SEPTA v. WCAB (Briscoe)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Southeastern Pennsylvania :
Transportation Authority :
(SEPTA), :
:
Petitioner :
:
v. : No. 107 C.D. 2017
: Submitted: June 9, 2017
Workers' Compensation Appeal :
Board (Briscoe), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 29, 2018
Southeastern Pennsylvania Transportation Authority (SEPTA)
(Employer) petitions for review of the December 29, 2016 order of the Workers’
Compensation Appeal Board (Board), which affirmed the decision of a workers’
compensation judge (WCJ) granting the claim petitions filed by Nicole Briscoe
(Claimant). We affirm.
Claimant worked for Employer for thirteen years, most recently as a
transit cashier at the Hunting Park South station. On November 26, 2013, Claimant
filed a claim petition alleging that she sustained a work injury to her left knee on
September 1, 2013. Employer filed a timely answer denying all material allegations.
Employer discharged Claimant on January 17, 2014.
Claimant filed a second claim petition on February 26, 2014, alleging
an injury in the nature of right carpal tunnel syndrome as of October 21, 2013.
Claimant sought total disability benefits from January 17, 2014. Employer filed a
timely answer, and the claim petitions were consolidated for hearings before the
WCJ.
Claimant testified that she injured her knee at work on September 1,
2013.1 Claimant said that she was using the employee restroom when she noticed a
cockroach on her shirt; she panicked, thrashed, and twisted around in the restroom
stall. Afterward, she returned to work for the remainder of her shift. When Claimant
awoke the next morning, she noticed a baseball-sized lump on her left knee and felt
throbbing pain in the area. Claimant went to work, reported the injury to Employer,
and completed an incident report. Employer referred Claimant to a medical provider
and she underwent one physical therapy session, but Employer subsequently issued
a notice of compensation denial. WCJ’s Finding of Fact No. 2.
Regarding her alleged carpal tunnel injury, Claimant testified that as a
transit cashier, she used her right hand to perform repetitive tasks for about seven-
and-a-half to eight hours a day. Claimant stated that she first experienced radiating
pain and numbness in her right arm at work during the summer and early fall of
2013. She reported these symptoms to Employer on November 12, 2013, and
completed a second employee injury report. Claimant said that Employer referred
her to panel providers for therapy, but the symptoms in her right wrist progressively
worsened. Employer accommodated the symptoms in her right arm by switching
her from a right-handed to a left-handed cashier booth. Claimant utilized this
1
Claimant testified at hearings held on January 16, 2014, and February 20, 2015, and in
depositions taken on June 25, 2014, and July 30, 2014.
2
accommodation until her discharge on January 17, 2014. WCJ’s Findings of Fact,
Nos. 2-4.
Claimant also presented testimony from Michael R. McCoy, M.D., a
board certified family practitioner who began treating Claimant on October 21,
2013, for both her knee and wrist symptoms. After reviewing Claimant’s history
and medical records and conducting a physical examination, Dr. McCoy diagnosed
Claimant’s left knee injury as a work-related sprain/strain, aggravation of a pre-
existing degenerative joint disease, and a loose body. Dr. McCoy testified that
Claimant has not yet recovered from these injuries. With respect to Claimant’s wrist,
Dr. McCoy stated that he observed positive testing at the carpal tunnel, irritability
over the left ulnar nerve, decreased grip strength, and decreased sensation, indicating
a right wrist sprain/strain and carpal tunnel syndrome. Dr. McCoy believed that
cumulative repetitive stress related to Claimant’s employment caused the carpal
tunnel syndrome. He testified that Claimant remained partially disabled due to her
wrist injury. WCJ’s Finding of Fact No. 6.
Employer offered the deposition testimony of Dennis P. McHugh,
D.O., a board certified orthopedic surgeon who conducted an independent medical
examination (IME) of Claimant on April 2, 2014. Dr. McHugh interpreted
Claimant’s MRI films as indicating chronic degenerative changes in the left knee
and a loose body that appeared well encapsulated in the popliteal tendon. He stated
that the encapsulation of the loose body indicated the likelihood that Claimant’s knee
condition predated the work incident. Dr. McHugh further testified that Claimant
displayed no residual effects of a potential work injury to her knee, she required no
additional treatment for her knee, and she could return to work without restrictions.
WCJ’s Finding of Fact No. 9.
