J. Romero v. WCAB (Doherty Employment) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jose Romero, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Doherty Employment), : Respondent : BEFORE: No. 1777 C.D. 2007 Submitted: January 4, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: March 10, 2008 Jose Romero (Claimant) petitions for review of the August 27, 2007, order of the Workers Compensation Appeal Board (WCAB), which affirmed the decision of a workers compensation judge (WCJ) granting Claimant s petitions for review and reinstatement and awarding Claimant total disability benefits for a closed period. We affirm. On September 10, 2002, during the course of his employment as a houseman1 with Doherty Employment (Employer), Claimant slipped and fell to the floor, striking his hip and knee. Employer issued a notice of compensation payable (NCP), accepting liability for low back and right leg pain. Claimant was taken by 1 Claimant s job duties included buffing floors, cleaning carpets and maintaining bathrooms. (WCJ s Findings of Fact, No. 1.) ambulance to the hospital and released the same day. He returned to work on September 21, 2002, and compensation was suspended pursuant to a supplemental agreement. On returning to work, Claimant was unable to perform all of his work duties due to pain in his waist, hip and knee. Claimant stopped working on March 28, 2003. He underwent a right knee arthroscopy for a medial meniscal tear on March 29, 2003, and right hip total arthroplasty (complete joint replacement) on May 20, 2003. In May 2005, Claimant filed a review petition seeking to modify the description of the work injury and his average weekly wage as set forth in the NCP. Claimant also filed a reinstatement petition, seeking total disability benefits, alleging that, as of March 28, 2003, his condition worsened and his earning power was once again affected by his work injury. Claimant, an undocumented alien, testified by way of deposition and was assisted by an interpreter. Claimant described the events surrounding his injury, the course of treatment that followed and the difficulties he experienced upon his return to work. Claimant also testified that he was unable to return to his pre-injury work due to pain in his waist and leg. On cross-examination, Claimant acknowledged that he does not have authorization to work in the United States. Claimant presented the deposition testimony of William C. Murphy, D.O., L.P.T., who is board certified in physical medicine and rehabilitation. Dr. Murphy began treating Claimant in May 2005. Based on his physical examination of Claimant, the history provided by Claimant and a review of Claimant s medical 2 records, Dr. Murphy diagnosed Claimant as suffering from right hip and right knee pain, secondary to the September 2002 injury and resulting surgeries. He stated that Claimant continues to be symptomatic despite both surgical procedures, and he attributes Claimant s hip and knee problems to the work-related fall. Dr. Murphy testified that Claimant must avoid activities such as repetitive bending, stooping, and climbing, as well as prolonged sitting and standing. For these reasons, Dr. Murphy opined that Claimant is unable to return to his pre-injury employment. Finally, Dr. Murphy was asked about an August 27, 2003, office note of Dr. Freedhand, the orthopedic surgeon who performed Claimant s hip replacement surgery.2 Dr. Freedhand s note states as follows: Jose is four months after his total hip arthroplasty. He is very happy with his result. He is not having any pain. Examination reveals today reveals [sic] a well healed incision, excellent motion and his baseline neurologic function. Jose has done great. He has rehabilitated himself well and he is very happy with his result. He needs to be followed annually with an x-ray to assess wear of his right total hip arthroplasty. (R.R. at 141a.) Dr. Murphy disagreed that this office note indicates that Claimant was capable of returning to light duty work on August 27, 2003, because the note makes no specific mention of Claimant s ability to work. 2 Dr. Freedhand s treatment notes were attached to Dr. Murphy s deposition as Exhibit 2. (R.R. at 139a-41a.) 3 Employer offered the deposition testimony of Stuart L. Gordon, M.D., a board certified orthopedist, who examined Claimant on November 7, 2005. Dr. Stuart testified that, based on his physical examination of Claimant and a review of Claimant s medical records, he believed that Claimant s work injury caused a sprain and strain to the right hip area, which in turn caused an aggravation of Claimant s underlying arthritis. Dr. Gordon believed that Claimant had fully recovered from the work-related injury as of September 21, 2002. Dr. Gordon further noted that Claimant s medical records reflect that Claimant made excellent gains following his hip replacement surgery. He estimated that Claimant would have been unable to work for a period of three months following the hip replacement. According to Dr. Gordon, Claimant should have been able to return to some type of employment after that three-month period. The WCJ accepted the testimony of Claimant and Dr. Murphy as credible to establish that Claimant s fall at work caused injuries to Claimant s right knee and hip, requiring subsequent surgeries and resulting in Claimant s inability to return to his pre-injury employment. However, the WCJ accepted the testimony of Dr. Gordon concerning Claimant s ability to return to some type of employment. The WCJ observed that, as of August 27, 2003, Dr. Freedhand released Claimant to be followed annually as of that date, and the WCJ further observed that Dr. Gordon s opinion supports the reasonable inference that Claimant was capable of performing some kind of work as of that date. The WCJ found that Claimant was totally disabled for a limited period from March 28, 2003, through August 27, 2003, and continued to have residuals from the work injury thereafter. Finally, 4 citing Reinforced Earth Company v. Workers Compensation Appeal Board (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002), the WCJ noted that Employer was not required to present evidence of available work in order for Claimant s benefits to be suspended.3 (WCJ s Findings of Fact, Nos. 12, 15.) Based on these findings, the WCJ granted Claimant s petitions for review and reinstatement; the WCJ amended the NCP to reflect additional injuries and an adjustment to Claimant s average weekly wage, awarded total disability compensation effective March 28, 2003, and suspended Claimant s benefits as of August 27, 2003. Both parties appealed to the WCAB, which affirmed the WCJ s decision. Claimant now appeals to this court.4 Claimant argues that the WCJ erred in suspending benefits as of August 27, 2003, because Dr. Gordon did not examine Claimant until November 7, 2005, and there is no competent evidence of record that Dr. Freedhand or any other physician released Claimant to return to any type of work prior to that date. Claimant contends that Dr. Gordon s opinion concerning Claimant s condition as of August 2003 is purely speculative and notes that this court has repeatedly found such speculative testimony to be insufficient, as a matter of law, to support a 3 Where the claimant is an illegal alien, the employer is liable only for periods of total disability. The employer is not liable for any periods of partial disability, which may be established by proof that the claimant is able to return to work in some capacity and without proof of job availability. Astudillo. 4 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 5 finding of fact. See e.g., Hyman S. Caplan Pavilion v. Workers Compensation Appeal Board (Dullebawn), 735 A.2d 147 (Pa. Cmwlth. 1999) (holding that testimony based on an assumed course of events is insufficient to support a finding of full recovery). However, as the WCAB observed, in this case the WCJ did not base his finding that Claimant could perform some type of work as of August 27, 2003, entirely on the speculative testimony of Dr. Gordon. Instead, the WCJ primarily relied on Claimant s contemporaneous medical records, i.e., the August 27, 2003, office note of Dr. Freedhand, which is corroborated by and corroborates Dr. Gordon s testimony. The WCJ s Findings of Fact, No. 15 reads in part as follows: The total disability period is found to end as of August 27, 2003, although Claimant continued to have residuals from the work injury thereafter. As of that date, Claimant is found to have been able to perform at least some type of sedentary employment, albeit not his preinjury employment. As of the August 27, 2003 date, Claimant was released by his operating surgeon, Dr. Freedhand, to be followed annually with an x-ray to assess wear of the right total hip arthroplasty. At that time, while not directly indicating Claimant could return to some form of employment, the records of Dr. Freedhand indicated it had been four months since the total hip arthroplasty, and that Claimant was not having any pain (actually, it was three months since the operation; See, Claimant, NT 31, noting the hip surgery was on May 20, 2003; Defendant s brief places the date as May 23, 2003). The incision was well healed, and there was excellent motion. Further, the operating surgeon noted Claimant had rehabilitated himself well and was happy with the result. (Exh. D-2, attached to Dr. Murphy s Deposition). The August 27, 2003 date is in line with Dr. Gordon s opinion that Claimant should have 6 been able to return to some type of employment by three months following the hip surgery. (Dr. Gordon, NT 20). Dr. Gordon s opinion is found credible as it supports the August 27, 2003 date as an end date of total disability and Claimant s ability to perform some employment as of then (his opinion of a full recovery remains rejected). ¦ Given the reasonable inferences from Dr. Freedhand s report, and the express opinion of Dr. Gordon, the August 27, 2003 date is found to be appropriate for a cut-off of total disability benefits. (WCJ s Findings of Fact, No. 15) (emphasis in original). It is a fundamental principle of workers compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight. Vols v. Workmen s Compensation Appeal Board (Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994). The WCJ s fact-finding authority includes the power to draw reasonable inferences from the evidence. Solomon v. Workers Compensation Appeal Board (City of Philadelphia), 821 A.2d 215 (Pa. Cmwlth. 2003); Stuck Leasing Company v. Workmen s Compensation Appeal Board (Ziegler), 557 A.2d 808 (Pa. Cmwlth.), appeal denied, 523 Pa. 652, 567 A.2d 655 (1989). Here, the WCJ made such an inference from the notes of Claimant s treating surgeon. Although the WCJ found support for that inference in the opinion testimony of Dr. Gordon, the WCJ did not rely solely on Dr. Gordon s opinion to find that Claimant was capable of performing some type of work as of August 27, 2003. Thus, although we agree that Dr. Gordon s testimony is speculative in nature, we conclude that the WCJ s determination that Claimant s benefits should be suspended as of August 27, 2003, is based on a reasonable inference drawn from other evidence of record. 7 Accordingly, we affirm. _____________________________ ROCHELLE S. FRIEDMAN, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jose Romero, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Doherty Employment), : Respondent : No. 1777 C.D. 2007 ORDER AND NOW, this 10th day of March, 2008, the order of the Workers Compensation Appeal Board, dated August 27, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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