Home Depot USA, Inc. v. A. Noorani (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Home Depot USA, Inc. :
Petitioner :
:
v. : No. 113 C.D. 2021
: ARGUED: November 18, 2021
Abdolrahi Noorani (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: December 23, 2021
Home Depot USA, Inc. (Employer) petitions this Court for review of the
January 15, 2021 order of the Workers’ Compensation Appeal Board (Board),
affirming the decision of a workers’ compensation judge (WCJ) who awarded
Abdolrahi Noorani (Claimant) total disability benefits under the Workers’
Compensation Act (Act),1 for injuries Claimant sustained while in the course of his
employment. The issues before this Court are whether the Claimant’s medical
evidence was sufficient to support an award of benefits, and whether the WCJ failed
to issue a reasoned decision as required by Section 422(a) of the Act.2 After review,
we affirm.
I. Background
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
77 P.S. § 834.
Claimant worked as a customer service greeter at Employer’s store from July
7, 2014, through November 8, 2015. Certified Record (C.R.), Item No. 23. On
August 29, 2018, Claimant filed a claim petition seeking total disability benefits for
an alleged work injury he claimed was caused by a severe reaction to a flu
vaccination he received at work. Id., Item No 2. Employer denied the material
allegations in Claimant’s petition and asserted that Claimant was not acting within
the course and scope of his employment at the time he sustained the alleged work
injury. Id., Item No. 4.
A. Claimant’s Evidence
Claimant testified at a February 8, 2019 deposition that he worked for
Employer approximately 20 hours each week for two years making approximately
$11 per hour. C.R., Item No. 22, Claimant’s dep., 2/8/19, at 7. He also worked part
time at Grundy Commons, an office complex, making approximately $12 per hour.
Id. at 9. On August 30, 2015,3 Claimant received a flu vaccination administered at
a vaccine clinic held each year on Employer’s premises. Id. at 11-12. Claimant
arrived at work prior to the start of his 2:30 p.m. shift for the specific purpose of
receiving the flu vaccination because Employer encouraged its employees to do so.
Id. at 13.
Claimant had previously received the flu vaccination from vaccine clinics
held on Employer’s premises and never experienced any negative side effects. Id.
at 12. Claimant stated that the 2015 vaccination “was somehow different.” Id.
Claimant admitted having difficulty remembering some details of his symptoms and
treatment from four years earlier; however, he recalled feeling tired for a few days
3
The record reflects that Claimant received the vaccination on September 30, 2015, not
August 30, 2015. Claimant clarified his testimony at an April 10, 2019 hearing before the WCJ.
Notes of Testimony (N.T.), 4/10/19, at 25.
2
after receiving the vaccine, which eventually progressed to weakness in his legs. Id.
at 14-15. He sought treatment from his primary care physician (PCP) “within a week
or so,” who advised Claimant that his symptoms would pass. Id. at 16. After the
weakness in his legs progressed, Claimant returned to his primary care physician,
who advised Claimant to go to the emergency room at Aria Hospital. Id. at 18-19.
Claimant was treated there on November 4, 2015, and released with instructions to
see an orthopedic specialist. Id. at 19-20. He returned to the Aria Hospital
emergency room on November 8, 2015. Id. at 20. Initially, Claimant continued to
work for both Employer and Grundy Commons; however, he did not return to work
after November 8, 2015. Id. at 47-48.
Claimant testified that the doctors at Aria Hospital asked if he received a flu
vaccination and that they tested his spinal fluid to determine whether Claimant had
Guillain-Barre syndrome (GBS).4 Id. at 22. That same day, Claimant notified one
of Employer’s supervisors that he had been hospitalized and that his physicians
suggested his condition may have been caused by the flu vaccination. Id. at 41.
Claimant advised Employer that he would return to work, as he believed his
symptoms would not last more than two days. Id. at 43. Three of Employer’s
employees, including the store manager and the supervisor with whom Claimant
spoke, visited Claimant at the hospital that evening and gathered information
regarding his condition. Id. at 44.
Claimant experienced continued weakness in his legs and pain throughout his
body, particularly on the right side. Id. at 25. After his discharge from Aria Hospital,
4
GBS is an autoimmune disorder of sudden onset that is an inflammatory neuropathy
affecting the peripheral nervous system. See Definition of Guillain-Barré Syndrome by Merriam-
Webster, https://www.merriam-webster.com/dictionary/Guillain-Barre%20syndrome (last viewed
Dec. 21, 2021).
3
Claimant spent time at a rehabilitation facility. Id. at 25-26. Claimant was
hospitalized a second time at St. Mary’s Hospital, where physicians suspected
Claimant had GBS. Id. at 28. Claimant stated that his symptoms have either stayed
the same or gotten worse over time. Id. at 27. A cervical fusion performed on May
6, 2016, did not improve Claimant’s condition. Id. at 29, 31-32. Claimant also
underwent surgery to correct bladder and prostate dysfunction.5 Id. at 31.
Claimant testified that, prior to August 2015, he had never been in any motor
vehicle or other accidents and he was physically capable of performing his jobs for
both Employer and Grundy Commons. Id. at 33, 48. Claimant testified he cannot
walk much and uses either a walker or a wheelchair to move. Id. at 35. He suffers
from pain, numbness, and tingling throughout his body. Id. at 39. Claimant also has
difficulty using his hands, which prevents him from engaging in his previous
activities, such as playing instruments. Id. Claimant filed a claim for benefits under
the National Vaccine Injury Compensation Program (Vaccine Program),6 but he had
not received a determination in that matter. Id. at 45. Claimant’s wife is unable to
work, as she takes care of him. Id. at 50. His daughter works part time to support
the family. Id. at 50-51.
Claimant also testified live before the WCJ at a hearing held on April 10,
2019. At that time, Claimant clarified that he received the flu vaccination at
Employer’s clinic on September 30, 2015, and not on August 30, 2015, as he first
testified. N.T., 4/10/19, at 14, 27. Claimant previously treated his symptoms with
5
While not entirely clear from the record, it appears that Claimant’s bladder and prostate
dysfunction ruled out GBS and was considered to be related to the alleged inflammatory response
from the flu shot.
6
42 U.S.C. §§ 300aa-10 – 300aa-34. The Vaccine Program provides compensation to
people found to be injured by certain vaccines. See National Vaccine Injury Compensation
Program, https//www.hrsa.gov/vaccine-compensation/index.html (last visited Dec. 21, 2021).
4
physical therapy, but it was not very effective, and Claimant had transportation
issues that made attendance difficult. Id. at 18. Claimant expressed a desire to return
to work some day and “become productive,” but he advised that it was not possible
with his current condition. Id. at 21. He used a walker to attend the hearing, but
otherwise used a wheelchair. Id. Claimant stated he can only sit in the wheelchair
for short periods of time, so he is normally bedbound. Id. at 21-22. Because he has
problems with urinating, Claimant did not eat or drink prior to the hearing, so he
could attend “with no problem.” Id. at 20.
Claimant presented the January 30, 2019 deposition testimony of his treating
neurologist, Sami Khella M.D. In preparing his opinion, Dr. Khella reviewed
Claimant’s medical records and laboratory results from Aria Hospital, as well as a
February 14, 2017 magnetic resonance imaging (MRI) study. C.R., Item No. 18,
Khella dep., 1/30/19, at 8, 22.
Dr. Khella first examined Claimant on January 19, 2018. Id. at 9. At that
time, Claimant presented with weakness in his feet and legs, and a sensation of pins
and needles in his hands and feet. Id. Claimant initially used a walker but then
required the use of a wheelchair, and he developed weakness in his hands. Id. While
Claimant was not incontinent, he had developed urinary urgency and issues with his
bowel. Id. Dr. Khella’s records reflected that Claimant’s symptoms evolved over
the course of two months, then stabilized. Id.
The results of Dr. Khella’s physical evaluation were mostly normal. Id. at 10.
Claimant’s limb strength was normal in the upper extremities except for his fingers,
which were weak and his hand muscles had atrophied. Id. Claimant exhibited
weakness, sensory loss, and spasticity in his legs. Id. at 10-11. Dr. Khella’s
preliminary diagnosis was that Claimant suffered from cervical myelopathy, which
5
Dr. Khella related to post-vaccination inflammatory transverse myelitis, given the
onset of Claimant’s limb weakness shortly after administration of the flu
vaccination. Id. at 11-12. He dismissed cervical stenosis as a cause of Claimant’s
symptoms because that condition does not develop rapidly over weeks. Id. at 12-13.
Dr. Khella acknowledged that Claimant had preexisting spinal stenosis and
inflammation, which should have resolved with Claimant’s 2016 cervical fusion. Id.
at 13. In Claimant’s case, however, Dr. Khella felt there was an additional injury
which did not respond to the surgery. Id. Given the rapid advancement of
Claimant’s symptoms, Dr. Khella identified the flu vaccination as the cause of
Claimant’s condition. Id. at 16-17. Dr. Khella’s course of treatment consisted of
physical therapy and pain management. Id. at 14.
Claimant’s condition appeared unchanged in subsequent examinations, the
most recent of which took place on September 7, 2018, and Dr. Khella felt that
Claimant’s inflammatory response to the flu vaccination had stopped, although he
acknowledged that Claimant might become more disabled due to the normal aging
process. Id. at 14-15, 18.
Based on Claimant’s clinical history, the results of Dr. Khella’s clinical
examination and the 2017 MRI, and the medical literature, Dr. Khella opined, to a
reasonable degree of medical certainty, that a causal relationship existed between
the flu vaccination Claimant received and his diagnosed condition. Id. at 18.
During cross-examination, Employer’s counsel questioned Dr. Khella’s
understanding of Claimant’s relevant medical history, given that Dr. Khella’s
medical file only consisted of 14 pages. Id. at 7, 22. Dr. Khella related that, while
a patient’s medical chart can generate thousands of pages, when asked for a specific
medical opinion, Dr. Khella only identifies those records that are “relevant to the
6
question . . . being asked.” Id. at 23. In Claimant’s case, that question concerned
“[w]hat was wrong” with him. Id.
Dr. Khella conceded that cervical myelopathy can progress in the absence of
an inflammatory condition, but the “very high” and “really abnormal” level of
Claimant’s spinal fluid protein suggested to Dr. Khella that it was triggered by an
inflammatory process and not cervical spine stenosis. Id. at 25, 27. He agreed that
this inflammatory process could be related to the flu vaccination or to something
else. Id. at 27-28. Dr. Khella identified the flu vaccination as the trigger, however,
given the “temporal association” between the onset of his symptoms and his receipt
of the flu vaccination. Id. at 25, 27-28, 34. The condition of Claimant’s lumbar
spine would not have contributed significantly to his clinical course, as any
associated lumbar disease “would have to be quite severe” to cause the weakness in
Claimant’s lower extremities, and it would not have caused the weakness in his
hands. Id. at 28-29. Dr. Khella disagreed that Claimant’s records documented he
suffered from GBS, as Dr. Khella specializes in treating that disease, and Claimant’s
examination in 2015 was “nothing like GBS.” Id. at 31.
Claimant introduced a March 14, 2018 report from Lawrence Steinman, M.D.
(Steinman Report), a neurologist from Stanford University, who opined that
Claimant’s cervical myelopathy was triggered by an inflammatory response caused
by the flu vaccination.7 Khella dep., Ex. C-2, at 1. Employer objected to the
7
In forming his opinion, Dr. Steinman compared components of the 2015-16 vaccine to
any antigens with a known association to transverse myelitis. Khella dep., Ex. C-2, at 10. He
considered any antigen with “a run of [five] or more” identical amino acids to be a “meaningful
molecular mimic . . . [that] was sufficient to trigger neuroinflammation.” Id. at 10-11. The results
of Dr. Steinman’s research indicated that the 2015-16 flu vaccine shared the requisite number of
identical amino acids with several antigens, including myelin basic protein, which may trigger
transverse myelitis when combined with “[o]ther genetic and environmental factors.” Id. at 11,
(Footnote continued on next page…)
7
introduction of the Steinman Report as inadmissible hearsay. Khella dep. at 20. Dr.
Khella advised that he typically reviews such reports when treating his patients, and
he agreed with Dr. Steinman’s opinion. Id. at 20-21. Dr. Khella could not recall
when he reviewed the Steinman Report, and he did not rely on it when formulating
Claimant’s course of treatment. Id.
B. Employer’s Evidence
Employer presented the June 25, 2019 deposition testimony of Richard
Bennett, M.D., a board-certified neurologist, who performed an independent medical
examination (IME) of Claimant on April 1, 2019. Bennett dep. at 6, 10. At that
time, Claimant related the symptoms he experienced a few days after receiving a flu
vaccination on either August or September 30, 2015. Id. at 11. Claimant related his
symptoms, which included weakness in the upper and lower extremities, bladder
impairment, and constipation, to the flu vaccination. Id. at 11-12. Dr. Bennett’s
review of Claimant’s records confirmed that he presented with these symptoms at
Aria Hospital on November 8, 2015, but he was subsequently discharged and
admitted to a rehabilitation facility for therapy. Id. Subsequent treatment at St.
Mary’s Hospital on December 6, 2015, revealed evidence of myelomalacia and a
possible diagnosis of GBS, for which Claimant underwent intravenous gamma
globulin therapy. Id. at 12. A neurosurgical consultation led to the discovery of
cervical myelopathy, which ultimately resulted in Claimant’s cervical fusion. Id.
During the April 1, 2019 IME, Claimant advised Dr. Bennett that he had
difficulty walking and used either a walker or wheelchair. Id. at 13. Claimant related
he felt pain along the back in the midthoracic to lower lumbar region and continued
14-17. Dr. Steinman concluded that Claimant’s underlying cervical stenosis represented one such
factor, providing a “background of low[-]grade inflammation,” which reacted to the September
30, 2015 flu vaccination, causing Claimant’s transverse myelitis. Id. at 20.
8
to have weakness and numbness in his hands that extended to the upper cervical
thoracic region. Id. He suffered from bladder and bowel disfunction, for which he
took medication. Id. Based on a November 2, 2015 record from Claimant’s PCP,
Dr. Bennett estimated that Claimant’s symptoms developed in late October or early
November 2015, several weeks after he received the flu vaccination. Id. at 16-17.
November 2015 records from Aria Hospital indicated that Claimant suffered from
severe spinal stenosis. Id. at 18. Dr. Bennett advised that, based on these records,
he would have referred Claimant for emergency surgical intervention to avoid a
progression of symptoms related to the spinal stenosis. Id. at 18-19.
Dr. Bennett’s physical examination of Claimant revealed symptoms
consistent with the effects of a cervical spinal cord compression or myelopathy. Id.
at 19. While Dr. Bennett agreed with Dr. Khella’s description of Claimant’s physical
condition, he did not agree that Claimant’s condition was the result of a flu
vaccination. Id. at 21-22. Dr. Bennett denied that Claimant’s medical records
suggested such a diagnosis, which he considered purely speculative, and Dr. Bennett
was not aware of any medical literature that would support Dr. Khella’s opinion that
Claimant’s symptoms were causally related to his receipt of the flu vaccination. Id.
at 22-23. Dr. Bennett opined that Claimant’s records instead demonstrated a cervical
spinal degenerative process that caused a compression of Claimant’s spinal cord. Id.
at 23.
Dr. Bennett agreed that the January 2016 cervical decompression did not
dramatically improve Claimant’s symptoms, but he related that negative outcome to
Claimant’s delay in having the surgery, which had been recommended two months
prior by his physicians at Aria Hospital. Id. at 28-29, 33. He dismissed Dr.
Steinman’s Report as containing “a lot of hypothetical issues,” but no scientific
9
evidence to connect the flu vaccine with acute transverse myelitis. Id. at 30-31. Dr.
Bennett acknowledged a report of cases from 1976 and 1977 that linked a flu vaccine
to the development of GBS, but he was not familiar with studies that suggested a
similar link between transverse myelitis and the flu vaccine. Id. at 30. As Dr.
Bennett understood, it was never determined whether the increase in GBS during the
1970s was related to the type of flu or the type of vaccine; however, after
modification of the flu vaccine, the incidence of GBS has not appeared to the same
degree as it did during that period. Id. Dr. Steinman’s Report did not change Dr.
Bennett’s opinion regarding the cause of Claimant’s symptoms. Id. at 30-31. Dr.
Bennett reiterated his opinion that Claimant’s flu vaccination was irrelevant and
unconnected to Claimant’s physical condition. Id. at 32. Dr. Bennett agreed that
Claimant was permanently disabled. Id. at 35.
Employer also presented the August 9, 2019 expert report of Richard Cuneo,
M.D., a neurology professor from the University of California, San Francisco, who
reviewed Claimant’s medical records, Claimant’s live and deposition testimony, Dr.
Khella’s deposition testimony, and the Steinman Report. C.R., Item No. 27, at 2.
Dr. Cuneo noted that the likelihood of a flu vaccination causing cervical myelopathy
is miniscule, less than .385 per million doses, but that the major determinant as to
causality is the time between receipt of the vaccination and the documented onset of
a neurologic syndrome, and establishing an accurate timeline is one of the key
features to establishing causality. Id. at 18. Claimant’s medical records documented
that he received the flu vaccination on September 30, 2015. Id. at 19. While
Claimant remembered seeing his primary care physician approximately one week
later, Claimant’s medical records indicate that this visit took place on November 2,
2015, 33 days after Claimant received the vaccination. Id. Claimant’s records from
10
Aria Hospital dated November 6 and November 8, 2015, document October 29, 2015
as the date Claimant began to experience weakness in his lower extremities. Id. at
20. Dr. Cuneo opined that this timeline rendered any relationship between
Claimant’s symptoms and his receipt of the flu vaccination on September 30, 2015,
“most unlikely.” Id. He considered the progression of Claimant’s symptoms over
the 5½ weeks that followed the September 30, 2015 flu vaccination “perfectly
consistent” with a clinical course of compressive cervical myelopathy. Id. at 21.
Dr. Cuneo disputed Dr. Khella’s opinion regarding the cause of Claimant’s
symptoms in part because Dr. Khella relied on the inaccurate history provided by
Claimant. Id. This history led Dr. Khella to believe that Claimant began to
experience weakness within a few days of the September 30, 2015 vaccination. Id.
Dr. Steinman’s Report suffered from the same defect, having been based on an
inaccurate timeline which placed the onset of Claimant’s symptoms at a much earlier
date than the one documented in his medical records. Id. Dr. Cuneo also disagreed
with Dr. Khella’s analysis of Claimant’s spinal fluid, as he felt it did not suggest an
acute inflammatory reaction but was instead more consistent with a chronic
compressive condition. Id. at 23.
Ultimately, Dr. Cuneo opined that Claimant suffered from long-standing
preexisting cervical degenerative disc disease and central canal stenosis, which are
conditions that often worsen over time. Id. Dr. Cuneo also believed that Claimant’s
condition worsened due to the delay in surgical intervention, which significantly
reduced his likelihood of recovery. Id.
C. WCJ Decision
In a decision circulated on November 5, 2019, the WCJ credited Claimant’s
live and deposition testimony. C.R., Item No. 10, Finding of Fact (F.F.) No. 20.
11
Having observed Claimant’s live testimony, the WCJ found that he testified in a
forthright manner. Id. The WCJ found particularly credible Claimant’s testimony
regarding the onset, location, and nature of his symptoms. Id. Claimant’s testimony
that his symptoms arose shortly after receiving the flu vaccination was supported by
the fact that, prior to receiving it on September 30, 2015, Claimant was able to
perform his job duties for Employer and Grundy Commons, and perform activities
of daily living, without restriction. Id. The evidence established that Employer
offered its employees a flu vaccination administered on its premises and that
Employer encouraged its employees to get the flu vaccination. Id. The WCJ also
found that Claimant notified Employer of his work injury on November 8, 2015.
F.F. No. 23.
The WCJ found both Dr. Khella and Dr. Bennett credible; however, he gave
greater weight to Dr. Khella’s testimony, given his status as Claimant’s treating
neurologist who observed and examined Claimant on multiple occasions. F.F. No.
21. Dr. Bennett evaluated Claimant’s condition once for the purpose of litigation.
Id. Therefore, the WCJ rejected Dr. Bennett’s opinion to the extent he disagreed
with Dr. Khella that Claimant’s cervical myelopathy was caused by post-vaccination
inflammatory transverse myelitis. F.F. No. 21. The WCJ likewise rejected Dr.
Cuneo’s report to the extent it conflicted with the opinions of Dr. Khella, as Dr.
Cuneo only reviewed Claimant’s medical records on one occasion. F.F. No. 18.
The WCJ found that Dr. Khella’s credibility was bolstered by his training and
experience treating patients with a range of neurological disorders and by his
position as a professor of neurology at the University of Pennsylvania. F.F. No. 21.
Having credited the reasoning and rationale provided by Dr. Khella, the WCJ found
that, while in the course of his employment, Claimant suffered a work injury to his
12
cervical spine at the C8-T1 level, which was caused by the flu vaccination Claimant
received at Employer’s premises on September 30, 2015. F.F. Nos. 21, 23. The
WCJ further found that Claimant was not physically capable of returning to work
for Employer, or to any vocational setting, based on Dr. Khella’s testimony
regarding his most recent examination of Claimant. F.F. No. 21.
After concluding that Claimant was rendered totally disabled by the
September 30, 2015 work injury, the WCJ directed that Employer pay Claimant
weekly compensation from November 8, 2015, and ongoing, and pay Claimant’s
related medical expenses. Conclusions of Law Nos. 6, 10. Employer appealed to
the Board, which affirmed. This appeal followed.8
II. Issues
On appeal,9 Employer argues that Claimant’s medical evidence was
incompetent and insufficient to support an award of benefits under the Act, that the
WCJ erred in admitting the Steinman Report, which was inadmissible hearsay, and
that the WCJ failed to issue a reasoned decision as required by Section 422(a) of the
Act.
III. Discussion
A. Competency of Medical Evidence
First, we address the competency and sufficiency of Claimant’s medical
evidence. In a workers’ compensation claim petition proceeding, the claimant bears
the burden of establishing all the elements necessary to support an award of benefits,
8
Employer’s Application for Supersedeas was denied by this Court on May 10, 2021.
9
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law, or whether necessary findings of fact are supported
by substantial evidence. City of Phila. v. Workers’ Comp. Appeal Bd. (Sherlock), 934 A.2d 156,
159 n.5 (Pa. Cmwlth. 2007).
13
including the existence of an injury and disability, and a causal relationship between
the injury and the claimant’s work. Kurpiewski v. Workers’ Comp. Appeal Bd.
(Caretti, Inc.), 202 A.3d 870, 880 (Pa. Cmwlth. 2019).
The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility
and evidentiary weight. Lindemuth v. Workers’ Comp. Appeal Bd. (Strishock Coal
Co.), 134 A.3d 111, 125 (Pa. Cmwlth. 2016). In executing his role as factfinder, the
WCJ is free to accept or reject, in whole or in part, the testimony of any witness. Id.A WCJ’s credibility determinations are due substantial deference and may only be
overturned if they are “arbitrary and capricious or so fundamentally dependent on a
misapprehension of material facts, or so otherwise flawed, as to render [them]
irrational.” Casne v. Workers’ Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d
14, 19 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the inquiry before this Court is
whether evidence exists to support the findings actually made. Minicozzi v.
Workers’ Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa.
Cmwlth. 2005).
A medical expert’s testimony is incompetent if it is based on an incomplete
and inaccurate medical history. Sw. Airlines/Cambridge Integrated Serv. v.
Workers’ Comp. Appeal Bd. (King), 985 A.2d 280, 286-87 (Pa. Cmwlth. 2009).
However, “[a] medical expert’s opinion is not rendered incompetent unless it is
solely based on inaccurate or false information.” Am. Contracting Enters., Inc. v.
Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001)
(emphasis in original). The opinion of a medical expert must be viewed as a whole.
Id. Inaccurate information will not defeat an expert’s opinion unless it is dependent
on those inaccuracies. Id. Moreover, while an expert witness may base his opinion
14
on facts of which he has no personal knowledge, those facts must be supported by
evidence of record. Newcomer v. Workmen’s Comp. Appeal Bd. (Ward Trucking
Corp.), 692 A.2d 1062, 1066 (Pa. 1997).
Employer argues that Dr. Khella’s theory of causation is premised entirely on
Claimant’s timeline of events, which suggests his symptoms began to manifest a few
days after he received the September 30, 2015 flu vaccination. Claimant’s medical
records, however, demonstrate that he first sought treatment on November 2, 2015,
and his symptoms began a week prior to that date. Employer contends that Dr.
Khella’s testimony and medical opinions are further compromised by his failure to
review any of Claimant’s medical records from 2015 and 2016 that relate to his
condition at that time. As a result, Employer argues that Dr. Khella’s testimony and
opinion as to causation rely entirely on the medical history Claimant provided, which
Employer characterizes as flawed and self-serving. Employer relies on King and
Newcomer, which similarly concerned the competency of an expert medical opinion
based on the medical history provided by a claimant.
In King, the claimant, Cheryl King (King), was allegedly hit by a metal jetway
door in October 2005, resulting in various injuries to her head and neck. When
testifying before the WCJ, King denied having been previously involved in any
incidents that caused injuries to her head or neck. King’s testimony during cross-
examination, however, revealed that she injured her head in a bus accident a few
years prior to the alleged work injury, and she admitted to another incident in which
she hit her head on the door of her truck. It was further revealed that King filed
several workers’ compensation claims between 1992 and 1997, in which she
reportedly suffered from various ailments, including headaches, blurred vision, and
dizziness. While King’s medical expert opined that she suffered from post-
15
concussive syndrome, he had no knowledge of her condition prior to October 2005,
and he did not know if she had previously sought treatment for her symptoms.
In reviewing whether a WCJ erred in awarding King benefits, this Court noted
that her medical expert rendered a diagnosis without having any personal knowledge
of her medical condition prior to the alleged work-related injury. King’s medical
expert did not review any of her extensive medical records, which documented that
King had exhibited the symptoms she related to the October 2005 incident as early
as 1992. Additionally, when completing a medical questionnaire for her medical
expert, King denied having suffered any prior injuries of medical problems. We
concluded, therefore, that the opinion of King’s medical expert was not competent
to establish a causative link between the alleged work injury and King’s disability,
as it was based on an inaccurate and incomplete medical history and on King’s own
theory of causation.
Newcomer also concerned the competency of an expert medical opinion that
was based “solely and expressly on the medical history provided by [the claimant,
Robert Newcomer (Newcomer).]” Newcomer, 602 A.2d at 1063 (emphasis in
original). While Newcomer received treatment for abdominal and chest injuries at
the time of the work injury, he later advised his doctor that he had also been treated
for a shoulder injury. Based on this medical history, Newcomer’s doctor provided
an expert medical opinion that linked his shoulder problems to the work injury. Our
Supreme Court recognized that an expert witness may base an opinion on facts of
which he has no personal knowledge; however, those facts must be supported by
evidence of record. Newcomer’s medical records did not support his claim that his
shoulder injury was work related. Rather, they demonstrated that Newcomer
received “absolutely no treatment for any shoulder problem” for more than two years
16
after the work injury. Id. at 1066. Because the expert opinion on causation was
“based solely on Newcomer’s representation” that he sustained a shoulder injury in
the work-related accident, the Supreme Court rejected it as incompetent as a matter
of law. Id.
Turning to the instant matter, we do not agree with Employer on the
dispositive nature of King and Newcomer, as the facts are sufficiently
distinguishable. Although Dr. Khella’s medical opinion did rely to an extent on
Claimant’s recitation of his medical history, he also reviewed Claimant’s laboratory
records from Aria Hospital, which included blood work and a spinal fluid analysis.
Dr. Khella opined that these records documented a “very high” and “really
abnormal” level of spinal fluid protein, which suggested to him that Claimant’s
condition was caused by an inflammatory process. Khella dep. at 27. This
testimony, which the WCJ accepted as credible, belies Employer’s assertion that Dr.
Khella failed to review any of Claimant’s medical records from 2015 or 2016.
As to Claimant’s allegedly flawed medical history, Claimant acknowledged
that he was unclear on some details, given that he testified four years after the
relevant events took place. It is worth noting that Employer has not presented any
evidence – medical or otherwise – to refute Claimant’s testimony that he experienced
no symptoms prior to September 30, 2015. Claimant testified that he experienced
weakness in his legs within a few days after receiving the flu vaccination on
September 30, 2015. Although he believed he saw his primary care physician
“within a week or so” of that date, Claimant’s records document his first visit took
place on November 2, 2015, at which time he reported his symptoms began
approximately one week earlier. Claimant’s dep., 2/8/19, at 16. This places
Claimant’s symptom onset closer to the end of October 2015. As already discussed
17
herein, Dr. Khella’s opinion that Claimant’s condition resulted from the September
30, 2015 flu vaccination was not solely based on the timeline provided by Claimant
but also on his review of Claimant’s medical records and the rapid advancement of
Claimant’s symptoms over the course of several weeks.
The parties do not dispute the nature of Claimant’s condition or the
permanency of his disability; rather, they disagree over its cause. As to that, the
WCJ credited Claimant’s medical testimony over Employer’s. This Court need not
agree with the WCJ’s credibility determinations, which are due substantial
deference, and we will not disturb them where we do not perceive that they were
made arbitrarily or capriciously or they were so “fundamentally dependent on a
misapprehension of material facts, or so otherwise flawed, as to render [them]
irrational.” Casne, 962 A.2d at 19.
B. Hearsay
Next, Employer argues that the WCJ erred in admitting the Steinman Report,
which Employer objected to as inadmissible hearsay. Employer also asserts that the
Steinman Report renders Dr. Khella’s testimony “even more incompetent[,]” as his
opinion was “largely based on the Steinman [R]eport.” Employer’s Br. at 22-23.
Under the so-called Walker Rule, the use of hearsay evidence in workers’
compensation matters is limited to cases where there is corroborating evidence and
there is no objection on the record. Ciarolla v. Workers’ Comp. Appeal Bd.
(Astrazeneca Pharms. LP), 239 A.2d 204, 208 (Pa. Cmwlth. 2020) (citing Walker v.
Unemployment Comp. Bd. of Rev., 367 A.2d 366, 370 (Pa. Cmwlth. 1976) (hearsay
evidence, when admitted without objection, will be given its natural probative effect
and may support a finding of the board, if corroborated by any competent evidence
in the record; a finding of fact based solely on hearsay will not stand)). Hearsay is
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defined as “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Pa.R.E. 801(c).
Although the Steinman Report is undeniably hearsay evidence, we see no
merit to Employer’s argument, as there is no indication that the WCJ relied solely
on the Steinman Report when rendering his decision or that the opinions of Dr.
Steinman factored into the WCJ’s findings and credibility determinations, or his
conclusion that Claimant’s condition related to his September 30, 2015 flu
vaccination. We also disagree that the March 24, 2018 Steinman Report erodes the
competency of Dr. Khella’s testimony and opinions. Dr. Khella, who first evaluated
Claimant on January 19, 2018, acknowledged that he reviewed the Steinman Report,
although he could not recall when this occurred, and he agreed with its conclusions;
however, he stated that the Steinman Report did not form a basis for Claimant’s
course of treatment.
C. Reasoned Decision
Finally, we address whether the WCJ issued a reasoned decision under
Section 422(a) of the Act, which provides, in pertinent part, that “[a]ll 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.” 77 P.S. § 834. Further, when faced
with conflicting evidence, the WCJ must adequately explain his reasons for rejecting
or discrediting competent evidence. Id.
“[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
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adequate review by the appellate courts under applicable review standards.” Daniels
v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003).
In a case where the WCJ “has had the advantage of seeing the witnesses testify and
assessing their demeanor, a mere conclusion as to which witness was deemed
credible . . . could be sufficient to render the decision adequately ‘reasoned.’” Id. at
1053.
Where medical experts have testified solely by deposition, resolution of
conflicting medical testimony cannot be supported by a mere statement that one
expert was deemed more credible than another. Id. While the WCJ is the sole arbiter
of credibility and evidentiary weight, he must provide an adequate basis for rejecting
a witness’s testimony when he does not testify live before the WCJ. Id. at 1052-53.
“[S]ome articulation of the actual objective basis for the credibility determination
must be offered for the decision to be a ‘reasoned’ one which facilitates effective
appellate review.” Id. at 1053.
Employer’s argument that the WCJ’s decision was not reasoned largely
reiterates its earlier contention that the WCJ’s findings were based on “entirely
inaccurate evidence.” Employer’s Br. at 24. By way of example, Employer
contends that Claimant’s testimony regarding the onset of his symptoms could not
be deemed credible, given that he did not seek treatment until November 2, 2015, 33
days after he received the flu vaccination. Employer also questions the WCJ’s
reliance on Dr. Khella’s status as one of Claimant’s treating physicians because he
first evaluated Claimant more than two years after Claimant’s symptoms arose, and
the “only ‘medical record’” Dr. Khella relied on in arriving at his theory of causation
was the inadmissible Steinman Report. Employer’s Br. at 26. Employer contends
that, by way of contrast, Dr. Bennett provided a comprehensive history and review
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of Claimant’s treatment records, which gave him an accurate history of Claimant’s
symptoms. Dr. Cuneo likewise reviewed more records than Dr. Khella.
Employer’s attack on the WCJ’s decision as unreasoned is nothing more than
a request for this Court to reweigh the evidence, which is not within our purview.
The WCJ explained his credibility findings for each witness, including Claimant,
who testified live and by deposition. Claimant presented his live testimony “in a
forthright manner,” although the WCJ acknowledged that Claimant “was not a
historian” as to the date he received the flu vaccination. WCJ Decision, F.F. No. 20.
Claimant admitted he had trouble remembering some details, given the passage of
time. The WCJ nonetheless credited Claimant’s testimony regarding the onset,
location, and nature of his symptoms, in part because Claimant was able to perform
his job duties and daily activities without restriction prior to his receipt of the
September 30, 2015 flu vaccination.
As to the medical evidence presented, the WCJ thoroughly explained the
reasons he favored Claimant’s evidence over that introduced by Employer.
Employer’s contention that Dr. Khella was not one of Claimant’s treatment
providers is somewhat curious, given that Dr. Khella evaluated Claimant on several
occasions and recommended a treatment plan of pain management and physical
therapy. The fact that Dr. Khella did not examine Claimant until two years after his
symptoms arose does not remove him from the realm of treating physician.
Ultimately, Employer’s challenge to the WCJ’s decision is grounded in its
dissatisfaction with the results, which does not form a basis for relief. Accordingly,
we affirm the Board.
__________________________________
ELLEN CEISLER, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Home Depot USA, Inc. :
Petitioner :
:
v. : No. 113 C.D. 2021
:
Abdolrahi Noorani (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 23rd day of December, 2021, the January 15, 2021 order of
the Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge