M. W. Davis, Sr. v. WCAB (Cerro Metal Products) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael W. Davis, Sr., Petitioner v. Workers' Compensation Appeal Board (Cerro Metal Products), Respondent BEFORE: : : : : : : : : No. 1822 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 SENIOR JUDGE McCLOSKEY FILED: February 25, 2008 Petitioner Michael W. Davis, Sr., (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board), affirming a decision of a Workers Compensation Judge (WCJ), which dismissed Claimant s claim petition. We now affirm. Claimant was employed by Cerro Metal Products (Employer) for thirty-two (32) years. On August 23, 2005, Claimant filed a claim petition for workers compensation benefits, alleging a pulmonary injury resulting from the inhalation of sulfuric acid fumes on November 14, 2003. Claimant sought temporary total disability benefits beginning July 10, 2005. Employer filed a timely answer, denying that Claimant suffered a work-related injury, including aggravation of a pre-existing condition or disease as a result of his employment. Hearings were conducted by a WCJ. Claimant testified on his own behalf and presented the lay testimony of Thomas Hook and Terry Watson, both of whom worked with Claimant. Claimant also presented the deposition testimony of Jeffrey A. Ratner, M.D. Employer presented the deposition testimony of Gary F. Schell, M.D., and Gregory J. Fino, M.D. Claimant testified that on November 14, 2003, he was working as a draw bench operator. He was located approximately sixty (60) to eighty (80) feet from pickle tanks, where metal is dipped in sulfuric acid. A fume of smoke came off a pickle tank when a co-worker dipped hot metal into the tank. The fume dissipated over a large area when it rose to the ceiling then condensed and fell back to the floor. Claimant stated that the fumes bothered his nose and throat, and he complained to his foreman. He filed an accident report the next day. Claimant testified that there have been acid fumes in his department on other occasions, resulting in the evacuation of the department. He also testified that he was a smoker until November 27, 1997, the day his granddaughter was born, and that he had breathing problems in 1997 or 1999. Claimant testified that he last worked for Employer on July 11, 2005. He stated that he has chronic shortness of breath and does not feel that he can return to the plant due to exposure to the acid fumes. Claimant s co-workers, Messers. Hook and Watson, both corroborated Claimant s testimony that the work area was evacuated occasionally as a result of acid fumes. They also testified that the fumes can cause the employees to have a burning sensation of the skin, watery eyes and difficulty breathing, but that the symptoms go away in one (1) or two (2) hours. However, Mr. Watson testified that he had not been in 2 the plant since 2002, and Mr. Hook testified that the exposures that caused his eyes to burn had not occurred for a couple of years. Dr. Ratner, Claimant s expert medical witness and treating physician, testified that he is board certified in pulmonary medicine and internal medicine. He first evaluated Claimant in March, 2004. The history prepared by Dr. Ratner reveals that he believed that Claimant was actually performing the pickling process instead of working in the vicinity of the pickling tanks. Dr. Ratner testified that Claimant s pulmonary function studies demonstrated that he had severe emphysema from smoking. Dr. Ratner believed that Claimant smoked a pack of cigarettes a day or more for twenty (20) years prior to quitting in 1997. However, based on the history related by Claimant, Dr. Ratner opined that there was a significant contribution from environmental triggers in the plant that was making Claimant extremely short of breath. Dr. Ratner testified that Claimant would become symptomatic when he went to work, and he would have to leave the plant. Dr. Ratner explained that pulmonary function tests showed a significant deterioration in Claimant s condition from August 1999 to April 2004. Dr. Ratner diagnosed Claimant as suffering from chronic obstructive pulmonary disease (COPD), which consists of three (3) conditions: emphysema, asthma and chronic bronchitis. Dr. Rather further opined that Claimant is disabled from returning to work in his prior job. He also determined that Claimant suffers from lung cancer, which condition is not part of the claim before this Court. With regard to the lung cancer, Claimant underwent an operation to remove part of his right lung and follow-up radiation treatment. On cross-examination, Dr. Ratner acknowledged that emphysema will worsen over time, even if the patient stops smoking and regardless of environmental exposures. Also, sulfuric acid exposure does not cause emphysema. 3 Dr. Schell, one of Employer s expert medical witnesses, testified that he is a board certified family practitioner and a member of the American College of Occupational and Environmental Medicine. Dr. Schell testified that he arranged an inspection of the work area on February 24, 2004. He observed the area to be surprisingly fume-free and without odor. He was impressed with the ventilation and lack of difficulty breathing. He was told by the safety officer that there had been one (1) or two (2) occasions when fumes were released that were an irritant to a number of people and the area was cleared. Additionally, Dr. Schell testified that he worked as an occupational medicine doctor for Employer. While doing so, he did not treat anyone else for lung problems. Dr. Schell examined Claimant on February 25, 2004, and referred him to Dr. Ratner. Dr. Schell agreed with Dr. Ratner s findings of severe pulmonary disease. However, Dr. Schell opined that Claimant s pulmonary disease was not caused by his employment. He based his opinion on Claimant s history of smoking and his own site visit and investigation. He also noted that exposure to fumes of sulfuric acid would result in a transient exacerbation of Claimant s underlying pulmonary condition. Dr. Fino, Employer s other expert medical witness, testified that he is a board certified pulmonologist and internist. He conducted an independent medical examination of Claimant on February 27, 2006. Dr. Fino took a history from Claimant. Dr. Fino found it significant that Claimant stated that he did not feel better while at work or off work. He also testified that Claimant s history that he had minimal problems prior to November 14, 2003, was inconsistent with pulmonary studies of 1999, which documented disabling irreversible airway obstruction. He attributed the worsening of Claimant s condition from 1999 to 2004 as being consistent with the progression of emphysema. Dr. Fino noted the recent cancer history and diagnosed 4 reversible chronic bronchitis and some irreversible chronic bronchitis. He related all of the diagnoses to Claimant s smoking history. Dr. Fino opined that Claimant s work environment did not cause or materially aggravate his pulmonary condition. Additionally, he opined that if Claimant were exposed to fumes from hot metal being dipped into a pickle tank, Claimant would get shortness of breath. By decision and order dated November 29, 2006, the WCJ found the testimony of Claimant to be credible, in part. However, he rejected Claimant s testimony that he suffered daily discomfort from exposure to chemical fumes as not credible because the testimony of Claimant, his co-workers and Dr. Schell indicated exposures were infrequent. The WCJ accepted Claimant s testimony as credible that there was an exposure on November 14, 2003, but this exposure did not result in any disability or medical treatment. With regard to the medical testimony, the WCJ found that the findings and opinions of Dr. Schell and Dr. Fino were more credible than the findings and opinions of Dr. Ratner. The WCJ accepted the opinion of Dr. Schell and Dr. Fino that Claimant s disability was not the result of employment exposure. The WCJ then concluded that Claimant failed to meet his burden to establish by sufficient, competent, credible evidence that his disability or medical expenses after July 11, 2005, were the result of exposure to fumes or gases while employed by Employer. The WCJ dismissed Claimant s claim petition. Claimant appealed to the Board. By opinion and order dated August 28, 2007, the Board affirmed the WCJ s order. Claimant then filed the subject petition for review with this Court. 5 On appeal,1 Claimant argues that the Board erred in affirming the decision of the WCJ where the WCJ failed to consider or mention the treating physician preference as set forth in Williams v. Workmen s Compensation Appeal Board (Montgomery Ward), 562 A.2d 437 (Pa. Cmwlth. 1989). Claimant also argues that the WCJ erred because he lacked a reasonable basis to accept the opinions of Dr. Fino, the defense expert medical witness. Finally, Claimant argues that the WCJ erred in accepting the testimony of Dr. Schell because it was so self-serving as to be incompetent as a matter of law.2 Claimant bears the burden of demonstrating all essential elements necessary to support an award of benefits. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). In order to demonstrate a compensable injury, Claimant must show that his disability arose in the course of employment and is causally related to the employment. Brody v. Workmen s Compensation Appeal Board (Pennsylvania Public Utility Commission), 588 A.2d 575 (Pa. Cmwlth. 1991). As the finder of fact, all credibility determinations must be resolved by the WCJ. Universal Cyclops Steel Corporation v. Workmen s Compensation Appeal Board 1 Our scope of review in a workers compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. We acknowledge our Supreme Court s decision in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), wherein the Court 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. Wintermyer, 571 Pa. at 203, 812 A.2d at 487. 2 In its counterstatement of the question involved, Employer frames the overall issue on appeal as follows: whether this Court must affirm the decision of the Board where the medical evidence found credible below fully supports the WCJ s dismissal of Claimant s claim petition? 6 (Krawczynski), 305 A.2d 757 (Pa. Cmwlth. 1973). A WCJ, as the sole arbiter of credibility, is free to resolve conflicts in evidence and to determine the credibility of any witness, including medical experts, and an appellate court is bound by the credibility determinations made by the WCJ. Lead v. Workers Compensation Appeal Board (Sexton), 796 A.2d 431 (Pa. Cmwlth. 2002). A WCJ is free to accept or reject the testimony of any witness in whole or part. Kraemer v. Workmen s Compensation Appeal Board (Perkiomen Valley School District), 474 A.2d 1236 (Pa. Cmwlth. 1984). The pertinent inquiry on appeal is whether there is any evidence which supports the factual finding of the WCJ. It does not matter that there is evidence of record which supports a factual finding contrary to that made by the WCJ. Empire Steel Castings, Inc. v Workers Compensation Appeal Board (Cruceta), 749 A.2d 1021 (Pa. Cmwlth. 2000). Where medical testimony is required relating to causation, it must be unequivocal to support an award. Haney v. Workmen s Compensation Appeal Board (Patterson-Kelley Company, Inc.), 442 A.2d 1223 (Pa. Cmwlth. 1982). An expression of medical opinion will satisfy the standard of unequivocal medical testimony if the expert testifies that in the expert s professional opinion, there is a relationship or that the expert thinks or believes there is a relationship. See Martin v. Workers Compensation Appeal Board (Red Rose Transit Authority), 783 A.2d 384 (Pa. Cmwlth. 2001), petition for allowance of appeal denied sub nom., Red Rose Transit Authority v. Workers Compensation Appeal Board (Martin), 568 Pa. 710, 796 A.2d 988 (2002). In order for opinion evidence to be considered competent, it must be based on the facts of record. Newcomer v. Workmen s Compensation Appeal Board (Ward Trucking Corporation), 547 Pa. 639, 692 A.2d 1062 (1997). The opinion of a medical expert on causation must be reviewed as a whole, and inaccurate information will not defeat the opinion as long 7 as the opinion is not dependent upon the inaccuracies. See Industrial Recision Services v. Workers Compensation Appeal Board (Farbo), 808 A.2d 994 (Pa. Cmwlth. 2002); Deitrich v. Workmen s Compensation Appeal Board (Shamokin Cycle Shop), 584 A.2d 372 (Pa. Cmwlth. 1990). Additionally, a WCJ must issue a reasoned decision in accordance with Section 422(a) of the Workers Compensation Act (the Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.3 In Daniels v. Workers Compensation Appeal Board (Tri-State Transport), 574 Pa. 61, 828 A.2d 1043 (2003), our Supreme Court held that a WCJ s decision is reasoned for purposes of Section 422(a) if it allows for adequate review by the Board without the need for further elucidation, and if it allows for adequate review by the appellate courts under their standards of review. The Supreme Court further held that Section 422(a) requires that when the testimony is presented by way of deposition, the WCJ must articulate the reasons why one witness testimony was credited over another s. Daniels. Thus, it is no longer sufficient for a reviewing body, after reviewing the record, to imagine why the WCJ may have determined one 3 Section 422(a) of the Act provides, in relevant part, as follows: 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. 8 witness to be more credible than another. Daniels; see also O Donnell v. Workers Compensation Appeal Board (United Parcel Service), 831 A.2d 784 (Pa. Cmwlth. 2003). First, we will address Claimant s argument that pursuant to our decision in Williams, the WCJ was required to consider the treating physician preference in evaluating the physician testimony in a workers compensation claim. Claimant contends that while this does not mean that the WCJ was required to accept the testimony of the treating physician, it means he was required to at least consider that preference and indicate why it was not found controlling. Claimant argues that the WCJ committed an error of law when he failed to mention the treating physician preference in his decision as the record does not reflect that the WCJ gave proper consideration to the preference. Claimant misrepresents this Court s holding in Williams. In Williams, the claimant asserted that this Court should require a WCJ to state his reasons on the record for disregarding a treating physician's opinion. We rejected such a requirement, and wrote: It is fruitless to require referees to set forth such reasons where, as here, there is conflicting testimony. Once a referee selects one physician's testimony over that of another physician and his or her selection constitutes substantial competent evidence to support the conclusion reached, our limited scope of review prevents us from disturbing the referee's determination since resolution of conflicting testimony is for the referee. Moreover, although treating physicians may be preferred as witnesses in workmen's compensation cases, the fact that a medical witness was not the claimant's treating physician relates only to the weight, and not to the competency, of his or her testimony, which is, again, a determination for the referee. 9 Williams, 562 A.2d at 441, n.6 (citations omitted).4 Hence, Williams cannot be interpreted as requiring the WCJ to mention the treating physician preference when rendering a decision. Additionally, as discussed below, the WCJ adequately explained why he accepted as credible the testimony of Employer s medical witnesses over the testimony of Claimant s treating physician. Second, we will address Claimant s argument that the WCJ erred because he lacked a reasonable basis to accept the opinions of Dr. Fino, the defense expert medical witness. Claimant argues that there is agreement in the medical testimony that Claimant has a severe disability which totally precludes him from returning to his previous employment with Employer. Claimant notes that Dr. Ratner and Dr. Fino also agree that his pulmonary functional capacity had diminished by 36.9% from the time that he stopped smoking in November of 1997, as documented by breathing tests conducted in close proximity to that date, and subsequent breathing tests conducted in 2006. Moreover, Dr. Fino acknowledged that such a diminishment represented a rather significant worsening of Claimant s condition. Claimant relies on his own testimony that prior to 2003 he was able to lead a rather active lifestyle, but that after the exposure on November 14, 2003, his condition worsened. Claimant argues that the testimony of record supports the fact that he suffered at least a significant aggravation of his pulmonary condition as a result of the November 14, 2003, exposure. Claimant takes the position that the decision of the WCJ does not constitute a reasoned decision as required by Daniels. Claimant asserts that the WCJ failed to set forth sufficient reasons to support his credibility determinations, specifically his decision to accept the 4 The Supreme Court s decision in Daniels altered the approach set forth in Williams by requiring that a WCJ must articulate the reasons why one witness testimony presented by way of deposition was credited over another s testimony presented by deposition. 10 testimony of Employer s expert medical witness over that of Claimant s treating physician as to the issue of causation or substantial aggravation. We disagree with Claimant. Claimant essentially asks this Court to reweigh the evidence of record and make a determination that the evidence presented by Claimant was more convincing than that presented by Employer. The WCJ s assessment of credibility is not subject to review on appeal, and we may not substitute our credibility determinations for those of the WCJ. Crenshaw v. Workmen s Compensation Appeal Board (Hussey Copper), 645 A.2d 957 (Pa. Cmwlth. 1994). Additionally, it does not matter that there is some evidence of record that could support Claimant s theory of causation/aggravation. The pertinent inquiry on appeal is whether there is any evidence which supports the factual finding that Claimant s pulmonary condition was caused by smoking and not by exposure to sulfuric acid fumes. See Empire Steel Castings. Finally, we must conclude that the WCJ met the requirements set forth by the Supreme Court in Daniels, when he adequately explained the reasons for his credibility determinations as follows: 30. The findings and opinions of Dr. Schell and Dr. Fino are more credible than the findings and opinions of Dr. Ratner. Dr. Schell and Dr. Fino s statement that the occasional exposures would result in a limited period of symptoms is credible and consistent with the testimony of Mr. Hook and Mr. Watson. Dr. Ratner admitted exposure to sulfuric acid would not aggravate materially the Claimant s underlying condition of emphysema and he stated that that condition alone is disabling. Accordingly, I accept the opinion of Dr. Fino that the Claimant s disability is not the result of employment exposure. (WCJ s opinion at 4, attached to Claimant s brief). Third, we will address Claimant s argument that the WCJ erred in accepting the testimony of Dr. Schell because it was so self-serving as to be 11 incompetent as a matter of law. Dr. Schell testified that he did not notice any fumes in the area of the pickle tanks. Claimant takes issue with Dr. Schell s testimony because he contends that Dr. Schell was an employee of Employer and because he did not know whether any hot metal had been dipped in the pickle tanks at the time of his inspection. Also, Claimant states that Dr. Schell acknowledged personal differences with Claimant. For these reasons, Claimant contends that there was clear evidence of bias on the part of Dr. Schell, and that the WCJ erred in accepting any of his testimony. Claimant does not cite any legal authority for this argument. Initially, we must correct some misimpressions created by Claimant. Claimant asserts that Dr. Schell was an employee of Employer. Rather, Dr. Schell testified that at the time that he examined Claimant, he was a co-owner of a company that served as a panel provider for Employer. (Supp. R.R. at 2). Moreover, at the time that he testified in this matter, he was no longer associated with that company. Id. Also, we note that throughout his deposition, Dr. Schell was very open about his concerns relating to his doctor-patient relationship with Claimant.5 (Supp. R.R. at 3-9). It was because of those concerns that Dr. Schell believed that it was important to refer Claimant to another doctor for further evaluation of his condition. Id. Furthermore, Dr. Schell acknowledges that Claimant suffers from an underlying pulmonary disease. Id. He simply disagrees with Dr. Ratner that it was caused by his employment with Employer. Id. We cannot conclude that simply because Dr. Schell was a panel physician who believed that Claimant was engaging in some level of symptom 5 Dr. Schell testified that he believed that Claimant might have embellished his symptoms. (Supp. R.R. at 3-9). He stated that the belief was based upon the fact that the technician suspected that patient effort and compliance had made it difficult to perform a pulmonary function study and that Claimant appeared very confrontational. Id. Dr. Schell explained that Claimant appeared to have an agenda relating to Employer more than he appeared to be seeking medical advice. Id. 12 embellishment and referred him to another physician for evaluation that Dr. Schell was biased against Claimant such that his testimony should be disregarded. As to Claimant s concerns about the alleged insufficiency of Dr. Schell s inspection of Claimant s work area, the alleged insufficiency was thoroughly addressed on cross-examination. The WCJ was free to consider the alleged insufficiency in deciding the weight and credibility to afford to Dr. Schell s testimony. Nothing in Dr. Schell s testimony rendered it incompetent, and we can determine no error on the part of the WCJ in finding Dr. Schell s testimony to be credible. Accordingly, we must affirm the order of the Board. JOSEPH F. McCLOSKEY, Senior Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael W. Davis, Sr., Petitioner v. Workers' Compensation Appeal Board (Cerro Metal Products), Respondent : : : : : : : : No. 1822 C.D. 2007 ORDER AND NOW, this 25th day of February, 2008, the order of the Workers Compensation Appeal Board is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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