IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Semereluul Yebetit, : Petitioner : : v. : No C.D : Submitted: April 17, 2009 Workers' Compensation Appeal : Board (McDonald's Corporation), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: June 4, 2009 Semereluul Yebetit (Claimant), proceeding pro se, petitions for review of the September 10, 2008, order of the Workers Compensation Appeal Board (WCAB), which affirmed, as modified, the decision of a workers compensation judge (WCJ) granting Claimant s claim petition, but immediately suspending workers compensation benefits and terminating Claimant s benefits as of October 26, We also affirm. On October 11, 2006, Claimant filed a claim petition alleging that he sustained disabling injuries to his lower and middle back, hip, buttocks and right leg on October 4, 2005, while working in a restaurant operated by McDonald s Corporation (Employer). Employer filed an answer denying the allegations, and a hearing was held before the WCJ.

2 In support of his claim, Claimant testified that he slipped and fell while walking between Employer s walk-in freezer and walk-in refrigerator, striking his head against a door jamb and his buttocks against the floor. Claimant stated that, immediately following the fall, he felt pain in his head and buttocks that radiated into his lower back and that he told his manager about the fall and resulting injuries. Claimant explained that he continued to work with pain until July 28, 2006, when he left because the pain made it unbearable to perform his work duties. Claimant stated that he continued to have back pain radiating from his back to his legs, and he cannot return to his time of injury position. During his testimony, when asked whether he had any back injuries caused by trauma, Claimant denied having any such injuries; however, in a subsequent deposition, Claimant admitted that he received medical treatment for varying levels of low-back, right leg and hip pain for approximately five years before the October 4, 2005, work incident. 1 (WCJ s Findings of Fact, Nos. 3-4; S.R.R. at 13b-34b, 194b, 197b, 200b-05b.) Claimant also offered the deposition testimony of Bruce Grossinger, D.O., who began treating Claimant on September 21, Dr. Grossinger testified that, in providing his medical history, Claimant gave no indication that he had any complaints of low-back injuries or pain prior to the October 2005 work incident. However, Dr. Grossinger acknowledged that his subsequent review of Claimant s medical records revealed otherwise. Dr. Grossinger stated that he observed 1 Claimant explained that when he testified before the WCJ and denied that he had a history of injuries to his low back, he was speaking solely to injuries caused by trauma, such as a car or work accident, and was not denying any non-traumatic low back problems. Claimant further explained that before the October 2005 incident, this pain did not prevent him from working his normal schedule of fourteen to sixteen hour days, six days a week. (R.R. at 193b-95b, 207b.) 2

3 abnormalities in Claimant s low back and right leg during his physical examination of Claimant but that the results of an EMG test were normal. Based on an August 2005 MRI showing small protrusions at the L4-L5 and L5-S1 discs and a July 19, 2006, MRI, which revealed a change in Claimant s low back at L5-S1, Dr. Grossinger opined that the October 2005 work incident aggravated Claimant s pre-existing L4- L5 disc problem and enlarged the protrusion at L5-S1. Dr. Grossinger opined that Claimant was unable to return to his pre-injury position but stated that Claimant could work at a part-time, sedentary position. (WCJ s Findings of Fact, No. 5; S.R.R. at 77b-81b, 87b-88b, 93b-94b, 99b, 104b-05b.) In opposition to the claim petition, Employer offered the deposition testimony of Gregory S. Maslow, M.D, who performed an independent medical examination at Employer s request on October 26, Dr. Maslow testified that he performed orthopedic and neurological examinations of Claimant, the results of which were normal. Dr. Maslow stated that, although Claimant denied having a history of low-back, hip or leg pain, his review of Claimant s medical records revealed that Claimant had a history of low-back pain with pain radiating down his right leg prior to the October 4, 2005, work incident. Dr. Maslow further testified that Claimant s 2005 and 2006 MRIs were almost identical. Based on his examination of Claimant, his review of Claimant s medical records, including diagnostic tests, and his review of Claimant s and Dr. Grossinger s testimony, Dr. Maslow opined that Claimant sustained a work-related lumbar sprain on October 4, 2005, that Claimant was fully recovered from that injury, that Claimant suffered no permanency or disability from the lumbar sprain and that Claimant could return to his 3

4 time of injury position without restriction. (WCJ s Findings of Fact, No. 6; S.R.R. at 120b-45b, 167b-68b.) After considering the evidence, the WCJ credited Claimant s testimony that he fell on October 4, 2005, and sustained some kind of work injury; however, the WCJ rejected the remainder of Claimant s testimony as not credible, noting, inter alia, Claimant s lack of composure and demeanor during his live testimony. The WCJ also rejected Dr. Grossinger s testimony as not credible or persuasive, while finding Dr. Maslow s opinions credible and persuasive, observing that Dr. Maslow had a more accurate factual foundation than Dr. Grossinger on which to base his opinions. (WCJ s Findings of Fact, Nos ) Based on these credibility determinations, the WCJ found that Claimant satisfied his burden of proving that he sustained a work-related injury in the nature of a lumbar sprain on October 4, 2005, but failed to demonstrate that he was disabled by that injury. 2 (WCJ s Findings of Fact, No. 11.) Accordingly, the WCJ: (1) granted the claim petition for a lumbar sprain; (2) immediately suspended Claimant s benefits as of October 4, 2005; and (3) terminated Claimant s benefits as of October 26, 2006, 2 It is well-settled that, in a claim petition proceeding, the claimant bears the burden of establishing all the elements necessary to support an award of benefits. Joy Global, Inc. v. Workers Compensation Appeal Board (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005). Therefore, a claimant must prove by competent, credible evidence that his injury arose in the course of his employment, is causally related to the employment and is disabling, i.e., results in the loss of earning power. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993); Joy Global, Inc. 4

5 the date Dr. Maslow opined that Claimant had fully recovered from his work-related lumbar sprain. Claimant appealed to the WCAB, which affirmed. 3 On appeal, 4 Claimant argues that the WCJ erred in accepting Dr. Maslow s opinions as more credible and persuasive than those of Dr. Grossinger, his treating physician. Moreover, Claimant contends that the WCJ erred in rejecting his testimony as not credible, asserting that he was nervous when he testified before the WCJ and that the inconsistency in his testimony regarding his pre-existing back problems was due to his confusion over what he was being asked. Claimant asks this court to review the testimony in this matter, and find him and Dr. Grossinger more credible than Dr. Maslow. However, in a workers compensation proceeding, the WCJ is the ultimate fact finder and is entitled to accept or reject the testimony of any witness, including medical witnesses, in whole or in part. Joy Global, Inc. v. Workers Compensation Appeal Board (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005). Questions of credibility and the resolution of conflicting testimony are within the exclusive province of the WCJ and, thus, are not subject to appellate review. Id. Here, acting in her role as fact finder, the WCJ chose to reject Claimant s and Dr. Grossinger s testimony and accept Dr. Maslow s contrary testimony and opinions, and those determinations are not subject to appellate review. Id. Because the WCJ 3 The WCAB corrected a typographical error in one of the WCJ s findings of fact. 4 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S

6 did not credit Claimant s evidence that he sustained a disabling, work-related injury, Claimant could not establish his entitlement to workers compensation benefits. 5 Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993); Joy Global, Inc. Accordingly, we affirm. ROCHELLE S. FRIEDMAN, Senior Judge 5 To the extent that Claimant s argument could be construed as a reasoned decision challenge to the WCJ s opinion, it would fail. The WCJ articulated objective reasons for accepting Dr. Maslow s deposition testimony over Dr. Grossinger s contrary testimony, and, therefore, the WCJ s opinion satisfies the reasoned decision requirements of section 422(a) of the Workers Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S Daniels v. Workers Compensation Appeals Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003). Moreover, having observed Claimant during his live testimony, the WCJ could base her determination of Claimant s credibility on his demeanor. Daniels. 6

7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Semereluul Yebetit, : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Board (McDonald's Corporation), : Respondent : O R D E R AND NOW, this 4th day of June, 2009, the order of the Workers Compensation Appeal Board, dated September 10, 2008, is hereby affirmed. ROCHELLE S. FRIEDMAN, Senior Judge