IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Betty Bibbus, : Petitioner : : No C.D v. : : Submitted: March 27, 2015 Workers Compensation Appeal : Board (Wood Company), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: June 5, 2015 Betty Bibbus (Claimant) petitions for review of the October 23, 2014 order of the Workers Compensation Appeal Board (Board), which affirmed the order of the Workers Compensation Judge (WCJ) granting the termination petition filed by Wood Company (Employer). We affirm. On February 16, 1996, Claimant was injured while working as a chef in Employer s kitchen when a spring-loaded filling machine suddenly released. On March 13, 1997, Employer issued a Notice of Temporary Compensation Payable, which later converted to a Notice of Compensation Payable, accepting liability for left-hand carpal tunnel, nerve root and plexus disorders, and myalgia. On February 14, 2003, a WCJ approved a Compromise and Release Agreement, which resolved Claimant s entitlement to indemnity benefits and provided that Employer would

2 remain responsible for medical treatment that was both work-related and reasonable and necessary. On June 28, 2012, Employer filed a termination petition based upon a physician s affidavit of recovery, contending that Claimant had fully recovered from her February 16, 1996 work injuries. Claimant denied the material allegations in the petition, and the case was assigned to a WCJ. In support of its petition, Employer submitted the deposition testimony of Sanjiv H. Naidu, M.D., Ph.D., who is board certified in orthopedics with added qualifications in hand surgery. Employer also submitted Dr. Naidu s IME report and affidavit of recovery. Dr. Naidu stated that he obtained Claimant s medical history, reviewed various medical records and diagnostic imaging reports, and performed a physical examination of Claimant on April 17, Dr. Naidu opined that Claimant had fully recovered from her injuries of carpal tunnel, thoracic outlet syndrome, and brachial plexopathy, and stated that Claimant could return to her pre-injury job as a chef on a full-time basis. Dr. Naidu said that Claimant informed him that she had neck surgery, particularly cervical fusion, for cervical radiculopathy and left upper extremity pain; however, Dr. Naidu opined that this condition was unrelated to her work injury. (WCJ s Finding of Fact No. 9.) Dr. Naidu further stated that Claimant s major problems and complaints were myalgia and muscle pain, which are purely subjective phenomena. Dr. Naidu explained that Claimant currently suffers from myalgia, not because of her workrelated injuries, but because she has ongoing neck and cervical problems that are purely degenerative. Dr. Naidu stated that as a result of Claimant s myalgia and pain, 2

3 he would restrict Claimant from lifting over twenty-five to thirty pounds. (WCJ s Findings of Fact Nos. 9, 11.) On cross-examination, Dr. Naidu testified that he reviewed the reports of Claimant s cervical MRI performed on July 15, 1997, and August 11, 1998, but admitted that he did not review the images themselves or Claimant s operative reports. Dr. Naidu also acknowledged that he did not review surveillance footage of Claimant, Claimant s functional capacity evaluations, or her job description. Dr. Naidu recognized that Claimant underwent cervical fusion, but reiterated that Claimant s neck and cervical problems were not related to her work injury because he did not believe that her work accident could cause such pain. At one point, Dr. Naidu testified that Claimant s cervical spine problems were causing most of her adjacent level left arm pain. (WCJ s Findings of Fact Nos ) Claimant offered the deposition testimony of David Mattingly, D.O., who is board-certified in family practice and osteopathic manipulation. Dr. Mattingly testified that he agreed, in large part, with Dr. Naidu s opinions that Claimant s carpal tunnel and thoracic outlet syndrome had resolved and that Claimant s cervical radiculopathy is unrelated to her original work injury. Dr. Mattingly stated that he disagreed with Dr. Naidu s opinion that Claimant s brachial plexopathy had resolved, explaining that there are inflamed nerves in the area, and Dr. Mattingly opined that Claimant has persistent, permanent symptoms that would not resolve. According to Dr. Mattingly, Claimant continues to have ongoing muscle pain or myalgia as a result of her work injuries; she needs ongoing pain management to adjust her medications and limit the side effects; and Claimant is unable to return to work without restrictions. (WCJ s Findings of Fact Nos ) 3

4 Claimant testified at a hearing to the facts underlying her February 16, 1996 work injury. Claimant said that she has had carpal tunnel surgery on her left wrist; two left-sided brachial plexus procedures; and cervical/neck surgery to fuse two discs. Claimant stated that she began treatment with Dr. Mattingly in April 2001, and that he provides her with pain medication and injections for her left shoulder and arm symptoms. Claimant testified that she has not completely recovered from her work injury and cannot perform her pre-injury job because she is unable to lift things, turn from left to right, and has ongoing pain and symptoms in her neck and left arm. (WCJ s Findings of Fact Nos. 4-7.) At the close of the evidence, the WCJ accepted the opinions of Dr. Naidu, as outlined in his report and deposition testimony, as credible, logical, internally consistent and persuasive. (WCJ s Finding of Fact No. 16.) Dr. Naidu s opinion that Claimant has fully recovered from her work injury as of the date of his evaluation on April 17, 2012, is supported by his history, review of records and diagnostic studies, and physical examination. In this regard, Dr. Naidu noted that Claimant s EMG study performed in March 2011 evidenced that everything had normalized, including Claimant s brachial plexus. Further, Dr. Naidu credibly explained that Claimant s ongoing subjective findings were related to her ongoing neck and cervical spine problems, which were purely degenerative problems and not work-related. This [WCJ] was more impressed by the medical expertise and credentials possessed by Dr. Naidu than those possessed by Dr. Mattingly. Likewise, Dr. Naidu performed a more thorough physical examination than the contemporaneous examinations of Dr. Mattingly. (WCJ s Finding of Fact No. 16.) In addition, the WCJ accepted Claimant s testimony as credible and persuasive in part, particularly her testimony describing her work injury and the 4

5 treatments and surgeries she underwent after the surgeries. The WCJ, after noting that the primary issue in the case concerned expert medical opinions, rejected the testimony of Dr. Mattingly to the extent that it conflicted with the testimony of Dr. Naidu, finding that Dr. Mattingly s opinions were less credible and persuasive. (WCJ s Findings of Fact Nos. 15, 17.) Based upon these credibility determinations, the WCJ concluded that Dr. Naidu s opinions established that Claimant had fully recovered from her work injuries as of April 17, 2012, and granted Employer s termination petition. (WCJ s Conclusion of Law No. 4; WCJ s order.) Claimant appealed to the Board, which affirmed. On appeal to this Court, 1 Claimant argues that the record does not support the WCJ s decision to terminate benefits. In a termination proceeding, the employer bears the burden of establishing that the work injury has ceased and/or that the claimant s current disability is unrelated to the work injury. Paul v. Workers Compensation Appeal Board (Integrated Health Services), 950 A.2d 1101, 1104 (Pa. Cmwlth. 2008). An employer may satisfy this burden by presenting unequivocal and competent medical evidence that the claimant has full recovery from the work-related injury. To v. Workers Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222, 1224 (Pa. Cmwlth. 2003). Claimant first contends that the WCJ erred in relying on Dr. Naidu s opinion because he did not review Claimant s operative reports, diagnostic films, job 1 Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S

6 description, surveillance, or functional capacity evaluations. In essence, Claimant contends that Dr. Naidu s testimony was incompetent. However, this Court has repeatedly held that the fact that the expert does not have all of the claimant s medical records, or fails to review the claimant s job description, goes to the weight to be given to the expert s testimony, not its competency. DeGraw v. Workers Compensation Appeal Board (Redner s Warehouse Markets, Inc.), 926 A.2d 997, 1001 (Pa. Cmwlth. 2007); American Contracting Enterprises, Inc. v. Workers Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001). Pursuant to our case law, the fact that Dr. Naidu did not review all of Claimant s medical records, her job description, and her capacity evaluations are matters that affect the weight of his testimony rather than its competency. Therefore, we reject Claimant s contention that Dr. Naidu s testimony was incompetent. Claimant also asserts that Dr. Naidu s opinion that she had fully recovered was equivocal because Dr. Naidu stated that most not all of her myalgia or pain came from unrelated cervical spine problems. Whether medical testimony is unequivocal is a question of law and therefore subject to this Court s review. Terek v. Workmen s Compensation Appeal Board (Somerset Welding & Steel, Inc.), 668 A.2d 131, 132 (Pa. 1995). Medical testimony is equivocal if it is vague, leaves doubt, is less than positive, or is based upon possibilities. Reinforced Molding Corporation v. Workers Compensation Appeal Board (Haney), 717 A.2d 1096, 1098 (Pa. Cmwlth. 1998). However, the law does not require every utterance which escapes the lips of a medical witness on a medical subject to be certain, positive, and without reservation or exception. Bemis v. Workers' Compensation Appeal Board (Perkiomen Grille Corporation), 35 A.3d 69, 6

7 72 (Pa. Cmwlth. 2011). A medical witness s use of words such as probably, likely, and somewhat will not render an opinion equivocal so long as the testimony, read in its entirety, is unequivocal and the witness does not recant the opinion or belief first expressed. Id. It is well settled that the testimony of a medical witness must be reviewed in its entirety and that the final decision on its certainty should not rest on a few words taken out of context. Wilkes-Barre City v. Workmen s Compensation Appeal Board, 420 A.2d 795, 798 (Pa. Cmwlth. 1980). Here, Dr. Naidu testified on cross-examination that he would restrict Claimant to lifting twenty to thirty pounds because her cervical spine problems... are causing most of her adjacent level left arm pain. (Reproduced Record (R.R.) at 17a.) However, on direct examination, Dr. Naidu testified as follows: Q. So is it your opinion then that [Claimant] has fully recovered from her work-related injury? A. Correct. Q. And in terms of any of her subjective complaints, do you have an opinion, in terms of causation, regarding any ongoing complaints she may have? A. [Claimant s] major problems are basically myalgia and muscle pain. And I can t explain as to why she would continue to have problems other than the fact that she s got ongoing neck problems, cervical spine problems. Q. Okay. And what is your opinion regarding those cervical problems? A. The cervical spine problems are purely degenerative problems and not work-related. (R.R. at 14a.) Dr. Naidu also explained that myalgia is purely subjective and consists of muscle aches and pain; Claimant s myalgia is caused by her neck and 7

8 cervical condition; and Claimant s neck and cervical condition is unrelated to her work injury because the nature of her accident and injury could not result in axial neck pain. (R.R. at 16a-17a.) Considering Dr. Naidu s testimony as a whole, we conclude that it unequivocally expressed his opinion that all of Claimant s myalgia and pain stemmed from her neck and cervical problems and were unrelated to her work injury. Claimant further contends that the WCJ rendered inconsistent findings because he accepted her testimony as credible, in part, but nonetheless concluded that she had fully recovered from her work-related injury. The WCJ s Finding of Fact No. 15 establishes that the WCJ only accepted Claimant s testimony [t]o the extent that Claimant testified concerning the description of her work injury suffered during the course of her employment for [Employer] on February 16, 1996, as well as her general history of medical treatment and surgeries since her work injury. (WCJ s Finding of Fact No. 15.) The WCJ necessarily rejected all of Claimant s remaining testimony, including her belief that she has not fully recovered, noting that the extent of Claimant s recovery is a medical issue. (WCJ s Finding of Fact No. 15.) The WCJ then accepted as credible and persuasive Dr. Naidu s opinion that Claimant had fully recovered from her workrelated injuries. (WCJ s Finding of Fact No. 16.) We conclude that these findings are completely compatible. Finally, Claimant argues that the WCJ failed to issue a reasoned decision because he did not specify the part of Claimant s testimony that he rejected and offered no explanation as to why such testimony was rejected. 8

9 A WCJ s decision is reasoned under section 422(a) of the Workers Compensation Act (Act), 2 77 P.S. 834, if it provides for adequate appellate review without the need for further elucidation. Daniels v. Workers Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). Where, as here, a claimant testifies live before a WCJ, and the WCJ has had the advantage of seeing the witness testify and assessing his demeanor, a mere conclusion as to the credibility of the witness is sufficient to render the decision adequately reasoned. Daniels, 828 A.2d at 1053; Community Empowerment Association v. Workers Compensation Appeal Board (Porch), 962 A.2d 1, 8-9 (Pa. Cmwlth. 2006). As explained above, the WCJ s Findings of Fact Nos. 15 and 16 plainly identified the limited part of Claimant s testimony that was accepted as credible and necessarily categorized that portion which was deemed not credible. Therefore, we conclude that the WCJ issued a reasoned decision under section 422(a) of the Act. Because Claimant s arguments on appeal lack merit, we affirm the Board s October 23, 2014 order. PATRICIA A. McCULLOUGH, Judge 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Betty Bibbus, : Petitioner : : No C.D v. : : Workers Compensation Appeal : Board (Wood Company), : Respondent : ORDER AND NOW, this 5 th day of June, 2015, the October 23, 2014 order of the Workers Compensation Appeal Board is affirmed. PATRICIA A. McCULLOUGH, Judge