwlth. 2002). “[M]edical
testimony is unequivocal if a medical expert testifies, after providing a foundation for
the testimony, that, in his professional, he believes or thinks a fact exists.” O’Neill v.
Workers’ Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50, 57 (Pa. Cmwlth.
2011.)
Here, Dr. Rosen opined that “[Claimant’s] injury was a direct result of
him rolling his ankle while at work.” (N.T. at 16.) As explained above, although there
was a discrepancy in Dr. Rosen’s injury diagnosis, the WCJ clarified that the screw
fracture was present in both the 2011 and 2019 x-rays. (R.R. at 17a.) The WCJ then
concluded Claimant’s and Dr. Rosen’s testimony established that there was causation
between the work incident and Claimant’s right ankle injury. Id. The WCJ found
credible both Claimant and Dr. Rosen’s testimony about Claimant’s increase in pain
following the September 17, 2019 work incident. Id. The WCJ cited to Dr. Rosen’s
testimony that Claimant had a “tremendous change in pain” directly after the work
incident, which indicated “something occurred.” (R.R. at 17a; N.T. at 37.)
Furthermore, Dr. Rosen stated that “certainly something happened to [Claimant’s]
ankle enough to the point where he was unable to walk or bear weight and lift heavy
weight and climb ladders.” (R.R at 17a; N.T. at 37.) The WCJ referred to Claimant’s
and Dr. Rosen’s testimony regarding Claimant’s increase in pain following the
September 17, 2019 to determine causation. Thus, there is substantial evidence in the
record to support that Claimant’s right ankle injury occurred during September 17,
2019 work incident.
Furthermore, Employer would have us implement a stringent standard of
equivocality that permits no room for expressions of doubt. This is in opposition to the
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law. “[T]he law does not require every utterance which escapes the lips of a medical
witness on a medical subject to be certain, positive, and without reservation or
exception.” Bemis v. Workers’ Compensation Appeal Board (Perkiomen), 35 A.3d 69,
72 (Pa. Cmwlth. 2011). A medical opinion is not considered equivocal simply because
the witness uses words such as “probably,” “likely,” and “somewhat,” “so long as the
testimony, read in its entirety, is unequivocal and the witness does not recant the
opinion or belief first expressed.” Id. Therefore, we find when read in its entirety, Dr.
Rosen’s testimony is positive on the issue of whether Claimant’s right ankle injury was
caused by the September 17, 2019 work incident.
In conclusion, we hold the Board did not err in affirming the WCJ’s
conclusion that Claimant sustained a right ankle injury that required surgery related to
his work incident on September 17, 2019. Accordingly, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Devault Group, Inc., :
Petitioner :
: No. 794 C.D. 2021
v. :
:
Jesse Brice (Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 14th day of September, 2022, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge