C. Feist v. WCAB (Jay Telephone Vending) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christopher Feist, Petitioner v. Workers' Compensation Appeal Board (Jay Telephone Vending), Respondent BEFORE: : : : : : : : : No. 1802 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 JUDGE FRIEDMAN FILED: April 24, 2008 Christopher Feist (Claimant) petitions for review of the August 28, 2007, order of the Workers Compensation Appeal Board (WCAB) that affirmed the decision of a workers compensation judge (WCJ) granting the termination petitions filed by Jay Telephone Vending (Employer) and denying Claimant s penalty petitions. We reverse and remand. On August 23, 1995, Claimant suffered a work-related injury that was described on an amended notice of compensation payable (NCP) as lumbar radiculopathy, both legs and depressive disorder. (R.R. at 2a.) The parties settled Claimant s wage loss benefits by way of a compromise and release, and Employer remained liable for Claimant s medical expenses. On January 12, 2005, relying on the opinion of board-certified orthopedist Ira C. Sachs, D.O., Employer filed a termination petition alleging that Claimant had fully recovered from his work injuries as of December 15, 2004. (R.R. at 3a-4a.) In response, Claimant filed a petition seeking penalties and counsel fees, alleging that Employer filed its termination petition with knowledge that its doctor could not address all of Claimant s accepted injuries. (R.R. at 7a8a.) On April 11, 2005, Employer filed a second termination petition, based on the opinion of psychiatrist John C. Ouligian, M.D., again alleging that Claimant had fully recovered from his work injuries.1 Claimant filed a second penalty petition, again alleging that the assertion of a full recovery is not supported by Employer s medical evidence. (R.R. at 15a.) The four petitions were assigned to a WCJ for hearings. Employer presented the deposition testimony of Dr. Sachs, who examined Claimant on December 15, 2004, and reviewed his medical records. At the beginning of his testimony, Dr. Sachs was asked to assume that Claimant s work injury was lumbar pain with radiculopathy and a depressive disorder. (R.R. at 31a.) Dr. Sachs stated that Claimant described the circumstances of his work injury and the course of his medical treatment, which included numerous prescription medications. In fact, Claimant reported that he had taken Actiq and 1 This second petition sets forth two different dates; on one line, the petition requests termination as of December 15, 2004, but, on another line, it states that Claimant recovered from his work injury as of January 10, 2005. (R.R. at 12a-13a.) 2 Klonopin a few hours before his appointment and was using a Duragesic patch at the time of his evaluation. (R.R. at 32a-40a.) Dr. Sachs testified that Claimant s chief complaints were lower back pain and right greater than left leg pain. Dr. Sachs stated that he found no spasm in Claimant s spine and no sciatic notch tenderness. Dr. Sachs also testified that the results of tests designed to reproduce radicular pain were negative. In sum, Dr. Sachs stated that he found no objective evidence of injury to the areas of Claimant s body affected by the work injury. (R.R. at 32a, 40a-45a.) Addressing Claimant s medical records, Dr. Sachs testified that a 1998 MRI reflected some degenerative changes of Claimant s lumbar spine but provided no evidence correlating to Claimant s complaints of radicular pain. Dr. Sachs repeatedly stated that he found no objective evidence of lumbar radiculopathy. (R.R. at 45a, 47a 48a, 50a-51a, 57a, 102a, 104a.) Dr. Sachs diagnosis was resolved lumbosacral strain and sprain, no clinical evidence of radiculopathy and mild degenerative disease unrelated to the work injury. He opined that Claimant needs no further treatment, medications or work restrictions with respect to the 1995 work injury. (R.R. at 62a-65a.) Employer also offered the deposition testimony of Dr. Ouligian, who is board-certified in psychiatry, has additional qualifications in forensic psychology and has worked at a center specializing in addictive behavior for approximately seven years. Dr. Ouligian conducted an evaluation of Claimant on December 29, 2004, and he reviewed Claimant s medical records, including the 3 records of Claimant s treating psychiatrists, Richard Limoges, M.D., and Mitchell Cohen, M.D. Dr. Ouligian s understanding at the time was that Claimant had developed severe depression based on the fact that he could not work, that he felt helpless and hopeless and that he suffered from severe pain despite aggressive medical treatment. (R.R. at 155a-68a.) Dr. Ouligian testified that, based on his evaluation of Claimant and a review of Claimant s medical records, he diagnosed Claimant as having a major depressive disorder. (R.R. at 184a.) Dr. Ouligian testified that Dr. Limoges had been treating Claimant s depression with anti-depressants and Dr. Cohen had been treating Claimant s pain with narcotics, and he observed a progression in the nature of narcotics prescribed for Claimant over time. He noted, for example, that Claimant started taking Klonopin for pain in 1999 or 2000 and recently began taking Actiq, which is normally prescribed for end stage cancer pain. Dr. Ouligian opined that Claimant has developed an opiate addiction, which, along with pain and an unstructured, chaotic, lifestyle, is now a contributing factor in Claimant s depression.2 (R.R. at 173a-74a, 179a-87a.) In a January 2005 report, Dr. Ouligian responded to a request to quantify the contributing factors to Claimant s depression, and he ascribed 50% to Claimant s pain and 25% each to Claimant s chaotic lifestyle and narcotic addiction. In March 2005, after reviewing Dr. Sachs orthopedic evaluation, Dr. 2 Dr. Ouligian testified that, on the day of his examination, Claimant had taken 1.5 mgs. of Klonopin, 150 mgs. of Duragesic in skin patches and Actiq, which is Fentanyl on a stick; he stated that Claimant sucked on a Fentanyl lollipop during the entire interview and appeared progressively drowsier as time went on. (R.R. at 179a-80a.) 4 Ouligian revised his assessment, apportioning the contributing factors to Claimant s depression as 50% narcotics addiction and 25% each to Claimant s pain and chaotic lifestyle. (R.R. at 185a-87a; 268a-69a.) Thereafter, during his May 2005 deposition, Dr. Ouligian revised his assessment again. He testified that if Dr. Sachs diagnosis of full recovery from the work injury is correct, then he would say that Claimant s depression is not based on the work injury. (R.R. at 262a-63a.) Dr. Ouligian also testified that, assuming the accuracy of Dr. Sachs opinion, he would recommend that Claimant be placed in a pain management program in order to identify appropriate antidepressants for Claimant and determine whether Claimant needs continued narcotics and/or detox treatment. Dr. Ouligian unequivocally related the need for such placement to Claimant s work injury, (R.R. at 193a, 244a), and he reiterated that, as of the date of his examination, he believed that Claimant s major depressive disorder persisted. (R.R. at 226a.) Dr. Ouligian further testified that Claimant s drug addiction is iatrogenic, i.e., caused by doctors in the course of their treatment of Claimant s work injury. (R.R. at 235a.) Claimant testified before the WCJ on March 20, 2006. As briefly summarized by the WCJ, Claimant testified that his normal activities on a given day include basic hygiene, cooking meals and a self-administered physical therapy routine, which includes walking the halls if his pain and energy permit it. Claimant indicated that he had been hospitalized on two occasions in 2005, for severe depression and for depression with suicidal ideation. Claimant stated that he had been treating with Drs. Limoges and Cohen and had recently undergone 5 twenty-two treatments of spinal decompression, which had eased his pain only slightly. (WCJ s Findings of Fact, No. 26.) Claimant also offered the deposition testimony of Dr. Cohen, who is board-certified in adult psychiatry and holds two board certifications in pain medicine. Dr. Cohen testified that he began to treat Claimant in 1996, one year after the work injury. In pertinent part, Dr. Cohen testified that he initially diagnosed Claimant as suffering from pain disorder and the beginning of a major depressive disorder. He stated that Claimant already was taking anti-depressant medications, and his initial plan was to adjust Claimant s medications and reevaluate him in six months. He stated that Claimant had improved somewhat after six months, but continuing treatment did not result in any further improvement. Despite manipulation of Claimant s medications, his depression continued, and Dr. Cohen feared it was becoming chronic. Dr. Cohen conceded that Claimant has become physically dependent on the medications provided to him, but Dr. Cohen insisted that Claimant exhibits no addictive behavior, noting that Claimant does not seek drugs from different providers.3 (WCJ s Findings of Fact, Nos. 22-25.) 3 Claimant also offered the deposition testimony of Steven Rosenzweig, M.D., who is board-certified in emergency medicine and has an uncertified specialty in integrated medicine, which refers to the addition of alternate, unconventional treatment modalities such as massage, acupuncture and dietary supplements. Dr. Rosenzweig described his course of treatment, including the use of bee venom instead of Lidocaine, and he admitted that Claimant s condition had not improved as a result of these treatments. (WCJ s Findings of Fact, Nos. 8-16.) The WCJ rejected Dr. Rosenzweig s testimony, observing that Dr. Rosenzweig could not explain how or why his homeopathic treatments work and noting that, with Claimant, they did not work. (WCJ s Findings of Fact, No. 29.) 6 Based on this evidence, the WCJ made the following relevant findings: 27. ¦ The testimony of Dr. Sachs is both credible and persuasive. His examination failed to reveal any objective evidence of the radiculopathy. He testified to his objective findings and I accept his conclusions as fact. Given that finding, Dr. Ouligian s testimony is perforce credible and his logic is unassailable. He found no justification for the outrageous prescriptions of powerful opioids and antidepressants. 28. ¦ Dr. Cohen s testimony is rejected in light of nine years of treatment consisting almost entirely of powerful and addictive medications with no significant improvement. 30. ¦ There is no evidence [Claimant s] pain or his depression are related to a 1995 injury, one that has proven impervious to medical treatment. 31. [Claimant] has fully recovered from the physical aspects of his work injury by 12-15-2004 and from the psychological aspects of it by 1-10-2005. (WCJ s Findings of Fact, Nos. 27, 28 (emphasis in original), 30 (emphasis added), 31.) The WCJ also determined that Employer s contest was reasonable and that there was no evidence that Employer violated any portion of the Workers Compensation Act.4 Accordingly, the WCJ granted Employer s petitions for termination and denied Claimant s penalty petitions. 4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2626. 7 Claimant appealed to the WCAB, which upheld the termination of benefits, relying on Dr. Sachs testimony that there was no evidence of lumbar radiculopathy and Dr. Ouligian s opinion that, if Dr. Sachs report is correct, Claimant s depression is not related to the work injury.5 The WCAB also observed that Claimant was not entitled to attorneys fees for an unreasonable contest because the matter was not determined, even partially, in Claimant s favor. Finally, the WCAB held that the WCJ did not abuse his discretion in denying Claimant s requests for penalties. The WCAB acknowledged that Employer s first termination petition was based only upon the opinion of Dr. Sachs, who did not address Claimant s psychological condition; however, the WCAB noted that Employer filed a second termination petition and that the grant of termination was proper. On appeal to this court,6 Claimant argues that Dr. Sachs failed to address the acknowledged work injury and that Dr. Ouligian s testimony does not support a finding of full recovery from Claimant s work-related depression. 5 The WCAB noted Dr. Ouligian s testimony that an opiate addiction that resulted from Claimant s medical treatment is the most significant contributing factor to Claimant s depression. However, the WCAB concluded that the assignment of percentages to various contributory causes of Claimant s depression was irrelevant. 6 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. 8 Initially, we note that a termination of benefits is properly granted only when work-related disability ceases entirely. Bethlehem Steel Corporation v. Workmen s Compensation Appeal Board (Randall), 545 Pa. 22, 679 A.2d 765 (1996). In a termination proceeding, the employer bears the burden of proving that all of the claimant s work-related disability has ceased. Central Park Lodge v. Workers Compensation Appeal Board (Robinson), 718 A.2d 368 (Pa. Cmwlth. 1998). Here, the NCP recognized two distinct injuries, lumbar radiculopathy (both legs) and depressive disorder.7 We agree with Claimant that Dr. Ouligian s testimony does not constitute substantial evidence to support the WCJ s finding that Claimant fully recovered from the work-related depressive disorder. It well-settled that the testimony of a medical witness must be reviewed in its entirety. Terek v. Workmen s Compensation Appeal Board (Somerset Welding and Steel, Inc.), 542 Pa. 453, 668 A.2d 131 (1995). Here, the WCJ failed to consider Dr. Ouligian s testimony as a whole and instead relied on isolated statements by Dr. Ouligian that, if Dr. Sachs opinion of full recovery from the physical injury were correct, 7 Employer s first termination petition, filed January 10, 2005, was based solely on Dr. Sachs opinion that Claimant had recovered from his physical injury. Clearly, that opinion, which did not address Claimant s psychological injury, could not satisfy Employer s burden of proof. Central Park Lodge. Moreover, in its April 11, 2005, termination petition, Employer relied solely on the opinion of a psychiatrist, which did not address Claimant s physical injury. Neither petition addressed all of Claimant s recognized injuries. In this case, after recognizing the insufficiency of the first petition filed, Employer should have filed an amended petition for termination that addressed both the lumbar radiculopathy and the depressive disorder. Because the WCJ decided the two petitions in the same proceeding, and for the sake of judicial economy, we will consider Employer to have filed one amended termination petition. 9 Claimant s major depressive disorder is not related to the work injury. However, these statements cannot be reconciled with the remainder of Dr. Ouligian s testimony. Indeed, when reviewed in its entirety, Dr. Ouligian s testimony reflects an opinion that the primary cause of Claimant s depression is related to the work injury. Dr. Ouligian testified that, after considering Dr. Sachs opinion, he now believes that Claimant s addiction to medications prescribed for the work injury is a significant contributing factor to Claimant s continuing depression. (WCJ s Findings of Fact, Nos. 18-20.) Further, Dr. Ouligian explained that Claimant s drug addiction developed as a result of treatment rendered for the work injury; he opined that Claimant needs further treatment; and he unequivocally related the need for such additional treatment to Claimant s work injury.8 (R.R. at 193a-94a, 225a-26a, 237a.) Dr. Ouligian s subsequent testimony that Claimant s depression is no longer causally related to the work-injury appears to reflect a misunderstanding of the law. When considered as a whole, Dr. Ouligian s testimony does not support the WCJ s finding that Claimant s work-related psychological injury fully resolved. Therefore, because Employer cannot meet its 8 Consistent with Dr. Ouligian s medical opinion, our courts have repeatedly held that where a claimant in good faith seeks medical treatment for a work injury and the medical treatment itself either aggravates the existing injury or causes new additional injury, the law regards the latter as being causally related to the original work injury. Workmen s Compensation Appeal Board v. Ira Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977); Parker v. Workers Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102 (Pa. Cmwlth. 1999). For example, in Moltzen v. Workmen s Compensation Appeal Board (Rochester Manor), 646 A.2d 748 (Pa. Cmwlth. 1994), where the employer s physician acknowledged that the claimant had continuing symptoms that were caused by a work-hardening program, the court held that his testimony did not constitute substantial evidence supporting a finding of full recovery. 10 burden of proving Claimant recovered from all of his accepted injuries, the WCJ erred in terminating benefits. Although we need not address Claimant s arguments concerning the sufficiency of Dr. Sachs testimony, we note that the WCJ issued conflicting findings with respect to the physical aspects of Claimant s work injury. In Findings of Fact, No. 31, the WCJ found Claimant had fully recovered. However, the WCJ s previous findings state that Claimant had not obtained significant improvement from his medical treatment; in fact, the WCJ described Claimant s injury as being impervious to medical treatment. Simply put, it is difficult to imagine full recovery from an injury that is impervious to medical treatment, particularly where there has been no significant improvement in the Claimant s condition. Accordingly, we reverse the WCAB s order affirming the WCJ s termination of benefits. In light of our disposition of the merits, we remand the matter to the WCAB for further remand to the WCJ for the purpose of reconsidering Claimant s petitions for penalties and request for attorney s fees. _____________________________ ROCHELLE S. FRIEDMAN, Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christopher Feist, Petitioner v. Workers' Compensation Appeal Board (Jay Telephone Vending), Respondent : : : : : : : : No. 1802 C.D. 2007 ORDER AND NOW, this 24th day of April, 2008, the order of the Workers Compensation Appeal Board, dated August 28, 2007, is hereby reversed. This matter is remanded to the Workers Compensation Appeal Board for further proceedings consistent with the foregoing opinion. Jurisdiction relinquished. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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