IN THE COMMONWEALTH COURT OF PENNSYLVANIA Shenandoah Valley School District : and School Claims Service, LLC, : Petitioners : : v. : No. 547 C.D. 2014 : Submitted: August 29, 2014 Workers Compensation Appeal : Board (Sacco), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: November 5, 2014 Petitioners Shenandoah Valley School District and School Claims Service, LLC (collectively, Employer) petition for review of an order of the Workers Compensation Appeal Board (Board). The Board affirmed the decision of Workers Compensation Judge (WCJ) Wayne Rapkin, granting in part and denying in part Employer s petition to terminate Marie Sacco s (Claimant) benefits. At issue in this appeal is whether the WCJ erred in assessing the competency of the medical experts testimony. We now affirm.
On December 18, 2003, Claimant fell on ice in Employer s parking lot and sustained multiple injuries. 1 Employer acknowledged that Claimant had sustained a low back or lumbar sprain/strain and issued a Medical Only Notice of Compensation Payable on November 19, 2004. (Reproduced Record (R.R.) at 584a.) In 2004, Claimant filed a petition to review medical treatment and a petition to review compensation benefits. (Id.) In ruling on these petitions, WCJ Thomas Kutz found that Claimant, in addition to her lumbar sprain, suffered from a demyelinating disease, probably multiple sclerosis and a traumatic cervical myelopathy. (Id. at 593a, 598a.) In 2006, WCJ Kutz ordered Employer to pay medical expenses causally related to these injuries. (Id. at 598a.) Claimant later filed similar petitions, and in 2008 WCJ Susan Caravaggio found that Claimant s treatment for multiple sclerosis [wa]s causally related to Claimant s work injury of December 18, 2003, and that Claimant had not recovered from that injury. (Id. at 614a.) Employer filed a petition to terminate Claimant s benefits on June 1, 2011. (Id. at 1a-2a.) During a deposition, Employer s expert, Thomas P. Leist, M.D., testified that Claimant had fully recovered from all of her work-related injuries, including the judicially determined aggravation of the multiple sclerosis. (Id. at 474a.) Additionally, Dr. Leist opined on the relationship between trauma and the aggravation of multiple sclerosis: A. The [Academy of Neurology] found that there is no relationship between trauma and induction of multiple sclerosis or progression of multiple sclerosis. 1 Claimant also fell at work in 2001. This incident, however, is not the subject of the instant matter. A WCJ determined that Claimant s injury was causally related to her fall in 2003. (WCJ Decision at 2.) 2
... Q. Forgetting about the judicial Decision that was rendered in this case, do you believe, do you personally believe, that trauma can aggravate a multiple sclerosis condition and cause symptoms to start appearing that had not previously appeared or appeared previously as severely? Forgetting the judicial Decision, do you personally believe that trauma can aggravate multiple sclerosis?... (Id. at 469a, 515a-16a.) A. It is my belief that the opinion as expressed by the committee of the Academy of Neurology... is correct. Despite his opinion that there is no relationship between trauma and the aggravation of multiple sclerosis, Dr. Leist testified that he accepted Claimant s judicially-determined injuries: (Id. at 442a.) Q. Regarding the Decisions that you reviewed were you aware that it had been judicially determined that Miss Sacco sustained an injury on December 18, 2003 during the course of her employment that was found to have caused traumatic cervical myelopathy and aggravation of Miss Sacco s underlying multiple sclerosis and traumatic encephalopathy? A. I included these determinations, judicial determinations, in my consideration. Q. Have you accepted those facts in rendering your own opinions? A. I have accepted them as fact. In March 2012, 2 Claimant s expert, William H. Jeffreys, M.D., testified that Claimant suffered from the aggravation of multiple sclerosis: 2 Dr. Jeffreys also testified before WCJ Kutz in 2005 and WCJ Caravaggio in 2007. 3
(Id. at 259a-60a.) Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to whether the conditions which you have diagnosed as to Ms. Sacco are causally related to her work accident of December 18 th, 2003? A. They were aggravated by the fall. Q. Now, when you say that, what was aggravated? A. Her multiple sclerosis. Dr. Jeffreys also opined that although trauma does not cause multiple sclerosis, it can aggravate it: Q. Do you believe that trauma can cause MS? A. Me as a primary ideology, no. Q. But you do believe that trauma can aggravate MS? A. Very much so.... (Id. at 282a-83a.) A. There s also a fairly rich literature that says it exacerbates it even if it s not severe trauma because of the tendency of people with MS to exacerbate with periods of emotional stress. The WCJ granted Employer s termination petition in part and denied it in part. The WCJ determined that all of Claimant s injuries had resolved, other than the aggravation of multiple sclerosis. In so doing, he rejected part of Dr. Leist s testimony. Specifically, he found that Dr. Leist s opinion that the aggravation of Claimant s multiple sclerosis had resolved was not credible: 10. I reject, as lacking credibility, Dr. Leist s testimony that the Claimant has recovered from her work-related aggravation of her MS condition. I accept Dr. Jeffreys opinion that she has not recovered, and significantly, he has been practicing medicine for 63 years. 4
I reject Dr. Leist s opinion that the Claimant s MS is exactly where it would be if she had never had a work-related injury. His opinion in that regard is speculative. In fact, Dr. Leist does not even believe that MS can be aggravated by trauma. The Claimant s MS condition has progressed over the years, and Dr. Leist has not adequately, or credibly explained why that progression is not from her work-related injury. 11. While Dr. Leist testified on a number of occasions that he accepted Judge Kutz s and Judge Caravaggio s judicial determination that the fall/trauma suffered by Claimant at work resulted in an aggravation of her multiple sclerosis condition, a reading of Dr. Leist s entire testimony clearly reveals that he has not accepted the Judge s prior determinations. On the contrary, it is evident that Dr. Leist firmly and steadfastly believes that trauma can not aggravate multiple sclerosis.... 26. Although Claimant, by judicial determination, was found to have experienced an aggravation of the symptoms of MS, Dr. Leist testified that there was no evidence in the medical records or in the prior judicial determination that the fall on December 18, 2003, had accelerated or altered the course of the disease. Rather, over time, Claimant s disease progression has been entirely consistent with the natural course and progression of the disease. Using Dr. Turel s 2005 examination of Claimant as an example, Dr. Leist confirmed that Claimant had returned very much to the same state that she had been before (December 2003.) So what I m saying here is the course of progression that I ultimately can see between the report of occasional stumbling over the right foot in 2003 before, to the findings that I had during my examination in March of this year, this is consistent with a progression over this time course in my opinion that is solely dependent on multiple sclerosis. (WCJ s Decision at 3-4, 10.) 5
Employer appealed to the Board, arguing that Dr. Leist s testimony was competent and, thus, should have been credited by the WCJ. The Board affirmed the WCJ s decision. Employer petitions this Court for review, 3 raising the same issues it raised before the Board. At the outset, we note that to succeed in a termination petition, the employer bears the burden of proving that the claimant s disability has ceased or that any current disability is unrelated to the claimant s work injury. Gillyard v. Workers Comp. Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991, 995 (Pa. Cmwlth.) (en banc), appeal denied, 882 A.2d 1007 (Pa. 2005). An employer may satisfy this burden by presenting unequivocal and competent medical evidence of the claimant s full recovery from his work-related injuries. Id. Employer first argues that the WCJ erred in finding that Dr. Leist s opinion concerning the aggravation of Claimant s multiple sclerosis was incompetent. A medical expert who bases his or her opinion on a factual assumption that contradicts a previously decided medical fact may be ruled legally incompetent. Taylor v. Workers Comp. Appeal Bd. (Servistar Corp.), 883 A.2d 710, 713 n.1 (Pa. Cmwlth. 2005). Employer explains that while Dr. Leist personally believes that there is no connection between trauma and the aggravation of multiple sclerosis, he accepted the prior judicial decisions as fact and never suggested that they were incorrect or groundless. (Petitioner s Br. at 22.) We agree that this does not render Dr. Leist s opinion legally incompetent. Employer, 3 Our scope of review in a workers compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704. 6
however, mischaracterizes the issue. Nowhere in his opinion did the WCJ state that Dr. Leist s testimony was incompetent. In fact, the WCJ specifically rejected Dr. Leist s testimony as lacking credibility. (WCJ s Decision at 3-4.) Thus, the issue is one of credibility, not competency. Employer also takes issue with the WCJ s rejection of Dr. Leist s opinion in finding of fact number 10, as well as the WCJ s statement that Dr. Leist has not adequately, or credibly explained why that progression [of multiple sclerosis] is not from [Claimant s] work-related injury. (Petitioner s Br. at 28.) This is, again, an issue of credibility. Finding of fact number 10 is simply a credibility determination. Employer s final argument is that the WCJ erred in finding Dr. Jeffreys opinion competent. [T]he question of the competency of the evidence is one of law and fully subject to our review. Cerro Metal Prods. Co. v. Workers Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004). It is well-settled that where an expert s opinion is based on an assumption which is contrary to the established facts of record, that opinion is worthless. Williams v. Workers Comp. Appeal Bd. (Hahnemann Univ. Hosp.), 834 A.2d 679, 684 (Pa. Cmwlth. 2003). Employer initially states that Dr. Jeffreys opinions on causation were contrary to established medical facts of record. Employer then explains that during his deposition in March 2012, Dr. Jeffreys contradicted critical portions of his own prior testimony [in 2005 and 2007]... thereby rendering his testimony incompetent as a matter of law. (Petitioner s Br. at 40-41.) Employer attempts to identify inconsistencies in Dr. Jeffreys various testimonies, suggesting that the 2005 and 2007 proceedings may have had a different outcome if the WCJ had 7
considered the testimony given in 2012. What Employer fails to do, however, is identify how Dr. Jeffreys 2012 testimony with respect to Employer s termination petition is contrary to established medical facts of record. Moreover, answers given during cross-examination do not destroy the effectiveness of a physician s previous opinion. Corcoran v. Workers Comp. Appeal Bd. (Capital Cities/Times Leader), 725 A.2d 868, 872 (Pa. Cmwlth. 1999). Instead, these answers go to the weight of the expert s opinion. Id. The answers identified by Employer as contradictory were given during cross-examination, thus the issue is one of the weight given to Dr. Jeffreys testimony, not competency. It is well-settled that determinations as to the weight and credibility of conflicting medical testimony are solely for the WCJ as factfinder. Cittrich v. Workmen s Comp. Appeal Bd. (Laurel Living Ctr.), 688 A.2d 1258, 1259 (Pa. Cmwlth. 1997). The WCJ has broad discretionary powers and may accept or reject the testimony of any witness, in whole or in part, even where a witness testimony is internally inconsistent. Dick s Delicatessen of Paoli, Inc. v. Workmen s Comp. Appeal Bd. (DeVirgillio), 475 A.2d 1345, 1348 (Pa. Cmwlth. 1984). In rendering a reasoned decision in a case with conflicting evidence, the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence. Daniels v. Workers Comp. Appeal Bd. (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). Here, the WCJ specifically rejected as lacking credibility Dr. Leist s testimony concerning the aggravation of Claimant s multiple sclerosis. Instead, he found Dr. Jeffreys testimony on that point to be both competent and credible. Although Employer contends that Dr. Jeffreys testimony contradicted aspects of his testimony in a prior proceeding, it was well within the purview of the WCJ to accept it over that of Dr. Leist. K-Mart Corp. v. Workmen s Comp. Appeal Bd., 8
424 A.2d 956, 958 (Pa. Cmwlth. 1980). In the subject proceedings, Dr. Jeffreys testified that Claimant suffered from an aggravation of multiple sclerosis which was caused by her fall in 2003. (R.R. at 259a.) This does not contradict the judicially determined medical facts, which are essentially identical to Dr. Jeffreys opinion. Further, the WCJ provided several adequate reasons for accepting Dr. Jeffreys testimony over Dr. Leist s. Specifically, the WCJ noted that Dr. Jeffreys has been practicing medicine for 63 years and that Dr. Leist does not even believe that MS can be aggravated by trauma. (WCJ s decision at 3-4.) He also explained that Dr. Jeffreys had been treating the Claimant for years. (Id. at 3.) Dr. Jeffreys familiarity with the Claimant alone is an adequate reason for finding him to be more credible than Dr. Leist. PEC Contracting Eng rs v. Workers Comp. Appeal Bd. (Hutchison), 717 A.2d 1086, 1088 (Pa. Cmwlth. 1998); D.P. Herk Zimmerman, Jr., Inc. v. Workmens Comp. Appeal Bd. (Heims), 519 A.2d 1077, 1080 (Pa. Cmwlth. 1987). Because they are supported by adequate reasons, we will not disturb the WCJ s credibility determinations. Accordingly, we affirm the Board s order. P. KEVIN BROBSON, Judge 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Shenandoah Valley School District : and School Claims Service, LLC, : Petitioners : : v. : No. 547 C.D. 2014 : Workers Compensation Appeal : Board (Sacco), : Respondent : O R D E R AND NOW, this 5th day of November, 2014, the order of the Workers Compensation Appeal Board is hereby AFFIRMED. P. KEVIN BROBSON, Judge