IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian McTague, : Petitioner : : v. : : Workers Compensation Appeal : Board (Frank Martz Coach : Company), : No C.D Respondent : Submitted: December 26, 2008 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge 1 HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BUTLER FILED: February 2, 2009 Brian McTague (Claimant) petitions this Court for review of the June 18, 2008 order of the Workers Compensation Appeal Board (Board) affirming the Workers Compensation Judge s (WCJ) decision to deny Claimant s petition for benefits. Claimant argues that the Board erred in affirming the decision of the WCJ because the WCJ s findings were not supported by substantial evidence. For reasons that follow, we affirm the Board s order. Claimant was employed as a master bus mechanic for Frank Martz Coach Company (Employer). The job required him to do a significant amount of bending, squatting, climbing steps and ladders, and lifting, pulling or pushing 1 The decision in this case was reached before January 1, 2009, when Judge Friedman assumed the status of senior judge.

2 automotive parts, including brake drums and tires weighing up to 100 pounds. Claimant claims that he suffered an injury during the course of his employment when he twisted his knee while on a ladder on July 8, Claimant filed his claim petition on September 12, 2005, seeking partial disability from July 8, 2004 to March 3, 2005, and full disability from March 3, 2005 to the present. Various depositions were taken, and hearings were held before the WCJ, during which Employer presented evidence that Claimant immediately reported the July 8, 2004 incident to Employer, and Claimant was asked whether he wanted to see a doctor, which he declined. Claimant stated that his knee swelled over the weekend following the accident, but the swelling went down, and he continued to work his regular duty job, without restrictions or accommodations. Claimant did not seek medical attention for his knee until approximately 10 months later, in April of Claimant was referred to Peter A. Feinstein, M.D., a Board-certified orthopedic surgeon. 2 He told Dr. Feinstein during his first visit on May 23, 2005, that he injured his knee at work on July 8, 2004, that he continued to work, but that his knee bothered him. Dr. Feinstein diagnosed Claimant as having a torn medial meniscus, and some chondromalacia of the patella (irritation under his kneecap). Dr. Feinstein surgically repaired the torn cartilage on June 6, This is the first time Claimant missed work due to difficulties with his knee. As of June 20, 2005, Claimant reported doing well, and Dr. Feinstein found that Claimant s postoperative condition was excellent; he had no swelling, and he had full range of motion in his knee. He recommended motion and strengthening exercises, and told Claimant he could return to work in a light-duty, sitting position. As of July 26, Dr. Feinstein. 2 Claimant was seen by Dr. Scinico on April 29, Dr. Scinico referred Claimant to 2

3 2005, Claimant had some stiffness, a limp and a very small loss of range of motion, for which he was undergoing physical therapy. Dr. Feinstein related the ongoing symptomatology to the fact that Claimant waited nearly a year before seeking treatment. Overall, however, Claimant was doing well and making progress to the point that he felt he could return to work. On August 23, 2005, Claimant told Dr. Feinstein that he fell over the weekend and sought treatment in the emergency room for significant discomfort in his leg, in the iliotibial band and hamstring region. Claimant was given a knee immobilizer, but was using a cane when he saw Dr. Feinstein. Dr. Feinstein recommended continued physical therapy for Claimant s complaints of patellofemoral joint discomfort, which the doctor deemed a new injury related to the August 2005 fall. As of November 8, 2005, Claimant reported having only attended four out of nine scheduled therapy sessions. Dr. Feinstein recommended two more weeks of therapy, then released Claimant to return to full-duty work. As of November 30, 2005, Claimant returned to work on light-duty. At that time, Claimant expressed to Dr. Feinstein concern about his patellofemoral symptoms and deep knee bending at work. On January 18, 2006, Claimant was laid off from his job when there was no light-duty work available. Dr. Feinstein discussed the possibility of reconstructive surgery for his patellofemoral joint difficulties, which he related to Claimant s August 2005 fall. On February 15, 2006, Claimant complained to Dr. Feinstein that he could not squat or put weight on his knee. An MRI on February 22, 2006 showed changes to Claimant s patellofemoral area, but no changes to the area of the cartilage repaired by Dr. Feinstein in June of On February 26, 2006, Dr. 3

4 Feinstein gave Claimant the options of returning to full-duty work, finding a different job, or undergoing additional surgery. Dr. Feinstein was admittedly unaware of the physical requirements of Claimant s job, other than that there was a lot of stair climbing. Claimant stated that, prior to his knee injury, if he ever lifted anything over 30 pounds, he did so using a lift bar, or with help from co-workers. Upon being informed of the requirements of Claimant s heavy-duty job, Dr. Feinstein opined that, had Claimant injured his knee on July 8, 2004, he would not have been able to perform his regular job duties as Claimant claimed he did. Dr. Feinstein determined, therefore, that neither the knee injury for which he treated Claimant, nor the June 2005 surgery, was related to the July 8, 2004 incident. Employer presented evidence that, at about the time that Claimant finally decided to seek treatment for his knee in 2005, he had been made aware that his work hours were being changed from dayshift, to a nightshift beginning at 9:30 p.m. and ending at 6:00 a.m., and Claimant was not pleased about the change. Claimant presented the testimony of Thomas D. Meade, M.D., a Board-certified orthopedic surgeon Claimant saw on May 19, Claimant told Dr. Meade that, following the surgery performed by Dr. Feinstein, he suffered a horrendous post-operative course, with massive swelling of his leg and an inability to walk. Dr. Meade found Claimant had severe atrophy in his knee, with pain, stiffness, swelling and excess scar formation which, based upon Claimant s representations, Dr. Meade attributed to a work-related injury and complications of his June 2005 surgery. He determined that having surgery nearly one year after the injury did not help his recovery process. Dr. Meade reported that Claimant required Tylenol 3 and Vicodin prescribed by Dr. Feinstein to control his pain, and 4

5 that he suffered from depression secondary to his injury. Following surgery performed by Dr. Meade in July of 2006, Claimant received physical therapy and noted significant improvement in his pain and range of motion. He no longer takes narcotics. Dr. Meade stated, however, that Claimant s prognosis is guarded; his knee is permanently and irreversibly altered, and he will likely require additional surgery. He stated that Claimant is incapable of significant gainful employment, other than in a sedentary position. Claimant did not tell Dr. Meade about his fall in August of Claimant admitted that he did not suffer from a partial disability and did not lose wages between July 8, 2004 to March 3, He further stated that he has not looked for work since he was laid off by Employer in January of Finally, he continues to drive a pick-up truck with a clutch, which he uses his left leg to operate. Based upon the foregoing evidence, on December 14, 2007, the WCJ denied Claimant s petition for benefits. Claimant appealed the WCJ s decision to the Board, which affirmed the WCJ s decision on June 18, Claimant appealed to this Court. 3 The WCJ found Employer's evidence to be more credible than Claimant s evidence. Specifically, the WCJ credited Dr. Feinstein over that of Claimant and Dr. Meade. As to Claimant, the WCJ found that his allegations of poor post-operative progress and misrepresentations in his testimony about what Dr. Feinstein told him detracted from his believability. The WCJ found that Dr. Meade s lack of credibility was due to his reliance on Claimant s representations 3 This Court s review is limited to determining whether an error of law was committed, whether the findings of fact are supported by substantial evidence and whether the Claimant s constitutional rights were violated. Sysco Food Servs. of Phila. v. Workers Comp. Appeal Bd. (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008). 5

6 that he was symptomatic from July of 2004, and that he had a poor result from Dr. Feinstein s surgery. The WCJ found that Dr. Meade lacked knowledge and understanding of the amount of time Claimant performed his regular job duties without seeking medical treatment, and of Claimant s subsequent fall in August of The WCJ, thus, concluded that Claimant failed to meet his burden of proof to establish that Claimant suffered a disabling work-related injury on July 8, 2004, and the Board affirmed. It is not our role to reweigh evidence or reassess the credibility of witnesses. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). All questions of evidentiary weight and credibility, including resolution of conflicts in medical testimony, are matters within the exclusive province of the WCJ. Parson v. Workmen s Comp. Appeal Bd. (Springettsbury Twp.), 642 A.2d 579 (Pa. Cmwlth. 1994); Bethenergy Mines, Inc. The WCJ s conclusions as to credibility will not, therefore, be disturbed by this Court. As to the central issue of Claimant s eligibility for workers compensation benefits, the law in Pennsylvania is clear. A workers' compensation claimant's burden of proof is two-fold to establish eligibility for benefits. The claimant must prove that he was injured in the course of his employment and that the injury resulted in a loss of earning power. Bethlehem Steel Corp. v. Workmen s Comp. Appeal Bd. (Baxter), 550 Pa. 658, 661, 708 A.2d 801, 802 (1998). There is no question that Claimant reported having been involved in an incident at work on July 8, Notes of Testimony, March 9, 2006 (3/9/06 N.T.), at 3-4, 16, 21; Notes of Testimony, March 1, 2007 (3/1/07 N.T.), at 8, 13; Reproduced Record (R.R.) at 68A, 73A, 86A-87A, 99A, 104A, 123A-124A. At 6

7 issue is whether the knee problems for which Claimant sought treatment beginning in April of 2005 were related to the July 2004 incident and are, therefore, compensable. Claimant stated that his knee swelled over the weekend following the incident, but the swelling went down by Monday and, while he experienced pain, he didn t really think nothing of it, and he returned to work. 3/9/06 N.T. at 5, 29; R.R. at 88A, 112A. He continued to perform his full job duties, which included bending, crawling, squatting, lifting and climbing stairs and ladders, without accommodations or restrictions, until he sought treatment on April 29, /9/06 N.T. at 5, 7-8, 10-12, 22-23, 27-29; 3/1/07 N.T. at 8-11, 14; R.R. at 68A-71A, 74A, 88A, 90A-91A, 93A-95A, 105A-106A, 110A-112A. Claimant stated that he had difficulty bending down, but he did his best to do his job because he could not afford to be out of work. 3/9/06 N.T. at 17; R.R. at 100A. He lost no time from work until Dr. Feinstein performed surgery in June of /9/06 N.T. at 9-10; R.R. at 92A-93A. He lost no wages until he was laid off on January 18, /9/06 N.T. at 9, 13; R.R. at 92A, 96A. In order to be entitled to workers compensation benefits, a claimant s injury must have occurred in the course of employment, and must be causally related thereto. Paper Prods. Co., Inc. v. Workmen s Comp. Appeal Bd. (Kirin), 448 A.2d 652 (Pa. Cmwlth. 1982). In order to meet the related thereto requirement where, as here, a causal connection is not obvious, unequivocal medical testimony is necessary. Mensah v. Workers Comp. Appeal Bd. (Norrell Temp Agency), 716 A.2d 707 (Pa. Cmwlth. 1998). Dr. Feinstein found that, after his June 6, 2005 surgery, Claimant had an excellent recovery, and he was making good progress until he fell on or about August 23, Notes of Testimony, March 28, 2007 (3/28/07 N.T.), at 7-12, 16, 24, 38-39, 49; R.R. at 174A-179A, 183A, 191A, 205A-206A, 216A. Thereafter, 7

8 Claimant suffered difficulties that Dr. Feinstein deemed unrelated to the presurgical injuries for which he had been treating Claimant. 3/28/07 N.T. at 12-14, 49; R.R. at 179A-181A, 216A. He did not consider the new symptoms workrelated. 3/28/07 N.T. at 12, 14; R.R. at 179A, 181A. Moreover, once Dr. Feinstein became fully aware of what the physical requirements of Claimant s job were, he stated that it would have been impossible for Claimant to have performed the regular duties of his job with the injury presented to him in May of /28/07 N.T. at 17-23, 30, Claimant s Ex. C; R.R. at 184A-190A, 197A, 235A. He determined, therefore, that neither the condition Claimant presented to him in May of 2005, nor the June 2005 surgery was related to the July 8, 2004 work incident. 3/28/07 N.T. at 19-21, 48-50, Feinstein Ex. 3; R.R. at 186A-188A, 215A-217A, 231A. Claimant suggests in his brief that his August 2005 fall occurred because his knee gave out due to his poor recovery from Dr. Feinstein s surgical procedure and was, therefore, related to his July 8, 2004 work incident. Claimant s Br. at 11. This Court has held that: Injuries unrelated to one's employment are compensable if they are the proximate result of prior work-related injuries. Where there is an intervening nonwork injury, the claimant must prove that the resultant death or disability was so immediately and directly connected with the prior work-related injury that it would naturally and probably result therefrom; that is to say, that the first accident was the proximate predisposing cause of the resultant disability. Bush Coal Co. v. Workmen s Comp. Appeal Bd. (Adams), 499 A.2d 730, 732 (Pa. Cmwlth. 1985). Dr. Feinstein ultimately concluded that, due to the excellent recovery Claimant experienced following surgery, Claimant s fall did not result 8

9 from his prior surgery. 3/28/07 N.T. at 23-24, 39-40; R.R. at 190A-191A, 206A- 207A. Moreover, the issue of whether the August 2005 fall was related to Claimant s surgery for his knee problems is immaterial, since Dr. Feinstein concluded that Claimant s knee problems were not related to Claimant s July 8, 2004 work incident in the first place, thus Claimant s injuries are not compensable in either event. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. McMullen v. Workers' Comp. Appeal Bd. (C & D Techs., Inc.), 858 A.2d 147, 149 (Pa. Cmwlth. 2004). There was uncontroverted evidence on the record that Claimant did not suffer any loss of income between July 8, 2004 and June of 2005 and, thereafter, any losses suffered by Claimant were not related to any work-related injury. The record clearly supports the WCJ s conclusion to deny Claimant s request for benefits. For these reasons, we affirm the Board s order. JOHNNY J. BUTLER, Judge 9

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian McTague, : Petitioner : : v. : : Workers Compensation Appeal : Board (Frank Martz Coach : Company), : No C.D Respondent : O R D E R AND NOW, this 2 nd day of February, 2009, the June 18, 2008 order of the Workers Compensation Appeal Board is hereby affirmed. JOHNNY J. BUTLER, Judge