A. Mahaffey v. WCAB (3B Pain Management Center, PC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anna Mahaffey, :
:
Petitioner :
:
v. : No. 206 C.D. 2017
: Submitted: June 30, 2017
Workers’ Compensation Appeal :
Board (3B Pain Management :
Center, PC), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: August 8, 2017
Anna Mahaffey (Claimant) petitions for review of the January 25,
2017 order of the Workers’ Compensation Appeal Board (Board) that affirmed a
March 24, 2016 decision and order of the Workers’ Compensation Judge (WCJ).
The WCJ concluded that Claimant had failed to establish that she suffered injuries
to her hands that were causally related to her work as a massage therapist for 3B
Pain Management Center, PC (Employer) and, in accordance with this conclusion,
the WCJ denied and dismissed the Claim Petition filed by Claimant pursuant to the
Workers’ Compensation Act1 (Act). For the following reasons, we affirm the order
of the Board.2
Before this Court, Claimant argues that the WCJ failed to issue a
reasoned decision in support of the WCJ’s denial and dismissal of Claimant’s
Claim Petition. See Section 422(a) of the Act, 77 P.S. § 834.3 Claimant’s
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2
Our scope of review is limited to determining whether there has been a violation of
constitutional rights, whether there has been an error of law, or whether necessary findings of
fact are supported by substantial evidence. Tri-Union Express v. Workers’ Compensation Appeal
Board (Hickle ), 703 A.2d 558 (Pa. Cmwlth. 1997). In addition, where the question is properly
before the court, our review extends to whether there has been a capricious disregard of material,
competent evidence. Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board
(Marlowe), 812 A.2d 478 (Pa. 2002).
3
Section 422(a) of the Act provides that:
Neither the board nor any of its members nor any workers’
compensation judge shall be bound by the common law or
statutory rules of evidence in conducting any hearing or
investigation, but all findings of fact shall be based upon sufficient
competent evidence to justify same. All 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. The workers’ compensation judge shall specify
the evidence upon which the workers' compensation judge
relies and state the reasons for accepting it in conformity with
this section. When faced with conflicting evidence, the
workers’ compensation judge must adequately explain the
reasons for rejecting or discrediting competent evidence.
Uncontroverted evidence may not be rejected for no reason or for
an irrational reason; the workers’ compensation judge must
identify that evidence and explain adequately the reasons for its
rejection. The adjudication shall provide the basis for meaningful
appellate review.
77 P.S. § 834 (emphasis added).
2
argument is rooted in the WCJ’s multiple references to the fact that Claimant’s
medical evidence consisted primarily of testimony from physicians with whom she
sought treatment following the retention of an attorney. Claimant argues that the
WCJ’s repeated mention of the fact that Claimant was referred to her medical
providers by her attorney, coupled with the absence of any statements recognizing
that Employer’s medical experts were retained solely to defend against the Claim
Petition, reflects the WCJ’s biased approach to the record and necessitates that this
matter be reversed and remanded to a new fact-finder.
Section 422(a) of the Act, or the “reasoned decision” requirement,
allows the Board in the first instance and the courts upon further appeal to conduct
a meaningful review of a WCJ’s determination by requiring the WCJ to make
findings of fact, conclusions of law based upon the evidence as a whole, and to
clearly state the reasoning that led to the WCJ’s ultimate determination. 77 P.S. §
834. Section 422(a) of the Act does not alter the WCJ’s quintessential function as
the fact-finder or permit parties to challenge the WCJ’s reasons for credibility
determinations; rather, Section 422(a) requires that the WCJ provide some
articulation of the objective basis for credibility determinations and the resolution
of conflicting evidence. Daniels v. Workers’ Compensation Appeal Board
(Tristate Transport), 828 A.2d 1043, 1051 (Pa. 2003); Dorsey v. Workers’
Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa.
Cmwlth. 2006).
Where a claimant has filed a claim petition, the claimant has the
burden of demonstrating that the claimant sustained an injury during the course of
employment that caused the claimant to suffer a loss of earnings. Inglis House v.
Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993);
3
Joy Global, Inc. v. Workers’ Compensation Appeal Board (Hogue), 876 A.2d
1098, 1102 (Pa. Cmwlth. 2005). In the instant matter, the WCJ found Claimant’s
testimony that she has pain, numbness, and locking in her fingers to be credible;
however, the WCJ rejected both Claimant’s testimony and the testimony of the
medical experts offered by Claimant as not credible in establishing a causal link
between the medical issues Claimant is experiencing and her job duties for
Employer. (WCJ Decision, Findings of Fact (F.F.) ¶¶9-11, 14.)
The WCJ summarized the deposition testimony provided by Norman
B. Stempler, D.O., a board-certified orthopedic surgeon, in support of the Claim
Petition and found that Dr. Stempler’s testimony was not credible. (Id., F.F. ¶¶5,
10.) In finding that Dr. Stempler’s testimony was not credible, the WCJ identified
Dr. Stempler’s lack of specialized knowledge, as contrasted with Andrew B. Sattel,
M.D., a board-certified orthopedic surgeon with a sub-specialty in hand and upper
extremities, who offered medical evidence that conflicted with the evidence given
by Dr. Stempler. (Id., F.F. ¶10.) In support of the determination that Dr. Stempler
was not credible, the WCJ also identified Dr. Stempler’s testimony that he did not
refer Claimant to a hand specialist because of insurance issues as inconsistent with
Dr. Stempler’s testimony that he did refer Claimant to another physician for
physical therapy and to an additional physician for injections. (Id.) Finally, the
WCJ identified Claimant’s admission that her attorney referred her to Dr. Stempler
for treatment as an additional reason why the WCJ did not find Dr. Stempler’s
testimony credible. (Id.)
