M. McGurn v. WCAB (American Patriot Ambulance Services, Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew McGurn, :
Petitioner :
:
v. : No. 41 C.D. 2014
: Submitted: July 11, 2014
Workers' Compensation Appeal :
Board (American Patriot Ambulance :
Services, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: August 20, 2014
In this appeal, Matthew McGurn (Claimant) asks whether the
Workers’ Compensation Appeal Board (Board) erred in affirming a Workers’
Compensation Judge’s (WCJ) decision that denied his claim and penalty petitions
and granted American Patriot Ambulance Services, Inc.’s (Employer) termination
petition. Claimant primarily argues the WCJ did not issue a reasoned decision and
capriciously disregarded evidence. Discerning no merit in these assertions, we
affirm.
On October 15, 2010, Claimant sustained a work injury while working
for Employer as an emergency medical technician. Employer issued a medical
only notice of compensation payable (NCP), describing the injury as a back
sprain/strain.
In January 2011, Claimant filed a claim petition relating to the
October 2010 work injury. He sought temporary total disability benefits.
Employer filed an answer in which it admitted that Claimant sustained a lumbar
strain as stated in the medical only NCP. However, Employer denied that
Claimant suffered any other low back injury, and it denied that any disability
resulted from the work injury. Claimant also filed a penalty petition, alleging
Employer violated the Workers’ Compensation Act (Act)1 by failing to accept
liability for indemnity benefits. Employer denied the material allegations.
Thereafter, in May 2011, Employer filed a termination petition,
alleging Claimant fully recovered from his work injury as of April 7, 2011.
Claimant denied the material allegations. The parties’ petitions were consolidated
for hearing before the WCJ.
Based on the evidence presented, the WCJ made several findings,
which we summarize as follows. Claimant is 28 years old. He began working for
Employer in October 2008. Claimant’s job duties involved “basic life support,
care of patients in both emergency and non-emergency situations, writing reports,
taking medical histories and then giving written reports to [his] supervisors and
oral reports to nurses and doctors at emergency rooms when needed.” WCJ Op.,
3/7/12, Finding of Fact (F.F.) No. 2(e); Reproduced Record (R.R.) at 23a-24a. He
was required to lift patients, medical equipment, and stretchers, usually with the
assistance of another person. Before working for Employer, Claimant had no
health problems, and he was not under any physical restrictions or medical
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501-2708.
2
limitations since beginning work with Employer. Prior to October 2010, Claimant
never experienced any low back pain or radiating pain into his legs, nor had he
undergone any diagnostic studies, MRI scans, or EMG tests to his low back or
lower extremities. However, Claimant admitted that he was under medical
restrictions for two weeks related to a September 2008 work-related neck injury
sustained while working in prior employment.
On October 15, 2010, Claimant transported a patient from a nursing
facility to a hospital. At the emergency room, he transferred the patient from a
stretcher to an emergency room bed. Thereafter, he began to experience severe
pain in his lower back. He thought he pulled a muscle, and he took Motrin. About
10 minutes later, he felt an “unbelievable amount of pain,” and he contacted
dispatch, and told them he believed he hurt his back lifting the last patient. F.F.
No. 2(f); R.R. at 30a. Claimant was instructed to proceed to a hospital emergency
room, where he was seen and discharged.
A few days later, Claimant treated with Employer’s panel physician,
who instructed Claimant not to return to work until his next appointment on
October 22, 2010. At the next visit, Employer’s panel physician declined
Claimant’s request to order an MRI scan. He approved Claimant’s return to light
duty work the next week for three days and full duty work thereafter. Claimant
notified Employer of his change in status by email, but he did not return to work
because his “employer never responded to [his] e-mail.” F.F. No. 2(h); R.R. at
35a. Claimant returned to Employer’s panel physician again, and asked him to
order an MRI scan. Again, the doctor declined to do so.
3
Claimant began treating with Dr. Syed Sajjad (Claimant’s Physician),
who ordered an MRI in January 2011. Claimant’s Physician subsequently referred
Claimant to a neurosurgeon, who provided care for him along with Claimant’s
Physician. Claimant currently continues to take pain medication. He believes the
doctors limited him to not performing any work involving lifting.
Claimant also testified before the WCJ at a subsequent hearing. He
testified his condition improved and he attributed the improvement to treatment he
received from his Physician and neurosurgeon. As a result, although he still has
pain in his lower back and down his right leg, both are “better.” F.F. No. 3(a);
R.R. at 90a. Claimant did not believe he could return to work in his pre-injury job
because he is at a high risk of re-injury.
In support of his claim petition, Claimant submitted the deposition
testimony of his Physician, who is board certified in internal medicine. Claimant’s
Physician first examined Claimant in January 2011, about three months after the
work injury. Based on his examination, Claimant’s history and his review of
Claimant’s medical records and MRI and EMG reports, Claimant’s Physician
opined that Claimant suffered from lumbar radiculopathy and depression.
Claimant’s Physician also opined Claimant had herniated discs at L4-L5, L5-S1,
and L1-L2, which “probably happened” as a result of the work incident. F.F. No.
4(i); R.R. at 60a. Claimant’s Physician did not believe Claimant was capable of
returning to his pre-injury job without restrictions because of the pain, and the fact
that his condition would worsen.
4
In response, Employer submitted the deposition testimony of
Christian I. Fras, M.D. (Employer’s Physician), who is board certified in
orthopedic surgery. Employer’s Physician examined Claimant in April 2011.
Based on his examination, Claimant’s history, and a review of Claimant’s medical
records, Employer’s Physician opined that Claimant sustained a low back strain
and sprain as a result of the work incident. Employer’s Physician further opined
Claimant recovered from his lumbar strain and sprain. Employer’s Physician did
not find any objective findings to support Claimant’s subjective complaints.
Further, Employer’s Physician did not find any objective findings during
Claimant’s physical examination that would indicate radicular pain. Employer’s
Physician agreed that Claimant has a disc herniation, but he opined there is no
evidence that the herniation is traumatic in nature. He further opined there is no
relationship between Claimant’s herniation and Claimant’s work injury.
Ultimately, the WCJ rejected the testimony of Claimant and his
Physician. Additionally, the WCJ credited Employer’s Physician’s testimony. As
a result, the WCJ determined Claimant did not meet the burden of proof on his
claim petition. The WCJ determined Claimant did not prove he suffered any injury
other than the accepted low back strain and sprain or that he was disabled as a
result of the October 15, 2010 work incident. The WCJ further determined
Claimant did not meet the burden of proof on his penalty petition because he did
not prove any violation of the Act.2 The WCJ also determined Employer met the
burden of proof on its termination petition that Claimant was fully recovered from
the October 15, 2010 work injury as of April 7, 2011 based on the credited
2
The WCJ’s denial of Claimant’s penalty petition is not at issue in this appeal.
5
testimony of Employer’s Physician. Thus, the WCJ denied Claimant’s claim and
penalty petitions and granted Employer’s termination petition.
On Claimant’s appeal, the Board affirmed. This appeal by Claimant
followed.
On appeal,3 Claimant argues the Board erred in affirming the WCJ’s
decision, which was not a reasoned decision because: (1) the finding in which the
WCJ rejected Claimant’s testimony was wholly inaccurate; and, (2) the WCJ
selectively adopted Employer’s Physician’s testimony which, when read in its
entirety, leads to a contrary conclusion.
Initially, we note, the WCJ, as the ultimate fact-finder in workers’
compensation cases, “has exclusive province over questions of credibility and
evidentiary weight ….” A & J Builders, Inc. v. Workers’ Comp. Appeal Bd.
(Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ’s authority over
questions of credibility, conflicting evidence and evidentiary weight is
unquestioned. Id. The WCJ may accept or reject the testimony of any witness,
including a medical witness, in whole or in part. Id. Indeed, the WCJ may reject
the testimony of any witness even if it is uncontradicted. Capuano v. Workers’
Comp. Appeal Bd. (Boeing Helicopter Co.), 724 A.2d 407 (Pa. Cmwlth. 1999).
We are bound by the WCJ’s credibility determinations. Id.3
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d
1037 (Pa. Cmwlth. 2011).
6
Moreover, “[i]t is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the critical inquiry is whether
there is evidence to support the findings actually made.” Furnari v. Workers’
Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation
omitted). We examine the entire record to see if it contains evidence a reasonable
person might find sufficient to support the WCJ’s findings. Id. If the record
contains such evidence, the findings must be upheld, even though the record may
contain conflicting evidence. Id. Additionally, we must view the evidence in the
light most favorable to the prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence. Id.Claimant first argues the WCJ did not issue a reasoned decision
because the WCJ’s decision was premised on an erroneous factual finding that was
inconsistent with and contrary to the substantial competent evidence presented.
Specifically, Claimant asserts an objective review of the WCJ’s opinion confirms
the WCJ’s crucial finding, in which she explained the basis for why she discredited
Claimant’s testimony, was inaccurate because it was contrary to Claimant’s
testimony and other relevant record evidence.
With regard to the reasoned decision requirement, Section 422(a) of
the Act states, as pertinent:
All parties to an adjudicatory proceeding are entitled to a
reasoned decision containing findings of fact and conclusions
of law based upon the evidence as a whole which clearly and
concisely states and explains the rationale for the decisions so
that all can determine why and how a particular result was
reached. The workers’ compensation judge shall specify the
evidence upon which the workers’ compensation judge relies
7
and state the reasons for accepting it in conformity with this
section. When faced with conflicting evidence, the workers’
compensation judge must adequately explain the reasons for
rejecting or discrediting competent evidence.
77 P.S. §834.
In Daniels v. Workers’ Compensation Appeal Board (Tristate
Transport), 828 A.2d 1043 (Pa. 2003), our Supreme Court considered the proper
construction of Section 422(a)’s reasoned decision requirement in a case with
conflicting evidence. In considering what constitutes an adequate explanation for
resolving conflicting testimony, the Court distinguished between live testimony
and deposition testimony. Specifically, the Court stated:
In a case where the fact-finder has had the advantage of seeing
the witnesses testify and assessing their demeanor, a mere
conclusion as to which witness was deemed credible, in the
absence of some special circumstance, could be sufficient to
render the decision adequately reasoned.
Id. at 1053.
Where witnesses provide conflicting testimony by way of deposition,
however, a WCJ must articulate some objective basis for his credibility
determination. Id. The Court in Daniels further explained:
[T]here are countless objective factors which may support the
decision to accept certain evidence while ‘rejecting or
discrediting competent conflicting evidence.’ For example, an
expert witness’s opinion may be based upon erroneous factual
assumptions; or an expert may have had less interaction with
the subject; or the interaction was in a less timely fashion; or
the expert may betray a bias or interest in the matter. In
addition, an expert witness may be unqualified or less qualified
8
than the opposing party’s expert; or may be impeached with
inconsistencies or contradictions in his or her testimony or
reports; or may be impeached in some other convincing
fashion. But these are relevant factors which are readily
capable of identification and easy articulation by the WCJ. The
point is that, absent the circumstance where a credibility
assessment may be said to have been tied to the inherently
subjective circumstance of witness demeanor, some 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 (citations omitted).
The reasoned decision requirement in “Section 422(a) [of the Act]
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.” Ace Wire Spring & Form
Co. v. Workers’ Comp. Appeal Bd. (Walshesky), ___ A.3d ___, ___ (Pa. Cmwlth.,
No. 1916 C.D. 2013, filed June 10, 2014), 2014 WL 2576059 at *10.
Here, in rejecting Claimant’s testimony, the WCJ stated (with
emphasis added):
a. This [WCJ] is not persuaded by the Claimant’s testimony that
he suffered a more extensive injury than a lumbar strain and
sprain as a result of the October 15, 2010 work incident or that
he was disabled as a result of the October 15, 2010 work
incident. The Claimant’s testimony is found to be neither
credible nor persuasive in this regard based on the Claimant’s
demeanor at the time of his testimony before this [WCJ].
Additionally, the Claimant’s testimony concerning his prior
back problems was inconsistent with the medical records. The
Claimant specifically denied prior low back problems, denied
prior radiating pain, and denied prior testing for his lower back
9
before this [WCJ], and he did not provide an accurate history
regarding his prior low back problems to [Claimant’s
Physician] or to [Employer’s Physician]. His medical records
revealed that he had pain radiating into his right thigh before
the work incident. He also failed to mention a low back injury
when describing his prior 2008 work incident before this
[WCJ]. The Claimant’s attempt to mislead this [WCJ] and the
medical providers regarding his medical history reflects
negatively on his credibility.
F.F. No. 7(a).
Claimant’s challenge to this finding fails for two reasons. First,
Claimant twice testified live before the WCJ. Because the WCJ personally
observed Claimant testify and assessed his demeanor, a conclusion that the WCJ
deemed Claimant not credible is sufficient to render the decision adequately
reasoned. See PPL v. Workers’ Comp. Appeal Bd. (Rebo), 5 A.3d 839 (Pa.
Cmwlth. 2010).
In addition, the WCJ’s further reason for rejecting Claimant’s
testimony, that Claimant’s testimony concerning his prior back problems was
inconsistent with the medical records, is adequately supported by the record.
Compare R.R. at 39a-40a, 44a (Claimant’s testimony that, prior to the October
2010 work incident, he never injured his low back or had any low back pain or
pain radiating into his lower extremities) with R.R. at 70a (Employer’s Physician’s
testimony that a 2008 hospital record indicated Claimant had complaints of pain in
his lower back radiating down the right thigh). For these reasons, we reject
Claimant’s challenge to the WCJ’s credibility finding.
10
Claimant next argues the WCJ erred in accepting the opinion
testimony of Employer’s Physician. Claimant contends the WCJ selectively
accepted Employer’s Physician’s opinions as “fact” when, in fact, a reading of
Employer’s Physician’s entire testimony reveals an intractable unwillingness to
acknowledge Claimant suffered an injury when no other conclusion is possible in
light of the circumstances. Pet’r’s Br. at 19. Claimant asserts Employer’s
Physician admitted Claimant suffered a work injury, testified that Claimant fully
recovered from that injury, and that the multiple herniated discs from which
Claimant still suffered were not work-related. However, Claimant maintains,
Employer’s Physician offered no basis for his opinions.
In crediting Employer’s Physician’s testimony here, the WCJ found:
c. This [WCJ] finds the testimony, conclusion, and opinion of
[Employer’s Physician] that the Claimant was fully recovered
from his work-related injury as of April 7, 2011 to be both
credible and persuasive. [Employer’s Physician] is highly
qualified to render an opinion in this matter. His opinion of full
recovery is supported by his clinical examination results and
review of the Claimant’s medical history and records.
d. Based on the credible evidence of record, this [WCJ] finds
that the Claimant suffered a work-related injury in the nature of
a non-disabling low back strain and sprain while performing his
work duties on October 15, 2010 from which he was fully
recovered as of April [7], 2011.
F.F. Nos. 7(c), (d). Our review of Employer’s Physician’s testimony supports the
WCJ’s findings that Claimant fully recovered from his work injury and that there
11
were no objective findings to support Claimant’s subjective complaints. See R.R.
at 70a-71a.4
Further, the WCJ found, “[Employer’s Physician] agrees that the
Claimant has a disc herniation, but there is no evidence that the herniation is
traumatic in nature. There is no relationship between Claimant’s herniation and
Claimant’s work injury of October 15, 2010.” F.F. No. 5(s). Again, this finding is
directly supported by Employer’s Physician’s testimony. R.R. at 82a.
Also, while Claimant argues Employer’s Physician offered no basis
for his opinion that Claimant’s disc herniations were not work-related, on re-cross-
examination, Employer’s Physician testified as follows (with emphasis added):
Q. So what is your opinion, Doctor, as to what is cause of the
herniation?
A. The specific cause of the herniations are noted on
[Claimant’s] imaging studies, may be speculated upon. Various
studies have clearly identified the vast majority of herniations
in the lumbar spine are sustained without any identifiable
trauma. And, certainly, [Claimant] has evidence of
degenerative changes afflicting much of his spine. There is no
evidence on the imaging studies to suggest that these are
traumatic herniations. Such herniations have clear radiographic
4
An employer seeking to terminate workers’ compensation benefits bears the burden of
proving either that a claimant’s disability ceased, or that any current disability arises from a
cause unrelated to a claimant’s work injury. Davis v. Workers’ Comp. Appeal Bd. (Mercy
Douglas), 749 A.2d 1033 (Pa. Cmwlth. 2000) (en banc). Where a claimant complains of pain,
the burden in a termination petition is met when “an employer’s medical expert unequivocally
testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is
fully recovered, can return to work without restrictions and that there is no objective medical
findings which substantiate the claims of pain or connect them to the work injury.” Udvari v.
Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
12
markers associated with them. But, again, the exact cause or
causes of the multiple herniations that afflict [Claimant’s] spine
on MRI studies can only be speculated upon or may be stated
confidently, is that they are unrelated to the episode of
10/15/2010.
R.R. at 82a.
Claimant next argues that the WCJ erred in failing, at a minimum, to
award Claimant disability benefits from the date of the October 2010 work injury
through the date of Employer’s Physician’s April 2011 examination based on
Claimant’s Physician’s uncontradicted testimony that Claimant was disabled
during this period.
In a claim petition, a claimant must establish all the necessary
elements to prevail. A claimant must prove the injury occurred in the course of
employment and that it is related to that employment. Inglis House v. Workmen’s
Comp. Appeal Bd. (Reedy), 634 A.2d 592 (Pa. 1993). Further, the claimant must
establish the work injury resulted in a disability that continued for the period of
time for which benefits are sought. Delaware Cnty. v. Workers’ Comp. Appeal
Bd. (Baxter Coles), 808 A.2d 965 (Pa. Cmwlth. 2002). Thus, the claimant is
required to establish the length of his disability. Coyne v. Workers’ Comp. Appeal
Bd. (Villanova Univ.), 942 A.2d 939 (Pa. Cmwlth. 2008). Where there is no
obvious causal connection between the injury and the work-related cause,
unequivocal medical testimony is necessary to establish such a connection.
Cromie v. Workmen’s Comp. Appeal Bd. (Anchor Hocking Corp.), 600 A.2d 677(Pa. Cmwlth. 1991). Additionally, the WCJ must find such medical testimony
credible in order for a claimant to prevail. See, e.g., Koshatka v. Workers’ Comp.
13
Appeal Bd. (Sch. Dist. of Phila.) (Pa. Cmwlth., No. 1475 C.D. 2013, filed June 26,
2014), 2014 WL 2939172 (unreported).
Further,
[a] claimant seeking disability benefits [by Claim Petition] must
prove that he has suffered a disability caused by a work-related
injury. The claimant must show not only physical impairment,
but also a loss of earning power. A ‘disability’ means a loss of
earning power, not a physical disability caused by a work
injury. If the claimant’s loss of earnings is the result of the
work injury, he is entitled to disability benefits; if not, benefits
must be suspended.
Furnari, 90 A.3d at 59 (citation omitted).
Here, the WCJ specifically rejected Claimant’s Physician’s testimony,
stating:
b. This [WCJ] finds the testimony, conclusions and opinions of
[Claimant’s Physician] to be neither credible nor persuasive.
Although [Claimant’s Physician] was the Claimant’s treating
physician, he did not examine the Claimant until three months
after the work incident; he did not conduct a complete and
thorough examination of the Claimant on all occasions; he
admittedly only reviewed the MRI reports and was not familiar
with reading MRI scans; he presented equivocal and
inconsistent testimony regarding the relationship of the
Claimant’s dis[c] herniations and depression to the work
incident; and his opinions were based on the incredible history
provided by the Claimant.
F.F. No. 7(b). Because Claimant bore the burden of proving his entitlement to
indemnity benefits, and the WCJ rejected the testimony of Claimant and his
Physician, we discern no error in the WCJ’s decision not to award Claimant
14
indemnity benefits.5 In short, Claimant did not produce any credible evidence to
establish a loss of earning power. See WCJ Op., Concl. of Law No. 2 (Claimant
did not prove he was disabled as a result of the October 15, 2010 work injury).
As a final point, Claimant contends the WCJ’s decision constitutes a
capricious disregard of evidence. In support, Claimant reiterates his arguments
that the WCJ improperly rejected his testimony because he did not testify as the
WCJ stated, and the WCJ erred in relying on the testimony of Employer’s
Physician.
As to the capricious disregard standard, this Court explained,
as fact finder, the WCJ is not required to accept even
uncontradicted testimony. Capricious disregard occurs only
when the fact-finder deliberately ignores relevant, competent
evidence. A capricious disregard of the evidence in a workers’
compensation case is a deliberate and baseless disregard of
apparently trustworthy evidence. We emphasize our Supreme
Court’s pronouncement that, where there is substantial evidence
to support an agency’s factual findings, and those findings in
turn support the conclusions, it should remain a rare instance in
which an appellate court would disturb an adjudication based
upon the capricious disregard of material, competent evidence.
McCool v. Workers’ Comp. Appeal Bd. (Sunoco, Inc.), 78 A.3d 1250, 1256 (Pa.
Cmwlth. 2013), appeal denied, 87 A.3d 817 (Pa. 2014) (emphasis added) (citations
omitted). Under the capricious disregard standard, a WCJ may generally disregard
5
Further, while Claimant testified that Employer’s panel physician did not release him to
return to work until October 22, 2010, seven days after the work injury, the Act provides that,
generally, “[n]o compensation shall be allowed for the first seven days after disability begins
….” Section 306(e) of the Act, 77 P.S. §514.
15
the testimony of any witness, even if the testimony is uncontradicted; however, a
WCJ lacks discretion to disregard competent evidence without a reasonable
explanation or without specifically discrediting it. Green v. Workers’ Comp.
Appeal Bd. (US Airways), 28 A.3d 936 (Pa. Cmwlth. 2011). Capricious disregard,
by definition, does not exist where, as here, the WCJ expressly considers and
rejects the evidence. Ace Wire.
Here, as discussed above, the WCJ explained, in detail, her bases for
discrediting the testimony of Claimant and his Physician and crediting the
testimony of Employer’s Physician, and the record supports the WCJ’s
determinations. Because the WCJ’s findings support her conclusion that Claimant
did not meet the burden of proof on his claim petition and that Employer met the
burden of proof on its termination petition, we reject Claimant’s argument that the
WCJ capriciously disregarded evidence here. McCool.
ROBERT SIMPSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew McGurn, :
Petitioner :
:
v. : No. 41 C.D. 2014
:
Workers' Compensation Appeal :
Board (American Patriot Ambulance :
Services, Inc.), :
Respondent :
ORDER
AND NOW, this 20th day of August, 2014, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge