N. Harrison v. WCAB (Verizon) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Norman Harrison, : Petitioner : : v. : : Workers Compensation Appeal Board : (Verizon), : Respondent : BEFORE: No. 2009 C.D. 2007 Submitted: February 8, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: April 28, 2008 Norman Harrison (Claimant) petitions for review from an Order of the Workers Compensation Appeal Board (Board) that affirmed the decision of a Workers Compensation Judge (WCJ) that granted his Claim Petition but awarded benefits for only a closed period. We affirm. Claimant filed a Claim Petition on October 28, 2002 alleging he sustained various injuries in the course and scope of his employment on January 30, 2002. These injuries occurred as a result of Claimant being assaulted by three men. He sought total disability from February 11, 2002 and ongoing.1 Claimant testified that he worked for Verizon (Employer) as a service technician on January 30, 2002 and that his duties involved installing new phone 1 Claimant initially received benefits pursuant to a Notice of Temporary Compensation Payable (NTCP). Benefits were ceased upon the filing of a Notice Stopping Temporary Compensation Payable and a Notice of Compensation Denial. lines and repairing old ones. Claimant stated that on that date, he returned to a job site to pick up a toner that he had left behind. He explained he was in an alleyway when he was assaulted and he discussed the details of that event. Specifically, Claimant explained, among other things, that he was slammed against the wall, choked, hit in the chest and face, and kicked in the groin. He testified that his right eye was swollen, he had a busted lip, and his tongue was cut. Claimant thereafter had complaints of headaches, neck, back, ankle, right hip, and jaw pain as well as right eye tearing. Claimant further noted that he had blacked out at least four times since the incident in question. Claimant agreed that he returned to light duty work on February 22, 2002. He testified, however, that he quickly stopped working due to headaches. He does not believe he is recovered from his work injuries. Claimant presented the testimony of Patrick M. Rommel, D.O., board certified in physical medicine and rehabilitation, who first saw him on August 22, 2002. Claimant s complaints at that time included chronic headaches, difficulty with memory, altered sleep cycles, difficulty with word-finding ability, chronic neck pain, occasional nausea, and dizziness. Dr. Rommel diagnosed Claimant with post-concussive disorder or mild traumatic brain injury, as well as myofascial pain syndrome, ulnar neuropathy of both elbows, and bilateral cervical radiculopathy at C5 through C7. Dr. Rommel explained that in light of Claimant s history of blackouts, memory impairments, and what appeared to be a mild trauma brain injury or post concussive disorder, Claimant could not return to his pre-injury job as a service technician because it would require him to be elevated at times and because he was restricted from driving. According to Dr. Rommel, Claimant s 2 restriction was causally related to his work injuries of January 30, 2002. Dr. Rommel acknowledged Claimant needed further testing. Employer presented the testimony of Jerome Trachtenberg, D.O., board certified family practitioner, who examined Claimant on March 5, 2002. Dr. Trachtenberg agreed Claimant sustained multiple contusions as a result of the assault on January 30, 2002. Dr. Trachtenberg added the diagnosis of general headaches. He believed Claimant was capable of full-time modified work. Employer further presented the testimony of Paul M. Shipkin, M.D., board certified neurologist, who examined Claimant on September 8, 2003. At that time, Claimant had complaints of neck, low back, and right knee pain. Upon completion of his physical examination, Dr. Shipkin opined Claimant was perfectly normal neurologically, with no residual deficits from the January 30, 2002 incident. He explained that there was no evidence of head, neck, low back, or knee problems. According to Dr. Shipkin, there was no evidence of postconcussive disorder and, for that matter, there was no evidence that Claimant ever had a concussion. Dr. Shipkin added that there was no indication that Claimant had any cognitive deficits. He suggested that if Claimant had blackouts as he described, they were merely vasovagal episodes, a common phenomenon where nothing is wrong with the patient. Dr. Shipkin noted, regardless, that Claimant s blackouts had stopped and were no longer an issue. Dr. Shipkin concluded that Claimant is fully capable of returning to work full-time without restrictions. After the record in this case was closed and the WCJ reviewed the evidence in order to render a decision, he explained that the crux of this case appeared to be whether Claimant suffered any ongoing residuals from head trauma as a result of the work injury. The WCJ noted that neither party presented 3 evidence from a neuropsychologist and that he would have preferred to hear testimony from such an individual in adjudicating this matter.2 Therefore, pursuant to Section 420 of the Pennsylvania Workers Compensation Act, Act of June 2, 1915, P.L. 736, 77 P.S. §831, the WCJ appointed an impartial neuropsychologist, David J. Massari, Ph.D., to evaluate Claimant. Dr. Massari examined Claimant on September 13, 2006 and observed that Claimant had been diagnosed with post-concussive syndrome as well as posttraumatic stress disorder. He noted that Claimant received some limited services regarding cognitive rehabilitation following an earlier neuropsychological evaluation in April of 2003. Dr. Massari pointed out, however, that as of his 2 Specifically, the WCJ stated: The report of Dr. Ikver was attached to Dr. Rommel s deposition as Rommel-2, which was relied upon by Dr. Rommel in diagnosing an ongoing concussive disorder or mild brain trauma of Claimant. The crux of this case appeared to be whether Claimant suffered any ongoing residuals or symptoms from head trauma including neurological deficits as a result of the work injury and whether he continued to suffer residuals from any closed-head trauma as a result of the assault.. (sic) Moreover, some of the testing noted in Dr. Ikver s report was found to be of questionable validity given the extremes in testing. Further, as noted by Dr. Rommel in his deposition, Claimant had been recommended for a follow-up neuropsychological evaluation and cognitive remediation which never took place because of compliance mostly dealing with transportation issues. Without further testing, Dr. Rommel believed it was appropriate to maintain the restriction of no heights and no driving, which restrictions would not allow Claimant to return to his pre-injury job. This WCJ would have preferred to hear testimony from a trained neuropsychologist to determine cognitive residuals and ongoing symptoms from the possible head trauma, if any. (emphasis added) (R.R. at 28a). 4 evaluation, Claimant had not received psychiatric services and had not treated for more than two years. Dr. Massari explained that short-term memory deficits continued to be evident but their validity was questionable given Claimant s variable performances on measures of test taking effort and motivation. He elaborated that Claimant s measured immediate memory was within the severely impaired range and therefore not compatible with the way Claimant was able to recall other information in the clinical interview. According to Dr. Massari, the neuropsychological evaluation did not reveal indications of cortical level impairment. Dr. Massari s report indicated: The present evaluation was reflective of mild neurocognitive functional deficits especially related to short-term memory, word retrieval, and rapid information processing. It is unclear, however, whether these difficulties are the result of persistent post-concussive syndrome. It is more probable that they are related to the interference of emotional factors (anxiety, depression) as well as fluctuations in test-taking effort and motivation. Otherwise, the neuropsychological assessment was essentially unremarkable indicating that [Claimant] was generally recovered from his assault from a neurocognitive perspective. However, it is a concern that [Claimant] endorses many items reflective of significant anxiety and depression. It is strongly recommended that there be a psychiatric assessment and treatment before [Claimant] could resume gainful employment. (R.R. at 627a). The WCJ credited Claimant s testimony concerning the events of January 30, 2002 as well as the fact that he experienced headaches and blackouts for an extended period of time thereafter. The WCJ further credited the testimony of Dr. Rommel that he continued to restrict Claimant from his pre-injury job 5 because of a history of blackouts and the need for further testing. The WCJ credited Dr. Shipkin s opinion that as of September 8, 2003 Claimant was recovered from his multiple contusions and myofascial pain syndrome. He rejected Dr. Shipkin s opinion, however, that Claimant was fully recovered from a neuropsychological standpoint as of that date with no head trauma ever suffered and that his blackouts were not related to the work injury.3 The WCJ credited Dr. Massari s opinion that he considered Claimant recovered from his assault from a neurocognitive perspective and that any ongoing cognitive residuals are attributable to emotional and/or motivational factors. The WCJ further recognized that Dr. Massari did not relate Claimant s depression or anxiety to the work injury.4 3 The WCJ mentioned the testimony of Dr. Trachtenberg only to the extent he cleared Claimant for modified work. 4 Prior to rendering his credibility determinations, the WCJ stated: The WCJ finds as a result of being assaulted on January 30, 2002 while performing duties for Verizon, Claimant suffered injuries of multiple contusions about his body, myofascial pain syndrome and minor closed-head trauma causing blackouts requiring a driving and heights restriction. As a result of these injuries related to the work injury, the WCJ finds Claimant was disabled from January 30, 2002 until September 13, 2006 as he could not perform his preinjury job which involved driving and working at heights performing telephone maintenance work. As of September 13, 2006, Claimant was unable to prove ongoing disability. In making these findings, the WCJ makes the following credibility determinations: (R.R. at 30a). Notably absent from the injuries the WCJ found to have been established by Claimant are any neurocognitive functional deficits related to short-term memory, word retrieval, and rapid information processing. 6 The WCJ issued a decision on January 29, 2007 wherein he granted Claimant s Claim Petition in part. The WCJ concluded that Claimant met his burden of establishing that he sustained multiple contusions, myofascial pain syndrome, and minor closed-head trauma causing blackouts as a result of being physically assaulted while working. Due to these injuries, the WCJ found Claimant was disabled from January 30, 2002 through September 13, 2006 as he could not perform his pre-injury job that involved driving and working at heights performing telephone maintenance work. The WCJ found Claimant was fully recovered from his physical injuries as of September 8, 2003. He found Claimant was fully recovered from a neuropsychological standpoint as of September 13, 2006. The WCJ awarded a closed period of benefits from January 30, 2002 through September 13, 2006. Employer was granted a credit for all money Claimant received pursuant to the NTCP and for payments made pursuant to a short-term disability policy. Claimant appealed this decision to the Board. The Board reversed the WCJ s determination that Employer was entitled to a credit for short-term disability payments made to Claimant. The Board affirmed in all other respects. This appeal followed.5 Claimant argues on appeal that the WCJ erred in terminating his benefits as of September 13, 2006. Specifically, Claimant contends that the WCJ erred in concluding he was fully recovered from all of his physical injuries. Claimant asserts that, with regard to physical injuries, Dr. Rommel diagnosed him 5 Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. Stehr v. Workers Compensation Appeal Board (Alcoa), 936 A.2d 570 (Pa. Cmwlth. 2007). 7 with myofascial pain syndrome, ulnar neuropathy of both elbows, and bilateral cervical radiculopathy at C5 through C7. He further asserts that because the WCJ accepted Dr. Rommel s testimony, he remains entitled to benefits until Employer establishes he is fully recovered from all of these injuries. In a claim petition, the burden of establishing a right to compensation and of proving all necessary elements to support an award rests with the claimant. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The claimant must establish that his injury was sustained during the course and scope of employment and is causally related thereto. McCabe v. Workers Compensation Appeal Board (Dep t of Revenue), 806 A.2d 512 (Pa. Cmwlth. 2002). When the connection between the injury and the alleged work-related cause is not obvious, it is necessary to establish the cause by unequivocal medical evidence. Hilton Hotel Corp. v. Workmen s Compensation Appeal Board (Totin), 518 A.2d 1316 (Pa. Cmwlth. 1986). The claimant is also required to establish the length of his disability. Innovative Spaces v. Workmen s Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). That burden never shifts to the employer. Inglis House, 535 Pa. at 141, 634 A.2d at 595. A WCJ is free to determine the chronological length of a claimant s disability based on all evidence presented. Ricks v. Workers Compensation Appeal Board (Parkway Corp.), 704 A.2d 716 (Pa. Cmwlth. 1997). Consequently, a WCJ can terminate benefits within the context of a claim petition even when the employer never filed a termination petition. Connor v. Workmen s Compensation Appeal Board (Super Sucker, Inc.), 624 A.2d 757 (Pa. Cmwlth. 1993). We reject Claimant s argument that the WCJ could not terminate Claimant s benefits until Employer presented evidence of full recovery from each 8 physical malady testified to by Dr. Rommel. We acknowledge that the WCJ gave a great deal of credence to the testimony of Dr. Rommel. We reiterate that the WCJ relied on Dr. Rommel s testimony to determine that Claimant was restricted from driving and from working at heights given Claimant s history of blackouts and the need to undergo further neuropsychological evaluation. Nonetheless, he did not approve Dr. Rommel s testimony carte blanche as Claimant suggests. As explained above, the WCJ did not feel confident in relying on Dr. Rommel s opinion in determining his ultimate disposition concerning the nature of Claimant s cognitive injuries and their relation to his employment, or either of the medical experts presented by Employer for that matter, due to the fact that the WCJ preferred to rely on the opinion of a trained neuropsychologist. Moreover, the WCJ concluded that Claimant s physical injuries were limited to multiple contusions about his body as well as myofascial pain. He did not list ulnar neuropathy or cervical radiculopathy as work-related injuries despite the fact that Dr. Rommel testified that Claimant had these conditions and that they were attributable to his work injury. Moreover, this litigation commenced with the filing of a Claim Petition. This is not a situation where Claimant s injury was accepted or Employer was previously found liable for Claimant s injuries via decision and Employer sought to end liability by filing a termination petition. As such, Claimant bore the burden of proof to establish the nature of his work-related injuries and the duration of his disability. Inglis House; Innovative Spaces. The WCJ credited Claimant s testimony concerning the fact that the assault occurred and that he was physically injured as a result. Nonetheless, the WCJ further credited Dr. Shipkin s testimony that as of his September 8, 2003 examination, Claimant appeared perfectly normal 9 neurologically and that he had no evidence of head, neck, back, or knee problems. Based on this fact, the WCJ found Claimant fully recovered from the physical injuries he sustained as a result of being assaulted on January 30, 2002. The WCJ is the final arbiter of witness credibility and may accept or reject the testimony of any witness in whole or in part. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). In light of the fact that the WCJ credited Dr. Shipkin s testimony that Claimant s physical examination was normal as of September 8, 2003, and credibility determinations are the sole province of the WCJ, we see no error in the WCJ s determination that Claimant was fully recovered from his physical injuries as of Dr. Shipkin s examination. In support of his argument that Employer had to present evidence of full recovery from all the physical injuries testified to by Dr. Rommel that he claims are judicially accepted, he cites Gillyard v. Workers Compensation Appeal Board (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth. 2005)(holding that the employer s medical expert cannot ignore the fact that the claimant sustained other previously accepted work-related injuries when offering an opinion of full recovery); GA & FC Wagman, Inc. v. Workers Compensation Appeal Board (Auker), 785 A.2d 1087 (Pa. Cmwlth. 2001)(holding that an opinion that does not recognize the work-relatedness of an injury previously determined to be work-related is insufficient to support a termination of benefits); and Central Park Lodge v. Workers Compensation Appeal Board (Robinson), 718 A.2d 368 (Pa. Cmwlth. 1998)(holding that if a claimant was previously determined to have sustained multiple work-related injuries, the employer must present proof of full recovery from each respective injury in order to obtain a termination of benefits). 10 As noted above, we take exception to Claimant s assertion that all injuries testified to by Dr. Rommel were judicially accepted as being causally related to his work injury. We reiterate that the WCJ found Claimant s work injuries were limited to multiple contusions about his body as well as myofascial pain. The WCJ did not find Claimant s work injuries included ulnar neuropathy of both elbows or bilateral cervical radiculopathy at C5 through C7. Moreover, the present matter began with the filing of a Claim Petition and Claimant was required to present evidence establishing the nature of his injuries and the duration of his disability. Inglis House; Innovative Spaces. The cases he cites all commenced with the filing of a termination petition where the burden was on the employer.6 Claimant further relies on Ohm v. Workmen s Compensation Appeal Board (Caloric Corp.), 663 A.2d 883 (Pa. Cmwlth. 1995). This case, however, reiterates the holding of Connor that a WCJ is free to terminate benefits in the 6 Claimant further asserts that even if the WCJ credited Dr. Shipkin s testimony that Claimant was physically recovered from all of his physical injuries as of September 8, 2003, Dr. Shipkin acknowledged that he did not endeavor to actually define what the Claimant s physical injury was. (Appellant s Brief, p. 12). Thus, Claimant contends Dr. Shipkin s testimony is legally deficient to terminate his benefits. We point out that the opinion of a medical expert must be viewed as a whole. American Contracting Enter., Inc. v. Workers Compensation Appeal Board (Asplundh Tree Expert Co.), 616 A.2d 764 (Pa. Cmwlth. 1992). A decision shall not rest on a few words taken out of context. Reinforced Molding Corp. v. Workers Compensation Appeal Board (Haney), 717 A.2d 1096 (Pa. Cmwlth. 1998), appeal denied, 568 Pa. 652, 794 A.2d 365 (1999). Claimant is indeed attempting to rest on a few words taken out of context. In fact, what Dr. Shipkin acknowledged was that he did not specifically define the nature of Claimant s work injury when he issued his Physician s Affidavit of Recovery prior to giving his deposition testimony. (R.R. at 467a). Dr. Shipkin, whom the WCJ found credible in regards to Claimant s physical injuries, consistently opined throughout his deposition testimony that Claimant was fully recovered from the assault from a neurological standpoint. This testimony is sufficient to find Claimant was no longer impacted physically by the January 30, 2002 assault. We reject Claimant s contention. 11 context of a claim petition when the claimant cannot meet his burden of proof to establish continuing disability. Thus, it serves to corroborate that the action taken by the WCJ was legally correct in granting benefits for only a closed period when he credited the evidence of Dr. Shipkin that Claimant is normal neurologically. Claimant further argues, again relying predominantly on cases commenced by the filing of a termination petition where Employer would have the burden of proof, that the WCJ erred in finding him fully recovered from his problems with blackouts and any cognitive problems to the extent they were caused by the 2002 assault as of September 13, 2006. The WCJ credited Claimant s testimony that he suffered from headaches and periodic blackouts for some time following his work injury. Moreover, although the WCJ indicated his preference to hear from a trained neuropsychologist, he credited Dr. Rommel s testimony to the extent Dr. Rommel opined that Claimant continued to be disabled from his pre-injury job until such time that Claimant could undergo further testing. Thus, the WCJ gave Claimant the benefit of the doubt that he continued to be disabled by a brain injury and that such an injury was causally related to Claimant s employment. Relying on Dr. Massari s September 13, 2006 report, however, the WCJ found Claimant generally recovered from his work-related injury from a neuropsychological perspective. It is as of this date that the WCJ officially terminated Claimant s benefits. Based on the fact that in this claim proceeding, Claimant had to not only establish that he sustained a work injury, but he had to establish the duration of his disability, we see no error. Claimant argues that Dr. Massari s report fails to unequivocally establish that he was fully recovered from his neuropsychological injuries. 12 Therefore, he contends that his benefits should not have been terminated as of September 13, 2006. We note that medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists. Lewis v. Workmen s Compensation Appeal Board (Pittsburgh Bd. of Educ.), 472 A.2d 1176 (Pa. Cmwlth. 1984). Medical testimony is equivocal, however, if after a review of a medical expert s entire testimony, it is found to be merely based on possibilities. Signorini v. Workmen s Compensation Appeal Board (United Parcel Serv.), 664 A.2d 672 (Pa. Cmwlth. 1995). Dr. Massari acknowledged in his report that Claimant did have some neurocognitive functional deficits related to short-term memory, word retrieval, and rapid information processing. He stated that it was unclear whether these conditions were the result of post-concussive syndrome. Dr. Massari proffered that it is more probable that they are related emotional factors such as anxiety and depression as well as fluctuations in test-taking effort. We agree with Claimant that the terminology used by Dr. Massari is equivocal to the extent he attempts to attribute a cause for Claimant s neurocognitive functional deficits. The opinion evidence of Dr. Massari cannot, therefore, be the basis for a determination that Claimant s complaints related to short term memory, word retrieval and rapid information processing were caused by anxiety, depression and fluctuations in test taking effort. Again, however, we are left with the fact that Claimant bore the burden of proof in this proceeding. Claimant had the burden to prove that these neurocognitive deficits were causally related to his work injury. The fact that Dr. Massari s evidence is insufficient to prove an alternative theory of causation does 13 not mean that it is somehow supports claimant s burden in this regard. Claimant presented no credible medical evidence that he continued to be disabled from a neuropsychological perspective after September 13, 2006 to counter the credible medical report of Dr. Massari even though it was equivocal on the cause of Claimant s neurocognitive functional deficit. We do not believe the causal connection between the assault of January 30, 2002 and Claimant s cognitive impairments and his purported blackouts is obvious.7 Thus, we must emphasize that Claimant was required to establish cause by unequivocal medical evidence. Totin. Claimant s medical expert in this case was Dr. Rommel. With regard to Claimant s alleged workrelated brain injuries, the WCJ credited his testimony only to the extent that Claimant should be kept off work until further evaluation could be done. The WCJ expressly stated that in determining the nature of Claimant s cognitive problems and the extent of any ongoing disability, he wanted to hear from a trained neuropsychologist. Thus, the WCJ took the added step and called upon an impartial expert to examine Claimant. As the WCJ chose not to rely on the opinion of Dr. Rommel for these issues, Claimant did not present unequivocal medical evidence to meet his burden of proof.8 Therefore, we reject Claimant s argument that the WCJ erred in Terminating Claimant s benefits as of September 7 A causal connection is obvious when a claimant experiences pain immediately upon performing an act that requires force or strain. Odd Fellows Home of Pennsylvania v. Workmen s Compensation Appeal Board (Cook), 601 A.2d 465 (Pa Cmwlth. 1991). 8 The WCJ afforded the parties the opportunity to depose Dr. Massari after receiving Dr. Massari s report. Neither party scheduled the deposition of Dr. Massari. 14 13, 2006 based on Dr. Massari s statement that Claimant was recovered from his assault from a neurocognitive perspective.9 Claimant next argues that the WCJ erred in placing the burden of proof upon him to establish that his anxiety and depression are causally related to the assault of 2002. We disagree. A claimant seeking indemnity benefits for a mental injury caused by a physical stimulus must show that the physical stimulus caused the mental injury. Donovan v. Workers Compensation Appeal Board (Academy Med. Realty), 739 A.2d 1156 (Pa. Cmwlth. 1999). Such causal relationship must be established by unequivocal medical evidence. School Dist. of Phila. v. Workmen s Compensation Appeal Board (Coe), 639 A.2d 1306 (Pa. Cmwlth 1994). After a review of the record, we conclude that the Board did not err in affirming the WCJ s Order, but for the short-term disability credit, as all findings are supported by substantial evidence. Accordingly, the Decision of the Board is affirmed. ___________________________ JIM FLAHERTY, Senior Judge 9 Claimant was restricted from height and driving duties by Dr. Rommel, but that testimony was only credited until further testing was done by a neuropsychological expert to determine if those symptoms were ongoing cognitive residuals from the possible head trauma from the assault. In light of Dr. Massari s opinion which could not connect them, there is no proof by Claimant that any ongoing possible cognitive disorders, if any were a result of the assault. 15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Norman Harrison, : Petitioner : : v. : : Workers Compensation Appeal Board : (Verizon), : Respondent : No. 2009 C.D. 2007 ORDER AND NOW, April 28, 2008, the Order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge

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