PSU and The PMA Ins. Group v. WCAB (Malec)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State University and :
The PMA Insurance Group, : No. 466 C.D. 2014
: Submitted: July 11, 2014
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Malec), :
:
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: August 26, 2014
Pennsylvania State University and The PMA Insurance Group
(collectively, Employer) petition for review of the February 19, 2014, order of the
Workers’ Compensation Appeal Board (WCAB), which affirmed the decision of a
workers’ compensation judge (WCJ) granting Dolores Malec’s (Claimant) petition to
review workers’ compensation benefits (review petition), denying Claimant’s petition
for assessment of penalties (penalty petition), and denying Employer’s petition to
terminate Claimant’s workers’ compensation benefits (termination petition). We
affirm.
On May 12, 2001, while working as a police officer for Employer,
Claimant injured her right knee on a routine patrol when she stepped into a hole. On
March 21, 2002, Employer acknowledged a work-related injury of right knee strain in
a notice of compensation payable. A September 12, 2002, supplemental agreement
suspended Claimant’s benefits upon her return to work, effective September 1, 2002.1
(WCJ’s Findings of Fact, Nos. 4-5.)
On July 21, 2011, Claimant filed a penalty petition against Employer,
alleging that Employer failed to pay for Claimant’s reasonable, necessary, and
causally related medical treatment in violation of the Workers’ Compensation Act
(Act).2 On August 30, 2011, at a hearing before the WCJ, Claimant testified that after
she suffered the May 12, 2001, work-related injury, Gary Canner, M.D., performed
surgery, and Claimant continued treating with Dr. Canner after the surgery. Claimant
further testified that she eventually stopped treating “for maybe three years” and was
just “living with the pain.” Claimant testified that “the pain is constant” and “since
the injury, I’ve never been a day without pain. Somedays it’s less than others, but the
pain is always there.” Claimant wears a knee brace and takes ibuprofen for pain.
(WCJ’s Findings of Fact, Nos. 5-7.)
Claimant denied suffering any additional incidents in which she injured
her right knee after the May 12, 2001, work-related injury. Claimant acknowledged
1
The WCJ noted that this supplemental agreement contained a typographical error by
suspending wage loss benefits effective September 1, 2001, instead of September 1, 2002. (WCJ’s
Findings of Fact, No. 4.)
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
that she sought treatment from Daniel J. D’Arco, M.D. Claimant currently works as a
county detective for the district attorney’s office and as an armed security guard. (Id.,
Nos. 6, 8.)
On September 12, 2011, Claimant filed a review petition against
Employer under section 413 of the Act, 77 P.S. §771, seeking to expand the
description of her work-related injury to include “traumatic aggravation to DJD right
knee, internal derangement, torn lateral meniscus and patella injury.” (R.R. at 64a.)
On November 10, 2011, Employer filed a termination petition, alleging that Claimant
had fully recovered from her work-related injury.3
In support of her review petition, Claimant presented Dr. Canner’s
deposition. Dr. Canner, a board-certified orthopedic surgeon, testified that he
performed a partial lateral meniscectomy and a chondroplasty of the patella on
Claimant’s right knee on July 5, 2002, to treat lateral meniscus damage and
osteochondral damage. Dr. Canner also explained that the May 12, 2001, injury and
subsequent surgery resulted in the loss of meniscal and articular cartilage and that,
after such an injury, the cartilage does not grow back. Dr. Canner opined that as of
Claimant’s last office visit, Claimant had not fully recovered from the work-related
injury and that the work-related injury was a substantial contributing factor to the
damage to Claimant’s lateral meniscus and patella. (Id., Nos. 12, 15, 16.)
On cross-examination, Dr. Canner admitted that on May 17, 2011, when
he examined Claimant, she exhibited degenerative joint disease in the medial
3
The WCJ consolidated the penalty, review, and termination petitions.
3
compartment and patellofemoral joints. Dr. Canner also admitted that Claimant had
suffered injuries to her right knee in 1995 and 1998, which did not require surgery.
(Id., Nos. 17, 18.)
In support of its termination petition, Employer presented the deposition
testimony of Prodromos Ververeli, M.D., a board-certified orthopedic surgeon who
conducted an independent medical examination of Claimant on September 19, 2011.
Dr. Ververeli testified that Claimant’s work injury consisted of a right knee strain and
that Claimant had fully recovered from the injury as of June 9, 2003. (Id., Nos. 19-
20.)
On August 7, 2012, the WCJ issued an order denying the penalty and
termination petitions and granting the review petition. The WCJ noted that “the
issues in this case are primarily medical.” (Id., No. 11.) The WCJ accepted as
credible Dr. Canner’s opinion that Claimant’s May 12, 2001, work-related injury
substantially contributed to Claimant’s meniscal-cartilage damage and the
osteochondral damage to her patella. (Id., No. 18.) The WCJ rejected Dr. Ververeli’s
opinions where they conflicted with Dr. Canner’s. (Id., No. 22.)4 Accordingly, the
WCJ amended Claimant’s work-related injury “to include damage to Claimant’s
meniscal cartilage, specifically the lateral meniscus, as well as osteochondral damage
to the patella.” (WCJ’s Order, No. 2.)
4
The WCJ noted that “Dr. Ververeli only evaluated Claimant on one occasion and did not
have an opportunity to observe the inside of Claimant’s right knee during surgery.” (WCJ’s
Findings of Fact, No. 22.)
4
Employer appealed to the WCAB, which affirmed. Employer now
petitions this court for review.5
Employer argues that the WCJ erred in granting Claimant’s review
petition based upon Dr. Canner’s medical opinions. We disagree.
The WCJ is the ultimate factfinder and determines the weight and
credibility of the evidence. Lombardo v. Workers’ Compensation Appeal Board
(Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such, the
WCJ is free to accept or reject the testimony of any witness, including medical
witnesses, in whole or in part.” Id. Here, the WCJ specifically found Dr. Canner’s
medical opinion to be more credible than Dr. Ververeli’s.
Employer asserts that Dr. Canner offered internally conflicting,
equivocal medical opinions. Equivocal medical testimony is incompetent as
evidence. Coyne v. Workers’ Compensation Appeal Board (Villanova University),
942 A.2d 939, 954 (Pa. Cmwlth. 2008). However, Dr. Canner’s testimony was not
equivocal. Dr. Canner testified unequivocally that Claimant’s work-related injury
was a substantial contributing factor to Claimant’s damaged lateral meniscus and
patella and that he performed an “arthroscopy of the right knee with a partial lateral
meniscectomy and a chondroplasty of the patella.” (R.R. at 100a.) It is true that Dr.
Canner noted that Claimant’s discomfort on May 17, 2011, was related to “complete
5
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary factual findings are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
5
collapse of the medial compartment with degenerative joint disease in the medial
compartment and patellofemoral joints” and that “she had no lateral compartment
pain.” (R.R. at 139a-140a.) However, Dr. Canner never contradicted his assertions
that he performed surgery on the lateral meniscus and that the work-related injury
substantially contributed to the damage to Claimant’s lateral meniscus and patella.
Employer also asserts that Dr. Canner’s opinions were “based on an
incomplete medical history,” without offering any specific medical record that Dr.
Canner did not consider. (Employer’s Br. at 17.) Regardless, whether or not a doctor
has reviewed all medical records goes to the weight of the evidence, not its
competency. See Huddy v. Workers’ Compensation Appeal Board (U.S. Air), 905
A.2d 589, 593 n.9 (Pa. Cmwlth. 2006).
Claimant had the burden of proving that additional damage to her right
knee arose as a natural consequence of the work-related injury. See Commercial
Credit Claims v. Workmen’s Compensation Appeal Board (Lancaster), 728 A.2d 902,
905 (Pa. 1999). We agree with the WCJ that Dr. Canner’s opinions provided
competent evidence on which to find that Claimant had met her burden in the review
petition.
Employer also argues that the WCJ failed to issue a reasoned decision as
required by section 422(a) of the Act. Specifically, Employer argues that the WCJ
failed to explain: (1) his rejection of Dr. D’Arco’s testimony that the work-related
injury had resolved; and (2) the fact that Claimant’s discomfort on May 17, 2011, was
6
caused by damage to the medial meniscus as opposed to the lateral meniscus. We
disagree.
Section 422(a) of the Act requires the WCJ to render a reasoned decision
that contains findings of fact and conclusions of law based on the record as a whole.
77 P.S. §834. The WCJ must also concisely explain the rationale for his or her
decision. Id. A decision is “reasoned” if it allows for adequate appellate review
without the need for further explanation. See Dorsey v. Workers’ Compensation
Appeal Board (Crossing Construction Company), 893 A.2d 191, 194 (Pa. Cmwlth.
2006).
Employer also argues that the WCJ “inexplicably ignored the key
evidence from treating orthopedic surgeon, Dr. D’Arco.” (Employer’s Br. at 20.)
Employer focuses entirely on one sentence in Dr. D’Arco’s report from April 21,
2010, which states that “[Claimant’s] knee has hurt in the past but it resolved.”
Claimant visited Dr. D’Arco for treatment of an ankle injury, not a knee injury.
Thus, Dr. D’Arco’s report about his treatment of Claimant’s ankle has no significant
relationship to the findings regarding Claimant’s right knee. Moreover, viewed in
their entirety, Dr. D’Arco’s reports do not indicate a full recovery. Instead, to the
extent that Dr. D’Arco did examine the knee, he noted a trace of knee swelling, that
“[Claimant] wants to check her knee,” and that “her symptoms includes[sic] sharp[,]
severe pain.” (R.R. at 311a-313a.) The WCJ was not required to discuss Dr.
D’Arco’s report at length in order to issue a reasoned decision.
7
Employer also argues that the WCJ did not issue a reasoned decision
because “the WCJ only found the lateral meniscus to be a work injury and there is no
similar finding as to the currently problematic medial meniscus.” (Employer’s Br. at
30.) To reiterate, Dr. Canner’s testimony supports the WCJ’s determination that
Claimant’s work-related injury damaged her lateral meniscus and patella. The WCJ
did not amend the work-related injury to include the damage to the medial meniscus,
nor did the WCJ need to discuss this non-work-related injury in order to issue a
reasoned decision.
Thus, we conclude that the WCJ set forth concise findings of fact and
adequately explained the bases for his factual findings and credibility determinations
to sufficiently support appellate review.
Finally, Employer argues that it met its burden in the termination
petition of proving that Claimant has fully recovered from her work-related injury.
We disagree.
The employer bears the burden of proof in a termination proceeding.
Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1293 (Pa. 1997). “In order to terminate benefits, the employer must establish that all
disability related to a compensable injury has ceased.” Id. at 1291. The WCJ
determined that Dr. Ververeli’s opinions were not credible where they conflicted with
Dr. Canner’s. Accordingly, Employer did not present any evidence indicating that all
disability related to the work-related injury has ceased and, therefore, failed to meet
its burden.
8
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
Judge Cohn Jubelirer did not participate in the decision of this case.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State University and :
The PMA Insurance Group, : No. 466 C.D. 2014
:
Petitioners :
:
v. :
:
Workers’ Compensation Appeal :
Board (Malec), :
:
Respondent :
ORDER
AND NOW, this 26th day of August, 2014, we hereby affirm the
February 19, 2014, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge