Madison Construction Co. v. WCAB (Tascarella)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Madison Construction Company, :
:
Petitioner :
:
v. : No. 1336 C.D. 2017
: Submitted: March 9, 2018
Workers’ Compensation Appeal :
Board (Tascarella), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 6, 2018
Madison Construction Company (Employer) petitions for review of
that portion of the order of the Workers’ Compensation Appeal Board (Board)
affirming the decision of a Workers’ Compensation Judge (WCJ) that dismissed
Employer’s petition to suspend the compensation benefits of Kevin Tascarella
(Claimant) pursuant to the Workers’ Compensation Act (Act).1 We affirm.
On June 24, 2008, Claimant suffered a work-related injury to his left
hand in the nature of an amputated index finger and laceration to the other fingers
after he struck his fingers with a circular saw. The injury was accepted in a Notice
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
of Temporary Compensation Payable that converted to a Notice of Compensation
Payable.
Claimant was seen by Lynn Yang, M.D., on September 16, 2011, and
January 4, 2013, for an Impairment Rating Evaluation (IRE). Following the
January 2013 examination, Dr. Yang concluded that Claimant is at maximum
medical improvement (MMI) from his work-related injuries and that he has a
whole body impairment of 30% based on the American Medical Association
(AMA) Guide.
On February 8, 2013, Employer filed a Notice of Change of Workers’
Compensation Disability Status, arguing that Claimant’s temporary total disability
benefits had converted to temporary partial disability benefits as of January 4,
2013. On February 15, 2013, Claimant filed a Review Petition challenging Dr.
Yang’s IRE determination.
Following his work injury, Claimant filed a civil action for damages
based on his work-related injuries. On June 20, 2013, Employer filed a
Modification Petition seeking subrogation against the third-party recovery that
Claimant obtained.
On July 26, 2013, Claimant filed a Penalty Petition, alleging that
Employer violated the Act by failing to pay for surgery related to his work injury,
seeking penalties and unreasonable contest attorney fees.
On September 12, 2013, Employer filed a Modification Petition
seeking the modification of Claimant’s benefits based on the results of a labor
market survey. On May 1, 2014, Employer filed a Suspension Petition, seeking the
2
suspension of Claimant’s benefits because Claimant’s work-related injury had
resolved into a specific loss of his four left fingers.2
During hearings before the WCJ, Claimant testified by deposition,
stating that he has not returned to work, continues to receive total disability
benefits, and he also receives Social Security disability benefits. He testified that
he is unable to use his dominant left hand for any purpose, but he can use his right
hand to some extent while performing daily activities such as cleaning, eating,
shopping, and grooming. He stated that he does not wear pants or shoes that
require laces to be tied. He also testified that he made no effort to respond to jobs
identified by Employer’s vocational expert because he is incapable of performing
2
Section 306(c)(10) through (13) of the Act states, in relevant part:
For all disability resulting from permanent injuries of the
following classes, the compensation shall be exclusively as
follows:
***
(10) For the loss of the first finger, commonly called index
finger, sixty-six and two-thirds per centum of wages during fifty
weeks.
(11) For the loss of a second finger, sixty-six and two-thirds per
centum of wages during forty weeks.
(12) For the loss of a third finger, sixty-six and two-thirds per
centum of wages during thirty weeks.
(13) For the loss of a fourth finger, commonly called little finger,
sixty-six and two-thirds per centum of wages during twenty-eight
weeks.
77 P.S. §513(10)-(13).
3
any of the identified jobs. He stated that he requires additional surgery with Julia
Spears, M.D., a board certified plastic surgeon, but he has been unable to obtain
authorization for the surgery from the insurance company.
Claimant also offered Dr. Spears’ deposition testimony in support of
his Penalty Petition. Dr. Spears testified that she started treating Claimant on the
date of injury and she participated in the replantation surgery that reattached
Claimant’s left index finger and the procedures relating to the injuries to his
remaining fingers. She stated that Claimant’s post-operative recovery has been
complicated by left hand pain and disability. She testified that following a June
12, 2013 examination, Claimant had a reduced range of motion of the left hand
fingers with significant pain in the index finger and most of the hand. As a result,
she recommended a tenolysis surgical procedure to reduce Claimant’s
symptomology, but it would likely not improve his function or allow him to be
productive with his left hand.3 She stated that following an April 16, 2014
examination, Claimant’s left hand remained essentially the same and that she was
able to assess the range of motion of Claimant’s left fingers both actively and
passively, but that his left thumb remains fully functional. She testified that he is
capable of performing some form of work on a right-hand-only basis. She opined
that, based on her physical examination and Claimant’s description of his inability
3
Dr. Spears testified, “I had recommended that he would benefit from tenolysis of his
digits and possibly neurolysis for improved range of motion as well as decrease in pain,” and that
she recommended the procedure “[p]rimarily, for reduction of pain and increased functionality of
the hand.” Reproduced Record (R.R.) at 464a, 465a. She described the procedure as, “During
the procedure, the area of the injury would be explored, which is primarily the palm. At that
time, the tendons that travel through the palm would be released. The scar tissue surrounding the
tissues would be released as well as the nerves to any scar tissues surrounding the nerves.” Id.
Dr. Spears stated that although Claimant was willing to undergo the procedure, “[i]t was not
scheduled because of difficulty with approval,” and “that it was not approved.” Id.
4
to use his left fingers, Claimant’s work-related injury has resolved into a loss of
use of his four left fingers for all practical intents and purposes.
In support of its petitions, and in opposition to Claimant’s petitions,
Employer presented the deposition testimony of William Kirkpatrick, M.D., a
board certified orthopedic surgeon with a subspecialty in hand surgery. Dr.
Kirkpatrick testified that based on a September 12, 2012 examination and review
of Claimant’s medical records, Claimant presented with stiffness in his left hand
fingers and hypersensitivity of the left hand. He stated that Claimant drove to the
examination and takes Percocet on an as-needed basis, approximately two times
per week. He testified that his examination of Claimant’s left elbow, wrist, and
thumb revealed normal range of motion and no evidence of atrophy. He stated that
the MP joints or main knuckles of the left hand were all fixed: the index finger at
45 degrees; the long and ring fingers at 90 degrees; and the small finger at 20
degrees. He testified that the PIP joints or second knuckles of the left hand were
all fixed at full extension. He stated that he was unable to assess the fingers’ range
of motion because Claimant withdrew complaining of sensitivity when he tried to
touch the fingers, but he found no evidence of atrophy or trophic changes in the
left fingers. He found review of the medical records remarkable because
Claimant’s treating doctors did not document the hypersensitivity that Claimant
exhibited and they were able to assess the passive range of motion on the left side.
He concluded that Claimant is capable of returning to the workforce in a modified,
light-duty capacity with limited use of his left hand, and reviewed and approved
the Job Analysis forms submitted by Employer’s vocational expert.
In support of the Impairment Rating, Employer presented the
deposition testimony of Dr. Yang, a pain management specialist who is board
5
certified in physical medicine and rehabilitation. Dr. Yang testified that following
a September 16, 2011 IRE examination, she noted that Claimant had essentially no
movement in his left hand. She stated that based on Claimant’s lack of range of
motion in his fingers, she classified the index finger, third digit, fourth digit, and
fifth digit of Claimant’s left hand being in a state of ankyloses or fusion. She
testified that this led her to determine, based on the AMA Guide, that Claimant had
a 30% whole body impairment because of his work-related injuries. She opined
that Claimant was not at maximum medical improvement at that time because
Claimant was scheduled for additional surgery that month. She stated that
following a January 4, 2013 IRE examination, Claimant had no movement in the
left hand except for some adduction of the left thumb, and that her findings were
identical to those following the prior examination. As a result, she concluded that
Claimant continued to have a 30% whole body impairment rating. She also opined
that, based on her examination and the IME report of Dr. Kirkpatrick, Claimant
had reached MMI in his recovery from his work-related injuries. She testified that
the possibility that Claimant could have additional future surgery on his left hand
did not change her opinion regarding MMI because the AMA Guide only allows
for a one-year prospective window of assessment and Claimant was not scheduled
for surgery in that time frame.4
4
Dr. Yang testified in pertinent part, as follows:
[Q. W]hat was your opinion regarding the claimant’s maximum
medical improvement, your opinion.
A. At this point in time?
Q. Yes.
(Footnote continued on next page…)
6
(continued…)
A. That he has reached maximum medical improvement.
Q. And Doctor, can you define what MMI, maximum medical
improvement, is?
A. If I can read it out of the [AMA Guide], this is page 26 at the
end of the first column.
“Maximum medical improvement refers to a status where patients
are as good as they’re going to be from the medical and surgical
treatment available to them. They can also be conceptualized as a
date from which further recovery or deterioration is not
anticipated, although over time, meaning 12 months, there may be
some expected change.”
***
Q. Doctor, based solely on your two examinations and the
definition you provided, or the definition from the AMA
[G]uidelines, what is your opinion regarding the claimant’s
maximum medical improvement?
A. I believe – I mean until the day [Claimant] goes and has
another surgery, I believe that he is at maximum medical
improvement.
Q. Now, do the Guidelines enclose a time period to consider for
maximum medical improvement?
A. They don’t expect things to change over the next year, that
would be their timeline.
Q. So the 12 months would be the timeline?
A. Correct.
R.R. at 311a-312a, 321a-322a.
7
On February 25, 2015, and March 9, 2015, the WCJ issued two
decisions disposing of the various petitions.5 With respect to Employer’s
Suspension Petition based on the specific loss of Claimant’s four fingers of his left
hand, the WCJ found the following:
The WCJ finds from a review of the evidence that the
testimony of all three medical experts in this matter, Dr.
Kirkpatrick, Dr. Yang, and Dr. Spears, and the
Claimant’s testimony support a finding that Claimant’s
work-related injuries have not resolved solely into the
specific loss for all practical intents and purposes of the
Claimant’s four fingers of his left hand as the injury of
June 24, 2008 produces disability and symptoms in areas
separate from the scheduled loss that resolved into a
specific loss of the four fingers of the left hand,
excluding the thumb which is fully functional.
WCJ’s 2/25/15 Decision at 6-7. Accordingly, the WCJ dismissed Employer’s
Suspension Petition. Id. at 12.
Based on this disposition, as well as the disposition of the other
foregoing petitions, both parties appealed the WCJ’s Decisions to the Board. On
appeal, the Board affirmed the WCJ’s denial of Employer’s Suspension Petition
explaining, in relevant part:
In a specific loss case, the proper test is whether
the claimant has a permanent loss of use of a part of his
body for all practical intents and purposes. Keller v.
[Workmen’s Compensation Appeal Board] (Blair Strip
Steel Corporation), 493 A.2d 124 (Pa. Cmwlth. 1985). It
is not necessary that the injured part of his body be of
absolutely no use in order to qualify for specific loss
benefits. Id. However, a permanent loss of partial use is
not the equivalent of the loss of use for all practical
5
As the Board stated, “The two Decisions appear to be identical in all respects.” Board
4/13/16 Opinion at 2 n.3.
8
intents and purposes. Id. Competent medical evidence
of the permanent loss of use for all practical intents and
purposes must be presented before further support in the
form of a claimant’s testimony can be considered.
Jacobi v. [Workers’ Compensation Appeal Board]
(Wawa, Inc.), 942 A.2d 263 (Pa. Cmwlth. 2008).
Upon review, we determine no error. [Employer]
did not proffer any evidence of its own to support a
finding that Claimant’s work injury had resolved into a
specific loss. Rather to support its argument, [Employer]
relies upon a response given by Claimant’s doctor, Dr.
Spears, on cross-examination. Specifically, [Employer]
asked Dr. Spears if Claimant’s work injury had basically
resolved into a loss of use of his four fingers for all
practical intents and purposes. Dr. Spears responded that
it had.[6] Dr. Spears did not provide an opinion anywhere
6
Dr. Spears testified on cross-examination, in pertinent part, as follows:
Q. Would you agree, based on what he has told you and based
upon the examinations that he performed, that this man’s work
injury has basically resolved into a loss of use of his four fingers
for all practical intents and purposes?
[Claimant’s Counsel]: Objection. You are asking the doctor for a
legal conclusion.
[Employer’s Counsel]: I’m just asking for a medical conclusion.
By [Employer’s Counsel]:
Q. Would you agree with me that, given everything he has
testified to, given the result of your examinations, that his injury
has evolved into a loss of use of the index, long, ring and pinky
fingers for practical intents and purposes?
[Claimant’s Counsel]: Same objection.
[Employer’s Counsel]: You can answer it. Don’t look at the
attorney. Just answer the question. Go ahead.
(Footnote continued on next page…)
9
else within her testimony as to any loss of use, nor did
she indicate anywhere in her testimony, including on
cross-examination, that Claimant’s injury is permanent.
In specific loss cases, the test is whether the claimant has
a permanent loss of use of a part of his body for all
practical intents and purposes. Keller. Dr. Spears’
response on cross-examination coupled with her failure
to render an opinion as to permanency is not sufficient to
establish that Claimant has a permanent loss of use of his
four fingers for all practical intents and purposes.
Therefore, the WCJ did not err by failing to find that
Claimant’s work injury had resolved into a specific loss.
Board 4/13/16 Opinion at 12-13.
However, while the Board affirmed the WCJ’s Decisions with respect
to some of the other petitions, the Board remanded the matter with regard to two of
the other petitions. See Board 4/13/16 Opinion at 10-11, 12, 13.7 On appeal of the
WCJ’s Decision following remand, the Board again affirmed the WCJ’s dismissal
of Employer’s Suspension Petition, making its order final, and Employer filed the
instant petition for review.8, 9
(continued…)
[Dr. Spears]: He has basically no use, as you are saying, of his
index, third digit, fourth digit, fifth digit for any practical purpose.
R.R. at 468a.
7
By May 31, 2016 order, this Court granted Employer’s motion to quash Claimant’s
prior appeal of the Board’s 4/13/16 Opinion. See Tascarella v. Workers’ Compensation Appeal
Board (Madison Construction Company) (Pa. Cmwlth., No. 759 C.D. 2016, filed May 31, 2016).
8
The disposition of the other various petitions is not at issue in this appeal.
9
This Court’s review of a Board’s order is limited to determining whether constitutional
rights have been violated, whether an error of law was committed, and whether necessary
findings of fact are supported by substantial evidence. Morocho v. Workers’ Compensation
Appeal Board (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017). “In
(Footnote continued on next page…)
10
The sole claim raised by Employer in this appeal is that the Board
erred in affirming the WCJ’s dismissal of its Suspension Petition because the only
substantial evidence of record shows that Claimant’s work-related injury has
resolved into a specific loss of the four left fingers, which is a permanent loss of
use for all practical intents and purposes under Section 306(c) of the Act.
Specifically, Employer asserts that because the WCJ found that Claimant had
reached MMI under the AMA Guide based on Dr. Yang’s testimony, the Board
erred in making a finding regarding permanency with respect to Section 306(c) and
ignored the substantial evidence consisting of Dr. Spears’ and Dr. Yang’s
testimony in this regard.10 However, Employer’s claims improperly conflate the
WCJ’s finding of MMI as defined under the relevant provisions of the AMA Guide
with permanency under Section 306(c) of the Act and the Board did not err in
affirming the WCJ’s Decision.
(continued…)
performing a substantial evidence analysis, the evidence must be viewed in a light most
favorable to the party who prevailed before the WCJ.” Washington v. Workers’ Compensation
Appeal Board (Pennsylvania State Police), 11 A.3d 48, 54–55 n.4 (Pa. Cmwlth. 2011) (citations
omitted). Moreover, the party who prevailed before the WCJ is entitled to all reasonable
inferences from the evidence. Morocho, 167 A.3d at 860.
10
In support, Employer also cites Dr. Kirkpatrick’s testimony that Claimant was at MMI.
See R.R. at 1022a. However, the WCJ did not accept this testimony in his Decision. See, e.g.,
WCJ 2/25/15 Decision at 4. “It is well established that the [WCJ], as factfinder, has exclusive
province over questions of credibility and evidentiary weight . . . [and] is free to accept or reject
the testimony of any witness, including a medical witness, in whole or in part.” Greenwich
Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth.
1995) (citations omitted). The WCJ’s authority as the ultimate factfinder in determining the
weight and credibility of testimony is unquestioned and not subject to appellate review. Hayden
v. Workmen’s Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 479 A.2d 631,
635 (Pa. Cmwlth. 1984).
11
Because Employer was the party seeking the suspension of Claimant’s
benefits based on a specific loss under Section 306(c), it had the burden to
establish that Claimant had suffered a permanent loss of use of his four fingers for
all intents and purposes through competent evidence. LaChina v. Workmen’s
Compensation Appeal Board (Dana Corporation), 664 A.2d 204, 206 (Pa.
Cmwlth. 1995). As this Court has explained:
Although the term “specific loss” does not appear
in the [Act], it is used to describe the compensation
payments to be made where a claimant has suffered a
permanent injury. Estate of Harris v. Workers’
Compensation Appeal Board (Sunoco, Inc.), 845 A.2d
239 (Pa. Cmwlth. 2004), see section 306(c) of the Act, 77
P.S. §513 (defining schedule of compensation for
disability resulting from permanent injuries). When a
claimant seeks specific loss benefits for an injury, “he
has the burden of proving that he has permanently lost
the use of his injured body part for all practical intents
and purposes.” Jacobi[, 942 A.2d at 267]. “Whether a
claimant has lost the use of a body part, and the extent of
that loss of use, is a question of fact for the WCJ.” Id. at
268. Whether an injury has resulted in the permanent
loss of the use of a member, such as a hand, is a question
of fact. See Cartin v. Standard Tin Plate Co., [106 A. 63
(Pa. 1919)] (stating that whether the condition of
claimant’s hand constitutes a permanent loss of use is a
fact to be found and not a question of law); cf.
Workmen’s Compensation Appeal Board v. Pizzo, [346
A.2d 588 (Pa. 1975)] (stating that whether disfigurement
is permanent or temporary is purely a question of fact).
“Whether the loss is for all practical intents and purposes
is a question of law.” Jacobi, 942 A.2d at 268. While
“case law does not specify what evidence is required in
order to prove a permanent loss of use for all practical
intents and purposes . . . , it is clear that a claimant must
present medical evidence in order to prove that his loss of
use is permanent and for all practical intents and
purposes.” [Id.] at 269.
12
Morocho v. Workers’ Compensation Appeal Board (Home Equity Renovations,
Inc.), 167 A.3d 855, 858-59 (Pa. Cmwlth. 2017) (footnotes omitted).
In this case, the Board properly determined that Employer failed to
produce any competent evidence supporting a determination that Claimant has
permanently lost the use of the four fingers of his left hand for all practical intents
and purposes under Section 306(c) of the Act. Dr. Spears’ testimony that Claimant
“has basically no use, as you are saying, of his index, third digit, fourth digit, fifth
digit for any practical purpose,” R.R. at 468a, does not support a factual finding of
permanency of Claimant’s specific loss. See Morocho, 167 A.3d at 860
(“[A]lthough Dr. Chen stated that Claimant ‘has effectively lost function of the
index finger at this time for all intents and purposes,’ this statement is not factual
medical evidence regarding permanency, but rather is simply a legal conclusion,
see Jacobi.”).
Moreover, Dr. Spears’ testimony that the condition of Claimant’s
fingers on his left hand “was pretty much the same” from her June 12, 2013
examination to her April 16, 2014 examination, R.R. at 467a, does not support
Employer’s claim. At the June 12, 2013 examination Dr. Spears “recommended
that he would benefit from tenolysis of his digits and possibly neurolysis for
improved range of motion as well as decrease in pain,” and she recommended the
procedure “[p]rimarily, for reduction of pain and increased functionality of the
hand.” R.R. at 464a, 465a. Dr. Spears also testified that although Claimant was
willing to undergo the foregoing procedure to increase functionality and decrease
pain, “[i]t was not scheduled because of difficulty with approval,” and “that it was
not approved.” Id.
13
However, Dr. Spears conceded, “[a]s far as function in the left hand,
certainly he will not regain possibly enough function to do anything productive
with it.” Id. Nevertheless, we will not infer permanency for purposes of finding a
specific loss under Section 306(c) from Dr. Spears’ foregoing testimony. See
Morocho, 167 A.3d at 860 (“Dr. Chen’s records and report contain no facts
regarding the permanency. Rather, claimant is asking us to assume the worst from
the diagnoses and then conclude that this supports a finding of permanency.
Inferences must be made from the evidence and not from an assumption or
speculation; sufficiency of evidence cannot be based on assumptions.”).
Further, Dr. Yang’s testimony regarding MMI under the AMA Guide
is not sufficient to support a determination of permanency under Section 306(c).11
As outlined above, Dr. Yang qualified her opinion regarding Claimant’s MMI
stating, “I mean until the day [Claimant] goes and has another surgery, I believe
that he is at maximum medical improvement,” and that the determination of MMI
under the AMA Guide “don’t expect things to change over the next year, that
would be their timeline.” R.R. at 321a. The foregoing testimony does not support
a determination of permanency as required by Section 306(c) of the Act. See
Morocho, 167 A.3d at 860 (“Without evidence in the record concerning
permanency, one can only speculate on this question, which neither the WCJ nor
11
Likewise, Employer’s reliance on Neff v. Workers’ Compensation Appeal Board
(Pennsylvania Game Commission), 109 A.3d 291, 294 n.4 (Pa. Cmwlth. 2015) and Combine v.
Workers’ Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776,
799-80 (Pa. Cmwlth. 2008) is misplaced. In both of these cases, we considered MMI and
permanency as those terms were specifically defined in the AMA Guide, which were applicable
to the performance of an IRE and expressly expected a change in condition following 12 months,
and which are not relevant to a determination of permanency under Section 306(c) of the Act
relating to the award of specific loss benefits.
14
this Court may do. It is Claimant’s responsibility as part of his burden of proof to
elicit information about future functionality of his finger so that there is a factual
underpinning from which one could conclude that his condition is permanent.
Accordingly, because Claimant failed to present medical evidence to support a
finding that Claimant’s loss of function in his index finger is permanent, Claimant
is not able to meet his burden of proof, see Jacobi, and we are constrained to
affirm the Board in this regard.”).12
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
12
Finally, even if the Board committed any of the alleged errors in affirming the WCJ’s
Decision, as outlined above, the Board’s order will be affirmed because the WCJ properly denied
Employer’s Suspension Petition based on Employer’s failure to sustain its burden of proof under
Section 306(c) of the Act. Morocho; Jacobi. It is well settled that this Court may affirm a Board
order on any basis appearing, or in this case not appearing, in the record. See, e.g., White v.
Workmen’s Compensation Appeal Board (Good Shepherd Rehab Hospital), 666 A.2d 1128,
1131 n.6 (Pa. Cmwlth. 1995) (“This court may affirm the judgment of an administrative agency
where the result is correct, even though the reason given is erroneous, when the correct basis for
the decision is clear on the record.”) (citation omitted).
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Madison Construction Company, :
:
Petitioner :
:
v. : No. 1336 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Tascarella), :
:
Respondent :
ORDER
AND NOW, this 6th day of December, 2018, the order of the
Workers’ Compensation Appeal Board dated August 25, 2017, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge