R. Edwards v. WCAB (K & K Trucking, et al.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Edwards, Petitioner v. Workers Compensation Appeal Board (K & K Trucking and AIG Claim Services), Respondents BEFORE: : : : : : : : : : No. 1960 C.D. 2007 Submitted: April 4, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: June 9, 2008 Robert Edwards (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) that affirmed the Workers Compensation Judge s (WCJ) denial of his claim petition on the basis that Claimant failed to meet his burden of proving that he sustained a work-related injury. In this appeal, we consider whether the WCJ made findings that are not supported by the evidence and whether the WCJ issued a reasoned decision. Finding no error, we affirm. Claimant worked for K & K Trucking (Employer) as a mechanic for almost one year. Claimant filed a claim petition alleging that he sustained injuries to his head, neck and low back on April 5, 2005, when a truck battery fell and struck him on the head. According to Claimant, he has been totally disabled since the date of injury. Employer filed an answer denying all allegations. Several hearings were held before the WCJ, at which Claimant testified on his own behalf. He explained that at the garage where he worked, truck batteries and other miscellaneous items were stored on a four-foot high shelf on the rear wall.1 While attempting to shut the door of a cupboard located below the shelf, Claimant yanked on a cord in his way that was hanging from the shelf. This caused a truck battery approximately 18 inches long and weighing 70 pounds to fall from the shelf and strike him on the forehead. Claimant stated that he was wearing a ball cap at the time, and the battery struck him on the brim of his hat. Claimant fell backwards, and the battery landed on the floor but did not break. Claimant had no cuts, bruises or other marks as a result of being struck. Claimant explained that he picked up the battery and placed it back on the shelf. He then went outside and when he saw his boss, Regis Klinchock, Sr., he explained to him what happened. Claimant had been injured close to quitting time, so he finished the day. He reported for work the next day; however, as he squeezed the handle of a power washer he experienced pain and numbness in his neck and right arm, and left to see his chiropractor, Dr. Bompiani. Claimant also treated with Employer s panel physician and with his own medical doctor, Antoine Cawog, M.D. Claimant testified that as a result of the incident, he experiences headaches, blurred vision, neck pain, right arm pain, and some tingling down his right arm. Claimant felt that he could not return to his pre-injury job as a mechanic. When asked if he ever injured his neck before or had a neck problem, Claimant replied, No. Nothing major, no. Notes of Testimony (N.T.), June 14, 1 The parties and the WCJ personally visited the garage and viewed the shelf in question. The WCJ found that the shelf was four feet high. Photographs of the area were submitted into evidence along with a letter authored by the WCJ regarding her on-site visit. 2 2005, at 19; Reproduced Record at 24 (R.R. ___). He also initially denied receiving any prior treatment for his neck; however, he subsequently testified that he received neck adjustments and headache treatment from Dr. Bompiani years and years ago. N.T., September 27, 2005, at 11; R.R. 65. Employer s counsel produced an Initial Health Status Form from Dr. Bompiani s office dated September 25, 2003, and Claimant agreed that he had filled out the form. On the form, Claimant reported that he had neck problems and could not lift his arms above his head. He also wrote that his problem began in 1989 when I had a car accident and injured my neck, as I get older, it gets worse. R.R. 163. In support of his petition, Claimant presented the deposition testimony of Dr. Cawog, a family medicine practitioner who began treating Claimant on July 5, 2005. According to Dr. Cawog, Claimant reported pain in his head, neck, right shoulder, upper posterior thoracic region and right rear upper thigh. An MRI from April 7, 2005, showed a right lateral herniation of the C5-C6 disc, with some right C6 root impingement. A cervical spine x-ray showed straightening of the normal cervical lordosis, which means that Claimant lost the curvature of his cervical spine due to spasm and pain. An electrodiagnostic study also showed evidence of an acute right-sided cervical radiculopathy. A repeat nerve study on October 2, 2005, was also abnormal. Based on the physical examination and the diagnostic studies, Dr. Cawog diagnosed Claimant with a head injury, cervical radiculitis, cervical herniated disc and post-traumatic headaches. Dr. Cawog opined that because of the injury, Claimant could not perform his job as a mechanic. On cross-examination, Dr. Cawog testified that he was not aware that Claimant had suffered any prior neck problems. Claimant did not mention his 1989 3 car accident or any prior treatment with Dr. Bompiani. Further, there was no way for Dr. Cawog to tell when Claimant s herniated disc occurred. Employer submitted an August 30, 2005, report from J. William Bookwalter, III, M.D., a neurosurgeon who examined Claimant on that date. Dr. Bookwalter s physical examination revealed various findings including diminished range of motion of the neck, spasm and mild C6 weakness on the right side. There were no diagnostic studies to review, but the medical records contained information regarding a cervical MRI that demonstrated a C5-C6 disc herniation, which Dr. Bookwalter felt was consistent with Claimant s clinical presentation. Dr. Bookwalter diagnosed Claimant with C6 radiculopathy secondary to a C5-C6 disc herniation and recommended that Claimant be limited to light-duty work.2 Employer presented testimony from Regis Klinchock, Sr., Employer s part-owner. Klinchock denied that Claimant told him on April 5, 2005, that he had been struck in the head. Klinchock explained that the only experience he had with batteries falling was if someone dropped one; in that case, the batteries break ninetynine percent of the time and acid goes everywhere. The WCJ issued a decision and order denying Claimant s claim petition. The WCJ found, in relevant part, as follows: 9. This [WCJ] does not find [Claimant s] testimony regarding the incident persuasive ¦He described the truck battery as being 18 inches in size and weighing 70 pounds. Yet, he admitted that he had no lacerations, scraping, or bruising on the area struck by the battery. [Claimant] stated that the battery fell to the floor after striking him, but did not rupture. The floor in the garage is cement. Mr. Klinchock credibly testified that the batteries, which fell onto the 2 Employer submitted an MRI of the brain and a CT scan of the brain both dated September 15, 2005. These tests revealed normal results. 4 floor, ruptured 99% of the time. Most importantly, [Claimant] denied any major injuries to his neck and denied receiving any treatment for neck pain before the April 5, 2005, incident. Yet, he saw Dr. Bompiani for neck pain and inability to lift his arms above his head on September 25, 2003. [Claimant] stated in the initial health status form that in 1989 I had a car accident and injured my neck, as I get older, it gets worse ¦.This [WCJ] does not find his pre-injury problems to be insignificant since [Claimant] specifically noted that his neck injury was getting worse as he got older, suggesting the neck injury was a chronic problem. [Claimant] did not mention the 1989 neck injury until he was presented with the September 25, 2003, initial health status form. 10. [Claimant] did not mention the 1989 injury or problems to Dr. Cawog. Therefore, this [WCJ] does not find Dr. Cawog s opinion regarding the causation to be credible. Dr. Cawog admitted that he could not determine when the herniated cervical disc occurred from the cervical MRI. Therefore, he had to be relying upon the incomplete history provided by [Claimant]. WCJ Decision, December 13, 2006, at 2; Findings of Fact 9-10 (emphasis in original). Based on her rejection of the testimony of Claimant and Dr. Cawog, the WCJ concluded that Claimant failed to meet his burden of proving that he sustained any injuries at work on April 5, 2005. Claimant appealed, and the Board affirmed. Claimant then petitioned for this Court s review.3 On appeal, Claimant presents two issues for our consideration. First, Claimant contends that the WCJ s decision is not supported by substantial evidence. Second, Claimant argues that the WCJ failed to issue a reasoned decision. 3 This Court s scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). 5 With respect to his substantial evidence issue, Claimant argues that the WCJ arbitrarily dismissed relevant, competent evidence; made findings based on non-existent evidence; and drew conclusions that have no basis in the facts. Claimant points to the following: 1. The WCJ discredited Claimant s testimony because the truck battery did not break when it fell; however, the battery did not fall directly from the shelf to the floor. The battery fell twice, striking Claimant first and then traveling the rest of the way to the floor. Therefore, the WCJ s inference that the battery should have ruptured when it hit the ground is not supported, as none of the evidence addressed the issue of a falling battery that falls less than the distance from the shelf to the floor. 2. The WCJ discredited Claimant s testimony because she found that he should have sustained an injury to his scalp when the battery fell on him. However, the WCJ arrived at this conclusion with no medical evidence to support her belief that Claimant should have suffered abrasions or bruising. 3. The WCJ rejected Dr. Cawog s testimony because he was unaware of Claimant s pre-existing condition. Essentially, the WCJ found that Claimant s condition is related to his pre-existing condition, but there is no evidence linking Claimant s current condition with his pre-existing condition. The WCJ failed to consider that Claimant s symptoms after the incident were different than they were previously and Claimant was able to perform his job without complaints for eleven months prior to the incident with the battery. It is well-settled that in a claim petition, the claimant bears the burden of establishing all the necessary elements to support an award. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). This means that the claimant must prove that he sustained a work-related 6 injury, not that the employer has to present evidence that a work injury did not occur. Steglik v. Workers Compensation Appeal Board (Delta Gulf Corp.), 755 A.2d 69, 75 (Pa. Cmwlth. 2000). The claimant, as the burdened party, bears both the burden of production and persuasion. Merchant v. Workers Compensation Appeal Board (TSL, Ltd.), 758 A.2d 762, 769 (Pa. Cmwlth. 2000). In assessing the evidence, the WCJ is the ultimate fact finder and has complete authority over questions of credibility and evidentiary weight. Davis v. Workers Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). The WCJ is free to accept, in whole or in part, the testimony of any witness, including medical witnesses. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). The WCJ s determinations as to credibility and evidentiary weight are binding on appeal unless made arbitrarily and capriciously. PEC Contracting Engineers v. Workers Compensation Appeal Board (Hutchison), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998). This Court does not second-guess a credibility finding. As we have explained: We decline [the] invitation to individually scrutinize each of the WCJ s reasons for his credibility determination. Deciding credibility is the quintessential function of the fact-finder, particularly one who sees and hears the testimony. It is not an exact science, and the ultimate conclusion comprises far more than a tally sheet of its various components. We will not take the statutory mandate that a WCJ explain reasons for discrediting evidence as a license to undermine the exercise of this critical function by second guessing one or more of its constituent parts. Kasper v. Workers Compensation Appeal Board (Perloff Brothers, Inc.), 769 A.2d 1243, 1246 (Pa. Cmwlth. 2001) (footnote omitted). 7 In denying Claimant s petition, the WCJ weighed the evidence and found Claimant and Dr. Cawog not credible, which are functions of the fact finder. With respect to the WCJ s rejection of Claimant s testimony because he had no marks on his head, the WCJ did nothing more than draw a reasonable inference regarding what would normally happen if a seventy-pound battery were to strike someone s head.4 The WCJ also drew a reasonable inference from Mr. Klinchock s testimony that the battery likely would have broken if it fell on a concrete floor.5 As to Claimant s assertion that the WCJ did not consider that his prior condition and his condition after the alleged incident were different, the WCJ was not required to engage in such an inquiry. Claimant was not forthcoming about his prior neck condition and treatment, and this lack of candor damaged his credibility, causing the WCJ to reject his testimony. Further, the WCJ was free to reject the testimony of Dr. Cawog because he had no knowledge of Claimant s prior neck problems and relied on Claimant s non-credible statements in forming his medical opinion.6 In short, the WCJ rendered credibility determinations against Claimant as was her prerogative, and there is no indication that she did so arbitrarily or capriciously. Without credible evidence establishing that a work-related injury 4 This Court has explained that it is clearly within the [WCJ s] fact-finding province to draw reasonable inferences from the evidence. General Electric Co. v. Workmen s Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth. 1991). 5 We reject Claimant s suggestion that expert testimony was required regarding the probability of a truck battery breaking. Employer was not required to perform an experiment replicating the exact circumstances Claimant testified to, i.e., what would happen if the battery fell, struck something on its way down, and then continued to the floor. 6 Curiously, Claimant asserts that Dr. Cawog s lack of knowledge of Claimant s prior condition may be sufficient to find the doctor s opinion incompetent but it is not sufficient to find it incredible. Claimant s brief at 13. Claimant is incorrect because it is certainly a valid reason for rejecting the doctor s testimony. At any rate, if a doctor s testimony is incompetent, it cannot support a finding that a work-related injury occurred. 8 occurred, Claimant was not able to meet his burden of proof and his claim petition was properly denied. With respect to his second issue, Claimant argues that the WCJ s decision is not reasoned because the WCJ did not clearly and concisely explain her credibility determinations and consideration of other evidence. Specifically, Claimant contends that it is unclear why the WCJ found that Claimant did not sustain a work injury when there is no objective evidence connecting his pre-existing condition and current condition; the WCJ did not discuss the effect of a falling battery being impeded by a person s head before it hit the floor; and there is no explanation of why the accident could not have occurred as described by Claimant. Section 422(a) of the Workers Compensation Act7 requires that a WCJ must issued a reasoned decision. Our Supreme Court has held that: A decision is reasoned for purposes of Section 422(a) if it allows for adequate review by the [Board] without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. A reasoned decision is no more, and no less. 7 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834. Section 422(a) provides in relevant part: 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 [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] 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 [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. 77 P.S. §834. 9 Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). The Supreme Court has explained that unless a credibility assessment is tied to a witness s demeanor before the WCJ, 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. Id. at 78, 828 A.2d at 1053 (footnote omitted). However, it is important to note that the WCJ s prerogative to determine the credibility of witnesses and the weight to be accorded evidence has not been diminished by the reasoned decision requirements of Section 422(a). Empire Steel Castings, Inc. v. Workers Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1027 (Pa. Cmwlth. 2000) (quoting PEC Contracting Engineers v. Workers Compensation Appeal Board (Hutchison), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1989)). The WCJ s decision provided explanations for her determinations concerning credibility and the weight to be accorded to the evidence. In this regard, Claimant s reasoned decision argument is nothing more than another way to argue that the WCJ should not have rejected Claimant s version of the incident. Claimant disagrees with the WCJ s decision, but this does not mean that the decision is not reasoned. The WCJ made all necessary findings and explained the reasons for her credibility determinations, allowing for effective appellate review; thus, her decision is reasoned. Accordingly, we affirm the Board s order. ______________________________ MARY HANNAH LEAVITT, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Edwards, Petitioner v. Workers Compensation Appeal Board (K & K Trucking and AIG Claim Services), Respondents : : : : : : : : : No. 1960 C.D. 2007 ORDER AND NOW, this 9th day of June, 2008, the order of the Workers Compensation Appeal Board dated September 21, 2007, in the above captioned matter is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge

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