IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA George Boettger, : Petitioner : : v. : No. 294 C.D : Submitted: July 19, 2013 Workers Compensation : Appeal Board : (School District of Philadelphia), : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: September 4, 2013 George Boettger (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) granting the School District of Philadelphia s (Employer) termination petition and denying Claimant s review petition. In doing so, the Board affirmed a decision of a Workers Compensation Judge (WCJ) that Claimant had recovered from his work-related injuries and that there was no basis for amending Employer s notice of compensation payable (NCP) to add new injuries. The Board found that in the course of reaching these conclusions the WCJ made a mistaken finding of fact but that it was harmless error. Claimant argues that the WCJ s error was not harmless and that the WCJ capriciously disregarded the testimony of Claimant s medical expert. We affirm. Claimant worked for Employer as a police officer for approximately 11 years. On February 12, 2007, while attempting to stop a fight between students,

2 he was knocked over and fell onto a cement floor. On October 8, 2007, Claimant filed a claim petition alleging that he suffered injuries in the nature of a concussion, headaches, right elbow radial fracture, right wrist fracture, right shoulder strain and left thumb and wrist strain. On October 16, 2007, Employer issued an NCP accepting the following injuries: right radial head fracture (elbow), right scaphoid fracture and right wrist contusion. Claimant received benefits pursuant to the Pennsylvania Workers Compensation Act (Act). 1 On August 22, 2008, Employer filed a petition to terminate benefits, alleging that Claimant had fully recovered from his work injuries. On October 6, 2008, Claimant filed a petition to review benefits, asserting that Employer s list of injuries in the NCP was incorrect and should be amended to include: blunt head injury with concussion, post-traumatic headaches and post-concussion syndrome. The petitions were consolidated for a hearing before the WCJ. Claimant testified that he intervened in a fight between approximately 20 students in a school cafeteria and that in this effort he was pushed to the floor, hitting his head, right elbow and both wrists. Claimant asserted that he continues to have pain in his wrists, right elbow and neck. He suffers a headache every day and has difficulty focusing and concentrating. At night, the headaches are so painful that they wake him from sleep. He stated that he had not worked since his work injury and did not believe he was able to work in any capacity. 2 In support, Claimant offered the testimony of Vincent L. Ferrara, M.D., who is board certified in neurological surgery and pain management. He 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S , At the time of the injury, Claimant, then 65 years old, had retired from the Philadelphia police force and was receiving Social Security retirement benefits. 2

3 first saw Claimant on October 8, 2007, at which visit Claimant complained of persistent headaches. He next saw Claimant on November 12, 2007, at which visit Claimant continued to complain of headaches and of increasing memory problems. Dr. Ferrara testified that if he pressed the supraorbital on the right side of Claimant s head, he could reproduce the headaches. Dr. Ferrara diagnosed Claimant with post-traumatic neuropathy with headache and possible cervical spondylosis aggravated by his work injury. Claimant also offered the testimony of David J. Massari, Ph.D., a neuropsychologist. He examined Claimant on November 7, 2007, on Dr. Ferrara s referral. Claimant complained of forgetfulness, headaches and a declining ability to process information. Dr. Massari administered the Halstead-Reitan neuropsychological tests, which measure intelligence, memory and language skills. The tests showed impairment in Claimant s executive functions and ability to process information quickly. Claimant also demonstrated deficits in fine motorfunction. Dr. Massari concluded that these results were consistent with postconcussion syndrome. He found no evidence of malingering. Claimant scored on the fifth percentile, meaning that 95% of all 65-year-old men would score better on these tests. Dr. Massari diagnosed Claimant s symptoms and cognitive disorder to have been caused by a concussion, noting that executive functions are vulnerable to blows to the head. Employer offered the testimony of Lewis A. Lazarus, Ph.D., a licensed psychologist specializing in clinical neuropsychology. He performed an independent medical examination (IME) of Claimant on July 25, 2008, which included a battery of tests. 3

4 Dr. Lazarus found that Claimant evidenced mild attention impairment, but otherwise performed at the average or above-average range. Claimant reported that he has suffered headaches since his injury. Because Dr. Lazarus did not find evidence of any cognitive defects that would be associated with a concussion, he concluded that the headaches were not related to his injury. Dr. Lazarus rejected Dr. Massari s finding of impairments in executive function as flawed because it was based on one test. In contrast, the battery of tests Dr. Lazarus did showed that Claimant s working memory was solidly within the average range, and this is something that would have been compromised had he sustained a concussion. On cross-examination, Dr. Lazarus agreed that Claimant s testing showed attention impairment and that he was in the fifth percentile in regard to attention deficit standards. However, Dr. Lazarus explained that Claimant also showed signs of depression, unrelated to his work injury, which could explain this attention deficit. Employer also presented the testimony of Richard G. Schmidt, M.D., an orthopedic surgeon. 3 He conducted an IME of Claimant on March 10, 2008, and reviewed all of Claimant s medical records. He found no evidence that Claimant was suffering the ongoing effects of a blunt head injury. Specifically, he found no evidence of headaches or post-concussion syndrome. He found that Claimant s right radial scaphoid fracture had healed. He reported a normal neurological examination, stating that palpation of Claimant s forehead was 3 Dr. Schmidt s testimony was primarily for the purpose of establishing that Claimant had recovered from the injuries listed in the NCP, i.e., a right radial head fracture (elbow), right scaphoid fracture and right wrist contusion. As Claimant does not challenge the termination of benefits regarding those injuries that portion of Dr. Schmidt s testimony is not recounted herein. 4

5 unremarkable. He testified that during the IME Claimant did not make any complaints that could be associated with post-concussion syndrome. The WCJ found the testimony of Dr. Lazarus and Dr. Schmidt more credible than that of Dr. Ferrara and Dr. Massari. 5 The WCJ did not find Claimant s testimony that correlated his continuing symptoms to his work injury credible because it was contrary to the credited opinions of Employer s medical witnesses. As such, the WCJ denied Claimant s petition to amend the NCP and granted Employer s petition to terminate compensation benefits. On appeal to the Board, Claimant argued that the WCJ erred in accepting the testimony of Dr. Lazarus over that of Claimant s medical witnesses. The Board rejected this claim, explaining that the WCJ was responsible for fact finding. Claimant also argued that the WCJ made an erroneous factual finding because the WCJ stated that Claimant did not report his headaches to Dr. Lazarus, when he clearly did. The Board agreed that the WCJ was mistaken in this regard but concluded that it was irrelevant. It explained as follows: Dr. Lazarus had stated that at the time he saw Claimant, Claimant did indicate that he was experiencing headaches from time to time and had them since his injury. Therefore, the [WCJ s] finding is not supported. However, Dr. Lazarus also stated that headaches can fall into a post-concussive syndrome but that he did not find Claimant to evidence any cognitive defects that he would reasonably attribute to having persistent defects associated with concussion. Thus, Dr. Lazarus did recognize Claimant s headaches but had opined that they were not related to a post-concussive syndrome. Although the [WCJ] may have erred in finding that Claimant did not report headaches to Dr. Lazarus, any error was harmless where Dr. Lazarus did consider Claimant s headaches but found them to be not related to the work injury. Board Adjudication at 5. The Board affirmed the WCJ s decision.

6 Claimant petitioned for this Court s review. 4 On appeal, he raises two issues. First, Claimant asserts that the WCJ s erroneous factual finding cannot be classified as a harmless error. Second, Claimant asserts that the WCJ did not issue a reasoned decision that explained why he accepted the testimony of Dr. Lazarus and rejected that of Dr. Ferrara. We begin with Claimant s argument that the Board erred in categorizing the WCJ s inaccurate finding of fact as harmless error. The WCJ found that Claimant did not complain of headaches when he saw [Dr. Lazarus]. WCJ Decision, Finding of Fact No. 7(f). In actuality, Dr. Lazarus testified that [Claimant] did indicate that he was experiencing headaches from time to time. He related that he had had them since this injury. Notes of Testimony at 22; Reproduced Record at 97a (R.R. ). The Board dismissed this as harmless error because Dr. Lazarus believed the headaches were not work-related and explained the reasons for his conclusion; the WCJ found him credible. Claimant contends that the issue is whether the WCJ s mistaken finding affected his decision to find Claimant s testimony not credible. Employer argues that even if the WCJ was mistaken, it was irrelevant because the WCJ s critical finding of fact was based on the detailed testimony of Dr. Lazarus, i.e., that Claimant did not suffer from postconcussion syndrome. Section 422(a) of the Act requires the WCJ to issue a reasoned decision. 5 In determining whether a determination is reasonable, we consider 4 Our scope of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). 5 In relevant part, Section 422(a) provides: (Footnote continued on the next page...) 6

7 whether it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. Casne v. Workers Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008). A single misapprehension of fact does not establish that a WCJ failed to issue a reasoned decision. Benson v. Workmen s Compensation Appeal Board (Haverford State Hospital), 668 A.2d 244, 248 (Pa. Cmwlth. 1995). Where the erroneous finding does not directly relate to the central issues of [the] case and there is no reason to believe that it tainted the WCJ s other factual findings, then the mistake constitutes harmless error. Id. at 249. Employer disagrees with the Board s finding that the WCJ erred. In stating that Claimant did not have a headache on the day of his IME with Dr. Lazarus, the WCJ did not mean that Claimant did not ever suffer headaches. Employer explains that Dr. Lazarus testified, on cross-examination, that Claimant was taking several pain medications used to suppress headaches at the time of the IME. This cross-examination was done to establish that but for Claimant s pain medication, Claimant would have had a headache on the day he saw Dr. Lazarus. When the WCJ noted that Claimant did not report headaches to Dr. Lazarus, he was only recounting Claimant s condition on the day of the IME. (continued... ) 77 P.S All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. 7

8 Employer s explanation is logical. However, even assuming arguendo that the WCJ erred, we agree that the error was harmless. The claim petition filed in 2007 listed headaches as a work injury; Drs. Massari and Ferrara both testified that Claimant reported headaches in All of this evidence was recounted by the WCJ in his determination. Further, Dr. Lazarus did not challenge the claim of headaches; rather, he opined that the headaches did not correlate to the work injury. He agreed that post-concussion syndrome can be manifested in headaches. However, he also explained that Claimant did not have the cognitive deficits that would be associated with a concussion. In short, the WCJ s finding, whether erroneous or not, is irrelevant. It did not affect the opinion of Dr. Lazarus or relate to a central issue. Pointedly, the WCJ found Claimant not credible as to the relationship between his symptoms and his work injury because the testimony was contrary to the credited opinion of Employer s medical witnesses. WCJ Decision, Finding of Fact 8. The WCJ did not find Claimant generally untruthful. Indeed, the WCJ highlighted the conclusion of Dr. Lazarus that Claimant did not magnify his symptoms. Finding of Fact 7(h). In his second issue, Claimant argues that the WCJ did not offer a reasoned explanation for rejecting Dr. Ferrara s medical opinion. Claimant argues that Dr. Lazarus s testimony responded to Dr. Massari s testimony on postconcussion syndrome, but Dr. Lazarus never addressed whether Claimant s headaches were related to a supraorbital neuropathy. Claimant s neurosurgeon, Dr. Ferrara, testified that Claimant s headaches were related to a supraorbital neuropathy, and this testimony was not refuted. 8

9 Employer responds that Dr. Ferrara specifically testified that supraorbital neuropathy is not a separate condition, but falls under the broader scope of post-concussion syndrome. Specifically Dr. Ferrara was asked, [n]ow the supraorbital neuropathy, does that fall under the postconcussion syndrome or is that something separate and apart from the postconcussion syndrome? R.R. 57a. He responded, [t]hat is a probable cause of an extended headache in the postconcussion theatre. Id. Further, the only relevance of the supraorbital neuropathy, or the post-concussion syndrome, was in relationship to Claimant s headaches. Dr. Lazarus credibly testified that based on Claimant s medical records and test results there was no showing that headaches were a symptom of postconcussion syndrome or Claimant s work-injury. It is the Claimant that bears the burden of proving that additional compensable injuries need to be added to the NCP. Cinram Manufacturing, Inc. v. Workers Compensation Appeal Board (Hill), 601 Pa. 524, 533, 975 A.2d 577, 582 (2009). It is the WCJ that has complete authority over questions of credibility, conflicting medical evidence and the weighing of evidence. Sherrod v. Workmen s Compensation Appeal Board (Thoroughgood Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). Dr. Schmidt and Dr. Lazarus both examined Claimant and reviewed all the available medical records. The WCJ found their testimony more credible than Claimant s medical experts because they provided a better explanation of Claimant s diagnostic studies, testing and physical examination. Claimant suggests that Dr. Lazarus did not present sufficient testimony of supraorbital neuropathy. Claimant fails to note that Dr. Schmidt, who tested Claimant s forehead and reviewed his medical records, found no evidence of supraorbital neuropathy. 9

10 For these reasons, we affirm the order of the Board. MARY HANNAH LEAVITT, Judge 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA George Boettger, : Petitioner : : v. : No. 294 C.D : Workers Compensation : Appeal Board : (School District of Philadelphia), : Respondent : O R D E R AND NOW, this 4 th day of September, 2013, the order of the Workers Compensation Appeal Board, dated January 30, 2013, in the abovecaptioned matter is hereby AFFIRMED. MARY HANNAH LEAVITT, Judge