Country Garden Art, Ltd. v. WCAB (Bleil) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Country Garden Art, Ltd., Petitioner v. Workers' Compensation Appeal Board (Bleil), Respondents BEFORE: : : : : : : : : No. 1662 C.D. 2007 Submitted: January 18, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: March 6, 2008 Country Garden Art, Ltd. (Employer) petitions for review of an order of the Workers Compensation Appeal Board (Board), affirming a decision of a Workers Compensation Judge (WCJ), granting Matthew Bleil s (Claimant s) claim petition, pursuant to the provisions of the Pennsylvania Workers Compensation Act (Act).1 We affirm. Claimant worked for Employer as a laborer. He filed a claim petition on June 17, 2004, alleging that on April 23, 2004, he was loading a vehicle for Employer, when he sustained an injury to his back. Specifically, Claimant alleged that he sustained ruptured lumbar discs, muscle sprain/strain, ligament sprain/strain and a nerve injury. Employer filed an answer denying the allegations stated in the claim petition. 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. A hearing was held before the WCJ. At the hearing, Claimant testified that in April, 2003, he began working for Employer on a part-time basis. Then, in April, 2004, he was hired on a full-time basis, at the rate of $8.00 per hour. Claimant stated that on Friday, April 23, 2004, he was loading items into a van for Employer. He lifted a concrete urn, weighing approximately 100 pounds, when he felt a sharp pain in the lower left side of his back. Claimant alleged that he did not report the injury to Employer at that time, as the pain was not severe. Claimant left work about ninety minutes later, pursuant to his work schedule. That evening, Claimant met Steve Palsa, his supervisor, at a local bar. Claimant stated that he did not mention the injury to Mr. Palsa that evening. Claimant alleged that when he woke-up on Saturday morning, his back pain had increased. The pain continued throughout the weekend. On Monday, the day he was scheduled to return to work, Claimant reported to Employer that he was unable to work due to the injury. Employer then sent him to see a chiropractor. Claimant treated with the chiropractor and also with David Kaufmann, M.D., who prescribed epidural nerve blocks. Claimant testified that he continues to have left lower back pain that radiates into his buttocks, thighs and left calf.2 Dr. Kaufmann, who is board-certified in neurological surgery, testified on behalf of Claimant. He stated that Claimant had mechanical low back pain, along with radiculopathy, as a result of his S1 nerve root being compressed by his disc. He opined that Claimant s injury was work-related and was a direct result of lifting a heavy object, 2 Claimant stated that he has had difficulties paying for medical treatment, as Employer did not have workers compensation insurance at the time of his injury. He claimed that the owner of the company, Thomas Pfeifer, told him not to report the injury as work-related. 2 while bending over. He further opined that Claimant was unable to perform physical labor due to his work-related injury. Dr. Kaufmann stated that Claimant probably had some pre-existing changes at the L4-5 and L5-S1 level, which were exacerbated by the work injury. Dr. Kaufmann concluded that the work injury produced the symptoms at L5-S1 consistent with a herniated disc. Dr. Kaufmann also explained that it was not unusual, in cases such as Claimant s, for the pain to be minimal at the time of the injury and then increase the following day. Dr. Kaufmann explained that a herniation begins with back pain, but the pain does not radiate until the nerve root becomes swollen, which can take two or three days. Claimant also provided the testimony of his father, James Bleil, and his girlfriend, Melissa Zavadya. Ms. Zavadya testified that on the day the alleged workrelated injury occurred, Claimant told her he hurt his back at work. Mr. Bleil testified that he saw Claimant on April 24, 2004, and noticed that his son was unable to move without pain. Claimant also told him that he had injured his back at work. Mr. Pfeifer, the owner of the company, testified that he first learned of Claimant s injury on April 26, 2004. He stated that at that time he believed that he had workers compensation insurance, but later learned his insurance had lapsed. Mr. Pfeifer then told Claimant that he did not have workers compensation insurance. Mr. Pfeifer denied telling Claimant not to report the injury as work-related. Mr. Pfeifer explained that he is in the business of selling statues and water pumps. This involves mixing concrete and pouring it into a mold. In order for the concrete to properly set, the temperature must be fifty-five degrees. Mr. Pfeifer explained that it is too costly to heat the building in the winter. Therefore, his business is only open seasonally, from April to October. 3 Mr. Palsa, Claimant s supervisor, testified on behalf of Employer. He stated that he saw Claimant at work following his alleged injury on April 23, 2004, and Claimant never mentioned that he had sustained an injury. He also testified that he went to a bar with Claimant, on the evening of April 23, 2004, and Claimant did not mention the injury at that time. Mr. Palsa testified that when Claimant was hired, he expressed to Claimant his hope that Mr. Pfeifer would extend the work throughout the winter months. Mr. Palsa explained that the business could remain open in the winter if the proper equipment was purchased and the building was heated. The WCJ found the testimony of Claimant, Mr. Bleil and Ms. Zavadya to be credible and persuasive. The WCJ also found the testimony of Dr. Kaufmann to be credible and unrebutted. As such, the WCJ granted Claimant s claim petition and awarded him total disability benefits of $79.66 per week. Employer appealed the WCJ s determination to the Board. The Board denied Employer s appeal and affirmed the order of the WCJ. Employer now appeals to this Court.3 Employer first alleges that the Board s decision is not supported by competent evidence of record. Employer alleges that the testimony of Dr. Kaufmann was not competent as it was based on false information provided by Claimant. 3 Our scope of review is limited to determining whether there has been a violation of constitutional rights, an error of law or whether necessary findings of fact are supported by substantial evidence. Tri-Union Express v. Workers Compensation Appeal Board (Hickle), 703 A.2d 558 (Pa. Cmwlth. 1997). We also note our Supreme Court s decision in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), which held that review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. Leon E. Wintermyer, Inc., 571 Pa. at 203, 812 A.2d at 487. 4 Employer noted that Claimant had a back sprain/strain in 2001, which was not disclosed to Dr. Kaufmann. At the time of the deposition, Dr. Kaufmann stated that Claimant did not inform him that he had a prior back injury in 2001. Dr. Kaufmann was then given Claimant s 2001 hospital records to review.4 Following a review of the records, Dr. Kaufmann stated that the 2001 injury did not appear to be significant. Dr. Kaufmann stated that the 2001 injury did not change his opinion in the case at issue. He explained that the 2001 injury did not occur as a result of lifting an object, thus, it could not have caused Claimant s current disc injury. Employer also alleges that Dr. Kaufmann s opinion was not competent because Dr. Kaufmann s report stated that that Claimant could barely walk when he first felt pain in his back at work, but was later able to ambulate and go home. Employer argues that Dr. Kaufmann was under the false assumption that Claimant stopped working after the onset of pain. However, Claimant testified that he remained at work for an additional ninety minutes. Employer also notes that Dr. Kaufmann was unaware that Claimant socialized at a bar later that evening. In discussing Claimant s testimony it was revealed that Claimant testified that he remained at work until the end of his shift, but he didn t do any type of heavy lifting or work during that time period ¦. (R.R. at 89). Dr. Kaufmann stated that Claimant informed him that he did not do any further work following the injury. Dr. Kaufmann argued that Claimant s testimony and the information in the report were consistent, because in both cases Claimant reported that he did not continue to work after the injury occurred. Whether or not Claimant actually remained at work, not 4 Claimant went to the emergency room in 2001 for an injury to his back which occurred at work, when Claimant fell backwards and hit a board. It does not appear that Claimant received any further treatment for the injury. 5 working, or immediately went home following the injury was irrelevant. Dr. Kaufmann also stated that while he was not aware that Claimant went to a bar following the injury, it did not change his opinion that the injury was work-related. A medical expert s opinion is only rendered incompetent where it is based solely on inaccurate information. Pryor v. Workers Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197 (Pa. Cmwlth. 2006). Establishing that a medical expert does not have a claimant s entire medical information goes to the weight of the medical expert s testimony. It does render the medical expert s opinion incompetent. Pryor, 923 A.2d at 1203. Employer has failed to establish that Dr. Kaufmann s testimony was incompetent, based on his lack of knowledge of Claimant s 2001 injury, as this goes to the weight of the doctor s testimony, not its competency. Also, Dr. Kaufmann was given a chance to review the hospital records for 2001 and stated that the 2001 injury did not change his opinion in the case at issue. We also reject Employer s claim that Dr. Kaufmann s testimony was incompetent based on the doctor s assumption that Claimant left work following the injury, as opposed to Claimant s testimony that he remained at work for ninety minutes, but discontinued working. The distinction between the doctor s assumption and Claimant s testimony is insignificant and irrelevant to the case. Employer also argues that Dr. Kaufmann s testimony was equivocal because he concluded that Claimant probably had some pre-existing disc changes. (R.R. at 49). Dr. Kaufmann did testify that Claimant had some degenerative changes between the fourth and fifth lumbar levels. (R.R. at 47). However, Employer neglects to mention that Dr. Kaufmann further testified that Claimant s degenerative changes were significantly exacerbated by his work-related injury. (R.R. at 49). 6 [M]edical testimony is unequivocal if the medical expert, after providing a foundation, testifies that in his medical opinion he believes or he thinks the facts exist. Armco, Inc. v. Workmen s Compensation Appeal Board (Carrodus), 590 A.2d 827, 829 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 636, 600 A.2d 955 (1991). In order to make such a determination, it is appropriate to examine the entire testimony of a witness as a whole rather than basing our decision on a fragment of testimony removed from its context. Stalworth v. Workers Compensation Appeal Board (County of Delaware), 815 A.2d 23, 28 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 576 Pa. 717, 839 A.2d 355 (2003). We reject Employer s claim that Dr. Kaufmann s testimony was equivocal because he stated that Claimant probably had some pre-existing disc changes. Dr. Kaufmann clarified this testimony by concluding that the degenerative disc changes were significantly exacerbated by the work-related injury. We note that Employer is liable under the Act for an injury that stems from the aggravation of a pre-existing condition. Pittsburgh Steelers v. Workers Compensation Appeal Board (Williams), 814 A.2d 788 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 573 Pa. 680, 822 A.2d 706 (2003). Therefore, Employer s allegations of error as to Dr. Kaufmann s testimony are denied. Employer further alleges that Claimant did not sustain his burden of establishing that the injury occurred while in the course and scope of his employment. Employer argues that Claimant failed to establish that the injury occurred while loading a van at work, as Claimant did not complain of pain while at work, or while he was with Mr. Palsa later that evening. We note that Section 311 of the Act, 77 P.S. § 631, requires an employee to provide his employer with notice of a work-related injury within 120 days of the injury. 7 Therefore, Claimant s delay of three days in reporting the injury does not preclude him from receiving benefits. In addition to reporting the injury in a timely manner, the claimant also has the burden of providing evidence establishing that his injury was work-related. The WCJ is the sole arbiter of the credibility and weight of the evidence provided by the claimant. Scher v. Workers Compensation Appeal Board (City of Philadelphia), 740 A.2d 741 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 635, 758 A.2d 666 (2000). So long as the findings of the WCJ are supported by substantial evidence, they must be accepted as conclusive on appeal. Scher, 740 A.2d at 746. Claimant testified that he injured his back at work when he lifted a concrete statue. His father and girlfriend both testified that they observed Claimant after the injury occurred and Claimant informed them that he had injured himself at work. Claimant s doctor testified that the injury sustained by Claimant was one in which the pain would initially be minimal, but increase within a few days. Claimant s doctor also opined that the injury was work-related. Thus, Claimant provided substantial evidence that his injury was work-related. Further, the WCJ found Claimant and his witnesses to be credible. As such, we conclude that the Board did not err in determining that Claimant met his burden of establishing a work-related injury. Finally, Employer alleges that the Board erred in concluding that Claimant s employment was not seasonal in nature.5 Employer argues that it was established that the business was closed during the winter months due to the climate. As such, the business should be considered seasonal. We disagree. 5 Section 309(e) of the Act, 77 P.S. § 582(e), calculates the average weekly wage of a seasonal employee as one-fiftieth of the total wages the employee has earned from all occupations during the twelve months immediately preceding the injury. 8 Employment is classified as seasonal only where the nature of the work could not be carried on during any other time of the year. Ross v. Workers Compensation Appeal Board (Arena Football League), 702 A2d 1099, 1101 (Pa. Cmwlth. 1997), petition for allowance of appeal denied, 555 Pa. 723, 724 A.2d 937 (1998). In American Mutual Insurance Company v. Workmen s Compensation Appeal Board (Davenport and Natural Marble & Onyx Company), 530 A.2d 121 (Pa. Cmwlth. 1987), an employee died after falling from a scaffold. The employer argued that the employee s work at its marble setting business was seasonal. We disagreed, concluding that labor or occupation possible of performance and being carried on at any time of the year, or through the entire twelve months, is certainly not seasonal. American Mutual Insurance Company, 530 A.2d at 128 (citing Froehly v. Harton, 291 Pa. 157, 163, 139 A. 727, 730 (1927)). Mr. Pfeifer testified that he closed the business in the winter months because it was too costly to heat the building to fifty-five degrees, i.e., the temperature needed to pour concrete. The fact the Mr. Pfeifer made a financial decision to close the business in the winter does not make the business seasonal. Certainly, the nature of the business, i.e., making concrete statutes, could be carried out throughout the year, in any properly heated building. Also, Claimant was employed as a laborer. The nature of the occupation of laborer can be carried on throughout the year. As such, we conclude that there was competent evidence of record to support the Board s conclusion that Claimant s employment was not seasonal. Accordingly, the order of the Board is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Country Garden Art, Ltd., Petitioner : : : : : : : : v. Workers' Compensation Appeal Board (Bleil), Respondents No. 1662 C.D. 2007 ORDER AND NOW, this 6th day of March, 2008, the order of the Workers Compensation Appeal Board is affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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