S. Metz v. WCAB (PA State University) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sandra Metz, Petitioner v. Workers Compensation Appeal Board (Pennsylvania State University), Respondent BEFORE: : : : : : : : : : No. 1567 C.D. 2007 Submitted: December 28, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 12, 2008 Sandra Metz (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) dismissing her appeal. In doing so, the Board affirmed the decision of the Workers Compensation Judge (WCJ) dismissing Claimant s claim petition on the basis that Claimant failed to prove that she sustained a work-related injury. Claimant presently challenges two of the WCJ s findings of fact as not supported by substantial evidence. Finding no merit to Claimant s contentions, we affirm. Claimant was employed by Pennsylvania State University (Employer) as a housekeeper at the Nittany Lion Inn. On March 17, 2005, Claimant filed a claim petition for benefits under the Workers Compensation Act (Act).1 Claimant alleged an [i]njury to right shoulder/rotator cuff syndrome, resulting from [r]epetitive reaching in the course and scope of her employment. Reproduced Record at 1a (R.R. __). Claimant listed March 30, 2004, as the date of injury or onset of disease. Employer denied that Claimant had sustained a work-related injury, and the matter was assigned to a WCJ. Claimant testified that she began experiencing pain in her right shoulder shortly after she began working for Employer in 2003. Claimant alleged that her shoulder problems worsened from October 2003 until March 2004, when she could not raise her right arm for any length of time without experiencing a shocking pain. R.R. 94a. When she advised her supervisor of the injury Claimant was referred to a panel physician and assigned to a series of light-duty positions that she had difficulty performing because of her shoulder. Claimant eventually resigned in April 2004 to accept a position with a different employer as an executive housekeeper. Claimant testified that she had never received treatment for a problem with her right shoulder, although x-rays were taken of her neck in 1997 or 1998 while she was employed by Jostens, Inc. Claimant acknowledged that she wrote a letter to Jostens in 1997 stating that her shoulder continued to hurt and swell due to the height of a shelf at her work station. She did not recall receiving treatment for her right shoulder in 1997, and she did not recall giving a history of a shoulder problem to a physician in 1997. Claimant testified that she did not have any pain or problems with either her right shoulder or neck when she began working for Employer in 2003. 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 1041.4; 2501 2626. 2 In support of her claim petition, Claimant offered a report authored by John R. Deitch, M.D., a board-certified orthopedic surgeon, to whom she was referred by her panel physician in May 2004. Dr. Deitch noted that Claimant complained of gradual onset of right shoulder pain, which was aggravated by her work activities with Employer. He diagnosed Claimant with calcific tendonitis of her right shoulder. In October 2004, Dr. Deitch performed an arthroscopy on Claimant s right shoulder with subacromial decompression, debridement with calcific tendonitis, and mini-open rotator cuff repair. Dr. Deitch reviewed copies of medical records from 1997 regarding Claimant s complaints of neck and right shoulder pain. He opined that these records did not detail any specific evidence of rotator cuff tendinopathy or calcific tendonitis. Dr. Deitch also opined that Claimant s current symptomatology was likely unrelated to the pain she experienced in 1997. Employer presented the deposition testimony of Robert Dahmus, M.D., a board-certified orthopedic surgeon. Dr. Dahmus did not personally examine Claimant but conducted a review of her medical records. Among those records was a March 7, 1997, report authored by Dr. Scott M. DeHart recounting Claimant s statement that she had been experiencing problems with her right shoulder for approximately two years. Dr. Dahmus also considered a report by Dr. John E. Mateer, who interpreted Claimant s electromyography (EMG) results in 1997. Noting that Dr. Mateer found no neurologic abnormality, Dr. Dahmus concluded that Claimant s atrophy and loss of motion in her right shoulder was the result of disuse caused by pain from a rotator cuff injury. Dr. Dahmus disagreed with Dr. Deitch s opinion that Claimant s current symptomatology was unrelated to the pain she experienced in 1997. Dr. Dahmus opined that Claimant s calcific 3 tendonitis, which takes a long time to develop, indicates that her shoulder problem is not an acute injury or an aggravation, but rather an ongoing condition Claimant has had since 1997 or before. In summary, Dr. Dahmus concluded, based on the records of Claimant s complaints over time, and seeing what Dr. Mateer found actually on EMG testing, I would have to say with a very high degree of medical certainty that she had injured her rotator cuff sometime back in [19]97 or earlier. R.R. 57a. The WCJ credited the findings and opinions of Dr. Dahmus over those of Dr. Deitch. The WCJ was persuaded by Dr. Dahmus detailed analysis of Claimant s 1997 medical records. The WCJ rejected as not credible Claimant s testimony that her work for Employer materially aggravated her right shoulder symptoms. Because Claimant failed to establish that she sustained a new injury in the nature of an aggravation of her pre-existing rotator cuff injury, the WCJ dismissed her claim petition. Claimant appealed and the Board affirmed. Claimant now petitions this Court for review. On appeal,2 Claimant argues that the WCJ s adjudication of her claim petition was not supported by substantial evidence. Specifically, Claimant challenges the WCJ s Findings of Fact No. s 21 and 27 as unsupported. She contends that because these factual findings were crucial to the WCJ s decision, this Court must remand for further proceedings consistent with the facts of record. We disagree. 2 This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, and whether necessary findings of fact are supported by substantial evidence. Supervalu, Inc. v. Workers Compensation Appeal Board (Bowser), 755 A.2d 715, 719 n. 3 (Pa. Cmwlth. 2000). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 4 Claimant first challenges the WCJ s Finding of Fact No. 21, which stated as follows: 21. The Employer presented deposition testimony from Robert R. Dahmus, M.D., a Board Certified Orthopedic Surgeon. Dr. Dahmus evaluated the Claimant and issued a report dated October 11, 2005. He took a history of injury and medical treatment consistent with the Claimant s testimony. WCJ Opinion at 2-3; R.R. 14a-15a (emphasis added). Claimant points out, correctly, that Dr. Dahmus neither personally evaluated Claimant nor took her history. Claimant contends that the WCJ may have credited Dr. Dahmus opinions, or assigned them greater weight, based upon a mistaken belief that the doctor performed an examination of Claimant. The Board concluded that the way the WCJ composed Finding of Fact No. 21 was harmless error. We agree. The challenged factual finding is the only reference in the WCJ s opinion to an evaluation by Dr. Dahmus. The WCJ s remaining factual findings pertaining to Dr. Dahmus all state that his opinions were based on a review of Claimant s medical records. See, e.g., Findings of Fact No. s 22, 23 and 27; R.R. 15a.3 Moreover, the WCJ explained that he found Dr. Dahmus 3 These additional factual findings stated as follows: 22. Dr. Dahmus felt the Claimant s October surgery was related to the shoulder condition she had since 1997. He stated the records show the Claimant had a significant rotator cuff injury at that time. 23. In 1997 the Claimant s physicians were evaluating a possible neck injury. An MRI of the neck was normal, and the Claimant was referred for EMG/NCV testing by Dr. Mateer. Dr. Dahmus noted in Dr. Mateer s record that the Claimant had decreased range of motion of the right shoulder and atrophy. However, the EMG/NCV study of the right upper extremity was normal. 27. On cross-examination, Dr. Dahmus testified it is not accurate to say that the Claimant was asymptomatic from 1997 until 2004 because she did not treat for (Footnote continued on the next page . . .) 5 more credible than Dr. Deitch because he was persuaded by Dr. Dahmus detailed and consistent analysis of the Claimant s 1997 medical records. Amended/Corrected Decision at 1; R.R. 10a. WCJ Thus, the WCJ s credibility determination was clearly based upon Dr. Dahmus persuasive records review and not upon any mistaken belief that Dr. Dahmus conducted a physical examination.4 Claimant s allegation of error is without merit. Claimant next challenges Finding of Fact No. 27, which stated as follows: On cross-examination, Dr. Dahmus testified it is not accurate to say that the Claimant was asymptomatic from 1997 until 2004 because she did not treat for her shoulder condition. Based on the examination findings of Dr. Mateer which show a significant rotator cuff problem, Dr. Dahmus held an opinion the Claimant continued to have limitations from 1997 until her condition was ultimately addressed by surgery in October of 2004. WCJ Opinion at 3; R.R. 15a (emphasis added). Claimant argues that Dr. Mateer s report does not support a finding of a significant rotator cuff problem in 1997. Claimant directs our attention to Dr. Mateer s observation in his report of a normal study of the right upper extremity and shoulder girdle, mild clinical (continued . . .) her shoulder condition. Based on the examination findings of Dr. Mateer which show a significant rotator cuff problem, Dr. Dahmus held an opinion the Claimant continued to have limitations from 1997 until her condition was ultimately addressed by surgery in October of 2004. WCJ Opinion at 3; R.R. 15a (emphasis added). 4 The references in Finding of Fact No. 21 to Dr. Dahmus evaluating Claimant and taking her history are typical of the boilerplate that most workers compensation judges use in their factual findings. The WCJ s inclusion of that language here was most likely inadvertent, especially since none of the other factual findings contain similar references. 6 atrophy noted in the supraspinatus and slight restricted [range of motion] about [Claimant s] shoulder. R.R. 187a (emphasis added). Claimant suggests that the WCJ mischaracterized Dr. Mateer s findings, which tainted his ultimate decision that Claimant failed to make out her prima facie case. Claimant s assertions fail for two reasons. First, we disagree that the WCJ mischaracterized the evidence of record. During his deposition, Dr. Dahmus discussed Dr. Mateer s findings at length and emphasized that Dr. Mateer found no neurologic abnormality in Claimant s EMG study. This was significant because the presence of atrophy and loss of motion in Claimant s shoulder with no neurologic abnormality indicated to Dr. Dahmus that Claimant s pain was caused by damage to her rotator cuff. R.R. 62a. Thus, as Finding of Fact No. 27 makes clear, Dr. Dahmus explained how, in his opinion, Dr. Mateer s findings show that Claimant had a rotator cuff problem in 1997. Second, Dr. Dahmus did not base his opinion solely on Dr. Mateer s report. Dr. Dahmus stated that his opinion was based on a review of records from various medical providers dating back to 1997, including one by Dr. DeHart recounting Claimant s statement that she had been experiencing problems with her right shoulder for approximately two years. Based on Claimant s history and all of the records before him, Dr. Dahmus testified with a very high degree of medical certainty that Claimant injured her rotator cuff in 1997 or earlier. R.R. 57a. In sum, the factual findings of the WCJ are supported by substantial evidence and Claimant s allegations of error are without merit. Accordingly, we affirm the order of the Board. ______________________________ MARY HANNAH LEAVITT, Judge Judge Smith-Ribner concurs in the result only. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sandra Metz, Petitioner v. Workers Compensation Appeal Board (Pennsylvania State University), Respondent : : : : : : : : : No. 1567 C.D. 2007 ORDER AND NOW, this 12th day of February, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter, dated July 19, 2007, is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge

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