IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Yvonne Yee Battick (Johnson), No C.D Petitioner Submitted May 9, 2014 v. Workers Compensation Appeal Board (UPMC Presbyterian Shadyside PUH), Respondent BEFORE HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED July 7, 2014 Yvonne Yee Battick (Claimant) petitions for review of the October 22, 2013, order of the Workers Compensation Appeal Board (WCAB), which affirmed the decision of a workers compensation judge (WCJ) granting UPMC Presbyterian Shadyside PUH s (Employer) petition to terminate Claimant s workers compensation benefits (termination petition). We affirm. On July 11, 2007, Claimant injured her right hand while working for Employer when a co-worker abruptly entered the room and caused the door to strike Claimant s right wrist and hand. (WCJ s Findings of Fact, No. 3a.) Employer acknowledged a work-related injury of tenosynovitis and carpal tunnel syndrome via

2 a notice of compensation payable. (Id., No. 2.) Claimant last worked for Employer on October 22, (Id., No. 3e.) On September 26, 2011, Employer filed the termination petition under section 413 of the Workers Compensation Act (Act), 1 alleging that Claimant had fully recovered from her work-related injury. The WCJ held hearings on November 15, 2011, and November 29, Claimant testified that she continues to feel pain in her right wrist and has trigger finger in several fingers. (Id., Nos. 3d, 6b.) At times, she cannot open her hand in the morning. (Id.) Claimant indicated that she has never been symptom-free in the right hand or wrist since the work injury occurred. (Id.) Claimant also noted that she has a bleeding condition known as Von Willebrand s disease and Thrombocytopenia. (Id., No. 3b.) Claimant presented the deposition testimony of Robert Kaufmann, M.D., a board-certified orthopedic surgeon. (Id., No. 5.) On October 28, 2007, Dr. Kaufmann initially examined Claimant and, thereafter, on March 6, 2009, performed carpal tunnel release surgery on her. (Id., No. 5a.) Dr. Kaufmann last evaluated Claimant on September 27, 2011, at which time Claimant continued to have numbness, tingling, and pain in her fingers, inflammation of the small finger, and triggering of the small finger. (Id., No. 5c.) Dr. Kaufmann believed that Claimant 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S

3 could do medium- or heavy-duty work, but Claimant told him that she could not. (Id., No. 5d.) Dr. Kaufmann opined that Claimant has not fully recovered from her work-related injury. (Id.) However, on cross-examination, Dr. Kaufmann admitted that he could not explain why Claimant continued to experience right upper extremity symptoms based on the surgeries he performed and agreed that Claimant s trigger finger was not causally related to the work incident. (Id., No. 5f.) In support of its termination petition, Employer presented the deposition testimony of Steven Kann, M.D., a board-certified orthopedic surgeon. (Id., No. 4.) Dr. Kann evaluated Claimant on January 24, 2008, and September 15, 2011, and noted that Claimant had a negative Finkelstein test and no pain in the first dorsal compartment. (Id., No. 4c.) Moreover, Claimant had negative Tinel s, Phalen s, and median nerve compression tests. (Id.) Dr. Kann opined that Claimant had recovered from the right carpal tunnel syndrome and tenosynovitis and indicated that Claimant had no residuals or restrictions from the work-related injury. (Id., No. 4d.) On April 11, 2013, the WCJ issued an order granting the termination petition, concluding that Employer has established that [C]laimant was fully recovered from her work injury of July 11, 2007, as of September 15, (WCJ s Conclusions of Law, No. 1.) The WCJ addressed the conflicting medical evidence as follows This [WCJ] finds the medical opinions of Dr. Kann to be more credible and persuasive than those of Dr. Kaufmann. In so concluding, this [WCJ] notes that Dr. 3

4 Kann performed two thorough examinations of [Claimant] before and after the 2009 surgical procedures. Dr. Kann noted that the objective findings that existed prior to the surgeries were negative following the surgery. Dr. Kann indicated his last examination revealed no objective findings which would support claimant s objective pain complaints. Likewise, this judge notes that Dr. Kaufmann agreed that [C]laimant had no objective findings on physical examination to support her continued subjective complaints of pain. Therefore, this [WCJ] rejects the opinions of Dr. Kaufmann to the extent they conflict with the opinion[s] of Dr. Kann. (WCJ s Findings of Fact, No. 6b.) Claimant appealed to the WCAB. On October 22, 2013, the WCAB affirmed, and Claimant now petitions this court for review. 2 The employer bears the burden of proof in a termination proceeding. Udvari v. Workmen s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1291 (Pa. 1997). In a case where the claimant complains of continued pain, this burden is met when an employer s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. 2 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary factual findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S

5 Id. at Claimant argues that the WCJ erred in determining that she was fully recovered from the work-related injury based upon Dr. Kann s medical testimony. We disagree. The WCJ is the ultimate factfinder and determines the weight and credibility of evidence. Lombardo v. Workers Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). As such, the WCJ is free to accept or reject the testimony of any witness, including medical witnesses, in whole or in part. Id. Here, the WCJ specifically found the medical opinion of Dr. Kann to be more credible and persuasive than Dr. Kaufmann s and listed the reasons supporting this determination. (See WCJ s Findings of Fact, No. 6b.) Claimant asserts that Dr. Kann s testimony was incompetent because he did not view hematologocial medical records or perform the standard EMG testing procedure when he examined Claimant. However, this argument relates to the weight of the evidence, not its competency. Huddy v. Workers Compensation Appeal Board (U.S. Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006) (noting that the fact that a medical expert does not review all of a claimant s existing medical records goes to the weight given the expert s testimony, not its competency). The WCJ determined that Dr. Kann was more credible than Dr. Kaufmann, and we cannot disturb this determination on appeal. See O Rourke v. Workers Compensation Appeal Board (Gartland), 83 A.3d 1125, 1132 (Pa. Cmwlth. 2014). 5

6 Claimant also argues that her trigger fingers issue is currently causing complex issues in her personal and professional life. (See Claimant s Reply Br. at 5.) However, the WCJ specifically found that the trigger fingers were unrelated to the July 11, 2007, work incident because both Dr. Kaufmann and Dr. Kann testified thusly. (See WCJ s Findings of Fact, No. 6b.) Because the WCJ appropriately determined, based on Dr. Kann s credible testimony, that Employer met its burden in the termination petition, we affirm. 3 ROCHELLE S. FRIEDMAN, Senior Judge 3 Claimant also asserts that her due process rights were violated. (Claimant s Br. at 21.) However, Claimant did not raise this claim in her petition for review. Therefore, it is waived. See Pa. R.A.P. 1513(d); City of Philadelphia v. Workers Compensation Appeal Board (Ford Tilghman), 996 A.2d 569, 572 (Pa. Cmwlth. 2010). 6

7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Yvonne Yee Battick (Johnson), No C.D Petitioner v. Workers Compensation Appeal Board (UPMC Presbyterian Shadyside PUH), Respondent O R D E R AND NOW, this 7 th day of July, 2014, we hereby affirm the October 22, 2013, order of the Workers Compensation Appeal Board. ROCHELLE S. FRIEDMAN, Senior Judge