R. Gillow v. WCAB (Wayne Woodlands Manor) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rosalie Gillow, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Wayne Woodlands Manor), : Respondent : BEFORE: No. 1554 C.D. 2007 Submitted: November 2, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: January 30, 2008 Rosalie Gillow (Claimant) petitions for review of the August 3, 2007, order of the Workers Compensation Appeal Board (WCAB), which reversed the decision of a workers compensation judge (WCJ) granting Claimant s claim petition, assessing penalties against Wayne Woodlands Manor (Employer)1 and awarding attorney s fees.2 We affirm. 1 Employer acknowledges that it violated section 406.1 of the Workers Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §717.1, by issuing a notice of compensation denial (NCD) beyond the twenty-one day limitation period set forth therein. (Findings of Fact, No. 19.) An employer that fails to comply with this directive may be subject to penalties for a violation of the Act. Ricks v. Workers Compensation Appeal Board (Parkway Corporation), 704 A.2d 716 (Pa. Cmwlth. 1997). 2 Section 440 of the Act, added by section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §996, provides that, in any contested case, a claimant that prevails in the matter at issue, in (Footnote continued on next page ¦) On March 9, 2005, Claimant filed a claim petition, alleging that she sustained injuries to her lower back, including compression fractures, as a result of an incident on December 12, 2004, while she was working as a nursing assistant for Employer. Claimant sought partial disability from December 13, 2004, through December 14, 2004, total disability from December 14, 2004, and ongoing, medical bills, penalties and attorney s fees for an unreasonable contest. (R.R. at 3a-4a.) Employer filed an answer denying all the allegations in the claim petition, (R.R. at 5a-7a), and hearings were held before a WCJ. Claimant testified before the WCJ on March 28, 2006, and described the December 12, 2004, incident. She stated that she was pushing a heavy patient up a ramp in a wheelchair when she felt a sudden burning, pulling pain in her lower back. Claimant stated that she filled out an accident report but completed the remainder of her scheduled shift with her co-worker s assistance. According to Claimant, she went to work the next two days but could not perform all her duties because of back pain. Claimant explained that by December 15, 2004, she could not get out of bed because of the pain in her back and legs, and she was taken by ambulance to the hospital emergency room; she was given injections for pain and underwent diagnostic tests, including an MRI, before being discharged that same day. Later that week, she began treating with Employer s panel physician, Dr. Valenti, who prescribed various pain medications and removed Claimant from (continued ¦) whole or in part, shall be awarded reasonable attorney s fees in addition to compensation, unless the employer establishes a reasonable basis for its contest. 2 work. Claimant also received physical therapy, and Dr. Valenti referred Claimant to another panel physician, Dr. Epstein, who ordered additional diagnostic tests. (Findings of Fact, No. 4.) Claimant testified further that, not long after the incident at work, she fell on two occasions at her home. Claimant explained that, on December 22, 2004, and again a day or two later, she was having difficulty getting out of bed and was assisted to a standing position by her husband and son; however, when they let go of her, she toppled back across the bed. Claimant testified that her back pain increased after these falls, and she returned to the hospital for treatment; she also informed Dr. Valenti about the additional falls. Claimant testified that, after the falls, she noticed a discoloration on her lower back, a problem that persists. (Findings of Fact, No. 5.) Claimant acknowledged that Dr. Valenti released her to modified duty on April 4, 2005, and that she continued to work for Employer at no loss of earnings until November 29, 2005, when Claimant felt that she was physically unable to continue working. During the period that she had returned to work, Claimant was taking multiple medications to help her cope with her back pain. As of the date of the hearing, Claimant stated that she continued to have pain and difficulty sleeping, that she did not believe she could return to work and that, to her knowledge, the medical bills related to her low-back injury were not being paid. (Findings of Fact, Nos. 6, 8.) 3 Claimant also submitted the April 5, 2006, deposition testimony of Philip Gutherz, M.D. Dr. Gutherz, who had been Claimant s family physician for two years prior to the December 12, 2004, work incident, first treated Claimant in connection with her low-back pain in February of 2005. Dr. Gutherz testified that at this initial visit, he took a history from Claimant and performed a physical examination, which revealed lumbar tenderness and spasm bilaterally. Based on his initial examination and Claimant s description of the work incident, Dr. Gutherz s diagnosis as it referred to Claimant s December 12, 2004, work injury was acute onset of back pain, and he ordered Claimant to undergo diagnostic testing. (R.R. at 104a-06a.) Dr. Gutherz stated that he was aware that Claimant had an MRI taken on December 15, 2004, which was interpreted as normal, that Claimant sustained two falls onto her bed a week later and that a February 3, 2005, MRI showed numerous compression fractures in the lumbar spine. (R.R. at 106a-07a.) Dr. Gutherz testified that he last treated Claimant on June 16, 2005,3 and as of that date, Claimant was still experiencing back pain; Dr. Gutherz explained that Claimant s physical examination was little changed and she still was having back spasms in the lumbar area. With the benefit of the two MRIs, Dr. Gutherz diagnosed Claimant s work injury as spontaneous compression fractures, chronic lumbar pain, bilateral muscle spasm and osteopenia. (R.R. at 108a.) Dr. Gutherz 3 Dr. Gutherz referred Claimant for a neurological consult with Pamela Costello, M.D., in August of 2005, and Claimant began treating with Dr. Costello on November 29, 2005. As of the date of Claimant s testimony, she continues to treat with Dr. Costello for ongoing back pain, and she uses a cane and belt prescribed by Dr. Costello. (Findings of Fact, Nos. 5, 9.) 4 opined that, due to her chronic back pain, Claimant would be limited to performing modified duties as a nursing aide. (R.R. at 111a-12a, 128a.) On cross-examination, Dr. Gutherz acknowledged that Claimant had numerous pre-existing medical conditions and that, from diagnostic tests, Claimant was shown to have anterior kyphosis (leaning forward), which could contribute to her symptoms and disability. (R.R. at 114a-15a.) Dr. Gutherz also noted that Claimant had been diagnosed with osteopenia several years before her work injury, and he testified that osteopenia, by itself, can progress to cause lower back symptoms, including spontaneous compression fractures. (R.R. at 118a-19a.) Dr. Gutherz agreed that the compression fractures shown on Claimant s February 3, 2005, MRI were not present on the December 15, 2004, MRI, taken after Claimant s incident at work. (R.R. at 107a, 124a-25a.) Asked on cross- examination why he related Claimant s condition to the work site event, Dr. Gutherz acknowledged that he based his opinion on the temporal relationship between the incident and the onset or increase in Claimant s low-back symptoms, noting that Claimant previously had been able to perform her normal work duties. However, Dr. Gutherz agreed that Claimant s obesity and osteopenia also are factors in Claimant s condition. (R.R. at 129a-31a.) In opposition to the claim petition, Employer submitted the May 8, 2006, deposition testimony of Richard Close, M.D., a board-certified orthopedic surgeon who performed an independent medical evaluation of Claimant at Employer s request on October 26, 2005. Based on the history provided by Claimant, a review of her records and his physical examination, Dr. Close 5 diagnosed Claimant with multiple compression fractures of the lumbar and thoracic spine, chronic obstructive pulmonary disease, obesity, hypothyroidism and type II diabetes. (R.R. at 219a-20a.) Dr. Close stated that, with the exception of the compression fractures, these all were pre-existing medical issues. He also opined that he could not relate the compression fractures solely to Claimant s December 12, 2004, incident. Given the compelling differences in Claimant s two MRIs, the intervening falls noted in Dr. Valenti s records and Claimant s increased pain symptoms thereafter, Dr. Close opined that the medical cause of her symptoms is her osteoporosis. (R.R. at 220a-24a.) Dr. Close stated that, as of the date of his examination, he felt that Claimant could only return to work with restrictions and that these would likely be permanent; however, Dr. Close opined that the December 12, 2004, incident was not a substantial contributing factor in imposing the restrictions. (R.R. at 234a-37a, 240a-41a.) The WCJ credited Claimant s testimony as a whole and accepted it as fact, and the WCJ accepted Dr. Gutherz s entire testimony as credible and persuasive. The WCJ deemed Dr. Close s testimony credible in part, accepting his admission that Claimant sustained a work-related injury4 but rejecting Dr. Close s testimony where it conflicted with that of Dr. Gutherz.5 (Findings of Fact, No. 12.) 4 On cross-examination, Dr. Close conceded that Claimant s records indicate that she always had been able to perform her normal work duties, that Claimant sustained a welldocumented work injury to her low back on December 12, 2004, that Dr. Valenti took her out of work completely until April of 2005 and that Claimant had suffered constant low back pain ever since the date of the work-related incident. (R.R. at 229a, 242a.) 5 In a workers compensation proceeding, the WCJ is the ultimate fact finder and is entitled to accept or reject the testimony of any witness, including medical witnesses, in whole or in part. Joy Global, Inc. v. Workers Compensation Appeal Board (Hogue), 876 A.2d 1098 (Pa. (Footnote continued on next page ¦) 6 Based on the credited evidence, the WCJ concluded that Claimant had satisfied her burden of proving a work injury to her lower back that resulted in the injuries described in the claim petition and, thus, granted Claimant s claim petition.6 (Conclusions of Law, No. 2.) On appeal, the WCAB reversed, concluding that the WCJ erred in relying on Dr. Gutherz s testimony to grant Claimant s claim petition.7 The WCAB determined that Dr. Gutherz failed to link Claimant s condition to the work injury other than through the coincidence in timing, and he failed to state any opinion that Claimant s work injury substantially contributed to her disability; therefore, the WCAB concluded that Dr. Gutherz s testimony was legally (continued ¦) Cmwlth. 2005). Furthermore, questions of credibility and the resolution of conflicting testimony are within the exclusive province of the WCJ and, thus, are not subject to appellate review. Id. 6 The WCJ ordered Employer to pay: compensation; medical expenses related to Claimant s injury; penalties based on Employer s untimely NCD; certain travel expenses incurred by Claimant; the subrogation lien interest of First Priority Health, representing payments made after Employer s initial denial of the claim; litigation costs of $1,687.10; and attorney s fees of $2,848.00, representing the fact that Employer had an unreasonable contest after October 26, 2005, when Dr. Close admitted that Claimant had a well-documented workrelated injury. (Findings of Fact, Nos. 13-15, 17-20; Conclusions of Law, Nos. 2-6, 9.) Employer was given a credit for all wages received by Claimant after the injury date. (Conclusions of Law, No. 7.) 7 Because the WCAB held that Claimant did not prevail on her claim petition, it also held that Claimant was not entitled to attorney s fees or litigation costs; similarly, because Claimant received no award of benefits, the WCAB held that no penalties could be assessed. 7 insufficient to establish that Claimant sustained a compensable injury or ongoing work-related disability.8 Claimant now appeals to this court.9 Claimant argues that the WCAB erred in reversing the WCJ s award of benefits based on the determination that Dr. Gutherz s testimony could not support such an award. Based on our careful review of the record, we cannot agree with Claimant. In a claim petition proceeding, the claimant has the burden of proving all the elements necessary to support an award. Berks County Intermediate Unit v. Workmen s Compensation Appeal Board (Rucker), 631 A.2d 801 (Pa. Cmwlth. 1993), appeal denied, 537 Pa. 614, 641 A.2d 313 (1994). To meet that burden, the claimant must prove a causal relationship between the work-related incident and the alleged disability. Odd Fellow s Home of Pennsylvania v. Workmen s Compensation Appeal Board (Cook), 601 A.2d 465 (Pa. Cmwlth. 1991). Where, as here, there is no obvious relationship between the disability and the alleged work-related cause, the claimant must present unequivocal medical evidence to 8 It is well settled that in the claim petition context, the claimant must establish ongoing disability from available employment and that the ongoing disability is related to the alleged work injury. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). 9 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 8 establish the necessary causal connection.10 Id. The medical witness must testify, not that the injury or condition might have come or possibly came from the assigned cause, but that in his professional opinion, the result in question did come from the assigned cause. Lewis v. Workmen s Compensation Appeal Board (Pittsburgh Board of Education), 508 Pa. 360, 498 A.2d 800 (1985). Here, we conclude that Dr. Gutherz s testimony did not meet this standard. Unfortunately for Claimant, and contrary to the WCJ s finding,11 Dr. Gutherz was never asked to provide, nor did he volunteer, an opinion clearly relating Claimant s condition to the December 12, 2004, work incident. Indeed, as the WCAB correctly observed, in linking Claimant s condition or ongoing disability to the work incident, Dr. Gutherz merely relied on the temporal relationship between Claimant s complaints of back pain and the December 12, 2004, work incident. However, an assumption based solely on temporal proximity is not sufficiently competent to establish causation. Lewis. 10 Citing Morgan v. Giant Markets, Inc., 483 Pa. 421, 397 A.2d 415 (1979), Claimant argues that, because the connection between the December 12, 2004, work incident and resulting disability is obvious, her own testimony is sufficient to satisfy her burden on causation. We cannot agree. Although there appears to be no dispute that Claimant suffered some back pain as a result of the incident on December 12, 2004, she seeks benefits based on an alleged disability from compression fractures sustained during, or as a direct result of, that work injury. Based on the record here, this connection is far from obvious. 11 The WCJ found that, although Dr. Gutherz acknowledged that Claimant s osteopenia was a pre-existing condition, he directly related the compression fractures, chronic lumbar pain and spasm as arising out of the work injury. (Findings of Fact, No. 9.) The WCJ cites no testimony to support this finding, and our review of Dr. Gutherz s testimony reveals no such support. 9 Further, in light of Dr. Gutherz s testimony that Claimant s preexisting conditions were factors in her condition, that osteopenia can, on its own, cause spontaneous compression fractures and that Claimant s compression fractures did not appear on her December 15, 2004, MRI but, rather, appeared only on an MRI taken subsequent to her falls at home, Dr. Gutherz was required to establish that the work injury was a substantial contributing factor in causing her disability. Dorsey v. Workers Compensation Appeal Board (Crossing Construction Company), 893 A.2d 191 (Pa. Cmwlth. 2006) (holding that where there are competing causes for disability, the claimant must establish that the workrelated injury was a substantial, contributing factor to that disability), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). Again, Dr. Gutherz was not asked to provide such an opinion, nor did he ever indicate that this was his opinion. Because Claimant could not successfully sustain her burden of proof with respect to her claim petition, we affirm the WCAB s reversal of the WCJ s order granting her benefits. _____________________________ ROCHELLE S. FRIEDMAN, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rosalie Gillow, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Wayne Woodlands Manor), : Respondent : No. 1554 C.D. 2007 ORDER AND NOW, this 30th day of January, 2008, the order of the Workers Compensation Appeal Board, dated August 3, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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