H. Namani v. WCAB (A. Duie Pyle) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Hakif Namani, Petitioner v. Workers Compensation Appeal Board (A. Duie Pyle), Respondent BEFORE: : : : : No. 1772 C.D. 2007 : Submitted: December 21, 2007 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: January 16, 2008 Hakif Namani (Claimant) appeals from an order of the Workers Compensation Appeal Board (Board) affirming the decision of the Workers Compensation Judge (WCJ) that he had fully recovered from his work-related injury. He contends that the Board erred in affirming the decision because the testimony of the only medical witness who opined that he had fully recovered from his workrelated injury was equivocal. Employer, who is in the business of transporting goods, employed Claimant as a dock worker to load and unload trucks with cargo. On December 23, 2004, he sustained a work-related injury when a 1,600 pound skid of items fell from a forklift onto him causing injuries described in the notice of compensation payable as left arm and left hand contusions. Claimant returned to work on January 4, 2005, but was discharged by Employer on March 1, 2005. After the date of his discharge, his workers compensation was reinstated, and he received total disability benefits in accordance with the Workers Compensation Act.1 On August 26, 2005, Employer filed a termination petition alleging that as of June 21, 2005, Claimant had fully recovered from his work injury based on the results of an independent medical examination. Claimant filed an answer denying Employer s allegations, and the matter was assigned to a WCJ for a hearing. To establish that Claimant had fully recovered from his work-related injury, Stuart L. Trager, M.D. (Dr. Trager), a board certified orthopedic surgeon, testified that during his June 21, 2005 examination, Claimant described the manner in which his injury occurred and complained of pain in his left hand. Dr. Trager analyzed specific diagnostic studies and medical records including x-rays taken in December 2004, which he cited as normal, as well as a series of bone scans. With regard to those scans, Dr. Trager noted that one taken in January 2005 showed nonspecific uptake in the region of the third metacarpal phalangeal joint consistent with arthritis or a contusion, but indicated that a subsequent bone imaging study taken in June 2005 was normal and even accepted as normal by Claimant s treating physician, Robert H. Huxster, M.D. (Dr. Huxster). Upon performing a physical examination on Claimant, Dr. Trager stated that he had normal ranges of motion and muscle strength in the area affected, and despite claims of tenderness over the third metacarpal 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2626. 2 phalangeal joint, there was no obvious soft tissue swelling. Based on his review of prior medical studies and Claimant s examination, Dr. Trager opined that he was capable of returning to regular-duty work, that there was no objective evidence that his ongoing disability was related to the work injury, and that he had fully recovered from that injury. On cross-examination, Dr. Trager testified that he recommended a home exercise program as reasonable to Claimant to relieve his symptoms of pain. Additionally, when asked about the treatments received by Claimant after June 21, 2005, from Dr. Huxster and Dr. Chalfin, who practiced with Dr. Huxster, Dr. Trager testified as follows: Q: Before we go any further, you reviewed all these documents. Do you believe that the treatment that [Claimant] received from these doctors is reasonable and necessary and related to the work injury? A. To the time that I had seen records provided, including the orthopedic treatment through Dr. Simmons and those records I reviewed, yes. Q. So in other words, the records that you reviewed it seemed to you it s your opinion that the treatment that [Claimant] received was reasonable and necessary and related to the work injury, of those you saw? A. My impression was that he underwent a very thorough and comprehensive evaluation for an injury. Q. Okay. All right. [Claimant] received treatment from Dr. Chalfin that was reasonable and necessary; is that fair to say? A. Yes. 3 Q. And [Claimant] received physical therapy that was reasonable and necessary and related to the work injury; is that fair to say? A. Again, I did not review specifically the extent and duration of the therapy and the actual services performed and would not feel comfortable commenting. (Reproduced Record at 95a-96a.) In opposition, Claimant testified that he was from Kosovo and immigrated to the United States in 1999. As a dock worker, he stated that he sustained his injury when a forklift knocked him over dropping the items on his left side. Following the injury, Claimant stated that he returned to his job in January 2005 and performed modified-duty work for one week when he resumed full-duty work until he was terminated on March 1, 2005. He testified that Dr. Chalfin and Dr. Huxster released him to full-duty work on July 20, 2005. Dr. Huxster also had directed him to undergo a work-hardening program which was completed in August 2005. Claimant stated that he still experienced pain and swelling in his left hand and returned to Drs. Chalfin and Huxster in November 2005. Despite a recurrence of his symptoms, both doctors continued to release him to full-duty work as of November 2005. Claimant also stated that he did not believe he was fully recovered from his work injury in June 2005 because he had residual pain and swelling in his hand. During cross-examination, Claimant testified that he submitted an affidavit to the WCJ after Employer filed its termination petition in which he indicated that he was looking for employment with less physical requirements, but admitted that he had not searched for a job after his March 1, 2005 termination from Employer. 4 Claimant also offered the testimony of Dr. Huxster, who was board certified in orthopedic surgery. He testified that he personally examined Claimant for the first time on May 18, 2005, but that Claimant originally visited his practice on January 11, 2005, where he was seen by another doctor. At the time of his initial evaluation, Dr. Huxster stated that Claimant complained of pain in his left wrist and hand, and he diagnosed him with a chronic sprain of the metacarpal phalangeal joint. He testified that Claimant was able to work in a light-duty capacity in May 2005, and he released him to full-duty work as of July 20, 2005. In accord with Dr. Trager s analysis of the two bone scans performed on Claimant, Dr. Huxster acknowledged that the June 2005 study was normal. As for Claimant s prognosis, he indicated that Claimant s condition had only improved somewhat over the course of treating him, and as of his most recent examination, Claimant still experienced swelling in his metacarpal phalangeal joint with tenderness upon palpitation. Despite believing that Claimant was capable of full-duty work, Dr. Huxster opined that Claimant was not fully recovered. Determining Dr. Trager s testimony to be credible, the WCJ concluded that Claimant had fully recovered from his work injury as of June 21, 2005. He reasoned that Dr. Trager s opinion was predicated upon a history from Claimant, a clinical examination, and a review of relevant medical records, and that none of these sources produced any objective evidence establishing that Claimant had not fully recovered. Specifically, the WCJ cited the series of bone scans performed on Claimant and how the normal June 2005 scan was accepted by Dr. Huxster. The WCJ found Dr. Huxster s testimony persuasive only to the extent that it was in consonance with the opinions of Dr. Trager. He noted an inconsistency of Dr. 5 Huxster s medical opinion in that he believed Claimant had not fully recovered, yet he testified that Claimant could return to regular-duty work as of July 20, 2005. In addition, the WCJ found Claimant to be incredible not only because his testimony contradicted a prior affidavit as to whether he was searching for less physical employment, but also because there was an absence of objective evidence of continuing disability during clinical examination. Concluding that Employer met its burden of proving that Claimant s work-related injury ceased, the WCJ granted its termination petition. Claimant appealed to the Board arguing, among other things, that the WCJ erred in determining that Claimant was fully recovered from his work injury because Dr. Trager s opinions were rendered equivocal by his recommendation that Claimant engage in a home exercise program due to the tenderness he observed during his examination, and also his acknowledgement that treatment received by Claimant subsequent to the date of termination was reasonable and necessary and related to the work injury. In rejecting Claimant s arguments, the Board concluded that Dr. Trager s recommendation of a home exercise regiment did not constitute an admission that he was not fully recovered, thus making his testimony equivocal. It also determined that when Dr. Trager stated that Claimant s additional treatment subsequent to termination was reasonable and necessary, he never opined that such treatment was related to the work injury. The Board affirmed the decision of the WCJ, and this appeal by Claimant followed.2 2 Our scope of review in a workers compensation appeal is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. City of Scranton v. Workers Compensation Appeal Board (Roche), 909 A.2d 485 (Pa. Cmwlth. 2006). 6 Claimant contends, as he did before the Board, that the WCJ erred in granting Employer s termination petition. Specifically, he argues that although Dr. Trager testified that Claimant had fully recovered from his December 23, 2004 work injury, he, nevertheless, recommended a home exercise program for the tenderness in Claimant s hand subsequent to the date of termination, and also opined that the medical treatment he received after the date of termination was reasonable and necessary and related to the work injury. Claimant maintains that Dr. Trager s recommendation of a home exercise program for tenderness and acknowledgment of the treatment received after June 21, 2005, rendered equivocal his opinion of full recovery and did not constitute substantial evidence to support Employer s termination petition. In order to succeed in a termination petition, an employer bears the burden of establishing that the claimant has recovered from his work-related injury. Schachter v. Workers Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa. Cmwlth. 2006). To satisfy this burden, an employer must offer unequivocal medical evidence which establishes within a reasonable degree of medical certainty that the claimant has fully recovered, can return to work without restrictions, and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari v. Workers Compensation Appeal Board (US Air), 550 Pa. 319, 705 A.2d 1290 (1997). Furthermore, in a termination proceeding, merely because a medical expert fails to discount a claimant s unconfirmed subjective complaints of pain, such is not tantamount to an admission that the claimant is not fully recovered from a work-related disability. Williams v. 7 Workmen s Compensation Appeal Board (Montgomery Ward), 562 A.2d 437 (Pa. Cmwlth. 1989). In Williams, the claimant suffered a work-related back injury and collected workers compensation benefits for approximately nine months until the employer sought to terminate the benefits believing that the claimant had fully recovered. At the termination proceeding, the employer s medical expert testified that the claimant presented no objective evidence of his work injury during his physical examination. As for his continued pain, the doctor stated that he should discontinue physical therapy, but suggested that he take anti-inflammatory medication as needed when the pain increased. The WCJ concluded that the doctor s testimony established that the claimant had fully recovered, and the Board affirmed. On appeal to this Court, the claimant argued that the doctor implicitly admitted that he had not fully recovered from his work injury because she continued to prescribe him anti-inflammatory medication. We disagreed, noting that the doctor s testimony did not instruct him to take the medication but merely recommended it, and in affirming the Board, we concluded that the doctor s opinion of full recovery was not rendered incompetent by her acknowledgement that [the] claimant may actually suffer pain inasmuch as her opinion was supported by her unequivocal medical findings. 3 Id., 562 A.2d at 440. 3 In support of his argument, Claimant cites to Thompson v. Workmen s Compensation Appeal Board (Sacred Heart Medical Center), 720 A.2d 1074 (Pa. Cmwlth. 1998), and Moltzen v. Workmen s Compensation Appeal Board (Rochester Manor), 646 A.2d 748 (Pa. Cmwlth. 1994). These cases are distinguishable from the instant matter as to the reason in which we reversed the grant of an employer s termination petition. In Thompson, the employer s medical expert, although testifying that the claimant had fully recovered from her work injury, stated that she could only return to light-duty work as a work-hardening regiment and to accommodate her complaints of pain. (Footnote continued on next page ¦) 8 Here, Dr. Trager testified that based on the medical reports and an examination of Claimant, there were no objective findings substantiating Claimant s complaints of pain, he was able to return to full-duty work, and was fully recovered from his work injury. The WCJ found his testimony to be credible, and it was sufficient to sustain Employer s burden for its termination petition. Udvari. As to Dr. Trager s suggestion that a home exercise program would be reasonable for Claimant, that did not constitute an implicit admission that Claimant suffered ongoing, work-related pain because that form of therapy was recommended rather than directed, and an absolute failure on the part of Dr. Trager to discount Claimant s subjective complaints did not render his testimony equivocal. Williams. With regard to Dr. Trager s testimony on cross-examination pertaining to the treatments Claimant received from Drs. Chalfin and Huxster subsequent to the date of full recovery, he initially agreed that such were reasonable and necessary and (continued ¦) Because he did not unequivocally testify that she was capable of performing full-duty work, we held that the WCJ and Board erred in granting the employer s termination petition. Similarly, in Moltzen, we determined that the grant of an employer s termination petition was improper where the medical expert who testified that the claimant was fully recovered did so by attributing the residual pain she felt to the exercises which were part of her physical therapy. Based on our Supreme Court s holding in Workmen s Compensation Appeal Board v. Ira Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977), the physical therapy was for the claimant s work injury; therefore, any associated pain was also caused by the original accident. Because the employer s medical expert accepted that the pain was from her therapy and that it was work-related, the employer was unable to establish that the claimant had recovered. While these cases involved medical experts whose testimony of full recovery was rendered equivocal because their acknowledgement of the claimants pain demonstrated a lack of full recovery, neither one concerns a medical expert s recommendation of some form of therapy for the claimant s ongoing pain and whether this equivocates his testimony of full recovery the facts applicable here. 9 related to the work injury. If this was his final response on that treatment, his testimony would have been equivocal because his acknowledgement of Claimant s need for further treatment after the date of termination demonstrated that he was not fully recovered. However, Dr. Trager rehabilitated his testimony on this subject when he agreed that Dr. Chalfin s treatment was only reasonable and necessary and declared that he was uncomfortable commenting on whether Claimant s treatment with Dr. Huxster was related to the work injury. Without admitting that the subsequent treatment was related to the work injury, Dr. Trager did not render his ultimate opinion of full recovery equivocal. Consequently, taking Dr. Trager s testimony in its entirety,4 we find that it constituted substantial evidence that Claimant fully recovered from his December 23, 2004 injury as of June 21, 2005, and the WCJ did not err in granting Employer s termination petition. Accordingly, the order of the Board is affirmed. ______________________________ DAN PELLEGRINI, JUDGE 4 Answers given during cross-examination do not destroy the effectiveness of a physician's previous opinion. Rather, such statements go to the weight and not the competency of the physician's opinion, and questions of the weight and credibility of medical testimony are within the exclusive province of the workers compensation judge to resolve. Corcoran v. Workers Compensation Appeal Board (Capital Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999). 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Hakif Namani, Petitioner v. Workers Compensation Appeal Board (A. Duie Pyle), Respondent : : : : No. 1772 C.D. 2007 : : : : ORDER AND NOW, this 16th day of January, 2008, the order of the Workers Compensation Appeal Board, No. A06-2798, is affirmed. ______________________________ DAN PELLEGRINI, JUDGE
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