IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Holy Redeemer Health System, Petitioner v. No C.D Submitted November 14, 2014 Workers Compensation Appeal Board (Dowling), Respondent BEFORE HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED January 6, 2015 Holy Redeemer Health System (Employer) petitions for review of an order of the Workers Compensation Appeal Board (Board) that affirmed the decision and order of the Workers Compensation Judge (WCJ) granting the Review Petition of Daniel Dowling (Claimant) and amending the description of Claimant s work injury to his right knee to include a subsequent injury to Claimant s left knee. Because Claimant did not present any unequivocal medical evidence that his left knee injury was caused by his work injury or by any workrelated incident, we reverse. Claimant, a food service supervisor at Employer s hospital, suffered three injuries to his right knee at work from 2008 through (WCJ Decision

2 Findings of Fact (F.F.) 1, 4a, 8; 1/20/11 Hearing Transcript (H.T.) at 8, R.R. at 21a.) On August 11, 2008, Claimant injured his right knee when he slipped on a piece of ham at work. (WCJ Decision F.F. 1a, 4b, 8; WCJ Ex. 1, R.R. at 5a; 1/20/11 H.T. at 15, R.R. at 28a.) Employer accepted liability for this right knee injury by a Notice of Temporary Compensation Payable, describing the work injury as a right knee medial meniscus tear. (WCJ Decision F.F. 1a; WCJ Ex. 1, R.R. at 5a.) Claimant underwent surgery for this injury and returned to work in his pre-injury position approximately ten weeks later. (WCJ Decision F.F. 4b, 8; 1/20/11 H.T. at 15, R.R. at 28a.) On December 8, 2009, Claimant hit his foot on a pallet of food and twisted his right knee. (WCJ Decision F.F. 1b, 4c, 8; 1/20/11 H.T. at 9, 21, R.R. at 22a, 34a.) Employer accepted liability for this second right knee injury by a Notice of Compensation Payable, again describing the work injury as a right knee medial meniscus tear. (WCJ Decision F.F. 1b; WCJ Ex. 2, R.R. at 6a-7a.) Claimant continued to work until February of 2010, at which time a second surgery was performed on his right knee. (WCJ Decision F.F. 1b, 4c, 8; 1/20/11 H.T. at 9, R.R. at 22a.) In March and April 2010, Claimant underwent a course of physical therapy for the right knee. (WCJ Decision F.F. 4d, 6b, 8; 1/20/11 H.T. at 11-12, R.R. at 24a-25a; Claimant Ex. 2 Dearolf Dep. at 8 & Dearolf Ex. 2, R.R. at 68a, 84a.) On April 19, 2010, Claimant returned to work in his pre-injury position without restriction and disability benefits were suspended as of that date. (WCJ Decision F.F. 1b, 4e, 8; WCJ Ex. 3, R.R. at 8a; 1/20/11 H.T. at 12, 19, R.R. at 25a, 32a.) Claimant again twisted his right knee at work on October 6, (WCJ Decision F.F. 1c; Claimant Ex. 2 Dearolf Dep. at 11-12, R.R. at 71a-72a.) 2

3 This third right knee injury responded to conservative treatment with no surgery or absence from work, and Employer accepted medical-only liability for this injury, issuing a Notice of Temporary Compensation Payable that described the injury as a right knee strain. (WCJ Decision F.F. 1c; Claimant Ex. 2 Dearolf Dep. at 12, R.R. at 72a; WCJ Ex. 4, R.R. at 9a-10a.). In March or early April 2010, Claimant felt pain in his left knee during his physical therapy after the second right knee surgery. (WCJ Decision F.F. 4d, 8; 1/20/11 H.T. at 11-12, R.R. at 24a-25a; Claimant Ex. 2 Dearolf Dep. at 9 & Dearolf Ex. 2, R.R. at 69a, 84a.) On June 15, 2010, Claimant complained to Dr. Dearolf, the orthopedic surgeon who had treated and performed the surgeries for the right knee injuries, that his left knee was bothering him. (WCJ Decision F.F. 6a-6c; Claimant Ex. 2 Dearolf Dep. at 9, R.R. at 69a.) An MRI of Claimant s left knee performed on June 17, 2010 found that there appears to be an oblique tear involving the posterior horn of the medial meniscus [and] an oblique undersurface tear involving the body of the medial meniscus, and Dr. Dearolf diagnosed Claimant as suffering from a left knee medial meniscus tear. (WCJ Decision F.F. 6c-6d; Claimant Ex. 2 Dearolf Dep. at 10 & Dearolf Ex. 3, R.R. at 70a, 85a-86a.) On December 7, 2010, Claimant filed a Review Petition seeking to amend the description of his work-related right knee injury to include a left knee meniscus injury due to overcompensation. (Review Petition, R.R. at 11a-13a.) Employer, following a medical examination of Claimant, filed a Termination Petition asserting that Claimant had fully recovered from his work-related injury as of June 29, The WCJ held hearings on the two petitions at which Claimant 3

4 testified. Depositions of Dr. Dearolf and Dr. Richard Schmidt, an orthopedic surgeon who examined Claimant on behalf of Employer, were also submitted. On May 16, 2012, the WCJ issued a decision granting Claimant s Review Petition and denying Employer s Termination Petition. In this decision, the WCJ found Claimant s and Dr. Dearolf s testimony credible and rejected the testimony of Dr. Schmidt. (WCJ Decision F.F. 8-9.) As to the Review Petition, the WCJ found that Claimant sustained a left knee injury in the nature of left medial meniscus tear as a result of the right knee injury, and amended the description of Claimant s December 8, 2009 work injury to include the left knee medial meniscus tear. (Id. F.F. 9, Conclusion of Law (C.L.) 2 and Order.) With respect to the Termination Petition, the WCJ found that Claimant s right knee had not fully recovered, based on Claimant s testimony of continuing right knee pain and Dr. Dearolf s opinion that he still has restrictions in his use of his right knee. (Id. F.F. 5, 6g, 9, C.L. 3.) Employer timely appealed and the Board, on May 29, 2014, affirmed. This appeal followed. 1 In this Court, Employer challenges only the granting of the Review Petition and does not appeal the denial of its Termination Petition. Employer argues that the WCJ erred in amending Claimant s work-related injury because there was no competent medical evidence that Claimant s left knee injury was work related. We agree. 1 Our review is limited to determining whether an error of law was committed, whether the WCJ s necessary findings of fact are supported by substantial evidence, or whether Board procedures or constitutional rights were violated. Harrison v. Workers Compensation Appeal Board (Auto Truck Transport Corp.), 78 A.3d 699, 702 n.3 (Pa. Cmwlth. 2013). 4

5 Under the Workers Compensation Act, 2 a claimant who seeks to amend a notice of compensation payable to include a new and different injury has the burden of proving that the original work injury caused that additional injury. Cinram Manufacturing, Inc. v. Workers Compensation Appeal Board (Hill), 975 A.2d 577, 582 (Pa. 2009); Harrison v. Workers Compensation Appeal Board (Auto Truck Transport Corp.), 78 A.3d 699, 703, 705 & n.7 (Pa. Cmwlth. 2013); Namani v. Workers Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 856 n.4 (Pa. Cmwlth. 2011); Huddy v. Workers Compensation Appeal Board (U.S. Air), 905 A.2d 589, 592 (Pa. Cmwlth. 2006) (en banc). Proof that the injury was caused by treatment for the original work injury or by an accident that occurred when receiving such treatment satisfies the claimant s burden to show that the new injury was caused by the accepted work injury. Brockway v. Workers Compensation Appeal Board (Collins), 792 A.2d 631, 635 (Pa. Cmwlth. 2002); Moltzen v. Workmen s Compensation Appeal Board (Rochester Manor), 646 A.2d 748, (Pa. Cmwlth. 1994); Berro v. Workmen s Compensation Appeal Board (Terminix International, Inc.), 645 A.2d 342, (Pa. Cmwlth. 1994). Unless the causal connection between the additional injury and the accepted work injury or its treatment is obvious, the claimant must present unequivocal medical evidence of causation. Lewis v. Workmen s Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800, 802 (Pa. 1985); Namani, 32 A.3d at 856 n.4; Huddy, 905 A.2d at Medical expert testimony that is less than positive or is based upon possibilities is equivocal and is not legally competent to establish a causal relationship. Lewis, 498 A.2d at 802; Potere v. Workers Compensation Appeal Board (Kemcorp), 21 A.3d 684, Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

6 (Pa. Cmwlth. 2011); Merchant v. Workers Compensation Appeal Board (TSL, Ltd.), 758 A.2d 762, 770 (Pa. Cmwlth. 2000); Somerset Welding & Steel v. Workmen s Compensation Appeal Board (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994). Testimony that merely assumes causation based on temporal proximity to a work-related event likewise does not constitute competent, unequivocal testimony. Lewis, 498 A.2d at 803; Moyer v. Workers Compensation Appeal Board (Pocono Mountain School District), 976 A.2d 597, 599 (Pa. Cmwlth. 2009). Whether a medical expert has unequivocally testified that the claimant s injury and disability were caused by the workplace incident must be determined from examination of the medical witness s entire testimony taken as a whole. Lewis, 498 A.2d at 803; Potere, 21 A.3d at 690; Moyer, 976 A.2d at 599 & n.3; Merchant, 758 A.2d at 770. The connection between a right knee injury and a subsequent left knee medial meniscus tear is not obvious. Claimant was therefore required to introduce unequivocal medical evidence that his left knee injury was caused by the right knee injury or the treatment he received for that injury. The only medical evidence of such a causal relationship was Dr. Dearolf s testimony. 3 Dr. Dearolf, however, unequivocally opined only as to when Claimant s left knee injury occurred, that it occurred during the period that he was receiving therapy for his right knee injury, and did not express any unequivocal opinion that it was caused by that therapy or by any event at a therapy session. (Claimant Ex. 2 Dearolf Dep. at 10, R.R. at 70a.) With respect to causation, his testimony was merely that it was possible that the therapy caused the left knee 3 The only other medical witness, Dr. Schmidt, did not offer a conclusion as to the cause of Claimant s left knee problem and opined that it was not caused by any work or physical therapy activity. (Employer Ex. 1 Schmidt Dep. at 8-15, R.R. at 91a-98a.). 6

7 medial meniscal tear and that overuse of the left knee because of the right knee injury was a possible cause. (Id. at 10-11, 15-16, R.R. at 70a-71a, 75a-76a.) Dearolf testified on direct examination by Claimant s counsel Q. Now, Doctor, based upon your review of the studies and his physical examination, what s your diagnosis of the problem with the left knee? A. The left knee has a medial meniscus tear. Q. Do you have an opinion as to what caused that within reasonable certainty? A. Yes. It developed during the rehab of his right knee from his medial meniscus tear. Q. And how would that occur? A. Possibly from some of the exercises they had him doing. They had him doing some agility drills, which would help get the flexibility and the side-to-side motion back in the right knee, and it may have aggravated the left knee or may have caused the tear itself. (Id. at 10, R.R. at 70a) (emphasis added). Dr. Dearolf also testified, on direct examination and cross-examination, that after a knee operation, patients sometimes develop symptoms in their opposite leg because of putting more weight on that leg from favoring the other one from the pain, and that Claimant s favoring of his right knee due to his injury and surgery was a possibility. (Id. at 11, 15-16, R.R. at 71a, 75a-76a.) At no point anywhere in his testimony did Dr. Dearolf ever state that in his opinion the condition of Claimant s left knee was caused by, resulted from, was due to, was secondary to or was aggravated by his right knee injury, by the therapy or surgery for that injury, or by how Claimant used his legs as a result of the right knee injury or surgery. Nor did Dr. Dearolf testify that in his opinion the 7 Dr.

8 right knee injury, surgery and therapy were the only possible explanation for Claimant s left knee tear. Given his testimony that the therapy activities were only a possible cause and the absence of any other, more positive opinion at any point in his testimony, Dr. Dearolf s testimony on the causation of Claimant s left knee injury was equivocal and cannot satisfy Claimant s burden of proof. See, e.g., Merchant, 758 A.2d at (testimony was equivocal and incompetent to prove causation where expert opined only that claimant s medical problem could well be or probably was a result of the work injury and expert never stated that she believed that claimant developed the condition as a result of the work injury); Somerset Welding & Steel, 650 A.2d at 117 (testimony that something aggravated claimant s back problem and that the work incident could be that cause was equivocal and incompetent to prove causation where expert never expressed opinion that the work incident was the cause). The fact that the WCJ found Dr. Dearolf credible and felt that his testimony was unequivocal does not change this. Whether expert testimony is equivocal is an issue of competence, not credibility, and is a question of law subject to this Court s plenary, de novo review. Lewis, 498 A.2d at 803; BJ s Wholesale Club v. Workers Compensation Appeal Board (Pearson), 43 A.3d 559, 565 (Pa. Cmwlth. 2012); Potere, 21 A.3d at 690. [A] WCJ s credibility determination cannot serve to preclude this Court from determining whether an expert s testimony was equivocal. The law is equally well settled that questions relating to the equivocality of an expert s testimony are questions of law fully subject to this Court s review. Potere, 21 A.3d at 690. Because there was no competent medical evidence that Claimant s left knee injury was caused by his work-related right knee injury or the treatment for 8

9 that work injury, Claimant failed to satisfy his burden of proof to show a causal connection between the accepted work-related injury and his additional injury. The Board s order must therefore be reversed insofar as it affirmed the WCJ s granting of Claimant s Review Petition. JAMES GARDNER COLINS, Senior Judge 9

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Holy Redeemer Health System, Petitioner v. No C.D Workers Compensation Appeal Board (Dowling), Respondent O R D E R AND NOW, this 6 th day of January, 2015, the order of the Workers Compensation Appeal Board (Board) in the above matter is REVERSED insofar as it affirmed the granting of Claimant Daniel Dowling s Review Petition. This case is REMANDED to the Board to remand to a Workers Compensation Judge (WCJ) with instructions to vacate the provisions of the WCJ decision in this matter that found that Claimant s left knee medial meniscus tear is a result of his work-related right knee injury and that amended the description of Claimant s December 8, 2009 work injury to include the left knee medial meniscus tear. This Order does not reverse the order of the Board insofar as it affirmed the WCJ s denial of Petitioner s Termination Petition. Jurisdiction relinquished. JAMES GARDNER COLINS, Senior Judge