R.W. Harbaugh v. WCAB (Barbush Rentals, Inc.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald W. Harbaugh, :
Petitioner :
: No. 29 C.D. 2020
v. :
: Submitted: June 19, 2020
Workers’ Compensation Appeal :
Board (Barbush Rentals, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: October 27, 2020
Ronald W. Harbaugh petitions for review of the December 13, 2019 order
of the Workers’ Compensation Appeal Board (Board), which affirmed the
determination of Workers’ Compensation Judge David Weyl (WCJ) that Harbaugh is
not entitled to benefits under the Workers’ Compensation Act (Act).1 We affirm.
The relevant facts, as summarized from the WCJ’s findings, are as
follows. Harbaugh was employed by a car rental agency, Barbush Rentals, Inc.
(Employer), as a driver. His duties involved moving cars back and forth between
airport parking lots and Employer’s reconditioning shop. On December 4, 2017,
Harbaugh discovered damage to a car and went to the office of his supervisor, Zachary
1
Act of June 2, 1915, P.L. 736, No. 338, as amended, 77 P.S. §§1-1041.4, 2501-2710.
Soles, to discuss the problem. After he spoke with Soles about the car, he turned to
leave Soles’ office, took several steps, and then felt a “pop” in his left ankle, which
caused severe pain. Soles came to Harbaugh’s aid and helped him sit in an office chair,
but Harbaugh’s ankle soon became swollen, so Harbaugh called his sister to take him
to the emergency room at Hershey Medical Center.
The emergency room staff took x-ray images of Harbaugh’s ankle,
provided him with crutches and a boot for stabilization, and discharged him. Harbaugh
was referred to an orthopedist, Umur Aydogan, M.D. Analyzing Harbaugh’s x-ray,
Dr. Aydogan believed that Harbaugh had suffered an avulsion fracture at the insertion
of the Achilles tendon to the calcaneus. Dr. Aydogan ordered an MRI to confirm,
which revealed a 1.7-centimeter detachment from the insertion and a complete tear,
which was more than 90% avulsed. (Dr. Aydogan Deposition at 12; Reproduced
Record (R.R.) at 32a.) In simpler terms, Harbaugh’s Achilles tendon was torn from his
heel bone, taking a small piece of bone with it. Dr. Aydogan further determined that
Harbaugh had insertional tendinitis that had been present prior to the detachment, and
that he had a Haglund’s deformity.2 Dr. Aydogan noted additional potentially
contributing factors, including the fact that Harbaugh is diabetic and that he had been
taking antibiotics shortly before the rupture, both of which can affect tendons.
Importantly, when asked in his deposition testimony whether Harbaugh’s injury was
caused by his work for Employer, Dr. Aydogan answered: “I can’t comment on that.”
(Dr. Aydogan Deposition at 35; R.R. at 55a.) He further explained: “It can happen
anywhere at any[ ]time. That is why these are called spontaneous ruptures.” Id.
2
In his deposition testimony, Dr. Aydogan explained that a Haglund’s deformity is “an
increased angle at the back side of the calcane[u]s which can be a prerequisite for the Achilles
tendinitis.” (Dr. Aydogan Deposition at 16; R.R. at 36a.)
2
Dr. Aydogan performed surgery on Harbaugh’s ankle on December 12,
2017. Harbaugh was kept off work from that date until June 1, 2018. In June,
Harbaugh was able to return to work on a limited basis.
On February 9, 2018, Harbaugh filed a claim petition against Employer,
as well as a petition for penalties. The WCJ held several evidentiary hearings, and took
Harbaugh’s testimony on June 14, 2018. In addition to detailing the injury, Harbaugh
explained that, before the event, he had parked a car in a tight space, and the car door
had closed on his left ankle. He stated that there was no excruciating pain at that time,
and he did not tell anyone about it. (Notes of Testimony (N.T.), 6/14/2018, at 11; R.R.
at 78a.) Harbaugh recalled that his ankle started to feel “a little stiff” approximately
30 minutes later, but he did not feel the need to tell anyone. Id. According to Harbaugh,
he then encountered the issue with the damaged car, went to talk to Soles about it, and
then experienced the “pop” in his ankle as he exited Soles’ office. On cross-
examination, Harbaugh acknowledged a previous statement, in which he related that a
doctor at the emergency room asked him whether anything had hit his ankle, and he
told the doctor that car doors had closed on his ankle in the past, but that he did not
remember it happening on that particular morning. However, Harbaugh testified that
he told Soles about the car door closing on his ankle after the injury occurred. (N.T.,
6/14/2018, at 34-35; R.R. at 101a-02a.)
Harbaugh additionally testified about previous injuries and his history of
activities relating to them. Harbaugh had a prior work-related injury to his hip. He
also was hit by a car in the 1970s, which injured his right leg and caused him to use his
left leg more dominantly. Prior to his work with Employer, Harbaugh worked as a chef
for approximately 20 years, which required him to stand often. Despite his previous
3
injuries, Harbaugh lived an active lifestyle, and enjoyed mountain biking, kayaking,
walking, and running. (N.T., 6/14/2018, at 37-40; R.R. at 104a-07a.)
Employer presented Soles’ testimony at a hearing on August 16, 2018.
Soles confirmed that Harbaugh came into his office on the morning of December 4,
2017, to discuss an issue with a car, and that Harbaugh’s injury occurred immediately
after Harbaugh left the office. Soles testified that he heard a sound “almost like a snap
of a finger.” (N.T., 8/16/2018, at 9; R.R. at 127a.) Soles stated that, when he was
speaking to Harbaugh in his office, Harbaugh was not walking abnormally and did not
appear to be in physical pain. However, Soles explained that Harbaugh always walked
with a limp, and he knew that Harbaugh had previous injuries. Soles did not recall
Harbaugh saying anything about a car door closing on his ankle on the morning of the
injury. (N.T., 8/16/2018, at 10-11; R.R. at 128a-29a.)
As for medical evidence, Harbaugh presented Dr. Aydogan’s above-
discussed deposition testimony. In opposition, Employer presented the deposition
testimony of Lawrence Pollack, D.O., a board-certified orthopedic surgeon. Dr.
Pollack performed an independent medical examination of Harbaugh on May 9, 2018,
and reviewed Harbaugh’s medical records. Dr. Pollack noted that Harbaugh mentioned
that car doors had closed on his ankle in the past, but he did not say that it happened on
the morning of the injury. (Dr. Pollack Deposition at 10; R.R. at 156a.) Dr. Pollack
did not observe any reference to a car door closing on Harbaugh’s ankle in any of the
records that he reviewed. Moreover, Dr. Pollack opined that even if a car door closed
on Harbaugh’s ankle that morning, this would not cause a rupture of the sort that
Harbaugh experienced. (Dr. Pollack Deposition at 13-14; R.R. at 159a-60a.) Dr.
Pollack opined that Harbaugh had sustained a left insertional Achilles tendon rupture,
and he agreed with Dr. Aydogan’s assessment that Harbaugh exhibited a Haglund’s
4
deformity. However, while Dr. Aydogan declined to comment on whether the rupture
was caused by Harbaugh’s work, Dr. Pollack directly stated that, to a reasonable degree
of medical certainty, the rupture was not caused by or related to Harbaugh’s
employment.3 Dr. Pollack concluded that it was not caused by any “injury, accident,
or trauma.” (Dr. Pollack Deposition at 17; R.R. at 163a.) He opined that it was merely
a coincidence that the rupture occurred while Harbaugh was at work.
Following the close of evidence, the WCJ made findings of fact and
conclusions of law. The WCJ credited Harbaugh’s account of the injury itself and his
description of his treatment and subsequent return to work. However, the WCJ rejected
Harbaugh’s “testimony that a door shut on his ankle that day or that he reported that to
Mr. Soles at all as this is contrary to the history provided to four . . . different doctors
and contrary to the testimony of Mr. Soles.” (WCJ Op. at 7.) The WCJ credited Soles’
testimony in its entirety.
With regard to the medical evidence, the WCJ reviewed the opinions of
Dr. Aydogan and Dr. Pollack and, to the extent that their testimonies differed, the WCJ
credited Dr. Pollack’s testimony and rejected Dr. Aydogan’s. Id. “However,” the WCJ
noted, “a careful review of the transcripts will show that their testimonies don’t differ
that much.” Id. Dr. Aydogan and Dr. Pollack agreed as to the nature of the injury, that
it required surgery, and that several preexisting factors contributed to it. They agreed
3
Dr. Pollack explained further:
[Harbaugh’s] problem is not a traumatic issue. His problem is that he has chronic
deterioration or degeneration of his Achilles tendon secondary to his Haglund’s
deformity, and with microtrauma due to just walking, to that tendon with that
Haglund’s deformity, is what resulted in the Achilles tendon rupture. You do not need
any trauma to rupture an Achilles tendon that has been going through that process for
so long.
(Dr. Pollack Deposition at 19-20; R.R. at 165a-66a.)
5
that Harbaugh exhibited degeneration at the fracture site. They also agreed that
Harbaugh had recovered to the point that he could return to work. Where they differed,
the WCJ observed, was that Dr. Pollack repeatedly and expressly opined that
Harbaugh’s injury was not caused by his employment duties. Dr. Aydogan, by
contrast, stated that he “could not comment” upon this matter. Id. The WCJ “credit[ed]
the opinions of Dr. Pollack that the avulsion/fracture was not work related, because
these opinions are supported by [Harbaugh’s] history, the medical records, and
diagnostic studies.” Id. The WCJ therefore concluded that Harbaugh had failed to
meet his burden to prove that he sustained a “work-related injury” on December 4,
2017. Id.4 Accordingly, the WCJ denied and dismissed Harbaugh’s claim petition and
his petition for penalties.
Harbaugh appealed to the Board, asserting that the WCJ’s decision was
not supported by substantial evidence, and that his conclusion was erroneous as a
matter of law. The Board affirmed. The Board correctly noted that credibility
determinations are the exclusive prerogative of the WCJ, and that the WCJ is free to
accept or reject, in whole or in part, the testimony of any witness, including medical
witnesses. (Board Op. at 5 (citing Greenwich Collieries v. Workmen’s Compensation
Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995); Vols v. Workmen’s
Compensation Appeal Board (Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994).)
Because the WCJ accepted Dr. Pollack’s testimony that the rupture of Harbaugh’s
Achilles tendon was not work-related, the Board concluded that the WCJ’s conclusion
was supported by substantial evidence. This conclusion was not legally erroneous, the
4
As discussed further below, Section 301(c) of the Act, in relevant part, defines “injury” for
purposes of workers’ compensation as “an injury to an employe, regardless of his previous physical
condition . . . arising in the course of his employment and related thereto . . . .” 77 P.S. §411(1)
(emphasis added).
6
Board opined, because a workers’ compensation claimant has the burden to establish a
causal connection between the injury and the claimant’s employment. Again because
the WCJ accepted Dr. Pollack’s testimony, and, in any event, because even Dr.
Aydogan declined to comment upon any relation to Harbaugh’s employment,
Harbaugh failed to establish the requisite causal connection. Id. at 7 (citing Degraw v.
Workers’ Compensation Appeal Board (Redner’s Warehouse Markets, Inc.), 926 A.2d
997 (Pa. Cmwlth. 2007)). Finally, the Board concluded that the WCJ did not err in
denying Harbaugh’s petition for penalties, because entitlement to workers’
compensation benefits is a precondition to an award of penalties. Id. (citing Zuchelli
v. Workers’ Compensation Appeal Board (Indiana University of Pennsylvania), 35
A.3d 801 (Pa. Cmwlth. 2011)). Because Harbaugh was not entitled to benefits, the
Board concluded that he also was not entitled to an award of penalties.
Harbaugh seeks this Court’s review of the Board’s decision, raising four
issues for our consideration.5 Harbaugh contends that the WCJ erred in denying his
claim petition, in denying his petition for penalties, in failing to award him
unreasonable contest attorney’s fees, and in failing to award him his costs of litigation.
However, because the issues concerning penalties, attorney’s fees, and costs all depend
upon Harbaugh’s assertion that he should have prevailed upon the merits of his claim
petition, the threshold issue is whether the WCJ erred in concluding that Harbaugh is
not entitled to workers’ compensation benefits.
Harbaugh argues that the WCJ and the Board applied an incorrect standard
in determining whether Harbaugh sustained a work-related “injury” for purposes of the
5
“Our review is limited to determining whether the WCJ’s findings of fact were supported by
substantial evidence, whether an error of law was committed or whether constitutional rights were
violated.” Murphy v. Workers’ Compensation Appeal Board (Ace Check Cashing Inc.), 110 A.3d
227, 233 n.6 (Pa. Cmwlth. 2015) (quoting Gumm v. Workers’ Compensation Appeal Board (Steel),
942 A.2d 222, 227 n.5 (Pa. Cmwlth. 2008)) (internal quotation marks omitted).
7
Act. In its findings of fact, the WCJ related Dr. Pollack’s opinion that the rupture to
Harbaugh’s Achilles tendon was not caused by an “injury, accident, or trauma.” (WCJ
Op. at 6.) Harbaugh argues that this led to an erroneous legal conclusion, because the
Act’s definition of “injury” does not require an “accident” or “trauma.” (Harbaugh’s
Br. at 32.) In support, Harbaugh engages in a historical analysis of the Act, as
recounted in our Supreme Court’s decision in Pawlosky v. Workmen’s Compensation
Appeal Board, 525 A.2d 1204 (Pa. 1987), from which Harbaugh quotes extensively.
The thrust of this discussion is that an earlier version of the Act provided benefits only
for injury or death resulting from an “accident,” but the 1972 amendments to the Act 6
removed the term “accident” and replaced it with “injury.” (Harbaugh’s Br. at 28-29
(quoting Pawlosky, 525 A.2d at 1208-09).) The common understanding of the word
“injury,” Harbaugh emphasizes, “includes whatever lesion or change in any part of the
system produces harm or pain, or a lessened facility of the natural use of any bodily
activity or capability.” Id. at 29 (quoting Pawlosky, 525 A.2d at 1209). Harbaugh thus
argues that the WCJ erred by purportedly requiring him to prove that the rupture of his
Achilles tendon was caused by an “injury, accident, or trauma.” Id. at 32.
Harbaugh further challenges the WCJ’s conclusion, based upon the
medical evidence, that the rupture was not “caused by” Harbaugh’s work duties. Id. at
36. Because the rupture occurred while Harbaugh was performing his “normal work
duties,” Harbaugh contends that this satisfied the statutory definition of an injury
“arising in the course of his employment and related thereto.” Id. Harbaugh argues
that, “[b]y adopting the ‘caused by’ standard in place of the ‘arising in the course of
his employment and related thereto’ standard, the WCJ reintroduced the requirement
of an ‘accident’ or ‘trauma’ to make an injury compensable.” Id. Accordingly, because
6
Act of March 29, 1972, P.L. 159, No. 61.
8
he believes it is unnecessary to establish whether an injury was “caused by” one’s
employment, Harbaugh suggests that it was “legally irrelevant” that Dr. Aydogan
declined to offer an opinion as to work-related causation. Id.
Harbaugh has misconstrued both the record and the law. Contrary to
Harbaugh’s assertion, the WCJ did not require him to establish an “injury, accident, or
trauma” as a prerequisite to obtaining workers’ compensation benefits. Rather, the
finding of fact of which Harbaugh complains merely described a portion of Dr.
Pollack’s testimony, alongside the WCJ’s summary of the testimonies of every other
witness. The WCJ did not base his conclusion upon the “injury, accident, or trauma”
language. Rather, the WCJ determined that Harbaugh did not suffer a “work-related
injury” because he credited Dr. Pollack’s express testimony that the rupture was not
caused by Harbaugh’s work duties, and, moreover, Dr. Aydogan refused to comment
upon this dispositive inquiry. (WCJ Op. at 7.) Thus, a substantial portion of
Harbaugh’s argument to this Court is premised upon a mischaracterization of the
WCJ’s decision.
To the extent that Harbaugh asserts error in the WCJ’s application of a
causal framework to assess whether the injury was work-related, Harbaugh’s position
is contradicted by voluminous precedent. Section 301(c) of the Act defines “injury”
for purposes of workers’ compensation as “an injury to an employe, regardless of his
previous physical condition . . . arising in the course of his employment and related
thereto . . . .” 77 P.S. §411(1) (emphasis added). Longstanding precedent provides
that “the claimant has the burden of proving a causal relationship between a work-
related incident and his alleged disability.” Lewis v. Workmen’s Compensation Appeal
Board, 498 A.2d 800, 802 (Pa. 1985). Moreover, our Supreme Court has held:
Where there is no obvious causal connection between an
injury and the alleged cause, that connection must be
9
established by unequivocal medical testimony. Where
medical testimony is necessary to establish a causal
connection, the medical witness must testify, not that the
injury or condition might have or possibly came from the
assigned cause, but that in his professional opinion the result
in question did come from the assigned cause. Medical
evidence which is less than positive or which is based upon
possibilities may not constitute legally competent evidence
for the purpose of establishing the causal relationship.
Id. (citations omitted). This Court consistently requires a showing of a causal
relationship between an injury and a work-related cause, and follows Lewis’ directive
that, where such causal connection is not “obvious,” it must be established through
“unequivocal medical testimony.” See, e.g., Frankiewicz v. Workers’ Compensation
Appeal Board (Kinder Morgan, Inc.), 177 A.3d 991, 995 (Pa. Cmwlth. 2017); Frog,
Switch & Manufacturing Co. v. Workers’ Compensation Appeal Board (Johnson), 106
A.3d 202, 208 n.6 (Pa. Cmwlth. 2014); Bemis v. Workers’ Compensation Appeal Board
(Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011); Calex, Inc. v. Workers’
Compensation Appeal Board (Vantaggi), 968 A.2d 822, 826 (Pa. Cmwlth. 2009);
Merchant v. Workers’ Compensation Appeal Board (TSL, Ltd.), 758 A.2d 762, 769-70
(Pa. Cmwlth. 2000).
Harbaugh, then, faces multiple insurmountable hurdles in this appeal.
First, the WCJ expressly credited Dr. Pollack’s testimony in which he opined that the
rupture to Harbaugh’s Achilles tendon was not caused by his work for Employer.
(WCJ. Op. at 7.) “Unless made arbitrarily or capriciously, a WCJ’s credibility
determinations will be upheld on appeal.” Dorsey v. Workers’ Compensation Appeal
Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). The WCJ
explained the basis for his credibility determination with regard to Dr. Pollack’s
testimony, and we find no grounds upon which to suggest that this finding was arbitrary
10
or capricious. Thus, we too must accept Dr. Pollack’s opinion that the rupture of
Harbaugh’s Achilles tendon was not caused by his work duties.
Moreover, even if Harbaugh could overcome the WCJ’s unfavorable
credibility finding, he still would be unable to satisfy his burden to prove that his injury
was work-related. Because the medical evidence all suggested that the rupture to
Harbaugh’s Achilles tendon was spontaneous and could have happened anywhere,
there was no “obvious causal connection” to Harbaugh’s employment. Lewis, 498
A.2d at 802. Thus, Harbaugh was required to establish such causation through
“unequivocal medical testimony.” Id. Harbaugh’s expert, Dr. Aydogan, declined to
offer any opinion on this critical matter, stating that he “can’t comment” on whether
the rupture was caused by any of Harbaugh’s work duties. (Dr. Aydogan Deposition
at 35; R.R. at 55a; WCJ Op. at 7.) The medical testimony on the necessary causation,
thus, fell short of the “unequivocal” requirement. Indeed, Dr. Aydogan provided no
opinion on the matter at all, let alone an unequivocal one.
Finally, as a matter of statutory interpretation, we must reject Harbaugh’s
contention that his injury was work-related simply because he was at work when it
occurred. (Harbaugh’s Br. at 37 (“[T]he fact that [Harbaugh] was four or five steps
from his [s]upervisor’s office when his Achilles tendon ruptured fulfills the necessary
‘related thereto’ requirement.”).) Again, the Act defines an “injury” for purposes of
workers’ compensation as one “arising in the course of his employment and related
thereto . . . .” 77 P.S. §411(1) (emphasis added). The fact that Harbaugh was on
Employer’s premises and performing his normal work duties establishes that he was
“in the course of his employment.” Id. However, if these same facts simultaneously
satisfied the “related thereto” requirement with no inquiry into work-related causation
being necessary, then the statutory language would be superfluous. In construing a
11
statute, we must presume “that the legislature did not intend any statutory language to
exist as mere surplusage.” Berner v. Montour Township Zoning Hearing Board, 217
A.3d 238, 248 (Pa. 2019) (quoting Commonwealth by Shapiro v. Golden Gate National
Senior Care LLC, 194 A.3d 1010, 1034 (Pa. 2018)).
For all of these reasons, we conclude that the WCJ did not err in denying
Harbaugh’s claim petition, and that the Board did not err in affirming the WCJ’s
decision. Necessarily, then, Harbaugh is unable to establish that he was entitled to an
award of penalties, attorney’s fees, or costs. Concerning penalties under section 435
of the Act, 77 P.S. §991,7 we have held that “a precondition to the imposition of
penalties is the determination that a claimant is entitled to workers’ compensation.”
Zuchelli, 35 A.3d at 807 n.5 (citing Wyche v. Workers’ Compensation Appeal Board
(Pimco), 706 A.2d 1297 (Pa. Cmwlth. 1998)). Similarly, “an award of unreasonable
contest attorney fees is not appropriate where, as here, [c]laimant did not prevail in
whole or in part on [his] claim petition.” Id. (citing Watson v. Workers’ Compensation
Appeal Board (Special People in Northeast), 949 A.2d 949 (Pa. Cmwlth. 2008);
Amoratis v. Workers’ Compensation Appeal Board (Carolina Freight Carriers), 706
A.2d 368 (Pa. Cmwlth. 1998)). Finally, “a claimant must prevail on the contested issue
in order to be awarded litigation costs.” Jones v. Workers’ Compensation Appeal
Board (Steris Corp.), 874 A.2d 717, 721 (Pa. Cmwlth. 2005). Because Harbaugh failed
to meet his burden to establish that his injury was related to his employment, he is not
entitled to workers’ compensation benefits and, thus, is not entitled to an award of
penalties, attorney’s fees, or litigation costs.
7
Added by the Act of February 8, 1972, PL 25.
12
The order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald W. Harbaugh, :
Petitioner :
: No. 29 C.D. 2020
v. :
:
Workers’ Compensation Appeal :
Board (Barbush Rentals, Inc.), :
Respondent :
ORDER
AND NOW, this 27th day of October, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge