Duggan & Marcon v. WCAB (Kistler) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Duggan & Marcon, : Petitioner : : v. : : Workers Compensation Appeal Board : (Kistler), : Respondent : BEFORE: No. 1650 C.D. 2007 Submitted: December 7, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: January 31, 2008 Duggan & Marcon, Inc. (Employer) petitions for review from an Order of the Worker Compensation Appeal Board (Board) that affirmed the decision of a Workers Compensation Judge (WCJ) granting a Claim Petition filed by John Kistler (Claimant). We affirm. Claimant filed a Claim Petition on December 15, 2005 alleging that as of October 21, 2005, he developed a work-related infection that resulted in a loss of earnings. The parties agreed that Claimant was employed by Employer as a journeyman carpenter when he developed a severe infection identified as Methicillin-resistant Staphylococcus aureus (MRSA), that he required hospitalization and treatment, and that he returned to work at no loss of earnings on January 24, 2006. Employer only disputed the causal connection between Claimant s employment and the resulting MRSA infection. In support of his Petition, Claimant testified that he began working for Employer in August of 2005 and was assigned to a project at Woodloch on Thursday, October 20, 2005. (R.R. at 38-9a). He explained that on Friday, October 21, 2005, he was working with fiberglass reinforced double layer fire sheetrock. (R.R. at 40-1a). According to Claimant, over the weekend, I started to develop a small red patch on my leg that looked like a it looked like a pimple that was starting to develop or a blind hair. (R.R. 43a). He treated with over-thecounter items. (R.R. at 44a). On Monday, October 24, 2005, he placed a bandage on the area and reported for work. (R.R. at 45a). He completed his full shift. (R.R. at 46a). Claimant stated he took the following day off to rest his right leg. (Id.) He testified that by the end of the night, his right leg swelled and became hot to touch. (R.R. at 47a). He was transported to Mercy Hospital via ambulance on October 26, 2005. (R.R. 48a). Following a course of antibiotics and surgical intervention, Claimant s symptoms improved and he was discharged. (R.R. at 49a, 51-3a, 56a). He returned to work on January 24, 2006. (R.R. at 60a). Claimant testified that while in the hospital, he had other lesions on his body including one on his ankle, left calf, and on the back of his wrist. (R.R. at 56a). Claimant did not recall sustaining specific trauma to his leg on October 21, 2005, but suggested that he got bumps and bruises all day long. (R.R. 67-8a). Claimant presented a December 7, 2005 medical report1 of Steven J. Pancoast, M.D., an infectious disease specialist, that reads as follows: 1 Because Claimant s claim was for less than fifty-two weeks, the parties proceeded by submitting medical reports consistent with Section 422(c) of the Pennsylvania Workers Compensation Act, added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. 835. That Section states, in pertinent part: Where any claim for compensation at issue before a workers compensation judge (Footnote continued on next page ¦) 2 [Claimant] was evaluated at Mercy Hospital during the occasion of his hospitalization for a major Staphylococcus aureus abscess of his right lower leg. The organism grown from that was [MRSA]. The physical examination, presentation and past history support the etiology of this being a puncture injury most surely obtained at work, where the patient works with a heavy form of fiberglass. The patient had multiple other abscesses of the body which were smaller and once again all in areas where punctures would be likely to occur as a result of exposure to fiberglass. In my opinion, without question this injury and disease was occupationally induced and directly related. The patient is doing well and this notice is to certify that my medical opinion is that this is an occupational exposure injury. (R.R. at 133a). Claimant further presented a January 6, 2006 medical report of Eric W. Blomain, M.D., that reads: [Claimant s] right lower leg pretibial wound, in my opinion, is work related. He sustained a small wound at work which became secondarily infected and led to him having a very deep excavating wound of his right leg which actually put his tibia in danger and he could have had a very severe problem. He responded to conservative treatment of topical wound care and a wound vac system. This problem may have originated as a result of fiberglass exposure, but in any event, whether (continued ¦) involves fifty-two weeks or less of disability, either the employee or the employer may submit a certificate by any health care provider as to the history, examination, treatment, diagnosis, cause of the condition and extent of disability, if any,...and such statements shall be admissible as evidence of medical and surgical or other matters therein stated and findings of fact may be based upon such certificates or such reports. 3 fiberglass exposure caused it or not, this is definitely work-related since the wound was sustained at work ¦ (R.R. 138a). In opposition to Claimant s Petition, Employer submitted the medical report of Mark W. Scinico, M.D., who examined him on April 6, 2006. Dr. Scinico disagreed that Claimant s MRSA infection was based upon his exposure to fiberglass. (R.R. at 129a). He noted that a review of the available medical literature did not reveal any information regarding exposure to fiberglass insulation or material and the acquisition of an MRSA infection. (R.R. at 128a). Dr. Scinico explained that risk factors identified to community acquired MRSA included, inter alia, close personal contact, prior antibiotic use, hospitalization, residency in a long-term care facility, surgical procedures, and chronic illness. (Id.) He opined that Claimant most likely acquired MRSA through close personal contact with another infected individual. (Id.) In a Decision circulated December 13, 2006, the WCJ credited Claimant s testimony. He found, based on Claimant s testimony, that as a result of his work activities, he developed a small puncture wound on his right leg in the area of his shin. The WCJ credited the medical report of Dr. Pancoast noting first that he was an infectious disease specialist and second that he found Claimant s wounds to be common among construction workers exposed to fiberglass. He acknowledged that this statement is consistent with other evidence of record. The WCJ further credited the report of Dr. Blomain. The WCJ also credited Dr. Scinico s opinion to the extent that Claimant had none of the risk factors associated with community acquired MRSA. Moreover, he asserted that Dr. Scinico s opinion that exposure to fiberglass fibers in and of themselves did not cause Claimant s MRSA would appear axiomatic. Nonetheless, the WCJ explained that 4 Dr. Scinico failed to address the central issue of whether [C]laimant sustained puncture wounds in the course and scope of his employment [leading to a secondary infection of MRSA]. The WCJ determined that Claimant established that he sustained a puncture wound in his right lower extremity in the course and scope of his employment on October 21, 2005 that resulted in the development of a severe infection. Consequently, he granted Claimant s Petition and awarded total disability benefits from October 25, 2005 through January 24, 2006. He terminated Claimant s benefits as of the January date. The Board affirmed in an Order dated August 8, 2007. This appeal followed.2 Employer argues on appeal that the Board erred in affirming the WCJ s determination that Claimant s MRSA was causally related to his employment and in granting benefits. It contends, noting that Claimant denied any trauma, that he never actually testified that he sustained a puncture wound to his leg at work as found by the WCJ. Consequently, Employer suggests that there is no competent evidence of record to support a finding that Claimant developed MRSA in a wound existing as a result of his employment. We reject Employer s argument. In a claim petition, the burden of proving all necessary elements to support an award rests with the claimant. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The 2 Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. DeGraw v. Workers Compensation Appeal Board (Redner's Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). On appeal, the prevailing party below is entitled to all inferences that can be reasonably drawn from the evidence. Krumins Roofing & Siding Co. v. Workmen s Compensation Appeal Board (Libby), 575 A.2d 656 (Pa. Cmwlth. 1990). 5 claimant must establish that his injury was sustained during the course and scope of employment and is causally related thereto. McCabe v. Workers' Compensation Appeal Board (Dep't of Revenue), 806 A.2d 512 (Pa. Cmwlth. 2002). When the connection between the injury and the alleged work-related cause is not obvious, it is necessary to establish the cause by unequivocal medical evidence. Hilton Hotel Corp. v. Workmen s Compensation Appeal Board (Totin), 518 A.2d 1316 (Pa. Cmwlth. 1986). A medical expert s opinion is rendered incompetent if it is based solely on inaccurate or false information. Newcomer v. Workmen s Compensation Appeal Board (Ward Trucking Co.), 692 A.2d 1062 (Pa. 1997). Medical testimony will be deemed incompetent if it is equivocal. Kurtz v. Workers Compensation Appeal Board (Waynesburg College), 794 A.2d 443 (Pa. Cmwlth. 2002). We note that the but for test is used in certain instances to establish causation when a claimant sustains injuries that he would not have sustained if it were not for a previously incurred work injury. See Berro v. Workmen s Compensation Appeal Board (Terminix Int l, Inc.), 645 A.2d 342 (Pa. Cmwlth. 1994)(reinstating a WCJ s award of benefits for injuries sustained by a claimant while traveling to a physical therapy session necessitated by a previous workrelated injury). See also Moltzen v. Workmen s Compensation Appeal Board (Rochester Manor), 646 A.2d 748 (Pa. Cmwlth. 1994)(denying a termination petition because the claimant would not have developed tendonitis in the knee but for her participation in physical therapy for a previously acknowledged shoulder injury). Pursuant to Inglis House and McCabe, Claimant was entitled to benefits for his MRSA so long as he could establish the condition was causally 6 related to his employment. Because the connection is not obvious, he was required to do so by unequivocal medical evidence. Totin. The WCJ credited Claimant s testimony concerning his work activities and his observations concerning his condition over the weekend prior to his seeking medical attention. Moreover, he credited Dr. Pancoast s assessment that the puncture injury Claimant sustained in his right leg ultimately led to the development of his MRSA. The WCJ further credited Dr. Blomain s determination that Claimant s MRSA was a secondary infection of a small wound on his right leg.3 The WCJ acknowledged Dr. Scinico s suggestion that that Claimant did not have any of the traditional risk factors associated with MRSA, but nonetheless he rejected his opinion that the condition was unrelated to his employment. The WCJ is the final arbiter of witness credibility and the weight to be accorded evidence and may accept or reject the testimony of any witness in whole or in part. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). Consequently, Claimant was able to meet his burden to establish causation. Thus the WCJ did not err in granting Claimant s Claim Petition for a closed period and the Board did not err in affirming the same. 4 3 This is so, as pointed out by Dr. Blomain, regardless of whether Claimant s puncture wound was actually caused by contact with fiberglass or some other reason. 4 Employer argues that it is erroneous to suggest that this issue is nothing more than one of credibility. It contends, based upon its interpretation of its medical evidence, that to find Claimant s MRSA is due to his employment ignores scientific fact that MRSA is not related to fiberglass exposure, but rather is a community-acquired disease. We reject Employer s argument. We note that the WCJ must make findings based on the evidence as it is contained in the record. Zeigler v. Workers Compensation Appeal Board (Jones Apparel Group, Inc.), 728 A.2d 421 (Pa. Cmwlth. 1999). While Dr. Scinico did not identify fiberglass exposure as a traditional risk factor in the acquisition of MRSA, the WCJ explained that he did not squarely address whether Claimant could develop a secondary infection, MRSA, in the wound sustained at work. Claimant s medical witnesses opined that his MRSA had its etiology in the puncture (Footnote continued on next page ¦) 7 We note that just as the claimant in Berro would not have sustained injury in an auto accident had he not been traveling to a physical therapy session necessitated by a previous work-related injury, just as the claimant in Moltzen would not have developed tendonitis in the knee but for her participation in physical therapy for a previously acknowledged shoulder injury, the evidence presented in this case indicates that Claimant would not have incurred his MRSA if not for the puncture wound he incurred at work that provided an opening for the condition to develop. We reject Employer s argument that Claimant s medical expert s opinions were incompetent and therefore equivocal because they were based upon a history that Claimant sustained a puncture wound to his right leg at work and Claimant did not testify to this fact. It is true, pursuant to Newcomer, that when an expert s opinion is based solely upon a false medical history, it will be deemed incompetent and, per Kurtz, equivocal. Moreover, we acknowledge, as argued by Employer, that Claimant did not recall sustaining any trauma to his right leg. Nonetheless, Claimant did testify that he had multiple lesions on his body at the time he was in the hospital.5 Moreover, in referencing the events of October 21, 2005, he explained he incurred bumps and bruises throughout the day. Because Claimant prevailed below, he is entitled to all inferences reasonably drawn from the evidence. Libby. Employer s argument is nothing more than an argument over (continued ¦) wound in his right leg. Consequently, there was evidence in the record to support the WCJ s finding and the issue of causation could be resolved by credibility determinations. 5 A lesion is defined as an injury or wound. Black s Law Dictionary 913 (7th ed. 1999). 8 verbiage, particularly Claimant s understanding of the word trauma. Claimant s testimony can be read to indicate he sustained wounds sufficient to provide a pathway to the development of MRSA as relied upon by his medical experts. Consequently, we cannot agree that Claimant s medical expert s opinions were based on a false medical history, incompetent, and therefore equivocal. After a review of the record, we conclude that the Board did not err in affirming the WCJ s Order as all findings are supported by substantial evidence. Accordingly, the Decision of the Board is affirmed. ___________________________ JIM FLAHERTY, Senior Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Duggan & Marcon, : Petitioner : : v. : : Workers Compensation Appeal Board : (Kistler), : Respondent : No. 1650 C.D. 2007 ORDER AND NOW, this 31st day of January, 2008, the Order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge
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