US Airways, Inc. and AIG v. WCAB (Genovese-Smith)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
US Airways, Inc. and AIG, :
:
Petitioners :
:
v. : No. 1278 C.D. 2015
: Submitted: January 29, 2016
Workers’ Compensation Appeal :
Board (Genovese-Smith), :
:
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: May 11, 2016
US Airways, Inc. (Employer) and its insurer petition for review of an
order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision and order of a Workers’ Compensation Judge (WCJ) granting the
reinstatement petition of Paula Genovese-Smith (Claimant). Because the injury on
which the reinstatement of benefits was based is a condition different from the
accepted work injury and Claimant did not present unequivocal medical evidence
that this new injury was caused by her work injury or by any work-related incident,
we reverse.
Claimant, a flight attendant with Employer, suffered a fall getting into
an airport van on September 16, 2007, in which she hit her head and right hip on
the pavement. (12/28/11 WCJ Decision Findings of Fact (F.F.) ¶¶1, 8(c).)
Employer accepted liability for this accident by a Notice of Temporary
Compensation Payable (NTCP), converted by operation of law to a Notice of
Compensation Payable (NCP), that described the work injury as a
“contusion/laceration” of the “right hip, groin, forehead.” (12/28/11 WCJ Decision
at 1; NTCP, R.R. at 47a.) Claimant returned to work in her pre-injury flight
attendant position without restrictions three months later, and her disability
benefits were suspended. (12/28/11 WCJ Decision F.F. ¶¶1, 8(c); 4/17/14 Board
Decision at 5; 5/4/10 Hearing Transcript (H.T.) at 9, 18, R.R. at 118a, 127a.)
Claimant continued to work for Employer as a flight attendant until
2010, when she took a leave without pay at age 68 after she did not pass a
recurrent training required by Employer. (12/28/11 WCJ Decision F.F. ¶¶1, 8(c);
5/4/10 H.T. at 9-10, 13-17, 22-24, R.R. at 118a-119a, 122a-126a, 131a-133a.) On
February 22, 2010, Claimant filed the instant reinstatement petition, alleging that
her work injury had worsened and caused a loss of earning power as of that date.
On August 25, 2010, Claimant underwent right hip replacement surgery for
degenerative arthritis of the right hip. (12/28/11 WCJ Decision F.F. ¶¶4, 8(a).)
Employer, following a medical examination of Claimant, filed a termination
petition asserting that Claimant had fully recovered from her work injury as of
December 1, 2010.
The WCJ held hearings on the two petitions at which Claimant
testified. Claimant testified that her right hip hurt following her September 2007
fall and that this right hip pain continued when she returned to work and had
increased. (5/4/10 H.T. at 9-13, 21, R.R. at 118a-122a, 130a.) Claimant further
testified that her right hip pain affected her ability to perform in the recurrent
2
training and that she had no problems with her right hip prior to her fall. (Id. at 8,
13-14, 23, R.R. at 117a, 122a-123a, 132a.)
Depositions of Dr. Baddar, the orthopedic surgeon who performed
Claimant’s right hip replacement, and Dr. Elia, an orthopedic surgeon who
examined Claimant on behalf of Employer, were submitted on the issues of
Claimant’s condition in 2010 and whether the hip replacement was causally
connected to Claimant’s September 2007 work-related fall. Both Dr. Baddar and
Dr. Elia testified that Claimant suffered from severe degenerative right hip arthritis
in 2010, that this arthritis was the reason for her hip replacement surgery and that
Claimant had moderate to advanced arthritis in her right hip before her September
2007 fall. (Baddar Dep. at 7-9, 16-20, 27, 31-32, R.R. at 19a-21a, 28a-32a, 39a,
43a-44a; Elia Dep. at 21, 23-24, R.R. at 69a, 71a-72a.) Neither physician testified
that Claimant continued to suffer from a right hip laceration or contusion in 2010.
With respect to whether Claimant’s 2010 arthritic condition and
surgery were caused by the September 2007 fall, Dr. Baddar testified on direct
examination:
Q. With regard to the fall on September 16, 2007, can you tell
us, with regard to this hip replacement surgery, with her
condition indicated on the CT scan with the arthritis, could
that arthritic condition be -- I'm sorry -- could the fall on
9/16/07 precipitated [sic] the need for surgery that you
recently performed?
A. Yes.
Q. And why is that?
A. It could have advanced or worsened the arthritis. In her
case, taking it from being asymptomatic to symptomatic.
3
Q. The fact she had no symptoms in the past before the
9/16/07 injury, do you believe that to be significant with
regard to your opinion on that -- the need for surgery was
precipitated by this 9/16/07 event?
A. Yes, that’s reasonable.
Q. What does trauma of this nature do to a pre-existing
condition of arthritis as reflected on the CT scan?
A. I mean, it’s variable, but it can very well -- if you have
already got a joint or a tissue that’s injured, I mean, it’s more
at risk to be worsened or damaged from a trauma. So, it is
susceptible, and it’s more susceptible to an injury.
Q. Do you believe that’s what happened in this case?
A. Yes.
Q. Okay, and does trauma of this nature that she suffered on
9/16/07, with this pre-existing arthritic condition, can that
accelerate the need for the surgery that you performed in this
case?
A. Yes.
Q. Okay. All right. Doctor, have all your opinions today
been expressed to a reasonable degree of medical certainty?
A. Yes.
(Baddar Dep. at 9-11, R.R. at 21a-23a) (emphasis added). On cross-examination,
Dr. Baddar stated that the issue on which he was offering his expert opinion was
“whether a fall could have worsened her arthritis,” and further testified:
Q. Is it safe to say you cannot testify within a reasonable
degree of medical certainty as to the exact cause of the
claimant’s need to [sic] right hip surgery prior to your seeing
her in August of 2010?
* * *
4
THE WITNESS: What I would say is that based on, as you’ve
said, what the patient has described to me, that this was a
precipitating factor for her head [sic] pain and, therefore, is a
reasonable cause for her worsening of her arthritis and
requiring a hip replacement.
* * *
Q. To be sure then, without seeing any medical records
surrounding the CPPD [calcium pyrophosphate disease, noted
as a possible condition on an MRI], you cannot testify to the
exact cause of the claimant’s right hip condition which led to
her surgery in 2010; correct?
A. Actually, no. I would say no. Again, the point I would be
making is that I’m not arguing whether she had pre-existing
arthritis. I think that’s established by her CT scan that was
done two weeks after her injury. That’s of a longstanding
nature. As to the question, did it worsen her arthritis, I think
it’s reasonable. It doesn’t matter to me what was the
underlying cause of her initial arthritis, whether that was from
a pre-existing injury, CPPD or rheumatoid arthritis or
anything or just osteoarthritis. The question, could it have
worsened it no matter what the preceding cause is, yes, it
could have worsened it.
(Id. at 25-26, 28-29, 31-32, R.R. at 37a-38a, 40a-41a, 43a-44a) (emphasis added).
Dr. Elia opined that Claimant’s arthritis and hip replacement were unconnected to
her 2007 injury and were due to the natural aging process. (Elia Dep. at 23-24,
R.R. at 71a-72a.)
On December 28, 2011, the WCJ issued a decision granting
Claimant’s reinstatement petition and denying Employer’s termination petition. In
this decision, the WCJ found Claimant’s and Dr. Baddar’s testimony credible and
rejected the testimony of Dr. Elia to the extent that it conflicted with Dr. Baddar’s
testimony. (12/28/11 WCJ Decision F.F. ¶8.) The WCJ found that Dr. Baddar
“opined that … [t]he fall claimant sustained on September 16, 2007 aggravated her
5
pre-existing degenerative condition of the right hip and precipitated the need for
the hip replacement surgery,” and concluded that Claimant had therefore satisfied
her burden on the reinstatement petition of proving that she suffered a loss of
earning power related to her work injury. (Id. F.F. ¶4, Conclusion of Law (C.L.)
¶2.) With respect to the termination petition, the WCJ found that Employer had
not sustained its burden of proving that Claimant had fully recovered from her
work injury. (Id. C.L. ¶3.)
Employer timely appealed and the Board, on April 17, 2014, affirmed
the WCJ’s decision but remanded the case for a determination of whether
Employer was entitled to a credit for Social Security retirement benefits that
Claimant had received. On remand, a second WCJ issued a decision, not at issue
in this appeal, holding that Employer was not entitled to any offset for Social
Security benefits. On June 30, 2015, the Board affirmed this second WCJ decision
and made final its April 17, 2014 affirmance of the WCJ decision granting
Claimant’s reinstatement petition and denying Employer’s termination petition.
This appeal followed.1
In this Court, Employer challenges only the WCJ’s ruling on
Claimant’s reinstatement petition and does not seek reversal of the denial of its
termination petition. (Petitioner’s Br. at 8.) Employer argues that the WCJ erred
in granting Claimant’s reinstatement petition because Dr. Baddar’s testimony was
equivocal and therefore legally incompetent. We agree.
1
Our review is limited to determining whether an error of law was committed, whether the
WCJ’s necessary findings of fact are supported by substantial evidence, or whether constitutional
rights were violated. Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes Engineering
Associates), 33 A.3d 702, 706 n.3 (Pa. Cmwlth. 2011).
6
A claimant who seeks reinstatement of suspended disability benefits
under the Workers’ Compensation Act2 must prove 1) that her earning power is
once again adversely affected by her work injury and 2) that the disability that
gave rise to her original claim continues. Bufford v. Workers’ Compensation
Appeal Board (North American Telecom), 2 A.3d 548, 558 (Pa. 2010); Latta v.
Workmen’s Compensation Appeal Board (Latrobe Die Casting Co.), 642 A.2d
1083, 1084 (Pa. 1994); Dougherty v. Workers’ Compensation Appeal Board (QVC,
Inc.), 102 A.3d 591, 595 (Pa. Cmwlth. 2014). Because a suspension of disability
benefits acknowledges the continuation of the work injury and is based only on the
fact that the claimant’s earning power is not affected, expert medical testimony that
the work injury continues is not required and the claimant may satisfy the second
element, continuation of the work-related disability, through her own testimony.
Latta, 642 A.2d at 1085; Dougherty, 102 A.3d at 595; Soja v. Workers’
Compensation Appeal Board (Hillis-Carnes Engineering Associates), 33 A.3d 702,
708 (Pa. Cmwlth. 2011). Where, as here, the claimant had returned to her pre-
injury position with no restrictions, however, there is no presumption that loss of
earning power is related to the work injury and the claimant must affirmatively
prove that the work injury caused her loss of earnings. Dougherty, 102 A.3d at
595; Trevdan Building Supply v. Workers’ Compensation Appeal Board (Pope), 9
A.3d 1221, 1224 (Pa. Cmwlth. 2010).
Moreover, the injury on which reinstatement of benefits is based must
be the work injury recognized in the NCP or a prior decision granting disability
benefits. Soja, 33 A.3d at 708; Wetterau, Inc. v. Workmen’s Compensation Appeal
Board (Mihaljevich), 609 A.2d 858, 860 (Pa. Cmwlth. 1992); Riley Welding &
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
7
Fabricating, Inc. v. Workmen’s Compensation Appeal Board (DeGroft), 608 A.2d
598, 600 (Pa. Cmwlth. 1992). To obtain a reinstatement of suspended disability
benefits, “the claimant must establish ‘that his earning power is once again
adversely affected’ and that ‘it is the same disability ... for which he initially
received workmen’s compensation benefits.’” Soja, 33 A.3d at 708 (quoting Riley
Welding & Fabricating, Inc.) (ellipsis in original). Unless the causal connection
between a new or different injury and the accepted work injury or the work
accident is obvious, the claimant must present unequivocal medical evidence of
causation. Namani v. Workers’ Compensation Appeal Board (A. Duie Pyle), 32
A.3d 850, 856 n.4 (Pa. Cmwlth. 2011); City of Pittsburgh v. Workers’
Compensation Appeal Board (Wilson), 11 A.3d 1071, 1075 (Pa. Cmwlth. 2011);
Wetterau, Inc., 609 A.2d at 860.
Here, Claimant’s disabling condition for which she sought
reinstatement of benefits was not the same condition for which she had previously
received workers’ compensation benefits. The only injuries to Claimant’s right hip
that Employer accepted in its converted NTCP were a “contusion” and a
“laceration.” The condition from which Claimant suffered in 2010 and on which
the WCJ based his grant of the reinstatement petition was degenerative arthritis of
the right hip that necessitated hip replacement surgery. Because the causal
connection between a contusion or laceration or a fall and severe arthritis more
than two years later is not obvious and it was undisputed that Claimant had
degenerative arthritis of her right hip prior to her work accident, Claimant was
required to present unequivocal medical testimony that her September 2007 fall or
the contusion or laceration suffered in that fall caused an aggravation of her right
hip arthritis and need for hip replacement. City of Pittsburgh, 11 A.3d at 1072-77
8
(reversing amendment of NCP to add aggravation of cervical degenerative disc
disease where NCP was for thoracic strain and unequivocal medical testimony
supported only thoracic and cervical strains and rotator cuff tears); Wetterau, Inc.,
609 A.2d at 860 (claimant was required on reinstatement petition to prove by
unequivocal medical testimony connection between injury to his ankle and surgery
on that ankle more than two years later and six months after claimant returned to
his time of injury job).
No unequivocal medical testimony was presented to the WCJ on
which he could find that Claimant’s arthritis was aggravated by her work injury or
work accident. Medical expert testimony that is less than positive or is based upon
possibilities is equivocal and is not legally competent to establish a causal
relationship. Lewis v. Workmen’s Compensation Appeal Board (Pittsburgh Board
of Education), 498 A.2d 800, 802 (Pa. 1985); Potere v. Workers’ Compensation
Appeal Board (Kemcorp), 21 A.3d 684, 690-91 (Pa. Cmwlth. 2011); Merchant v.
Workers’ Compensation Appeal Board (TSL, Ltd.), 758 A.2d 762, 770 (Pa.
Cmwlth. 2000). Whether a medical expert has unequivocally testified that the
claimant’s injury and disability were caused by the workplace incident must be
determined from examination of the medical witness’s entire testimony taken as a
whole. Lewis, 498 A.2d at 803; Potere, 21 A.3d at 690; Merchant, 758 A.2d at
770.
The only medical evidence of a causal relationship was Dr. Baddar’s
testimony. Dr. Baddar, however, did not state at any point in his testimony that in
his opinion, Claimant’s fall or her contusion or laceration aggravated or worsened
her arthritis or that in his opinion, the need for hip replacement was caused by the
fall or Claimant’s accepted work injury. To the contrary, Dr. Baddar repeatedly
9
made clear on both direct examination and cross-examination that he was only
offering an opinion that the fall “could have” advanced or worsened Claimant’s
arthritis and “can” accelerate the need for surgery, and that the fall was a
“reasonable” cause or explanation for the worsening of her arthritis and the need
for hip replacement. (Baddar Dep. at 9-11, 25-26, 29, 31-32, R.R. at 21a-23a, 37a-
38a, 41a, 43a-44a.) Such testimony that a causal connection is possible or that it
is a reasonable explanation does not constitute competent evidence. See, e.g.,
Merchant, 758 A.2d at 770-71 (testimony was equivocal and incompetent to prove
causation where expert opined only that claimant’s medical problem “could well
be” or “probably” was a result of the work injury and expert never stated that she
believed that claimant developed the condition as a result of the work injury);
Somerset Welding & Steel v. Workmen’s Compensation Appeal Board (Lee), 650
A.2d 114, 117 (Pa. Cmwlth. 1994) (testimony that “something” aggravated
claimant’s back problem and that the work incident “could” be that cause was
equivocal and incompetent to prove causation where expert never expressed
opinion that the work incident was the cause).
The fact that the WCJ found Dr. Baddar credible and felt that his
testimony was unequivocal does not change this. Whether expert testimony is
equivocal is an issue of competence, not credibility, and is a question of law
subject to this Court’s plenary, de novo review. Lewis, 498 A.2d at 803; BJ’s
Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), 43 A.3d 559,
565 (Pa. Cmwlth. 2012); Potere, 21 A.3d at 690.
Because the injury on which Claimant’s reinstatement petition was
based was not her accepted work injury and there was no competent medical
evidence that this different injury was caused by her work injury or the work
10
accident, Claimant failed to satisfy her burden of proof that her loss of earning
power was caused by her work injury. The Board’s order must therefore be
reversed insofar as it affirmed the WCJ’s granting of Claimant’s reinstatement
petition.3
____________________________________
JAMES GARDNER COLINS, Senior Judge
3
Employer also seeks reversal of the grant of the reinstatement petition on the grounds that
Claimant’s loss of income was unrelated to the work injury because she failed the recurrent
training for a reason other than her hip pain and that the WCJ did not issue a reasoned decision.
While we need not reach these issues, it does not appear that either of these arguments would
constitute grounds for reversal. With respect to the first of these arguments, Claimant testified
that her hip pain affected her performance in the recurrent training and the WCJ found that
testimony credible. With respect to the second, although the WCJ erred as a matter of law in
holding that Dr. Baddar’s testimony was unequivocal, his explanations of his credibility
determinations and the bases for his decision are sufficient to satisfy the requirement of Section
422 of the Workers’ Compensation Act that he issue 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 [its] rationale” and that “the workers’ compensation judge must adequately
explain the reasons for rejecting or discrediting competent evidence.” 77 P.S. § 834. See Dorsey
v. Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 194-96
(Pa. Cmwlth. 2006).
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
US Airways, Inc. and AIG, :
:
Petitioners :
:
v. : No. 1278 C.D. 2015
:
:
Workers’ Compensation Appeal :
Board (Genovese-Smith), :
:
Respondent :
ORDER
AND NOW, this 11th day of May, 2016, the order of April 17, 2014 of
the Workers’ Compensation Appeal Board in the above matter is REVERSED
insofar as it affirmed the granting of the reinstatement petition filed by Claimant
Paula Genovese-Smith.
____________________________________
JAMES GARDNER COLINS, Senior Judge