3
Employer also submitted the deposition testimony of Andrew Sattel,
M.D., who conducted an IME on June 18, 2014. Dr. Sattel testified that the IME
yielded clinically unremarkable results, other than a mildly positive Phalen’s
maneuver. Dr. Sattel disagreed with Dr. McCoy’s diagnosis of work-related carpal
tunnel syndrome, explaining that because Claimant’s job duties varied, they were
not sufficiently repetitive to pose a significant risk of developing carpal tunnel
syndrome. He added that if Claimant’s work activities caused the symptoms, the
symptoms would have decreased after she stopped working but they have not.
WCJ’s Finding of Fact No. 10.
In rebuttal, Claimant offered additional testimony of Dr. McCoy, who
stated he had continued to treat Claimant and that her condition had not improved.
He reiterated his disagreement with Dr. Sattel and Dr. McHugh’s assertions that
Claimant had recovered, that her injuries were not work-related, and that the incident
on September 1, 2015 did not cause the loose body in her knee. WCJ’s Finding of
Fact No. 7.
Additionally, Dr. McCoy testified that since his last deposition,
Claimant had seen Dr. Davidoff, for injections to her right wrist, Dr. Todd Kelman
an orthopedic hand surgeon, and Dr. Mandarino, for treatment of her left knee. Dr.
McCoy stated that he relied on reports from Drs. Davidoff, Kelman, and Mandarino
in concluding that Claimant had not fully recovered from her injuries. The WCJ
sustained Employer’s objections to the submission of the physicians’ reports, but
admitted Dr. McCoy’s testimony regarding the medical history that Claimant gave
to these providers. Dr. McCoy stated that during his most recent examination of
Claimant’s knee and wrist on January 12, 2015, he concluded that she remained
symptomatic and disabled. WCJ’s Finding of Fact No. 7.
4
With respect to the termination of her employment, Claimant described
Employer’s disciplinary point system and acknowledged that she was disciplined on
multiple occasions between 2002 and 2012 due to attendance issues. Claimant said
that she was disciplined for being late to work on May 12, 2013, and after proceeding
through formal hearings, she was given a last chance agreement, which was dated
and signed December 6, 2013. The agreement provided that Claimant was put on
probation and that if any infractions were incurred during the probation period,
Claimant would be subject to immediate termination. WCJ’s Findings of Fact Nos.
2, 4.
Claimant also was late for work on June 4, 2013, which resulted in an
accumulation of points supporting her discharge. During an informal hearing,
Claimant explained that she was taking medication that made her drowsy, and she
did not agree with the proposed discharge. At a subsequent formal hearing on
September 18, 2013, Claimant did not contest the charges, and the hearing officer
upheld her discharge. The last chance agreement Claimant signed on December 6,
2013, did not apply to the June incident, and Employer discharged Claimant on
January 17, 2014, for violating the last chance agreement. Claimant agreed that
under Employer’s disciplinary point system, if she had accrued any points after
signing the agreement she would have faced termination. She testified that since she
had not accrued any additional points after signing the agreement, she was not
discharged for cause. WCJ’s Finding of Fact No. 5.
Stacey Richardson, Employer’s Assistant Director of Station
Operations, explained that under Employer’s disciplinary system, employees accrue
a particular number of points for different attendance violations, such as arriving late
for a shift or calling off on the day of a shift. The system progressively penalizes
5
employees based on both the number of points they accrue and the amount of time
between each violation. The final stage of the process involves a discharge with
dignity status,2 a last chance agreement, and arbitration. WCJ’s Finding of Fact No.
11.
Richardson testified that Claimant was five minutes late to work on
May 23, 2013, and two minutes late on June 11, 2013. She explained that the
infractions were addressed through separate disciplinary proceedings. The May
2013 issue was resolved by way of the last chance agreement that Claimant signed
on December 6, 2013. Following the June 2013 attendance violation, termination of
Claimant’s employment was recommended and Claimant did not challenge the
charges. Richardson testified that Employer’s termination of Claimant’s
employment on January 17, 2014, was based on her substandard attendance, in
violation of the last chance agreement. Reproduced Record at 718a; WCJ’s Finding
of Fact No. 11.
The WCJ accepted Claimant’s testimony as credible and persuasive,
citing her forthright demeanor and the consistent medical histories she provided to
the different physicians. The WCJ also found Dr. McCoy’s testimony to be credible
and persuasive and accorded greater weight to his testimony as Claimant’s treating
physician. The WCJ rejected the contrary opinions of Drs. McHugh and Sattel
because they conflicted with Dr. McCoy’s credible testimony and they each saw
Claimant on only one occasion. Finally, the WCJ found Richardson’s testimony not
credible or persuasive concerning the reason for Claimant’s discharge.
2
An employee on discharge with dignity status may continue to work with pay until the
final levels in the discipline process take place, which include a last chance agreement and
arbitration. WCJ’s Finding of Fact No. 11.
6
Based on those credibility determinations, the WCJ found that Claimant
suffered a left knee strain/sprain, aggravation of a pre-existing degenerative joint
disease, and a loose body in the left knee, caused by the September 1, 2013 work
injury. The WCJ also found that Claimant suffered from right carpal tunnel
syndrome as of October 21, 2013, due to the repetitive activities required by her
employment. The WCJ determined that Claimant was not fully recovered from
either work injury and that she was not discharged for cause. By order dated August
26, 2015, the WCJ granted the claim petitions and directed Employer to pay total
disability benefits from January 17, 2014. Employer appealed to the Board, which
affirmed.
On appeal to this Court,3 Employer first argues that the WCJ erred in
disregarding competent evidence that is inconsistent with Claimant’s testimony.
However, it is a fundamental precept of workers’ compensation law that the WCJ is
the ultimate arbiter of witness credibility and evidentiary weight and may reject the
testimony of any witness in whole or in part. Keystone Coal Mining Corp. v.
Workers’ Compensation Appeal Board (Wasnak), 756 A.2d 1200, 1202 (Pa.
Cmwlth. 2000). Whether the record contains evidence to support findings other than
those made by the WCJ is irrelevant; the critical inquiry is whether the findings made
by the WCJ are supported by substantial evidence. Hoffmaster v. Workers’
Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa.
Cmwlth. 1998).4
3
Our scope 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.
4
Substantial evidence means such relevant evidence as a reasonable person might accept
as adequate to support a conclusion. Republic Steel Corp. v. Workmen’s Compensation Appeal
7
Employer also asserts that the WCJ erred in crediting the medical
testimony of Dr. McCoy because he “had an incomplete grasp of Claimant’s medical
situation and employment[.]” Employer’s brief at 15. Employer complains that Dr.
McCoy’s opinion of Claimant’s right hand injury was based on a less-than-thorough
examination and that Dr. McCoy failed to consider Claimant’s other daily activities,
such as typing she did at home. Employer also cites specific portions of Dr.
McCoy’s testimony that are inconsistent with certain medical records and asserts
that these inconsistencies render Dr. McCoy’s testimony incompetent, equivocal,
and insufficient as a matter of law.
We note that a medical expert’s opinion is often based on his
acceptance of a patient’s history, the truthfulness of the patient’s report of his
subjective symptoms, and the accuracy of observations recorded in the patient’s
medical file. Southeastern Pennsylvania Transportation Authority v. Workers’
Compensation Appeal Board (Herder), 765 A.2d 414, 418 n.5 (Pa. Cmwlth. 2000).
It is well settled that “[m]edical causation testimony is not rendered equivocal
because it is based on the witness’s assumption of the truthfulness of the information
provided him for the purpose of forming his opinion.” Id.; McGraw-Edison/Power
Systems Division v. Workmen’s Compensation Appeal Board (Rendziak), 436 A.2d
706, 709 (Pa. Cmwlth. 1981). Such reliance does not render the expert’s opinion on
causation equivocal or otherwise incompetent if the supposed facts forming the basis
of his opinion are established by competent evidence and accepted as fact by the
WCJ. Id. Such is the case here, and we note again that “the WCJ’s authority over
Board (Shinsky), 421 A.2d 1060, 1062-63 (Pa. 1980). In performing a substantial evidence
analysis, we must view the evidence in a light most favorable to the party that prevailed before the
factfinder. Hoffmaster, 721 A.2d at 1155.
8
questions of credibility, conflicting evidence and evidentiary weight is
unquestioned.” Minicozzi v. Workers’ Compensation Appeal Board (Indust. Metal
Plating, Inc.), 873 A.2d 25, 28 (Pa. Cmwlth. 2005); Southeastern Pennsylvania
Transportation Authority, 765 A.2d at 417.
Employer also argues that the WCJ erred in relying on impermissible
hearsay evidence, specifically, the opinions of Drs. Kelman, Mandarino, and
Davidoff referenced during Dr. McCoy’s deposition testimony. However,
Pennsylvania courts have consistently held “as an exception to the hearsay rule that
a medical witness may express an opinion based upon medical records of others even
if those records were not introduced into evidence so long as they are the kind of
records upon which the medical profession customarily relies in the practice of their
profession.” Empire Steel Castings, Inc. v. Workers’ Compensation Appeal Board
(Cruceta), 749 A.2d 1021, 1026 (Pa. Cmwlth. 2000) (citing Commonwealth v.
Thomas, 282 A.2d 693, 698-99 (Pa. 1971)). Dr. McCoy confirmed that the reports
of the three physicians are the types of reports he regularly relies upon in his practice.
Additionally, the WCJ noted that Dr. McCoy’s medical opinions were based on both
the reports of the three physicians as well as his own examinations of Claimant.
Therefore, we reject Employer’s assertion that the WCJ impermissibly allowed
hearsay evidence into the record or that reliance on those records rendered Dr.
McCoy’s medical opinion incompetent or equivocal.
Employer further contends that the record is insufficient to support a
determination of work-related disability where Claimant admitted that she was
discharged for cause. An employer may rebut a claimant’s evidence of work-related
disability by showing that the claimant’s loss of earnings is the result of a termination
for misconduct unrelated to the work injury. Vista International Hotel v. Workmen’s
9
Compensation Appeal Board (Daniels), 742 A.2d 649, 654-57 (Pa. 1999); Coyne v.
Workers’ Compensation Appeal Board (Villanova University), 942 A.2d 939, 945
(Pa. Cmwlth 2008). However, a claimant will be entitled to benefits if she is
discharged for misconduct that took place prior to the work-related injury. Coyne,
942 A.2d at 946. Thus, in this claim proceeding, Employer bore the burden to prove
that Claimant’s loss of earnings was due to a discharge for post-injury misconduct.
Greene v. Workers’ Compensation Appeal Board (Hussey Copper Ltd.) 783 A.2d
883, 884 n.3 (Pa. Cmwlth. 2001).
Here, the WCJ rejected Richardson’s testimony, found the timing of
Claimant’s discharge, which occurred after she filed her initial claim petition, to be
suspect, and highlighted the fact that the June 2013 incident for which she was
terminated occurred six months before she began her probationary period.5
Therefore, Employer failed to demonstrate that Claimant’s loss of earnings was
unrelated to her work injuries.
Finally, Employer asserts that the WCJ failed to issue a reasoned
decision as required by Section 422(a) of the Workers’ Compensation Act (Act).6
We disagree. “[A] decision is ‘reasoned’ for purposes of Section 422(a) if it allows
for adequate review by the [Board] without further elucidation and if it allows for
adequate review by the appellate courts under applicable review standards. A
reasoned decision is no more, and no less.” Daniels v. Workers’ Compensation
Appeal Board (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). To satisfy the
reasoned decision requirements of Section 422(a) of the Act, a WCJ must set forth
5
Employer argues that Richardson’s account of the reasons for Claimant’s termination was
credible and supported by documentary evidence. We decline to revisit this credibility
determination. Keystone Coal Mining Corp.
6
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
10
the rationale for the decision by specifying the evidence relied upon and her reasons
for accepting it. Id. at 1053; Dorsey v. Workers’ Compensation Appeal Board
(Crossing Constr. Co.), 893 A.2d 191, 194-95 (Pa. Cmwlth. 2006). When
conflicting evidence is presented, the WCJ must adequately explain the reasons for
rejecting or discrediting competent evidence. Daniels, 828 A.2d at 1053.
In her decision, the WCJ provided specific reasons for either crediting
or discrediting all medical and lay witness testimony. For example, the WCJ
explained that she credited Claimant’s testimony because Claimant testified in a
forthright manner and provided consistent histories to her treating physicians. In
rejecting Richardson’s testimony, the WCJ noted that it was internally inconsistent.
Contrary to Employer’s implied suggestion, “Section 422(a) does not permit a party
to challenge or second-guess the WCJ’s reasons for credibility determinations.
Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will be
upheld on appeal.” Dorsey, 893 A.2d at 195 (citations omitted). Here, the WCJ
articulated an objective basis for each of her credibility
rulings. We reject Employer’s contention that the WCJ’s decision was not reasoned
under Section 422(a) of the Act.
Based on the foregoing, we affirm.
11
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Southeastern Pennsylvania :
Transportation Authority :
(SEPTA), :
:
Petitioner :
:
v. : No. 107 C.D. 2017
:
Workers' Compensation Appeal :
Board (Briscoe), :
:
Respondent :
ORDER
AND NOW, this 29th day of January, 2018, the order of the Workers’
Compensation Appeal Board, dated December 29, 2016, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge