IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Isabel Arevalo, : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Board (Catalent Pharma Solutions), : Respondent : PTS Holdings Corp., : Petitioner : : v. : No C.D : Submitted: May 16, 2014 Workers' Compensation Appeal : Board (Arevalo), : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 9, 2014 This matter presents the consolidated cross-appeals of Isabel Arevalo (Claimant) and PTS Holdings Corp. d/b/a Catalent Pharma Solutions (Employer). Specifically, Claimant asks whether the Workers Compensation Appeal Board (Board) erred in denying her modification petition in which she alleged that an accepted work injury in the nature of a foreign body in eye/irritation, resolved into a specific loss of the use of her right eye for all practical intents and purposes. In its appeal, Employer challenges the Board s determination that a termination of benefits was not warranted. Upon review, we affirm.

2 I. Factual and Procedural Background Claimant worked for Employer as a packer. In July 2007, Claimant was cleaning her workstation at the end of her shift. Another worker was blowing off a nearby workstation with an air hose. 1 The air hose blew a powdery residue toward Claimant and some of the powder went into her right eye. Other than powder, nothing hit her eye. Two weeks later, Employer issued a notice of compensation payable (NCP), which described the work injury as foreign body in e[y]e, irritation. Designated Resp t s Br. at App x E; Certified Record (C.R.), Workers Compensation Judge s (WCJ) Hr g, 10/7/09, Ex. B-1. In November 2008, Claimant filed a modification petition alleging that [her] work-related injury of July 2, 2007, has resolved itself into the specific loss of use of [her] right eye, for all practical intents and purposes. WCJ s Op., 11/28/11, Finding of Fact (F.F.) No. 2. Employer filed an answer denying Claimant s allegation. The modification petition was assigned to WCJ Aida Louise Harris (First WCJ). The parties fully litigated the modification petition before First WCJ. Claimant testified on her own behalf and presented the deposition testimony of Dr. Mitchell Fineman (Claimant s Physician). For its part, Employer presented the deposition testimony of Dr. Edward Bedrossian (Employer s Physician). 1 Although Claimant signed an incident report indicating that she was 24 to 26 feet away from the air hose, she testified that it was closer to 7 feet. WCJ s Op., 8/13/10, Finding of Fact No. 1. 2

3 Ultimately, First WCJ denied Claimant s modification petition and granted a termination of benefits as of December 11, 2008, the date of Claimant s Physician s examination. Claimant appealed. On appeal, the Board determined the testimony of Employer s Physician was equivocal and, as a result, First WCJ erred in relying on that testimony in denying Claimant s modification petition. Thus, the Board reversed and remanded the modification petition for a new decision based only on the unequivocal medical evidence presented. Additionally, the Board reversed First WCJ s grant of a termination of benefits. To that end, the Board determined First WCJ made no findings that Claimant s Physician opined Claimant fully recovered so as to support her conclusion that Claimant s benefits should be terminated as of the date of Claimant s Physician s examination. The Board s order stated, [t]he decision of [First WCJ] denying Claimant s [m]odification [p]etition is hereby reversed and the case is remanded to the Judge to render a new decision based only on the unequivocal medical evidence presented in this case. Bd. Op, 3/15/11, Order (emphasis in original). On remand, a different WCJ, WCJ Denise E. Krass (Second WCJ) was assigned to hear the matter. Neither party presented additional testimony. Second WCJ adopted and incorporated the following findings from First WCJ s decision. In support of her modification petition, Claimant presented the testimony of her Physician. Claimant s attorney sent Claimant to Claimant s Physician, and Claimant hired her Physician after she filed her modification petition to examine 3

4 her and to testify on her behalf. Claimant s Physician saw Claimant on one occasion in December He did not consider himself Claimant s treating physician. Claimant relied on her son to translate since her English is not very good. First WCJ s Op., 8/13/10, Finding of Fact (F.F.) No. 6. Claimant provided her Physician a history of a right eye injury at work in July Since that time, her vision has not improved. Based on his examination, Claimant s Physician opined that Claimant does not have functional use of her right eye. First WCJ s Op., F.F. No. 6. However, Claimant is able to see out of her right eye and she does have some vision. Claimant s Physician did not review any medical records. He did not review the records of Dr. DiGiovanni, Dr. Garg, Dr. Volpe, Dr. Kauffman or Thomas Jefferson University Hospital. He did not have any good understanding of Claimant s mechanism of injury. First WCJ s Op., F.F. No. 7. Claimant s Physician did not know Claimant s original working diagnosis. He testified that dust or particulate getting into someone s eye would probably not cause a retinal detachment. First WCJ s Op., F.F. No. 8. To cause a retinal detachment, there would have to be blunt trauma to the eye. Id. However, he stated that a vitrectomy, the procedure Claimant underwent, can cause retinal tearing, but there is no way to tell whether Claimant s retinal tearing was preexisting or not. Id. Claimant is 71 years old. She had age-related, and congenital, degenerative changes in her eyes. Claimant has lattice degeneration, which is a thinning of the retina and is related to near-sightedness. Lattice degeneration increases the risk of retinal detachment. Claimant also had age-related 4

5 degenerative cataracts in both eyes. Claimant had posterior vitreous separation in the left eye which is where the jelly pulls away from the back of the eye. First WCJ s Op., F.F. No. 9. This is an age-related degenerative finding and would most likely have been present in the right eye; however, the vitrectomy removed signs of that. A retinal detachment in and of itself can also be degenerative. According to Claimant s Physician, [t]he likely cause of Claimant s vision loss is that it was a side effect of the retinal reattachment performed during her vitrecomy [sic]. Id. Claimant disagreed with the records of Dr. Garg regarding her changes in vision after getting powder in her eye. She denied seeing dots or lines or having cloudy vision. Her vision simply went black. She now only has some perception of light in her right eye. First WCJ s Op., F.F. No. 10. Presently, Claimant cannot read. She is unable to perform fine work with her current vision such as threading a needle. Id. She is able to see shapes, but cannot distinguish people. Claimant saw her Physician on one occasion. Claimant s Physician never actually treated Claimant, and she is not treating with anyone for her right eye now. After incorporating these findings from First WCJ s opinion, Second WCJ set forth the following additional findings (with emphasis added): 7. [Second WCJ] finds that the Claimant s medical evidence does not support a finding that the Claimant sustained a specific loss of use of the right eye for all practical intents and purposes related to the July 2, 2007 work incident. [Claimant s Physician s] testimony is not credible or persuasive on the issue of causation because [Claimant s Physician] did not have an accurate history and understanding of the Claimant s work 5

6 injury; [Claimant s Physician] admitted that the Claimant s history was not very accurate ; [Claimant s Physician] did not know the Claimant s original working diagnosis; [Claimant s Physician] admittedly did not have a good understanding of the Claimant s mechanism of injury; [Claimant s Physician] saw the Claimant on one occasion solely for the purpose of litigation; and [Claimant s Physician] did not review any of the Claimant s medical records. Although [Claimant s Physician] unequivocally opined that the Claimant had a functional loss of use of her right eye, he did not express an unequivocal opinion regarding causation. He did not provide an unequivocal opinion relating the Claimant s loss of use of the right eye to the work incident. 8. The Claimant s unrebutted testimony regarding her vision loss is credible and persuasive. However, her testimony alone is not sufficient to support a causal relationship between her vision loss and the work incident. Her assertions of a causal relationship are not corroborated by [Claimant s Physician.] 9. [Second WCJ] has been instructed by the [Board] that [Employer s Physician s] opinion is equivocal and cannot be relied upon in this case. However, the Claimant has the burden of proof in this matter, and the Claimant s evidence does not support [her] burden of proof. Second WCJ s Op., F.F. Nos Based on these findings, Second WCJ determined Claimant did not meet the burden of proof on her modification petition. Claimant appealed to the Board. Additionally, Employer cross-appealed, asserting Second WCJ erred in determining the Board s order remanded only on the modification petition, and in failing to make a determination as to whether Claimant fully recovered from the accepted work injury. Ultimately, the Board affirmed Second WCJ s denial of Claimant s modification petition based on Second WCJ s rejection of Claimant s Physician s testimony. Further, the Board determined Second WCJ did not err in failing to 6

7 terminate Claimant s benefits on remand. Specifically, the Board determined that in the prior opinion, First WCJ determined a termination of benefits was warranted as of December 11, 2008, the date of Claimant s Physician s examination. However, Claimant s Physician did not opine Claimant fully recovered from her accepted work injury. Thus, a termination of benefits was not supported. Claimant and Employer now appeal to this Court. 2 II. Discussion Initially, we note, the WCJ, as the ultimate fact-finder in workers compensation cases, has exclusive province over questions of credibility and evidentiary weight. A & J Builders, Inc. v. Workers Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ s authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Id. The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part. Id. We are bound by the WCJ s credibility determinations. Id. Moreover, [i]t is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. Furnari v. Workers Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation omitted). We examine the entire record to see if it contains evidence a reasonable 2 Our 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. Dep t of Transp. v. Workers Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011). 7

8 person might find sufficient to support the WCJ s findings. Id. If the record contains such evidence, the findings must be upheld, even though the record may contain conflicting evidence. Id. Additionally, we must view the evidence in the light most favorable to the prevailing party and give it the benefit of all inferences reasonably deduced from the evidence. Id. A. Claimant s Appeal In her appeal, Claimant argues Second WCJ erred in denying her modification petition. Specifically, she asserts the testimony of her Physician establishes a loss of sight in her right eye that amounts to a loss of use of that eye for all practical intents and purposes. Claimant contends her Physician s testimony as to the work-relatedness of her vision loss is unequivocal and is supported by her own credible testimony. She maintains Second WCJ erred in capriciously disregarding her Physician s testimony where Second WCJ based her determinations on less than the entirety of that testimony. Claimant asserts that the fact that her Physician did not specifically review the operative report is immaterial as neither party was able to obtain the report. In sum, she argues the established facts here, that she sustained a disabling work injury to her right eye, in conjunction with her Physician s examination and opinion testimony, are sufficient to satisfy the burden of proof on her modification petition. The law is well settled in Pennsylvania that in order to receive workers compensation benefits an injured worker has the burden of proving all elements necessary to support an award. Rockwell Int l v. Workers Comp. Appeal Bd. (Sutton), 736 A.2d 742, 744 (Pa. Cmwlth. 1999) (citation omitted). It 8

9 is a fundamental principal [sic] of workers compensation law that, absent proof of work-related causation of an injury, an employee is not entitled to compensation benefits. Id. Thus, where no reasonable nexus or obvious relationship exists between the injury described in an NCP and a subsequently claimed physical condition, the claimant bear[s] the burden of establishing the work-relatedness of [the] condition. City of Phila. v. Workers Comp. Appeal Bd. (Fluek), 898 A.2d 15, 21 (Pa. Cmwlth. 2006). Where the causal connection between the work incident and alleged disability is not obvious, unequivocal medical evidence is necessary to establish it. A & J Builders. 3 The party requesting a modification to establish a specific loss must show the injured party suffered the permanent loss of use of the injured member for all practical intents and purposes. HGO, Inc. v. Workmen s Comp. Appeal Bd. (Hadley), 651 A.2d 719 (Pa. Cmwlth. 1994). With regard to a claim for specific loss of an eye, this Court explained: The standard to be applied in the determination of whether compensation for the specific loss of the use of an eye is due, where the eye has been injured but not entirely destroyed, has been the subject of numerous and lengthy opinions. The ultimate test finally arrived at, after much travail, is that of whether the injured eye was lost for all practical intents and purposes, not whether claimant in fact has 3 Medical testimony will be deemed incompetent if it is equivocal. Coyne v. Workers Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 954 (Pa. Cmwlth. 2008). Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists. Id. Conversely, [m]edical testimony is equivocal if, after a review of a medical expert's entire testimony, it is found to be merely based on possibilities. Id. In determining whether medical testimony is unequivocal, the medical witness's entire testimony must be reviewed and taken as a whole and a final decision should not rest upon a few words taken out of the context. Id. 9

10 vision in the injured eye. If so, compensation follows. In facilitation of the application of the ultimate test, a further standard has been adopted: Compensation may not be had if, using both eyes, the claimant can see better, in general, than by using the uninjured eye alone; or, as otherwise stated, if the use of the injured eye does not contribute materially to the claimant s vision in conjunction with the use of the normal eye. Hershey Estates v. Workmen s Comp. Appeal Bd. (Rhoade), 308 A.2d 637, 639 (Pa. Cmwlth. 1973). Thus, the standard for determining whether there exists a loss of an eye for compensation purposes is whether the eye is lost for all practical intents and purposes and not whether the claimant in fact has vision in the eye. Korner Garage v. Workmen s Comp. Appeal Bd. (Brown), 643 A.2d 768, 769 (Pa. Cmwlth. 1994). Compensation, therefore, may be awarded if the use of the injured eye does not contribute materially to [the] [c]laimant s overall vision. Id.; see also Rohm & Haas Co. v. Workmen s Comp. Appeal Bd., 414 A.2d 163, 166 (Pa. Cmwlth. 1980) ( [An eye] will be held to be lost for all practical intents and purposes if the use of the injured eye does not contribute materially to the claimant s vision in conjunction with the use of the uninjured eye. ) Here, following the July 2007 work incident, Employer issued an NCP accepting liability for an injury described as foreign body in e[y]e, irritation. Designated Resp t s Br. at App x E; C.R., First WCJ s H rg, 10/7/09, Ex. B-1. About a year-and-a-half later, Claimant filed a modification petition, alleging that her work injury resolved itself into the specific loss of use of her right eye for all practical intents and purposes. In support of her petition, Claimant offered the testimony of her Physician. 10

11 Ultimately, Second WCJ found that Claimant s Physician s testimony did not support a finding that Claimant sustained a specific loss of use of the right eye related to the July 2007 work incident. To that end, Second WCJ found that Claimant s Physician s testimony was not credible or persuasive on the issue of causation because Claimant s Physician: (1) did not have an accurate history and understanding of Claimant s work injury; (2) admitted Claimant s history was not very accurate ; (3) did not know Claimant s original working diagnosis; (4) admitted he did not have a good understanding of Claimant s mechanism of injury; (5) saw Claimant on one occasion solely for the purpose of litigation; and, (6) did not review any of Claimant s medical records. Second WCJ s Op., F.F. No. 7. Second WCJ further determined that, although Claimant s Physician unequivocally opined Claimant had a functional loss of use of her right eye, he did not express an unequivocal opinion as to causation. Id. Claimant s Physician did not provide an unequivocal opinion relating Claimant s loss of use of the right eye to the work incident. Id. Based on our review of Claimant s Physician s testimony, we discern no error in Second WCJ s findings. C.R., Ex. C2, Dep. of Mitchell S. Fineman, M.D., Notes of Testimony (N.T.), 2/19/09, at 8, 9, 15, 16, 17, 22, 36-38, 42. Because Claimant s Physician did not offer an unequivocal medical opinion that the work incident caused the loss of use of Claimant s right eye for all practical intents and purposes, we discern no error in Second WCJ s determination that Claimant did not meet her burden of proof here. See, e.g., Rockwell Int l. Further, we reject Claimant s argument that Second WCJ capriciously disregarded the testimony of Claimant s Physician. To that end, 11

12 as fact finder, the WCJ is not required to accept even uncontradicted testimony. Capricious disregard occurs only when the fact-finder deliberately ignores relevant, competent evidence. A capricious disregard of the evidence in a workers compensation case is a deliberate and baseless disregard of apparently trustworthy evidence. We emphasize our Supreme Court s pronouncement that, where there is substantial evidence to support an agency s factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence. McCool v. Workers Comp. Appeal Bd. (Sunoco, Inc.), 78 A.3d 1250, 1256 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 817 (Pa. 2014) (emphasis added) (citations omitted). Under the capricious disregard standard, a WCJ may generally disregard the testimony of any witness, even if the testimony is uncontradicted; however, a WCJ lacks discretion to disregard competent evidence without a reasonable explanation or without specifically discrediting it. Appeal Bd. (US Airways), 28 A.3d 936 (Pa. Cmwlth. 2011). Green v. Workers Comp. Here, as discussed above, substantial evidence supports Second WCJ s critical finding that Claimant s Physician did not unequivocally opine that the work incident caused the loss of use of Claimant s right eye. Further, Second WCJ explained, in detail, her bases for discrediting Claimant s Physician s testimony. Second WCJ s Op., F.F. No. 7. Because Second WCJ s findings support her conclusion that Claimant did not meet the burden of proof on her modification petition, we reject Claimant s argument that Second WCJ capriciously disregarded Claimant s Physician s testimony. McCool. 4 4 Without any analysis or explanation, Claimant also states that, on remand from the Board, a WCJ must confine her decision to the instructions within the remand order. We believe (Footnote continued on next page ) 12

13 B. Employer s Appeal In its appeal, Employer contends that, under the inaugural decision in this case, First WCJ found Claimant fully recovered and terminated her benefits. Employer asserts the Board reversed the termination of benefits, and Second WCJ did not address this issue on remand. Employer argues the Board erred in reversing First WCJ s decision terminating Claimant s benefits. Employer points out that the description of injury here is simply a right eye foreign body and irritation. Designated Resp t s Br. at App x E; C.R., First WCJ s H rg, Ex. B-1. Specifically, a co-worker used an air hose to clean his workstation and powder that settled on the work surface throughout the day became airborne. Some of the powder got into Claimant s right eye causing an irritation. Employer argues its Physician, who First WCJ found credible in her original decision, testified Claimant had recovered from the original work-related foreign body that she got in her eye. C.R., Ex. D2, Dep. of Edward Bedrossian, Jr., M.D., N.T., 7/17/09, at 20. Employer maintains Claimant s own medical expert agreed and testified the media in Claimant s eye is clear. Fineman Dep., N.T. at 30. Employer asserts the foreign body is no longer an issue and is no longer causing an irritation. Thus, a termination of benefits is warranted. 5 (continued ) Second WCJ properly confined her decision to the instructions in the Board s remand order here, which reversed First WCJ s denial of Claimant s modification petition and remanded for a new decision based only on the unequivocal medical presented. 5 A single judge of this Court previously denied Employer s amended request for supersedeas, which was based on Employer s claim that it was entitled to a termination of benefits. 13

14 To succeed in a termination petition, an employer bears the burden of proving by substantial evidence that a claimant s disability ceased, or any remaining conditions are unrelated to the work injury. Fuller, 942 A.2d at 217. The burden is substantial, because disability is presumed to continue unless and until proved otherwise. Giant Eagle, Inc. v. Workmen s Comp. Appeal Bd. (Chambers), 635 A.2d 1123 (Pa. Cmwlth. 1995). Further, [a]n employer may satisfy its burden by offering unequivocal medical evidence which establishes with a reasonable degree of medical certainty that the claimant has fully recovered, can return to work without restrictions, and there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Elberson v. Workers Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.3 (Pa. Cmwlth. 2007). Here, in her initial decision, First WCJ terminated Claimant s benefits, stating: This [WCJ] has reviewed all available evidence and testimony and finds that Claimant has fully recovered from her original work injury of a foreign body and irritation in her right eye as testified to by [Employer s Physician]. First WCJ s Op., F.F. No. 19. Ultimately, First WCJ terminated benefits as of December 11, 2008, the date of Claimant s Physician s examination. First WCJ s Op., Concl. of Law No. 3. On appeal, the Board reversed, concluding First WCJ made no finding that Claimant s Physician opined that Claimant fully recovered. Further, after Second WCJ denied Claimant s modification petition, the Board again rejected Employer s argument that it was entitled to a termination of benefits. The Board 14

15 reiterated that, although First WCJ granted a termination of benefits as of the date of Claimant s Physician s examination, First WCJ made no finding that Claimant s Physician opined that Claimant fully recovered from her accepted work injury. As such, no termination of benefits was warranted. Based on our review of the record, we discern no error in the Board s determination that Employer is not entitled to a termination of benefits. 6 As the Board recognized, a review of Claimant s Physician s deposition testimony reveals that Claimant s Physician did not clearly opine that Claimant fully recovered from the accepted work injury. Further, we agree with the Board that Employer s Physician s opinion testimony was, in large part, equivocal, particularly as to the cause of Claimant s loss of vision in her right eye. See Bedrossian Dep., N.T. at 19-20, 21, 22, 24, 31, 32. Additionally, although Employer s Physician testified that he felt that [Claimant] had recovered from the original work-related foreign body that she got in her eye[,] Bedrossian Dep., N.T. at 20, when asked whether he would allow Claimant to return to work, Employer s Physician opined, I would allow her to return to work, but with some limitations. Id. at 25 (emphasis added). 6 We also reject Employer s argument that Second WCJ erred in failing to make any findings regarding Employer s entitlement to a termination of benefits on remand. As this Court previously stated: A WCJ should restrict remand proceedings to the purpose indicated by the Board s remand order; to allow him to do otherwise will result in unnecessary confusion. Clark v. Workers Comp. Appeal Bd. (Wonder Bread Co.), 703 A.2d 740, 743 (Pa. Cmwlth. 1997). Here, Second WCJ properly interpreted the Board s remand order as limited to a determination on Claimant s modification petition only rather than consideration of whether a termination of benefits was proper. Bd. Op., 3/15/11, at Order; Second WCJ s Op., 11/28/11, Finding of Fact No

16 Specifically, Employer s Physician opined that he would have [Claimant] avoid any task that requires good depth perception such as driving, climbing ladders or other tasks that require depth perception. Those would be the two main ones. Id. Further, Employer s Physician acknowledged that he did not review the job description for Claimant s pre-injury position. Id. at 30. Given that Employer s Physician was largely equivocal, and that he did not clearly opine Claimant could return to work without restrictions related to the work injury, his testimony could not support a termination of benefits. Elberson. For the foregoing reasons, we affirm. ROBERT SIMPSON, Judge 16

17 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Isabel Arevalo, : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Board (Catalent Pharma Solutions), : Respondent : PTS Holdings Corp., : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Board (Arevalo), : Respondent : O R D E R AND NOW, this 9 th day of July, 2014, the order of the Workers Compensation Appeal Board is AFFIRMED. ROBERT SIMPSON, Judge