IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph R. Gaudet, : Petitioner : : No C.D v. : : Submitted: December 26, 2014 Workers Compensation Appeal : Board (American Lenders), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: May 12, 2015 Joseph R. Gaudet (Claimant) petitions for review of the July 15, 2014 decision of the Workers Compensation Appeal Board (Board), which affirmed the August 30, 2012 decision of a workers compensation judge (WCJ) to grant Claimant s claim petition and modified the WCJ s suspension of benefits to a termination effective September 9, We affirm. Claimant was employed by American Lenders (Employer) as a repossession agent. On April 21, 2011, Claimant filed a claim petition seeking total disability for an alleged work injury to his left shoulder, left elbow, and neck, as well as specific loss benefits for disfigurement. Claimant also filed a penalty petition,

2 alleging that Employer did not accept or deny liability within twenty-one days as required by section of the Workers Compensation Act (Act). 1 The petitions were assigned to a WCJ, who held hearings on May 23, 2011; October 7, 2011; and March 5, Claimant testified that on January 28, 2011, his truck became stuck in a driveway while he was attempting a repossession. (Reproduced Record (R.R.) at 26a.) Claimant stated that Gino Polsinelli, Employer s owner, was assisting him when he slipped and fell on a patch of ice and landed on his left elbow. (R.R. at 26a.) Claimant said that he returned to the garage and told Employer s secretary and investigator about his fall. (R.R. at 28a.) Claimant testified that after the fall he experienced headaches and pain in his neck, left arm, and left shoulder. (R.R. at 29a.) Claimant continued full-duty work but stated that he missed work for three days due to pain. (R.R. at 28a-29a.) On February 23, 2011, Claimant sought treatment at the Mon Valley Hospital emergency room and was advised to consult with an orthopedic surgeon. (R.R. at 29a.) Claimant testified that he sought treatment from Alexander Kandabarow, M.D. (Dr. Kandabarow), a board-certified orthopedic surgeon, who identified nerve damage and initially recommended physical therapy. (R.R. at 30a.) Claimant said he attended physical therapy for three weeks but then stopped because he felt that the therapy was making his condition worse. (R.R. at 30a.) According to Claimant, Dr. Kandabarow said that his only other option was cervical fusion surgery, which 1 Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S

3 Claimant underwent on May 11, (R.R. at 31a.) Claimant testified that the surgery relieved the pain in his left elbow but not in his shoulders and he subsequently experienced additional discomfort from a metal plate that was placed in his throat. (R.R. at 32a.) At the May 23, 2011 hearing, Claimant testified that he still had headaches, pain in his shoulders, and soreness between his shoulder blades. (R.R. at 32a.) Claimant acknowledged that on April 8, 2011, before he began treatment with Dr. Kandabarow, he quit working for Employer due to a disagreement over financial issues. (R.R. at 32a.) Claimant offered the deposition testimony of Dr. Kandabarow, who testified that he reviewed the MRI film taken at Mon Valley Hospital and determined that Claimant had a C6-7 disk herniation, with cord compression and foraminal stenosis. (R.R. at 100a.) Dr. Kandabarow stated that his physical examination of Claimant also supported a diagnosis of a C6-7 disk herniation, as well as a left C-7 radiculopathy. (R.R. at 100a.) Relying on Claimant s statements that he had not had any of the reported symptoms before his fall, Dr. Kandabarow attributed Claimant s injuries to his fall at work. Dr. Kandabarow testified that Claimant was a candidate for cervical fusion surgery due to his ongoing and worsening pain, and he stated that Claimant progressed as expected after the May 11, 2011 surgery. Dr. Kandabarow said that he last saw Claimant on September 9, 2011, at which time X-rays showed a solid fusion at Claimant s C6-7 and Claimant reported resolution of his left upper extremity pain. Dr. Kandabarow explained that the C6-7 fusion was achieved by putting a plate in Claimant s neck, and he testified that there was no plan to take the plate out. Dr. Kandabarow further testified that, as of Claimant s final visit on September 9, 2011, Claimant s condition had resolved. 3

4 Q: Okay. You saw [Claimant] on September 9, [2011], you released him back to his full-duty job; correct? A: Yes. Q: And you haven t seen him since that time; correct? A: No. Q: And your note indicates that his condition has resolved; correct? A: Yes. Q: All right. And so he is capable of doing everything that he was capable of doing beforehand? A: Yes. Q: Now, resolved in, I guess, a workers comp arena, we often take that to consider that he is fully recovered. You would agree that he is fully recovered; correct? A: Yes. (R.R. at 115a-16a.) Dr. Kandabarow acknowledged that in some instances, when the fusion is not solid, it is necessary to remove the plate because a loose plate could damage the surrounding structure. Q: Now, Doctor, you testified in response to one of [Claimant s counsel s] questions that [Claimant] has a steel plate in his neck right now but that there are no plans to take that out; is that correct? A: Yes. Q: Okay. Is there ever a need in a surgery such as the one that [Claimant] underwent to take the plate out? 4

5 (R.R. at 117a-18a.) A: Sometimes. Q: Okay. What could happen in the future that would necessitate removing that plate? A: Well, if the fusion is not solid and there is ongoing motion, the plate could loosen and irritate the surrounding structures, which may necessitate plate removal, or if there is deterioration or a need for surgical treatment at another disk level, sometimes the plate has to be removed to do the surgery above or below. Q: When you have one disk level fused, does that create any kind of additional pressure on either the level above the fusion or below the fusion? A: It is controversial, but there are some reports that indicate that if you fuse one level, there are increased stresses on the level above. In opposition to the claim petition, Polsinelli, Employer s owner, testified that he was with Claimant on January 28, 2011, but did not see him fall. Polsinelli stated that although Claimant mentioned he had hurt his shoulder, he never told Polsinelli that he hurt it on the job. (R.R. 58a-59a.) Polsinelli further testified that he had declined Claimant s request to be laid off in order to be eligible for unemployment benefits and that Claimant quit his job on March 25, (R.R. at 68a-69a.) Employer also submitted February 23, 2011 emergency room records which reflect that Claimant denied an injury and indicated that his symptoms had been present for about a week and a half. (Finding of Fact No. 13.) In a decision and order dated August 30, 2012, the WCJ credited Claimant s testimony that he suffered a work-related fall. (Finding of Fact No. 14.) The WCJ did not accept the emergency room records as determinative of whether or 5

6 not a work injury occurred, stating that there are various reasons why such data could be inaccurate. (Finding of Fact No. 15.) The WCJ accepted Dr. Kandabarow s testimony about the diagnosis of Claimant s injury and the fact that Claimant was disabled as of April 22, However, the WCJ concluded that Dr. Kandabarow s testimony regarding Claimant s full recovery was equivocal. I find that Dr. Kandabarow s testimony regarding claimant s full recovery is equivocal. Though he did state, at one point in his deposition, that [Claimant] had fully recovered, he later qualified his statement by testifying that [Claimant] may need surgery in the future to remove the plate in his neck. Moreover, as with any fusion surgery, [Claimant s] anatomy has been significantly changed as a result of the work related injury. Thus, Dr. Kandabarow s testimony does not support the conclusion that [Employer] is entitled to a termination of benefits. However, Dr. Kandabarow has released [Claimant] to return to his regular duty job as of September 9, (Finding of Fact No. 16) (emphasis added). The WCJ relied on Dr. Kandabarow s testimony that Claimant was capable of returning to full duty work effective September 10, 2012, to find that Claimant was not entitled to wage loss benefits as of that date. (Finding of Fact No. 18.) Based on these findings, the WCJ concluded that Claimant was totally disabled beginning April 22, The WCJ concluded that Claimant did not meet his burden of establishing ongoing disability after September 9, 2011, and suspended benefits effective September 10, The WCJ also awarded Claimant 20 weeks compensation for disfigurement based on the surgical scar. Although the WCJ found that Employer failed to accept or deny liability within twenty-one days as required by section of the Act, she declined to award a penalty. 6

7 Both parties appealed to the Board. Claimant argued that the WCJ erred in suspending benefits as of September 9, 2011, and in placing the burden of proving ongoing disability on Claimant instead of requiring Employer to prove that work was available when Claimant was released to full duty. (R.R. at 162a.) Employer argued that the WCJ erred in finding that Claimant suffered a work injury and was entitled to disability and disfigurement benefits. Employer also argued the WCJ erred in suspending rather than terminating Claimant s benefits as of September 9, 2011, based on the erroneous conclusion that Dr. Kandabarow s testimony regarding Claimant s full recovery was equivocal. (R.R. at 163a-64a.) The Board determined that the WCJ s finding that Claimant suffered a work-related injury was supported by substantial competent evidence. (R.R. at 188a- 89a.) However, the Board agreed with Employer that Dr. Kandabarow s testimony concerning Claimant s full recovery was unequivocal. (R.R. at 189a.) The Board cited Dr. Kandabarow s testimony that Claimant had fully recovered and was able to return to full duty. (R.R. at 189a.) The Board explained that Dr. Kandabarow s testimony as to the possibility of future treatment and surgery was in response to a hypothetical question about the procedure in general, not Claimant specifically. (R.R. at 190a.) The Board observed that, in response to a hypothetical question, Dr. Kandabarow stated that in circumstances where the fusion is not solid future surgery might be required, but, when discussing Claimant s condition, Dr. Kandabarow testified that Claimant s fusion was solid and that there were no plans to remove the plate. (R.R. at 190a.) The Board also concluded that the WCJ arbitrarily determined that Claimant s anatomy had significantly changed because there was no medical evidence to support that finding. (R.R. at 191a.) 7

8 Accordingly, the Board affirmed and modified the WCJ s decision to award benefits effective April 22, 2011, and to terminate benefits effective September 9, On appeal to this Court, 2 Claimant first argues that the Board erred in concluding that Dr. Kandabarow s testimony that Claimant had fully recovered from his work injury was unequivocal. 3 Whether medical testimony is equivocal is a question of law subject to this Court s review. Terek v. Workmen s Compensation Appeal Board (Somerset Welding & Steel), 668 A.2d 131, 133 (Pa. Cmwlth. 1995). The testimony of a medical witness must be reviewed in its entirety, and the final decision on its certainty should not rest on a few words taken out of context. City of Wilkes-Barre v. Workmen s Compensation Appeal Board, 420 A.2d 795, (Pa. Cmwlth. 1980). The law does not require every utterance of a medical witness on a medical subject to be certain, positive, and without reservation or exception. Philadelphia College of Osteopathic Medicine v. Workmen s Compensation Appeal Board (Lucas), 465 A.2d 132, (Pa. Cmwlth. 1983). It is sufficient that a medical expert, after providing a foundation, testify that in his or her professional opinion he or she believes or thinks certain facts exist. Id. When viewed as a whole, Dr. Kandabarow s testimony reflects his opinion within a reasonable degree of medical certainty that Claimant had fully 2 Our scope of review is limited to determining whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, and whether constitutional rights were violated. Department of Transportation v. Workers Compensation Appeal Board (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011). 3 Claimant also argues that the Board erred in reversing the WCJ s finding that Claimant s anatomy has been significantly altered and in failing to consider which party bore the burden of proof after Claimant was released to full duty. 8

9 recovered and was able to return to full-duty as of September 9, Dr. Kandabarow stated that the fusion in Claimant s neck is solid, there is no plan to take the plate out of his neck, and Claimant s left upper extremity pain has resolved. Dr. Kandabarow was specifically asked if he agreed that Claimant was fully recovered, and he answered in the affirmative. Dr. Kandabarow s subsequent statement that additional surgery may be needed in some circumstances does not undermine his opinion with respect to Claimant s condition. Accordingly, the Board properly modified the WCJ s decision to reflect a termination of benefits effective September 9, Our holding that the record supports a termination of Claimant s benefits effective September 9, 2011, renders Claimant s remaining arguments moot. Nevertheless, we note that the record provides no support for the WCJ s determination that Claimant s anatomy has been significantly altered. Dr. Kandabarow did not provide any testimony to this effect, nor does any other medical evidence support this finding. Instead, the WCJ, who was not qualified as an expert medical witness in this case, impermissibly substituted and relied on her own opinion to make findings as to the medical significance of these test results. Zeigler v. Workers Compensation Appeal Board (Jones Apparel Group, Inc.), 728 A.2d 421, 424 (Pa. Cmwlth. 1999). Further, it is well settled that in a claim proceeding, the claimant bears the burden to prove all elements necessary to support an award, including the duration of disability. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993); Pennsylvania Uninsured Employers Guaranty Fund v. Workers Compensation Appeal Board (Bonner and Fitzgerald), 85 A.3d 1109, (Pa. Cmwlth. 2014). Claimant s reliance on Vista 9

10 International Hotel v. Workers Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 1999), for the proposition that the employer bears the on-going burden of proving available employment is misplaced; in contrast to the facts of this case, the claimant in Vista established a residual disability as well as the unavailability of suitable employment. Accordingly, we affirm. PATRICIA A. McCULLOUGH, Judge 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph R. Gaudet, : Petitioner : : No C.D v. : : Workers Compensation Appeal : Board (American Lenders), : Respondent : ORDER AND NOW, this 12 th day of May, 2015, the order of the Workers Compensation Appeal Board, dated July 15, 2014, is affirmed. PATRICIA A. McCULLOUGH, Judge