G. Benjamin v. WCAB (City of Phila) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gregory Benjamin, Petitioner v. Workers' Compensation Appeal Board (City of Philadelphia), Respondent BEFORE: : : : : : : : : No. 1727 C.D. 2007 Submitted: March 7, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: May 14, 2008 Gregory Benjamin (Claimant) petitions for review of the order of the Workers Compensation Appeal Board (Board) which affirmed the Workers Compensation Judge s grant of the City of Philadelphia s (Employer) termination petition. Claimant worked as a counselor at the Youth Study Center. On March 19, 1996, Claimant sustained a work-related injury to his right knee while attempting to apprehend a resident after a physical confrontation. Claimant was knocked down and twisted his right leg. Claimant petitioned for benefits. The WCJ granted the petition and awarded benefits for a tear of the medial meniscus and the anterior cruciate ligament from March 3, 1996, through December 31, 1998, and for all lost time in excess of fifteen days per year thereafter. On September 18, 2000, Claimant signed a supplemental agreement which terminated temporary total disability benefits and stated that Claimant returned to full duty on August 29, 2000. A subsequent supplemental agreement dated May 9, 2001, terminated a later period of temporary total disability benefits as of April 19, 2001. On January 1, 2002, Claimant suffered another work-related injury when he intervened in an altercation between two supervised residents. Employer awarded Claimant benefits. In 2003, Employer determined that Claimant could never return to work and involuntarily retired him. He did not receive disability retirement because Employer determined his disability was not solely work-related. On September 23, 2005, Employer petitioned to terminate and alleged that Claimant fully recovered.1 Employer presented the deposition testimony of Samuel Broudo, M.D. (Dr. Broudo), a board-certified orthopedic surgeon. Dr. Broudo examined Claimant on September 12, 2005, took a history, and reviewed medical records. Dr. Broudo explained, from his review of Claimant s medical records, that Claimant underwent an arthroscopy and a partial lateral meniscectomy in 1985, an arthrotomy with a partial lateral meniscectomy in 1988, and a third knee operation in 2000. Deposition of Samuel Broudo, M.D., March 21, 2006, (Dr. Broudo Deposition) at 16-18; Reproduced Record (R.R.) at 27a-29a. Dr. Broudo testified within a reasonable degree of medical certainty that Claimant could return to his time of injury job and was fully recovered from the January 1, 2002, work injury. 1 Claimant petitioned for penalties and alleged that Employer had failed to pay all benefits due Claimant since the WCJ s July 27, 1999, decision. The WCJ denied the penalty petition, and the Board affirmed. The penalty petition is not before this Court. 2 Dr. Broudo further opined that all current symptoms were not the result of the January 1, 2002, work injury. Dr. Broudo Deposition at 32; R.R. at 43a. Claimant testified by deposition that after the January 1, 2002, work injury, he returned to work in a light duty capacity for approximately six months. Deposition of Gregory Benjamin, April 21, 2006, (Claimant Deposition) at 14-15; R.R. at 84a. Claimant testified that he could not perform his time of injury job. Claimant Deposition at 22; R.R. at 86a. Claimant presented the deposition testimony of Roy T. Lefkoe, M.D. (Dr. Lefkoe), a board-certified orthopedic surgeon and Claimant s treating physician. Dr. Lefkoe opined that Claimant s January 1, 2002, injury was an aggravation of his previous degenerative arthritis of the knee. Deposition of Roy T. Lefkoe, M.D., September 8, 2006, (Dr. Lefkoe Deposition) at 15; R.R. at 108a. Dr. Lefkoe testified that Claimant could not return to his time of injury job due in part to the aggravation of January 1st, 2002 but with the background of his extensive prior problems with that knee. Dr. Lefkoe Deposition at 22; R.R. at 115a. Claimant presented the deposition testimony of Wilhelmina Korevaar, M.D. (Dr. Korevaar), a board-certified anesthesiologist and medical director of Employer s Employee Disability Program. Dr. Korevaar reviewed Claimant s medical records and interviewed him. Dr. Korevaar determined that Claimant was currently and partially disabled from returning to his preinjury position with Employer. Deposition of Wilhelmina Korevaar, M.D., September 12, 2006, (Dr. 3 Korevaar Deposition) at 6; R.R. at 167a. On cross-examination, Dr. Korevaar opined that Claimant s inability to return to work was not solely due to his work injuries. Dr. Korevaar Deposition at 12; R.R. at 173a. The WCJ granted Employer s termination petition and made the following relevant findings of fact: 11. The Judge finds that the evidence of record shows that there is no objective medical evidence to support Claimant s continued complaints of pain attributable to his injury of January 1, 2002. 12. The Judge determines that the Employer s medical expert, Dr. Broudo, is credible because his opinions were based upon his physical examination, which found no objective evidence of ongoing injury, and his review of Claimant s medical history, which revealed an extensive record of chronic degeneration of the right knee. Moreover, a practicing orthopedic surgeon with experience in knee injuries Dr. Broudo is better qualified than Dr. Lefkoe to render a medical opinion on Claimant s condition. (emphasis added) 13. In contrast, the Judge concludes that the Claimant s medical expert, Dr. Lefkoe, is not credible. He continues to assert that Claimant suffers pain from his work-related injury despite his admission that the injury was minor and only temporary, and despite a well-documented history of chronic right knee problems. Further, Dr. Lefkoe failed to explain the fact that Claimant s right knee was symptomatic just prior to Claimant s work accident yet four months post-trauma the knee was almost entirely symptom-free. Finally, Dr. Lefkoe is lessqualified to render a medical opinion on Claimant s condition as his is not a practicing orthopedic surgeon. (emphasis added) 14. The Judge also finds that Dr. Korevaar s testimony that Claimant has not fully recovered and cannot return to 4 work must be discounted. The issue at bar is whether Claimant has recovered as of the date of Dr. Broudo s examination, September 12, 2005; Dr. Korevaar last examined Claimant on May 28, 2003, nearly two and one half years prior to the time period currently at issue. 15. The Judge also finds that Claimant s testimony that he is presently unable to work to be incredible in light of the fact that Claimant is no longer treating with Temple University Work Health, is no longer receiving physical therapy, and presents with no objective symptomatology. WCJ s Decision, February 15, 2007, Findings of Fact Nos. 11-15 at 5-6. Claimant appealed to the Board which affirmed. Claimant contends that the WCJ s decision was not well reasoned because it misstated uncontroverted deposition testimony, ignored uncontroverted evidence and made unsupported findings, and further, the WCJ failed to articulate any basis for the decision which was supported by substantial evidence.2 Essentially, Claimant contends that the WCJ failed to issue a reasoned decision because his reasons for finding Dr. Broudo more credible than Dr. Lefkoe lacked an actual objective and factual basis. Section 422(a) of the Workers Compensation Act3, 77 P.S. §834, provides: 2 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 3 Act of June 2, 1915, P.L. 736, as amended. 5 Neither the board nor any of its members nor any workers compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers compensation judge shall specify the evidence upon which the workers compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. In Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003), our Pennsylvania Supreme Court stated that absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstance of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a reasoned one which facilitates effective appellate review. (Footnote omitted and emphasis added). Our Pennsylvania Supreme Court further explained in Daniels that where the factfinder has had the advantage of seeing the witnesses testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible, in the 6 absence of some special circumstance, could be sufficient to render the decision adequately reasoned. Id. at 77, 828 A.2d at 1053. Initially, Claimant asserts that the WCJ erred when he stated that Dr. Broudo was a practicing orthopedic surgeon, that Dr. Lefkoe was not, and therefore Dr. Broudo was more qualified. The WCJ stated in Finding of Fact No. 12 that as a practicing orthopedic surgeon with experience in knee injuries Dr. Broudo is better qualified than Dr. Lefkoe to render a medical opinion on Claimant s condition. Decision, Finding of Fact No. 12 at 5. In Finding of Fact No. 13, the WCJ stated Dr. Lefkoe is less-qualified to render a medical opinion on Claimant s condition as he is not a practicing orthopedic surgeon. Decision, Finding of Fact No. 13 at 5. A review of Dr. Broudo's testimony reveals that while he was a board-certified orthopedic surgeon, he stopped performing surgery in approximately 1995 or 1996. Dr. Broudo Deposition at 5 and 7; R.R. at 16a and 18a. A review of Dr. Lefkoe s testimony reveals that while he was a boardcertified orthopedic surgeon, he voluntarily stopped performing surgery five years before the deposition due to the cost of malpractice insurance. Dr. Lefkoe Deposition at 6-7; R.R. at 99a-100a. From this review of the testimony, it is clear that the WCJ did not accurately characterize the status of the two physicians. Neither one was a practicing surgeon at the time of their depositions, nor had they been for some time. In fact, Dr. Lefkoe had performed surgery more recently than Dr. Broudo. This Court agrees with Claimant that the WCJ could not base his credibility determinations on this erroneous observation. 7 Claimant also asserts that the WCJ s statement in Finding of Fact No. 12 that Dr. Broudo is more credible because his opinions are based on his physical examination which found no objective evidence of ongoing injury, and his review of claimant s medical history, which revealed an extensive record of chronic degeneration of the knee was incorrect. Dr. Broudo did find objective evidence of ongoing injury and noted that Claimant had restricted range of motion, laxity in the patella, and inability to perform the McMurray test because he could not bend.4 The record reflects that, with respect to his range of motion, Dr. Broudo testified that Claimant demonstrated that actively he was able to extend the right knee but lacking, meaning stretching the knee, lacking the last 20 degrees of full right knee active extension with the active range of motion of the right of the order of 20 to 90 degrees. Dr. Broudo Deposition at 27; R.R. at 38a. Dr. Broudo later referred to Claimant s limited range of motion and stated, Now, why he s demonstrating some limitation of motion of the right knee, I don t know. This is a subjective evaluation. Dr. Broudo Deposition at 29-30; R.R. at 40a-41a. Although Claimant characterized the range of motion as an objective measure, Dr. Broudo explained that based on his examination as a whole, the finding was subjective. Based upon the nature of Dr. Broudo s observations, this Court does not agree with Claimant that this test was a purely objective measure of Claimant s ongoing injury. 4 The McMurray Test is a rotation of the tibia on the femur to determine injury to meniscal structures. Stedman s Medical Dictionary, 25th Edition at 1571. 8 With respect to laxity in the patella, Dr. Broudo testified There is minimal laxity of the patella bilaterally more so on the left than on the right. The patella should be firm, here there was laxity, it was minimal laxity but more noticeable on the left than on the right. Dr. Broudo Deposition at 28-29; R.R. at 39a-40a. While Dr. Broudo did notice laxity in the patella, he found more on the left knee than on the right. Because Claimant suffered a work-related injury to his right knee, the fact that Dr. Broudo found more laxity in the left knee than the right provided no objective evidence of ongoing injury of the right knee. With respect to the McMurray test , Dr. Broudo testified that the McMurray test could not be administered because Claimant could not bend his right knee. Given Claimant s previous history of knee surgeries and injuries, this Court is unable to conclude that the failure to perform the test provided objective evidence of any continuing injury to the right knee.5 Claimant also challenges the WCJ s finding that Dr. Lefkoe failed to explain the fact that Claimant s right knee was symptomatic just prior to Claimant s work accident yet four months post-trauma the knee was almost entirely symptom-free. Decision, Finding of Fact No. 13 at 5. 5 Claimant also asserts that Dr. Broudo agrees with the opinion expressed in the medical report of a Dr. Cowdry that Claimant cannot return to work. However, a review of Dr. Broudo s testimony reveals that he stated that Claimant has no restrictions with respect to the January 1, 2002, injury, though he had other knee problems. Dr. Broudo Deposition at 37; R.R. at 48a. 9 From a review of the record, it appears that the WCJ was referring to Dr. Lefkoe s April 30, 2002, report. Dr. Broudo testified that Dr. Lefkoe in his April 30, 2002, report indicated that Claimant had a range of motion of the right knee limited from five to 110 degrees; which meant that Claimant has limitation of the last five degrees of full extension and probably lacking the last ten degrees of full flexion. Now, interesting also to say is no effusion was present, so the gentleman has some limitation of motion, but . . . there is not an ongoing limitation of the knee of synovitis. Dr. Broudo Deposition at 13-14; R.R. at 24a-25a. Dr. Broudo also reviewed the records of Dr. Lefkoe from February 1, 2002, which indicated that Claimant had a right knee effusion with limited range of motion of the knee but no instability and that the knee had been symptomatic when Dr. Lefkoe examined Claimant prior to the January 1, 2002, injury on December 20, 2001. Dr. Broudo Deposition at 10-14. However, this Court agrees with Claimant that it was not clear what the WCJ relied upon to reach this finding, which he used to discredit Dr. Lefkoe s testimony. In Higgins v. Workers Compensation Appeal Board (City of Philadelphia), 854 A.2d 1002 (Pa. Cmwlth. 2004), this Court addressed a similar situation. Edward Higgins (Higgins) suffered work-related injuries to his neck, lower back, and right knee when he fell wearing a thirty-five pound air breathing device during the course of his employment with the City of Philadelphia Fire Department (City). The City issued a notice of compensation payable and Higgins received weekly total disability benefits. The City petitioned to modify benefits and alleged that Higgins failed in good faith to apply for available positions within 10 his physical limitations. The WCJ granted the petition, and the Board affirmed. Higgins, 854 A.2d at 1003-1004. Higgins subsequently petitioned for modification and reinstatement of total disability benefits on the basis that his work-related injury and disability had increased to the point where he was totally disabled. In support of his position, Higgins presented the deposition testimony of Dr. Merrylee Werthan (Dr. Werthan), a neurologist and Higgins s treating physician. Dr. Werthan opined that Higgins s condition had progressed to the point where Higgins was totally disabled and was incapable of performing any gainful employment. Higgins also submitted the medical report of Dr. Lefkoe, the same physician in the present controversy, who also believed that Higgins was totally disabled. The WCJ denied the reinstatement and modification petition and found that Dr. Werthan s opinion was based on subjective information rather than on objective diagnostic testing. The WCJ did not make any findings with respect to Dr. Lefkoe s opinion. The WCJ found, contrary to the evidence, that Dr. Werthan s opinion was based on Higgins s subjective complaints when Dr. Werthan testified that her opinion was based on the history that she obtained from Higgins, her examination of him, and her review of various diagnostic studies. The Board affirmed. Higgins, 854 A.2d at 1004-1005. Higgins petitioned for review with this Court which determined: [I]t is evident from a reading of the record that the WCJ s finding regarding Dr. Werthan s opinion as being premised on subjective complaints alone was not supported by substantial evidence. To go one step further, the finding is contrary to the doctor s testimony 11 that her opinion was based as well on diagnostic studies conducted in 2000 and 2001 that she reviewed and described in detail for the record. Moreover, the WCJ disregarded Dr. Lefkoe s opinion, which confirmed that Higgins is totally disabled. .... [T]here is no doubt that the WCJ failed to issue a reasoned decision when she found credibility against Dr. Werthan but failed to articulate reasons for doing so apart from a reason now shown to be unsupported in the record, and while Dr. Lefkoe confirmed that Higgins was totally disabled the WCJ articulated no reason for rejecting Dr. Lefkoe s opinion. .... Notwithstanding the WCJ s fundamental errors, however, the Court has determined that rather than reversing the Board s order it will remand this case for the WCJ to make the necessary factual findings and then to issue a reasoned decision in accordance with the provisions of Section 422(a) of the Act and the standards enunciated in Daniels. . . . (Footnote omitted). Higgins, 854 A.2d at 1006-1007. Here, the WCJ based his credibility determinations in part on the false conclusions regarding Dr. Broudo and Dr. Lefkoe and whether they were practicing surgeons and on the determination that Dr. Lefkoe could not explain why Claimant s right knee was symptomatic just prior to Claimant s work accident yet four months post-trauma the knee was almost entirely symptom-free. It is clear from the record that the finding that Dr. Broudo practiced orthopedic surgery was in error and it is not clear from the record exactly what the WCJ meant with respect to Dr. Lefkoe s observation of Claimant s knee condition before and after 12 the injury. Following Higgins, this Court must vacate the Board s order and remand to the Board with instructions to remand to the WCJ for the WCJ to make the accurate findings and issue a reasoned decision. ____________________________ BERNARD L. McGINLEY, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gregory Benjamin, Petitioner v. Workers' Compensation Appeal Board (City of Philadelphia), Respondent : : : : : : : : No. 1727 C.D. 2007 ORDER AND NOW, this 14th day of May, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is vacated and this case is remanded to the Workers Compensation Appeal Board with instructions to remand to the Workers Compensation Judge for proceedings consistent with this opinion. Jurisdiction relinquished. ____________________________ BERNARD L. McGINLEY, Judge

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