IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Washington, : Petitioner : : v. : No C.D : Submitted: December 19, 2014 Workers Compensation Appeal : Board (Haney), : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: March 10, 2015 County of Washington (Employer) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) granting Joann Haney (Claimant) total disability benefits. In doing so, the Board affirmed the decision of the Workers Compensation Judge (WCJ) that Claimant established a compensable work injury when she suffered a stroke shortly after being exposed to pepper spray. Employer contends that Claimant s stroke at work was a coincidence and solely the result of her chronic hypertension. It argues that the Board erred in holding otherwise because Claimant s medical expert was equivocal

2 on causation and the Board misconstrued or disregarded Employer s expert testimony. 1 Discerning no merit to Employer s arguments, we affirm. On May 21, 2010, Claimant filed a claim petition alleging she sustained a work injury when she was exposed to pepper spray, 2 during her training as a prison corrections officer. The claim petition described her work injury as a stroke, intracranial bleed, craniectomy with evaculation, hemiplegia, seizure disorder, subdural hematoma, traumatic brain injury, aggravation of pre-existing hypertension and hyperlipidemia, anxiety and depression. Pursuant to the Pennsylvania Workers Compensation Act (Act), 3 Claimant requested total disability benefits from February 1, 2010, onward. Employer s answer denied the allegations that Claimant s injuries were work-related. 4 At the hearing before the WCJ, Claimant offered the deposition testimony of Joseph Pelzer, the warden at Employer s correctional facility. Pelzer hired Claimant as a corrections officer in December 2009, and her training began in January Part of the training included being exposed to pepper spray. This is a mandatory condition to graduation from the training academy. Pelzer testified that Claimant informed her training supervisor, Donald Waugh, of her concern that the pepper spray might affect a stent that had 1 The Department of Public Welfare has intervened in this matter and filed a brief adopting Claimant s brief in total. 2 Pepper spray is identified in the record as oleoresin capsicum, or OC, spray. 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S , Claimant later amended her claim petition to include vision loss, loss of cognitive function, persistent confusion and memory loss, bowel and bladder incontinence, loss of use of the right and left lower extremities, and loss of the left upper extremity. Counsel for Claimant also offered into evidence an order of the Court of Common Pleas of Washington County, dated May 17, 2010, by which Judge Katherine B. Emery adjudged Claimant incapacitated and appointed two permanent co-guardians of her person and estate. 2

3 been placed in a cardiac artery. Claimant explained that she had previously been exposed to pepper spray when she worked as a corrections officer in another county, but this took place before her heart disease had developed. Waugh reported this information to Pelzer, who contacted the physician who had done Claimant s pre-employment physical; the physician opined that there was no reason why Claimant could not be exposed to pepper spray. With Claimant s permission, Pelzer then contacted Claimant s cardiologist, who agreed that Claimant could do the pepper spray training. Waugh explained that the pepper spray is directed to the trainee s face. He noted that people react differently, but everyone experiences some coughing and swelling around the eyes. Typically, the symptoms last from 30 minutes to an hour. Cadets help each other through the recovery. Waugh testified that initially Claimant s responses appeared normal. However, approximately 17 minutes later he observed that she just didn t seem right and was walking awkwardly. Reproduced Record at 575a (R.R. ). After Claimant moved inside, Waugh asked if she could move her arm. She was able to lift her arm slightly and to wiggle one finger. Waugh telephoned for the training academy nurse and called for an ambulance. Claimant presented the deposition testimony of John Conomy, J.D., M.D., who is board certified in neurology and forensic medicine. Claimant, who was 44 years old at the time of the stroke, had a history of cardiovascular disease and hypertension. Dr. Conomy explained that her coronary heart disease led to a myocardial infarction, which required the placement of stents 5 in her left main 5 Pelzer and Waugh stated that Claimant had a stent; Dr. Conomy testified that Claimant had stents. Her medical records report two stents to the left anterior descending artery. R.R. 248a. 3

4 coronary artery. Claimant developed vascular hypertension at 12 years of age. Claimant requires multiple drugs for her hypertension. Dr. Conomy testified that on February 1, 2010, Claimant experienced a basal ganglionic intracerebral hemorrhage, which was the consequence of hypertension. Dr. Conomy did not believe the hemorrhage was a direct result of pepper spray being sprayed onto her. R.R. 759a. However, he explained that, some of [the pepper spray] clearly is going to become inhaled, some of it will become in contact with membranes of the nose and mouth and skin and so forth. R.R. 759a. He explained, first, that some people actually become hypertensive upon exposure to capsicum, the leading chemical in the pepper spray. He believed that in Claimant s case the chemical aggravated her severe and pre-existing hypertension. In addition, pepper spray contains other ingredients that are vascular toxic, and can cause hypertensive reaction by themselves without the pepper spray. R.R. 760a. Finally, he explained that stress of any type raises blood pressure and that exposure to pepper spray causes stress. In support of his opinion, Dr. Conomy referred to an article in a North Carolina medical journal and a report from the New Zealand Health Technology Assessment, which was commissioned by the New Zealand Ministry of Health. The North Carolina article concluded that inhalation of capsicum can cause acute hypertension and increase the risk of stroke or heart attack. The New Zealand report found a small, but statistically significant, health risk existed for persons exposed to pepper spray with pre-existing cardiovascular or cardiorespiratory disease. 4

5 Claimant s blood pressure had not been taken prior to being pepper sprayed. Dr. Conomy believed that if it had been measured, it would likely have been very high, given Claimant s history of longstanding hypertension and her history of four days of headache before this incident. Twenty minutes after being sprayed, Claimant s blood pressure was measured at 202/140, which Dr. Conomy described as in the malignant range and capable of causing a rupture in the arterial beds, coronary arteries, renal arteries, retina, and brain. A patient with a long history of hypertension is more at risk because the above-described vessels would already be damaged to some extent. Dr. Conomy opined that the administration of pepper spray raised Claimant s blood pressure and triggered the stroke; the pepper spray aggravated Claimant s pre-existing medical condition. Employer presented the testimony of Edward P. Krenzelok, Pharm.D., who is board certified in toxicology. Dr. Krenzelok searched the medical literature for reports on pepper spray. He concluded that it did not support a causal relationship between exposure to pepper spray and the onset of a stroke. He explained that the two articles cited by Dr. Conomy were review articles, i.e., they reviewed the studies of other groups. Further, the New Zealand article relied, in part, on an unpublished study that was not peer reviewed and did not include a control group. Employer also offered the deposition testimony of Jay William Bookwalter, III, M.D., who is board certified in neurosurgery. He reviewed Claimant s medical records. He found that on the date of injury, Claimant sustained a large right basal ganglia hemorrhage. He testified that Claimant s medical history placed her at risk of this condition. He believed the fact that Claimant was experiencing a headache for at least four days prior to the injury was 5

6 a hallmark of poorly controlled blood pressure. He concluded that it was just a coincidence that the stroke followed the exposure to the pepper spray. Dr. Bookwalter stated that the ingredients of the spray, with the exception of the pepper, could not have caused Claimant s injuries. With respect to the pepper, which was in very low concentrations, he explained that medical literature provides little support for the theory that it would have any effect on hypertension. Dr. Bookwalter did not believe that the anticipation of the pepper spray would have caused Claimant s blood pressure to rise because Claimant had previously undergone this test and knew what to expect. The WCJ accepted the opinion of Dr. Conomy as credible over those of Drs. Krenzelok and Bookwalter. The WCJ found that Claimant s stated concerns about the test evidenced anxiety about the upcoming test and showed that the test was a stressful event. The WCJ noted that, in any case, Dr. Bookwalter had acknowledged that exposure to pepper spray was a stressful event that could raise Claimant s blood pressure. The WCJ granted Claimant total disability benefits from February 2, 2010, onward. Employer appealed to the Board, raising ten assertions of error. It contended that Dr. Conomy s testimony was equivocal, that the WCJ misinterpreted Dr. Bookwalter s testimony, and that Dr. Krenzelok s testimony was uncontroverted. The Board disagreed and affirmed the WCJ. Employer petitioned for this Court s review. 6 6 Our scope of review of the Board s order determines whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith s Frozen Foods (Footnote continued on the next page...) 6

7 On appeal, Employer claims: (1) Dr. Conomy did not present unequivocal expert testimony on the issue of causation; (2) the WCJ misinterpreted the testimony of Dr. Bookwalter; and (3) it was error to reject the uncontradicted testimony of Employer s expert toxicologist, Dr. Krenzelok. The claimant has the burden of establishing the right to compensation and all the elements necessary to support an award, including the burden of establishing a causal relationship between a work-related incident and an alleged disability. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall), 534 A.2d 1389, 1390 (Pa. 1987). Where the causal connection between employment and injury is not obvious, the claimant must present unequivocal medical testimony to establish that connection. Shelestak v. Workmen's Compensation Appeal Board (Bethlehem Mines Corporation), 571 A.2d 516, 518 (Pa. Cmwlth. 1990). A medical expert need not recite magic words or utter every word without reservation, exception or paradventure of a doubt in order to be considered unequivocal. Campbell v. Workers Compensation Appeal Board (Pittsburgh Post Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). In order to determine whether medical evidence is equivocal, we must review the entire testimony of the medical witness, not just one sentence. City of Pittsburgh v. Workers Compensation Appeal Board (Wilson), 11 A.3d 1071, 1075 (Pa. Cmwlth. 2011). Expert medical testimony will only be deemed equivocal if, after a review of a medical expert s entire testimony, it is found to be merely based on possibilities. Campbell, 954 A.2d 726, 730. (continued...) Company v. Workmen s Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988). 7

8 In its first issue, Employer contends that Dr. Conomy s opinion was equivocal on causation. Dr. Conomy stated that the stroke was not the direct result of the pepper spray. Then, according to Employer, Dr. Conomy speculated that the capsicum or other chemicals in the pepper spray aggravated Claimant s blood pressure or, alternatively, the stress of the pepper spray test did so. 7 Claimant counters that Employer misapprehends Dr. Conomy s testimony. Dr. Conomy testified that the absorption of the spray by her mucus membranes caused her preexisting hypertension to reach the malignant range and that there were multiple causes of Claimant s injuries, but all were inextricably linked to the pepper spray exposure. At issue is a specific portion of Dr. Conomy s testimony where he explained the mechanism of Claimant s injury. He explained as follows: I don t think the hemorrhage was a direct result of pepper spray being sprayed onto her. When I say onto her, I don t mean just in her eyes, but being sprayed at a distance in an open space. Some of it clearly is going to become inhaled, some of it will become in contact with membranes of the nose and mouth and skin and so forth. R.R. 759a (emphasis added). 7 Employer also claims that Dr. Conomy engaged in rampant speculation that it was more probable than not that [Claimant s] blood pressure would have been very high if it had been measured [prior to the exposure]. Employer s brief at 15. Notably, Employer s own expert, Dr. Bookwalter testified that Claimant s blood pressure after the exposure was 240/190 and that those pressures are something that doesn t happen over[-]night and would have been present for a long period of time. R.R. 1163a. Thus, there was no disagreement between the medical experts that Claimant s blood pressure was likely elevated prior to being sprayed and was based on medical science, not mere speculation. 8

9 Dr. Conomy s statement that the pepper spray was not the direct cause did not render his opinion equivocal. He explained that it was the absorption of the chemicals that aggravated Claimant s pre-existing hypertension, noting that there s a causal connection between what happened to her and the experience of being sprayed. R.R. 761a. Dr. Conomy explained: Now, I favor the view and hold it that the administration of pepper spray, not necessarily because of the capsicum, but the capsicum plus everything else in that can, and it s not in her eyes, it s in her nasal mucosa, respiratory system, we go back to the line for that piece of it on the medical literature that I ve cited, raised her blood pressure even more, and that triggered the event that occurred in her. R.R. 773a (emphasis added). In sum, Dr. Conomy testified that the inhaled pepper spray increased Claimant s blood pressure, either because of the ingredients or the stress of the event. He testified that [a]ll of those are probable, but they re occurring in the same temporal context. They re inseparable in the context, but any one of them alone and three of them together, I think, are capable of doing that. R.R. 789a. Dr. Conomy s testimony, taken as a whole, was unequivocal on causation. Bookwalter s testimony. In its second issue, Employer argues that the WCJ misinterpreted Dr. The WCJ stated Dr. Bookwalter seems to have acknowledged that exposure to pepper spray is a stressful event that would raise a person s blood pressure to some degree. WCJ Decision, Finding of Fact No. 16. The WCJ also stated that Dr. Bookwalter initially acknowledged that there is clearly a temporal relationship. WCJ Decision, Finding of Fact No. 9.d. Employer disputes these characterizations of Dr. Bookwalter s testimony. It 9

10 contends that these observations by Dr. Bookwalter did not support a causal connection between the two events. Dr. Bookwalter testified about the relationship of pepper spray to blood pressure. Using himself as an example, he testified as follows: Usually my blood pressure is around 125 over 75. So, if you sprayed me with some pepper spray, what would happen as a response to the painful or uncomfortable part of that, what would take place with my blood pressure? Well, what would happen is my systolic pressure might go up to 160 or 170, but my diastolic pressure would not really get up into that --- even 100 range. My diastolic pressure would stay relatively low. R.R. 1162a. In short, Dr. Bookwalter stated that exposure to pepper spray raises both systolic and diastolic pressure levels, but the diastolic to a lesser extent. The WCJ stated that Dr. Bookwalter seems to acknowledge that exposure to pepper spray is a stressful event that would raise a person s blood pressure to some degree. WCJ Decision, Finding of Fact No. 16. This fully comports with the above-quoted testimony. Dr. Bookwalter also testified that there s a temporal relationship that she had this event around the same time that she was exposed to the pepper spray [and] [m]y opinion is that it s a coincidental thing. R.R. 1148a-49a. In recounting this testimony, the WCJ recorded: Dr. Bookwalter initially acknowledged that there is clearly a temporal relationship. He went on to opine that this was just a coincidence based on the fact that she was exposed to a very low concentration pepper spray and the fact that she was experiencing headache for at least four days before this event occurred. Dr. Bookwalter explained that headache is a hallmark of poorly controlled blood pressure. 10

11 WCJ Decision, Finding of Fact No. 9.d. The WCJ understood Dr. Bookwalter s testimony to opine that the stroke s onset was coincidental. However, this opinion was, as the WCJ observed, somewhat undermined by the expert s concession that Claimant was showing signs of high blood pressure prior to the administration of the pepper spray. Neither observation of the WCJ was central to his decision not to credit Dr. Bookwalter s opinion that Claimant s stoke was a coincidence and not a result of the pepper spray exposure. Employer s second issue lacks merit. In its third issue, Employer contends that the testimony of Dr. Krenzelok, the toxicologist, was uncontroverted regarding the lack of adverse effects associated with the exposure to pepper spray. He was the only toxicologist to testify in the case. Therefore, the WCJ discounted his uncontroverted testimony without sufficient explanation. Claimant counters that Employer fails to present any legal authority to support its claim that only another toxicologist is competent to contradict Dr. Krenzelok. Claimant argues that Dr. Conomy directly contradicted Dr. Krenzelok s testimony that the ingredients in pepper spray could not have caused Claimant s injuries, and the WCJ credited Dr. Conomy s testimony. It is well established that the standard for qualification of an expert witness is a liberal one. Freed v. Geisinger Medical Center, 5 A.3d 212, 217 (Pa. 2010)(emphasis omitted)(quoting Miller v. Brass Rail Tavern, Inc. 664 A.2d 525, 528 (Pa. 1995)). [I]f a witness has any reasonable pretension to specialized knowledge on the relevant subject, he may be offered as an expert witness, and the weight to be given his testimony is for the trier of fact to determine, Freed, 5 A.3d 11

12 at 216 (quoting Freed v. Geisinger Medical Center, 971 A.2d 1202, 1210 (Pa. 2009)). Dr. Conomy opined as a qualified medical expert on the question of whether Claimant s exposure to pepper spray caused her stroke. Employer did not dispute Dr. Conomy s competency to testify as an expert on this issue before the WCJ or the Board. Employer does not explain why Dr. Conomy s opinions on the relationship between Claimant s exposure to pepper spray and her stroke were not sufficient to contradict Dr. Krenzelok s testimony. The weight to be given the evidence of record is for the WCJ, who is the trier of fact. As such, we reject Employer s argument on its third issue. For the above-stated reasons, we affirm the order of the Board. MARY HANNAH LEAVITT, Judge 12

13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Washington, : Petitioner : : v. : No C.D : Workers Compensation Appeal : Board (Haney), : Respondent : O R D E R AND NOW, this 10 th day of March, 2015, the order of the Workers Compensation Appeal Board, dated June 13, 2014, in the above-captioned matter is AFFIRMED. MARY HANNAH LEAVITT, Judge