R.L. Wolfe, Jr. v. WCAB (Ervin Industries, Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald L. Wolfe, Jr., :
: No. 913 C.D. 2015
Petitioner : Submitted: January 29, 2016
:
v. :
:
Workers’ Compensation Appeal :
Board (Ervin Industries, Inc.), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: April 18, 2016
Ronald L. Wolfe, Jr. (Claimant) petitions for review of the May 6, 2015,
order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision
of a workers’ compensation judge (WCJ) to deny Claimant’s claim petition and grant
the termination petition filed by Ervin Industries, Inc. (Employer). We affirm.
On June 21, 2010, Claimant sustained a work-related right knee
sprain/strain for which Employer issued a notice of compensation payable (NCP).
(WCJ’s Findings of Fact, No. 7.) Claimant’s benefits were suspended effective
October 11, 2010, based upon his return to work with no loss of earnings pursuant to
a notification of suspension that was issued on October 18, 2010. (Id.)
On October 28, 2010, Claimant filed a claim petition alleging that as a
result of exposure to hazardous dust in the workplace, he developed an occupational
disease. (Id., No. 1.) On July 13, 2011, Employer filed modification and termination
petitions. (Id.) On July 21, 2011, Employer filed a suspension petition. (Id.)
At the WCJ’s hearing, Claimant, who worked as a grit room operator in
a foundry that recycles metals, testified that he injured his knee while climbing off of
a forklift. (Id., No. 8.) Claimant underwent knee surgery on December 20, 2010.
(Id.) Claimant stated that he could perform light-duty work but could not perform his
time-of-injury job because of residual symptoms. (Id.)
Peter N. Sotos, M.D., an orthopedic surgeon who is not board-certified,
testified on behalf of Claimant. (Id., No. 13.) Dr. Sotos evaluated Claimant three
times, but did not treat him. Dr. Sotos stated that Claimant’s right knee had ongoing
limitation in range of motion. (Id.) Additionally, he stated that Claimant aggravated
his underlying, preexisting arthritis and also had chronic synovitis. (Id.) Dr. Sotos
testified that Claimant could perform modified work but not his regular job duties.
(Id.)
Jeffery N. Kann, M.D., a board-certified orthopedic surgeon, testified on
behalf of Employer. (Id., No. 14.) Dr. Kann evaluated Claimant on June 2, 2011,
took his history, reviewed records, and conducted a physical examination. (Id.) Dr.
Kann opined that Claimant had fully recovered from his work-related injury as of that
date. (Id.) Dr. Kann opined that although Claimant has osteoarthritis in his right
knee, his condition was not caused or aggravated by the work-related injury. (Id.)
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As to his claim petition, Claimant testified that he had been exposed to
various metals, dust, and fumes during the course of his employment. (Id., No. 8.)
Claimant started having pulmonary problems in 1989, developed pneumonia, and
underwent surgery. (Id.) Claimant later developed symptoms, including fatigue and
shortness of breath. (Id.)
Claimant presented the testimony of Michael R. Harbut, M.D., who is
board-certified in occupational medicine. (Id., No. 11.) Dr. Harbut first saw
Claimant on October 16, 2009, on referral from Claimant’s family practitioner. (Id.)
Dr. Harbut took a history, conducted a physical examination, and began a course of
care. (Id.) Dr. Harbut also ordered pulmonary function studies, which showed a
minimal fixed obstructive defect with air trapping. (Id.) Because Claimant
complained of mental fogginess, Dr. Harbut referred Claimant to a neurologist for
testing, which revealed substance-induced persisting dementia. (Id.) Dr. Harbut
opined that Claimant has occupational asthma and toxic encephalopathy due to
Claimant’s exposure to metals, dusts, and fumes at work. (Id.) According to Dr.
Harbut, Claimant should not return to work in an environment where he would be
exposed to harmful substances. (Id.)
Michael E. Fiorina, M.D., Claimant’s family practitioner, also testified.
(Id. No. 12.) Dr. Fiorina opined that Claimant’s wheezing, coughing, and fatigue
were related to Claimant’s exposures at work. (Id.) Dr. Fiorina agreed with Dr.
Harbut’s diagnosis. (Id.)
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Gregory J. Fino, M.D., a board-certified pulmonologist, testified on
Employer’s behalf. (Id., No. 15.) Dr. Fino examined Claimant on August 8, 2011,
took Claimant’s history, and reviewed Claimant’s records. (Id.) Dr. Fino opined that
there was no evidence of a dust disease of the lungs and no evidence of occupational
asthma. (Id.) Although Claimant has a mild restrictive defect in his airway, there is
no obstructive defect. (Id.) Dr. Fino opined that Claimant’s restrictive defect is
associated with the elevated right diaphragm, which is an idiopathic finding. (Id.)
Employer also presented the testimony of Michael D. Franzen, Ph.D., a
clinical neuropsychologist. (Id., No. 16.) Based on his testing of Claimant, Dr.
Franzen concluded that Claimant had no neuropsychological problems or cognitive
deficits. (Id.) Dr. Franzen noted that although Claimant had mild sustained attention
and concentration issues, there are a variety of reasons for this condition. (Id.)
The WCJ credited the testimony of Dr. Kann that Claimant had fully
recovered from his June 21, 2010, right knee sprain/strain as of June 2, 2011. (Id.,
No. 17.) The WCJ found that Dr. Kann credibly explained the reasons for his opinion
and his opinion was unrebutted because Dr. Sotos did not acknowledge or recognize
Claimant’s accepted work-related injury. (Id.)
The WCJ further credited the testimony of Dr. Franzen that Claimant did
not suffer from an occupational disease. (Id., No. 18.) The WCJ observed that Dr.
Harbut opined that Claimant suffered occupational asthma and then admitted that
Claimant did not meet the established criteria for that diagnosis. (Id.) The WCJ also
rejected Dr. Harbut’s opinion that Claimant sustained work-related toxic
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encephalopathy because Dr. Harbut could not explain the findings or rationale
utilized by the neuropsychologist to whom he referred Claimant for testing. (Id.)
The WCJ granted Employer’s termination petition and denied
Claimant’s claim petition. Further, the WCJ dismissed Employer’s suspension and
modification petitions as moot. Claimant appealed to the WCAB, which affirmed.
This appeal followed.1
Initially, Claimant contends that the WCJ failed to make essential
findings concerning Claimant’s occupational disease claim and, thus, a remand is
necessary. Specifically, Claimant contends that the WCJ failed to make findings
regarding Employer’s evidence as to Claimant’s exposure to hazardous materials.
Claimant alleges that Employer’s witness, John Gerhart, identified the presence of
hard metals, fumes, vapors, and dust in Employer’s premises, but the WCJ failed to
make any specific findings as to his testimony.
The WCJ, however, accepted Claimant’s testimony as credible that he
was exposed to various metals at work. (WCJ’s Findings of Fact, Nos. 8, 18.)
Claimant testified that he worked in the melt shop from 1984 to 1988 and came into
contact with metals in the form of vapor, fumes, and dust. (N.T., 9/8/11, at 14-15.)
Claimant then worked in the hard casting department from 1988 to 2002, where he
was primarily exposed to metal dust. (Id. at 13-14, 16.) Finally, Claimant worked in
the shipping, maintenance, and grit room departments, where he was again exposed
1
This court’s review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
5
to metal dust. (Id. at 19, 21.) Claimant identified, via a daily air sample log, that he
had been exposed to elevated levels of calcium, chromium, iron, manganese, and
molybdenum. (Id. at 22.) Thus, because the WCJ accepted Claimant’s testimony
that he was exposed to chemical vapors, fumes, and dust, no further findings were
necessary. As explained later, however, the WCJ determined that Claimant did not
meet his burden of proving that his work exposure caused an occupational disease.
Claimant also argues that the WCJ failed to make credibility
determinations or analyze the opinions of two medical witnesses offered in
connection with Claimant’s occupational disease claim. Claimant argues that in
accordance with Page’s Department Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975),
in an administrative proceeding, the “adjudication must include all findings necessary
to resolve the issues raised by the evidence and which are relevant to a decision. An
appellate court . . . should not infer from the absence of a finding on a given point
that the question was resolved in favor of the party who prevailed below.” In Page’s
Department Store, the Pennsylvania Supreme Court determined that a remand was
necessary for findings as to whether the claimant’s fall onto a lawnmower at work
caused his back disability or whether he was still suffering from a back injury
incurred years before. Id. at 560-61. The findings were necessary to determine
whether the claimant suffered a work-related injury. Id. at 561.
Here, although the WCJ summarized Dr. Fiorina’s testimony, Claimant
argues that the WCJ erred in failing to make a specific credibility determination as to
Dr. Fiorina. The WCJ noted that Dr. Fiorina, Claimant’s family practitioner, referred
Claimant to Dr. Harbut, and Dr. Fiorina agreed with Dr. Harbut’s diagnoses. (WCJ’s
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Findings of Fact, Nos. 11-12.) Because the WCJ specifically found the testimony of
Dr. Harbut not credible, it can reasonably be inferred that the WCJ similarly rejected
the testimony of Dr. Fiorina, who agreed with the discredited testimony of Dr.
Harbut. See Lewistown Hospital v. Workmen’s Compensation Appeal Board
(Kuhns), 683 A.2d 702, 706-07 (Pa. Cmwlth. 1996). Thus, unlike Page’s
Department Store, a remand is not necessary.
Claimant also contends that the WCJ failed to make a credibility
determination regarding Dr. Fino, Employer’s medical expert. In his findings, the
WCJ summarized Dr. Fino’s testimony but did not make a specific credibility
determination. Claimant had the burden of proving all of the necessary elements to
support an award of benefits. See Ferraccio v. Workmen’s Compensation Appeal
Board (Intech Construction Company, Inc.), 646 A.2d 65, 68 (Pa. Cmwlth. 1994).
Employer had no such burden, so we find no error. In any event, Dr. Fino’s
testimony that Claimant did not suffer from occupational asthma supports Employer’s
position, not Claimant’s.
Next, Claimant argues that the WCJ erred in failing to address the
presumptions accorded to a claimant under sections 108(n) and 301(e) of the
Workers’ Compensation Act (Act).2 Under section 301(c)(2) of the Act, 77 P.S.
§411(2), an injury arising in the course of employment includes an occupational
disease defined by section 108 of the Act, 77 P.S. §27.1. Once a claimant establishes
that he suffers from an enumerated occupational disease, he is entitled to a
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§27.1(n) and 413. Section 108(n) was
added by section 1 of the Act of October 17, 1972, P.L. 930.
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presumption that the disease arose during the course of employment. To be entitled
to the presumption, a claimant must initially “prove that he suffers from and is
disabled by an occupational disease.” Gomori v. Workmen’s Compensation Appeal
Board, 433 A.2d 142-143 (Pa. Cmwlth. 1981).
Here, Claimant argues that Dr. Harbut opined that Claimant suffers from
occupational asthma and toxic encephalopathy. However, the WCJ specifically
rejected Dr. Harbut’s diagnosis of occupational asthma because Dr. Harbut admitted
that Claimant did not meet the minimum criteria for that diagnosis. (WCJ’s Findings
of Fact, No. 18.) Specifically, in the pulmonary function test, Claimant had a 34-
percent change in the speed of air coming out of his lungs when using medication,
whereas a 35-percent change is the criteria for an asthma diagnosis. (Dr. Harbut
Dep., 5/17/11, at 21, 67.) Moreover, the WCJ rejected Dr. Harbut’s diagnosis of
toxic encephalopathy because Dr. Harbut could not explain the findings or rationale
for that diagnosis. (WCJ’s Findings of Fact, No. 18.) The WCJ determines the
weight and credibility of the evidence and may accept or reject the testimony of any
witness. Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.),
698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). Because Claimant did not meet his burden
of proving that he suffered from an occupational disease, the presumption that the
disease arose during the course of his employment did not apply. See Gomori, 433
A.2d at 143.
Finally, Claimant argues that, with respect to the termination petition,
the WCJ erred in concluding that Dr. Sotos’ testimony was incompetent. In a
termination petition, the employer bears the burden of proving that all disability has
8
ceased. Moore v. Workers’ Compensation Appeal Board (American Sintered
Technologies, Inc.), 759 A.2d 945, 949 (Pa. Cmwlth. 2000). A medical expert must
acknowledge the accepted work-related injury to be competent to testify that a
claimant has fully recovered from the work injury. Westmoreland County v.
Workers’ Compensation Appeal Board (Fuller), 942 A.2d 213, 218 (Pa. Cmwlth.
2008).
Here, the WCJ credited Dr. Kann’s testimony that Claimant had fully
recovered from his work-related injury as of the date of his evaluation. (WCJ’s
Findings of Fact, No. 14.) The WCJ concluded that because Dr. Sotos did not
recognize Claimant’s accepted right knee sprain/strain work-related injury, his
testimony was not competent. According to Dr. Sotos, Claimant had ongoing
limitation in range of motion. Dr. Sotos opined that the work-related injury
aggravated Claimant’s preexisting arthritis and that Claimant also had chronic
synovitis. Because Dr. Sotos did not acknowledge Claimant’s knee sprain/strain, the
WCJ did not err in disregarding his testimony and crediting Dr. Kann’s testimony.
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald L. Wolfe, Jr., :
: No. 913 C.D. 2015
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Ervin Industries, Inc.), :
:
Respondent :
ORDER
AND NOW, this 18th day of April, 2016, we hereby affirm the May 6,
2015, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge