IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Demo and Sales and : Zurich Insurance Company, : Petitioners : : v. : No. 614 C.D : Submitted: February 22, 2013 Workers Compensation Appeal : Board (Schoeller), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: May 14, 2013 Demo and Sales and Zurich Insurance Company (Employer) petition for review of an adjudication of the Workers Compensation Appeal Board (Board) granting Norma Jean Schoeller s (Claimant) petition to review medical treatment. In doing so, the Board affirmed a decision of a Workers Compensation Judge (WCJ) that Claimant s proposed lung transplant was causally related to her work injury and, thus, a covered medical treatment. Employer argues that Claimant s medical testimony was equivocal and that the WCJ s decision was not reasoned. We affirm. In 1998, after working for Employer for several months, Claimant sustained an aggravation to her chronic obstructive pulmonary disease (COPD) caused by exposure to chemicals in carpet stain remover she used in her job. In 2002, Employer issued a Notice of Compensation Payable (NCP) stating that

2 Claimant had sustained an aggravation of pre-existing COPD due to exposure to chemicals. Certified Record, Exhibit B-1 (C.R. ). Claimant began receiving benefits pursuant to the Pennsylvania Workers Compensation Act (Act). 1 In 2007, Employer filed a petition to terminate benefits, asserting that Claimant had fully recovered from her work injury. After a hearing, WCJ Nathan Cohen denied the termination petition, finding that Claimant sustained a permanent aggravation of pre-existing COPD, which aggravation is not fully resolved. C.R., Exhibit B-3 at 11; Finding of Fact 24. In making that finding, the WCJ accepted the testimony of Claimant s medical experts, Gregory Fino, M.D. and Jan Madison, M.D., and he rejected the testimony of Employer s medical expert, Peter Kaplan, M.D. Employer did not appeal the WCJ s decision regarding the termination petition. The parties then entered into a Compromise and Release Agreement, which resolved only the indemnity portion of Claimant s workers compensation benefits. Employer remained liable for medical benefits. In 2009, Claimant filed the instant petition to review medical treatment. The petition asserted that Claimant needed a lung transplant and that Employer had refused to pay for this treatment. Employer filed an answer denying that the lung transplant was causally related to Claimant s work injury. The matter was assigned to WCJ Pamela Briston, who held a hearing. Claimant explained in 1966 she was diagnosed with COPD. In 1975, she was diagnosed with asthma. She has a 39-year history of smoking one to two 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

3 packs of cigarettes a day. However, in 2001, when she was 55 years old, she stopped smoking. She then testified about her job with Employer, for whom she worked from June to October Her job required her to demonstrate a carpet stain remover to potential customers, eight hours per day, five days per week. She experienced breathing problems while demonstrating the product. Prior to taking this job, Claimant used an inhaler for her asthma only on occasion. After taking the job with Employer, she found it necessary to use the inhaler several times a day. By October she was unable to continue to do the job and found other employment, at a reduced rate of pay. Her condition has continued to deteriorate, and she has been unable to work in any capacity since Claimant is unable to do basic household chores. She must walk in order to promote lung function, but she becomes winded easily. Claimant explained that before it can be determined whether she is a suitable candidate for a lung transplant, she must undergo a five-day inpatient stay at a hospital. The hospital requested pre-approval from Employer for the evaluation and for the transplant, should she be found suitable, but it was denied. Claimant testified that she will undergo the transplant if she is determined to be a suitable candidate. Claimant also offered the May 19, 2008, deposition testimony of Dr. Fino, which had been credited by WCJ Cohen in the prior termination petition proceeding. In his deposition, Dr. Fino testified about his 2002 independent medical examination (IME) of Claimant and about a lung function study showing that her lung function was 31% of a normal level. Pulmonary studies done between 1979 and 1997, showed a steady decline in her lung function, 3

4 approximately 70 cc s per year. Between December 1997 and October 1998, she sustained a loss of 200 cc s. This drop demonstrated a permanent aggravation of Claimant s pre-existing COPD. Dr. Fino also examined Claimant in 2007 and determined that Claimant was a candidate for a lung transplant. Dr. Fino acknowledged that because of Claimant s smoking history, she would have become disabled whether or not she had ever been exposed to the carpet cleaner. Dr. Fino authored a medical report on January 18, 2010, and he elaborated on that report in a March 31, 2010, deposition. He reiterated that Claimant would have needed a lung transplant even if she had never come in contact with the carpet cleaner. However, he explained that Claimant s exposure to the carpet cleaner accelerated the urgency for the transplant. He concluded that her present need for a lung transplant was related to the work injury. Claimant also presented the August 29, 2008, deposition testimony of Dr. Madison that had been credited by WCJ Cohen in the termination proceeding. Dr. Madison first examined Claimant in 2000 and concluded that her COPD had been aggravated by inhaling the carpet cleaner, resulting in reactive airway dysfunction syndrome. Dr. Madison believed the chemical exposure also irritated Claimant s asthma. Dr. Madison did not believe that Claimant had recovered from the aggravation and opined that Claimant needed a lung transplant. Dr. Madison authored a January 21, 2010, medical report in which she explained that Claimant s COPD was due in part to smoking but also to her exposure to workplace chemicals. Dr. Madison found within a reasonable degree of medical certainty that the chemical exposure was a substantial contributing factor for the need for the lung transplant. 4

5 In support of its position, Employer offered the April 23, 2008, deposition testimony of Dr. Kaplan, which had been submitted, and rejected, by WCJ Cohen in the termination proceeding. In that deposition, Dr. Kaplan described his IME of Claimant, which showed a long history of respiratory illness prior to working for Employer. He concluded that even if the carpet cleaner had aggravated Claimant s respiratory illness, it was not a permanent aggravation. He found her recovered from the aggravation by the time of the IME. Dr. Kaplan concluded that even if Claimant had never been exposed to the carpet cleaner, her respiratory illness would have progressed to its current state. He believed Claimant s 39-year history of smoking cigarettes is what made her a candidate for a lung transplant, not her five months of work for Employer. Dr. Kaplan prepared an April 14, 2010, medical report, in which he opined that Claimant s lung function would have declined to its current state even without her work for Employer. He disagreed that Claimant sustained a permanent aggravation. However, even assuming a permanent aggravation, he opined that Claimant s need for a lung transplant was caused by her COPD, which was not work-related. WCJ Pamela L. Briston held in favor of Claimant. First, the WCJ noted that she was bound by WCJ Cohen s determination that Claimant sustained a permanent aggravation of pre-existing COPD, which had not fully resolved. Second, the WCJ credited the testimony of Claimant, Dr. Madison and Dr. Fino. The WCJ found Drs. Madison and Fino more persuasive than Dr. Kaplan. The WCJ found that Claimant s exposure to chemicals at work hastened her need for a lung transplant. Employer appealed to the Board, and the Board affirmed the decision of the WCJ. 5

6 On appeal, Employer raises two issues. 2 First, Employer argues that the Board erred because Claimant s experts offered equivocal medical testimony that was not competent to support a finding that her need for a lung transplant was work-related. Second, Employer contends that the WCJ did not issue a reasoned decision. In its first issue, Employer challenges the competency of Dr. Fino and Dr. Madison. Dr. Fino concluded that Claimant s smoking history was enough to account for all of her current condition and that this would be the same even if she had not been exposed to chemicals on the job. Dr. Madison agreed that Claimant s FEV1 readings fluctuated before and after her exposure to the carpet cleaner and acknowledged that Claimant s COPD was partially due to smoking. Employer argues that this testimony is equivocal and, thus, not competent to support the WCJ s critical findings of fact. Claimant rejoins that it was Employer that had to prove the need for a lung transplant was not the result of her work injury. It failed to meet its burden. 3 Medical evidence which is less than positive or which is based upon possibilities is not legally competent evidence. City of Philadelphia v. Workers Compensation Appeal Board (Seaman), 8 A.3d 1004, 1007 (Pa. Cmwlth. 2010) (quoting Lewis v. Workmen s Compensation Appeal Board (Pittsburgh Board of 2 Our scope of review of an order of the Board is limited to determining 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 Company v. Workmen s Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988). 3 Alternatively, Claimant argues that the medical testimony she presented was unequivocal. 6

7 Education), 508 Pa. 360, 366, 498 A.2d 800, 802 (1985)). To determine whether medical evidence is equivocal, we 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). Once an injury has been accepted as work-related, and medical benefits have not been terminated, the causal connection between the injury and the medical treatment for the injury is presumed. Kurtz v. Workers Compensation Appeal Board (Waynesburg College), 794 A.2d 443, 447 (Pa. Cmwlth. 2002). In such a case, it is the employer s burden to establish by unequivocal medical evidence that the medical treatment in question is not causally related to the work injury. Id. The Board held that because Employer had already been determined liable for an aggravation to Claimant s lung disease, the causal connection between the proposed lung transplant and her work injury was presumed. Therefore, it was Employer s burden to prove by unequivocal medical evidence that the lung transplant was not causally related to Claimant s work injury. Because the WCJ rejected Dr. Kaplan s opinion that Claimant s lung transplant was not caused by her exposure to the carpet cleaner, Employer did not meet its burden. Employer does not address the Board s conclusion that Employer, not Claimant, had the burden of proof. Instead, Employer argues that Claimant retained the burden of proof because she was the moving party. In support, Employer cites to McDonnell Douglas Truck Services, Inc. v. Workmen s Compensation Appeal Board (Feldman), 655 A.2d 655 (Pa. Cmwlth. 1995). In McDonnell Douglas, the claimant attempted to establish that his headaches, face pain, dizziness, and tooth pain were related to his accepted work injury, which was described as a fracture of the third lumbar level of his back. We 7

8 explained that because claimant s work injury was not obviously related to treatments for the above listed conditions, claimant had the burden to establish the connection by unequivocal medical testimony. Here, by contrast, there is an obvious connection between the Claimant s accepted work injury, i.e., the aggravation to her COPD, and the proposed medical treatment. The NCP stated that Claimant had sustained an aggravation of pre-existing COPD due to exposure to chemicals. C.R., Exhibit B-1. The accepted injury was to Claimant s lungs. Id. It was Employer s burden to prove that Claimant s proposed lung transplant was not causally related to her work injury. As explained by the Board, because Employer s medical witness, Dr. Kaplan, was rejected by the WCJ, Employer could not meet its burden. As such, we conclude the Board did not err. In its next issue, Employer argues that the WCJ s decision was not reasoned. Employer explains that the WCJ adopted the majority of Employer s proposed findings of fact verbatim but then drew an entirely inconsistent conclusion. Employer notes that the WCJ identified the equivocal portions of Dr. Fino s testimony, but then accepted his conclusion. It was incumbent on the WCJ to explain this inconsistency. The WCJ s obligation to issue a reasoned decision is derived from Section 422(a) of the Act, which states, in relevant part, as follows: 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 and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers 8

9 compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. 77 P.S As we have explained, [t]he reasoned decision requirement is simply that the WCJ must articulate some objective reasoning to facilitate appellate review of the same. Green v. Workers Compensation Appeal Board (US Airways), 28 A.3d 936, 940 (Pa. Cmwlth. 2011), petition for allowance of appeal denied, Pa., 46 A.3d 718 (2012). Essentially, Employer argues that the WCJ s decision was not reasoned because it pointed out concessions made by Dr. Fino that appear to support Employer s position that it was Claimant s smoking history, not her work for Employer, that brought about her present need for a lung transplant. As noted, to decide whether medical evidence is equivocal, we review all of the testimony of the medical witness, not just one or two sentences. City of Pittsburgh, 11 A.3d at Dr. Fino stated that Claimant s smoking history could account for all of her obstruction, but he also testified that the reason she needs a lung transplant now is because her exposure to the carpet cleaner hastened the progression of her disease. 4 In reaching her conclusion that Claimant s present need for a lung transplant was work-related, WCJ Briston quoted from the decision of WCJ Cohen on the termination petition: [I]t [is] significant that the credible medical testimony indicates that claimant suffered a significant loss in her breathing ability as confirmed by objective pulmonary function studies 4 Employer does not specifically reference Dr. Madison s testimony in support of its claim that the WCJ s opinion was not reasoned, but does claim her testimony was equivocal in an early section of its brief. Dr. Madison opined that while Claimant s condition was due in part to smoking, it was the exposure to the chemical solvent that worsened it to the point that a lung transplant was needed. We reject the claim that this testimony is equivocal. 9

10 which reveal, what was characterized as a rather precipitous 20 percent drop in her FEV1 between December, 1997 and October, 1998 as a direct and proximate result of her chemical exposure associated with the demonstration of the use of the [cleaning solvent] during the period of June through October, A review of the pulmonary function studies, between 1979 and 1997 reveal that the claimant had a decrease in FEV1 readings of about 70 cc s per year. Importantly, during the period between December, 1997 and October, 1998, a period of less than one year, the claimant sustained a loss of FEV1 of approximately 20 percent or 200 cc s. Subsequent to October, 1998, the claimant again sustained an FEV1 loss of approximately cc drop per year. Therefore, this Judge concludes that there is clear objective evidence to conclude that the claimant sustained a permanent aggravation of pre-existing COPD, which aggravation is not fully resolved. WCJ Briston Decision, October 22, 2010, at 1, quoting WCJ Cohen Decision at 10-11; Finding of Fact 24. The WCJ explained that she was bound by this determination that Claimant sustained a permanent aggravation of pre-existing COPD, which has not fully resolved. As explained by the Board, the WCJ was not required to give a lineby-line analysis of all the medical evidence. The Board concluded that a careful review of the decision, as a whole, reveals that the WCJ made the findings of fact and conclusions of law necessary to conduct appellate review. We agree. The WCJ found Dr. Fino s testimony consistent on the point that it was Claimant s exposure to the carpet cleaner that hastened her need for a lung transplant. The WCJ also found Dr. Madison s testimony to be clear and convincing that the work injury was substantially responsible for Claimant s needed lung transplant. The WCJ noted that Claimant had quit smoking in 2001, but the aggravation continued, leading Dr. Madison to conclude that the work injury was the substantial contributing factor for the lung transplant. 10

11 Accordingly, the order of the Board is affirmed. MARY HANNAH LEAVITT, Judge 11

12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Demo and Sales and : Zurich Insurance Company, : Petitioners : : v. : No. 614 C.D : Workers Compensation Appeal : Board (Schoeller), : Respondent : O R D E R AND NOW, this 14 th day of May, 2013, the order of the Workers Compensation Appeal Board, dated March 12, 2012, in the above-captioned matter is hereby AFFIRMED. MARY HANNAH LEAVITT, Judge