IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark A. Rice and Cindy L. Rice, : husband and wife, : Petitioners : : No C.D v. : Submitted: January 11, 2013 : Workers Compensation Appeal : Board (Klapec Express, Inc.), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: April 18, 2013 Petitioners Mark A. Rice (Claimant) and his wife, Cindy L. Rice, petition for review from an order of the Workers Compensation Appeal Board (Board) that denied Claimant s claim for benefits under the Workers Compensation Act (Act). 1 The Board reversed the decision of the Workers Compensation Judge (WCJ) that had granted Claimant s Claim Petition with respect to a lower back strain and sprain and awarded costs to Claimant. The Board affirmed the WCJ in all other respects. We affirm, in part, and reverse, in part. 2 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S , Our scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, Board procedures violated, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704; City of Pittsburgh v. Workers Compensation Appeal Board (McFarren), 950 A.2d 358 (Pa. Cmwlth. 2008).

2 Claimant was employed by Klapec Express, Inc. (Employer), from April 20, 2009, through July 23, (WCJ Opinion 3.) He alleged that he suffered a lower lumbar sprain and strain on July 21, 2009, in the course of his employment. (WCJ Findings of Fact (F.F.) 17a.) He was removing a tarp covering a load of lumber on a truck while working in Milan, Tennessee, when he felt sharp pain in his back and legs. (Id.) Claimant first reported the injury to Employer on July 28, 2009, and Employer issued a Notice of Denial on August 6, (F.F. 17b; WCJ Opinion 3.) Meanwhile, Employer had legitimately terminated Claimant s employment effective July 23, 2009, under its three strikes policy for unsatisfactory performance; the termination was not related to Claimant s alleged injury. (F.F. 17c-17d.) Employer did not inform Claimant that his employment had been terminated until July 28, 2009, after he had returned from Tennessee and parked Employer s truck in the lot. (F.F. 17d.) The WCJ determined that the lumbar sprain and strain was work-related, and that Claimant had fully recovered from that injury as of November 5, (WCJ Conclusions of Law (C.L.) 2.) In his Claim Petition, Claimant also contended that his July 21, 2009 work injury caused him to suffer other, more serious work-related injuries, called transverse myelitis and a fibrocartilaginous embolism, which affect his spinal cord and extremities. The WCJ determined that those injuries were not work-related. (Id.) Following his lumbar sprain and strain, Claimant sought medical treatment from a physician, who realized that Claimant had a separate spinal cord problem that required attention, which was ultimately determined to be the spine condition asserted in the Claim Petition. (F.F. 17g.) He was referred to UPMC Presbyterian Hospital in Pittsburgh and was admitted for 19 days, beginning 2

3 August 6, On August 25, 2009, Claimant was paralyzed from the waist down and was transferred to Mercy Hospital where he spent another 45 days before being discharged home in a wheelchair. He filed a Claim Petition, pro se, seeking total disability benefits as a result of his injuries, which Employer opposed. The Petition was assigned to the WCJ on August 11, 2009, when Claimant s attorney entered his appearance. Before the WCJ, Claimant and his wife testified on his behalf. He also submitted the deposition testimony of his medical expert, Dr. Rodde M. Cox, M.D., and his treating chiropractor, Thomas Hays, D.C. Several witnesses testified on behalf of Employer and Employer submitted the deposition testimony of its own medical experts. On behalf of Employer, Dr. Michael Y. Oh, M.D., board-certified in neurosurgery, testified that the spinal condition was not caused by trauma and was unrelated to the alleged work incident. Dr. Oh diagnosed Claimant with transverse myelitis, but concluded that the fact that Claimant was diagnosed with that more severe spinal condition just a few weeks after the alleged work incident was mere coincidence. Also on behalf of Employer, Dr. Jon Barry Tucker, M.D., boardcertified in orthopedic surgery, testified that Claimant s spinal condition was not related to the alleged work incident, but he did not conclusively rule out that Claimant suffered a lower back strain and sprain on July 21, 2009, testifying that it may have happened. The WCJ issued a 37-page decision, summarizing the extensive medical evidence and setting forth findings of fact and conclusions of law. The WCJ found that Claimant had sustained his burden of proof to establish that the lumbar strain and sprain was work-related, and that Claimant had fully recovered from that injury as of November 5, (C.L. 2.) The WCJ rejected the 3

4 testimony of Employer s experts, in particular that of Dr. Oh, M.D., to the extent that he opined that Claimant did not suffer from a lower back strain. The WCJ found that Claimant did not meet his burden to establish that his other injuries were work-related or were caused by the lumbar strain and sprain, and that, consequently, Employer was not liable for the cost of Claimant s medical treatment for the spinal cord problems and for disability benefits. (Id.) Both parties appealed to the Board. The Board affirmed the WCJ s denial of the Claim Petition with respect to Claimant s spine condition. (Board Opinion at 6.) The Board reversed the WCJ s decision that Claimant suffered a work-related lumbar strain and sprain. The Board reasoned that Claimant had failed to adduce any unequivocal medical evidence causally connecting a back strain to the alleged work incident, specifically citing the testimony of Dr. Tucker, who testified that Claimant may have had a work-related back strain. (Board Opinion at 7.) Claimant appealed to this Court, asserting that the Board erred by reversing the WCJ on the back strain and by affirming the WCJ on the spinal cord injury. Regarding his spinal cord injury, Claimant argues that the Board and the WCJ erred by disregarding Claimant s unequivocal medical evidence connecting the fibrocartilaginous embolism to the work event. He argues that his expert, Dr. Cox, was more qualified to testify about that injury because he had actually treated patients with that condition, whereas Employer s experts, including Dr. Oh, could only discuss the injury in a superficial way. Claimant, in essence, asks that this Court reweigh the medical evidence in his favor, rejecting the findings and conclusions of the WCJ. This we cannot do. That Claimant believes his experts are better qualified than Employer s 4

5 experts to discuss a particular diagnoses is not a reason for us to set aside the credibility determinations of the fact finder where, as here, those determinations are reasoned and supported by substantial evidence. 3 Bethenergy Mines, Inc. v. Workmen s Compensation Appeal Board (Skirpan), 531 Pa. 287, , 612 A.2d 434, (1992) (explaining that the appellate role in a workers compensation case is not to reweigh the evidence or review the credibility of witnesses, but to determine whether the WCJ s findings have the requisite measure of support in the record as a whole); see also Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 79, 828 A.2d 1043, 1054 (2003) (discussing the qualities of a reasoned decision that facilitates effective appellate review). Regarding the back strain, Claimant asserts that the Board erred in reversing the WCJ s decision awarding benefits, because the causal connection between Claimant s back strain and the work incident is obvious. He concedes that none of his expert medical witnesses rendered an opinion establishing a causal relationship between the tarp incident and a back strain (Claimant Brief at 1), but 3 Section 422(a) of the Workers Compensation Act aids meaningful appellate review by requiring the WCJ to issue a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole and clearly stating the rationale for the decision. 77 P.S When the WCJ is faced with conflicting evidence, Section 422(a) of the Act further requires that his or her reasons for rejecting or discrediting competent evidence be explained. Id. This does not mean that the requirement of a reasoned decision permits a party to challenge or second-guess the WCJ s reasons for credibility determinations; determining the credibility of the witnesses remains the quintessential function of the fact finder. Dorsey v. Workers Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). The WCJ is free to accept, in whole or in part, the testimony of any witness, including expert medical witnesses. Remaley v. Workers Compensation Appeal Board (Turner Dairy Farms, Inc.), 861 A.2d 405, 409 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 720, 872 A.2d 1200 (2005). However, the WCJ s findings of fact and conclusions of law must be supported by substantial evidence or such relevant evidence as a reasonable mind might accept to support a conclusion. Ryan v. Workmen s Compensation Appeal Board (Community Health Services), 550 Pa. 550, 559, 707 A.2d 1130, 1134 (1998). 5

6 that under the circumstances here, where the connection is obvious, medical evidence is not necessary. Employer does not directly respond to Claimant s argument and, instead, simply asserts that we must affirm the Board because Claimant failed to present medical evidence to support causation. We agree with Claimant that, given the findings of the WCJ, which are supported by substantial evidence, the Board erred by reversing the WCJ on the back strain issue. Pursuant to the Act, an employer is only liable to pay for a claimant s medical expenses that arise from and are caused by a work-related injury. Section 301(c)(1) of the Act, 77 P.S. 411(1); McDonnell Douglas Truck Services, Inc. v. Workmen s Compensation Appeal Board (Feldman), 655 A.2d 655 (Pa. Cmwlth. 1995). The burden is on the claimant to establish that an injury is indeed workrelated. Id.; Tobias v. Workmen s Compensation Appeal Board (Nature s Way Nursery, Inc.), 595 A.2d 781 (Pa. Cmwlth.), appeal denied, 529 Pa. 628, 600 A.2d 543 (1991). A claimant will usually be required to meet his burden with unequivocal medical evidence that establishes a causal connection between the work incident and the asserted injury. See Kurtz v. Workers Compensation Appeal Board (Waynesburg College), 794 A.2d 443, (Pa. Cmwlth. 2002). However, where the connection is obvious, the burden shifts to the employer to show that the injury is unrelated. See id. Here, the WCJ credited Claimant s testimony that an incident occurred while he was on the job, and found that Claimant met his evidentiary burden to establish that he suffered a lower back strain and sprain, for which he sought medical attention. According to the WCJ, it was only after Claimant sought treatment for the back strain that his more serious condition was discovered and he was referred to the hospital. Those fact findings are supported by substantial 6

7 evidence and we will not overturn them on appeal. The issue thus becomes whether the established work incident and the established injury are connected. Our prior cases regarding the causal connection of a back injury to a work incident indicate that we have ruled both ways, requiring unequivocal medical evidence to establish the connection in some circumstances, and holding that the connection is obvious in others. Where we have required medical evidence, the cases have involved a complication that followed an accepted back strain, like a herniated disc or degenerative disc disease, whereas it has been accepted that the underlying back strain was causally related. See Pryor v. Workers Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1200 (Pa. Cmwlth. 2007) (requiring medical evidence to establish connection between low back strain/sprain and disc disease); Marks v. Workers Compensation Appeal Board (Dana Corp.), 898 A.2d 689, 690 (Pa. Cmwlth. 2006) (requiring medical evidence to establish connection between accepted lumbar strain and sprain and lumbar disc injury ); see also City of Philadelphia v. Workers Compensation Appeal Board (Smith), 946 A.2d 130, 137 & n.15 (Pa. Cmwlth. 2008) (treating disc herniation and nerve impingement as injuries distinct from lumbar strain); Indian Creek Supply v. Workers Compensation Appeal Board (Anderson), 729 A.2d 157, (Pa. Cmwlth. 1999) (treating lumbosacral strain as distinct from disc herniation). Obviously, those more complex injuries require unequivocal medical proof to establish causation. But that is not the issue here, where we agree with the Board and the WCJ that Claimant s serious spinal cord injury that temporally followed the back strain is not work-related. Under the circumstances, however, we find that the Board erred by overturning the WCJ s 7

8 findings and his holding that the documented back strain was obviously connected to the physically rigorous chore that was credibly described by Claimant. The Board erred, therefore, by reversing the WCJ for a lack of unequivocal medical testimony connecting the back strain to Claimant s work. Where the connection is obvious, as it is here, Employer must present unequivocal medical evidence to refute the obvious causal connection, which Employer failed to do. The testimony cited by the Board in favor of reversing the WCJ actually supports affirmance. One of Employer s medical experts admitted that it was possible that Claimant suffered from a lower back strain and that it was caused by the work incident. (Board Opinion at 7.) Thus, the Board should not have reversed the WCJ s findings and holdings regarding the lower back strain and sprain. We, therefore, reverse the Board in that regard. 4 An appropriate order follows. JAMES GARDNER COLINS, Senior Judge 4 The impact of our ruling effectively reinstates the order of the WCJ in all respects. 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark A. Rice and Cindy L. Rice, : husband and wife, : Petitioners : : No C.D v. : : Workers Compensation Appeal : Board (Klapec Express, Inc.), : Respondent : O R D E R AND NOW, this 18 th day of April, 2013, the order of the Workers Compensation Appeal Board is AFFIRMED IN PART and REVERSED IN PART. The Board s order is affirmed to the extent that it affirmed the order of the Workers Compensation Judge denying the Claim Petition as it pertained to the asserted spinal cord injury and related claims for lost wages. The Board s order is reversed to the extent that it reversed the order of the Workers Compensation Judge sustaining the Claim Petition as it pertained to the asserted lower back strain and sprain and awarding litigation costs. The impact of our ruling effectively reinstates the order of the WCJ in all respects. JAMES GARDNER COLINS, Senior Judge

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