The WCJ also did not find credible the deposition testimony of
Randall N. Smith, M.D., a board-certified orthopedic surgeon, which was
4
submitted into the record on behalf of Claimant. In making this credibility
determination, the WCJ stated:
This [WCJ] has reviewed and considered the entire
deposition of Dr. Smith and finds him to be not credible.
Dr. Smith’s testimony that Claimant’s neck and shoulder
complaints stem from Claimant’s trigger fingers and
“altered mechanics” performing her job duties is not
supported by objective medical evidence but his repeated
assertion that it is “common sense.” Despite his opinion
that Claimant’s condition in her hands is work-related, he
also recommended a rheumatological workup. Dr. Smith
also conceded that Claimant’s condition should have
benefited from not working with her hands, but then
stated the opposite.
(Id., ¶11.)
The WCJ also discussed why the opinions of the medical experts
offered into evidence by Employer were credited. In regards to Dr. Sattel, the
WCJ focused on his extensive experience treating trigger fingers and the
underlying causes, and found that Dr. Sattel’s “opinion as to causation is accepted
over the opinions of Drs. Stempler and Smith given his superior medical
credentials as a specialist in upper extremities.” (Id., ¶12.) Regarding, Gregory
Pharo, D.O., a board-certified anesthesiologist with a sub-specialty in pain
medicine, the WCJ found that Dr. Pharo “persuasively testified that the acute and
progressive onset of trigger fingers indicates that the injuries are not due to
Claimant’s employment as a massage therapist. He is also persuasive that he
found symptom magnification during his examination.” (Id., ¶13.)
As a whole, the WCJ’s decision reflects a thorough review of the
record and has satisfied the standard for a reasoned decision set by Section 422(a)
5
of the Act. The WCJ’s opinion leaves no doubt as to why he determined
Claimant’s medical experts were not credible. Where a WCJ adequately reviews
the evidence of record and sets forth an objective rationale for accepting and
rejecting evidence, the decision will satisfy the reasoned decision requirement.
Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37 A.3d 72,
76 (Pa. Cmwlth. 2012). Moreover, contrary to Claimant’s argument, the
conclusion that the WCJ’s decision is reasoned is not undermined by the WCJ’s
reference to the fact that Claimant was referred to the physicians who offered
testimony in support of her Claim Petition by her attorney. A WCJ does not act
arbitrarily or capriciously when including a physician’s relationship with a
claimant, history as a medical witness, length of time spent examining a claimant
or timeliness of the examination in the WCJ’s evaluation of the weight to be
afforded to or credibility ascribed to medical evidence. See, e.g., PEC Contracting
Engineers v. Workers’ Compensation Appeal Board (Hutchison), 717 A.2d 1086,
1089 (Pa. Cmwlth. 1998) (holding that the WCJ did not err by considering the
frequency with which employer’s medical expert testified as a medical witness and
the short duration the physician spent examining the claimant); see also Daniels,
828 A.2d at 1052.
This Court has consistently held that greater credence may be given to
the testimony of a claimant’s treating physician as opposed to a physician who
merely examines a claimant for litigation purposes. See, e.g., D.P. “Herk”
Zimmerman, Jr., Inc. v. Workmen’s Compensation Appeal Board (Himes), 519
A.2d 1077, 1080 (Pa. Cmwlth. 1987). However, contrary to the Claimant’s
argument here, it does not follow from this principle that because a medical expert
may have examined a claimant and is offering testimony on behalf of a claimant
6
that the medical expert’s opinion is automatically entitled to greater weight than
the opinion offered by an employer’s expert. In workers’ compensation matters,
both claimants and employers often need to utilize the services of physicians
primarily to offer evidence to satisfy the burden allocated by the Act and, in such
cases, neither expert’s testimony is entitled to a presumption of greater weight.
The presumption of greater weight a fact-finder may afford to a claimant’s treating
physician arises out of the relationship in existence between the claimant and the
physician, rather than the circumstances under which that relationship was created
or the mere fact that the expert is offering evidence on the claimant’s behalf. For
example, in Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital
of Philadelphia), 124 A.3d 778 (Pa. Cmwlth. 2015), this Court concluded that
although the relationship between the claimant and the medical expert arose
because of workers’ compensation litigation, the medical expert became the
claimant’s treating physician as he examined the claimant monthly following the
initial visit and had begun monitoring the claimant’s other unrelated health issues,
and the claimant had requested that he become her primary physician. Id. at 789.
In the instant matter, no such relationship existed between Claimant and any of the
physicians offering expert testimony. In addition, Claimant’s testimony made
clear that she did have a primary care physician who she felt comfortable with but
that she did not visit or seek a referral from this physician for her alleged work-
related injury. (WCJ Decision, F.F. ¶4.) The WCJ’s consideration of the
circumstances surrounding the medical testimony as well as the content of the
testimony itself does not render the WCJ’s credibility determinations arbitrary or
unworthy of deference. Casne v. Workers’ Compensation Appeal Board (Stat
Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008) (credibility determinations
7
“represent the evaluation of a total package of testimony in the context of the
record as a whole, and reflect subtle nuances of reasoning… even where a WCJ
has based a credibility determination on a cold record, substantial deference is
due”).
Accordingly, the order of the Board is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anna Mahaffey, :
:
Petitioner :
:
v. : No. 206 C.D. 2017
:
Workers’ Compensation Appeal :
Board (3B Pain Management :
Center, PC), :
:
Respondent :
ORDER
AND NOW, this 8th day of August, 2017, the Order of the Workers’
Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge