M. Rivera v. WCAB (Buck Company, Inc.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Minerva Rivera, Petitioner v. Worker's Compensation Appeal Board (Buck Company, Inc.), Respondent BEFORE: : : : : : : : : No. 2015 C.D. 2007 Submitted: February 1, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: April 15, 2008 Minerva Rivera (Claimant) petitions for review of the order of the Workers Compensation Appeal Board (Board) which affirmed the decision of the Workers Compensation Judge (WCJ) which granted Claimant s petition for benefits but only for the payment of medical benefits. Claimant worked as a regrinder for Buck Company (Employer). Her job entailed using a small grinding wheel to trim off excess metal from the casting. Deposition of Karl Jensen, August 11, 2006, (Jensen Deposition) at 10; Reproduced Record (R.R.) at 164a. On June 1, 2004, Claimant slipped and fell while at work and a heavy piece of metal fell on her right hand. Claimant underwent surgery for the right hand injury on July 13, 2004. Claimant returned to work on March 21, 2005, but could not perform her duties due to right thumb and arm pain. Employer moved Claimant to a sorter position where she picked up large pieces and checked them for defects. Pieces which contained defects were placed in one bin, while those that did not were placed in another bin. Initially, Claimant used a hammer to chip off flashing from castings. Because the use of the hammer bothered Claimant, her supervisors told her not to use it. Claimant continued to use the hammer, and received verbal and written reprimands. On July 12, 2005, Claimant informed her supervisor that she had to go to the hospital because her thumb hurt after she used the hammer. On July 15, 2005, Claimant was suspended for three days because of her use of the hammer. Claimant was scheduled to return to work on July 20, 2005, but did not. On or about July 20, 2005, Claimant petitioned for benefits and alleged that she suffered a work-related injury on June 1, 2004, when she tripped and fell while carrying a piece of iron. Claimant alleged injuries to her (R)[ight] upper extremity, right hand, wrist, thumb (aggravation thereof). Claim Petition, July 20, 2005 at 1; R.R. at 1a. Claimant sought full disability from July 14, 2005, forward. Employer issued a notice of compensation payable for medical treatment only for the July 12, 2005, injury which Employer characterized the injury as a Strain of the right thumb. Notice of Compensation Payable, August 23, 2005, at 1. Claimant testified that as a result of the 2004, work related injury she underwent surgery to her thumb. Notes of Testimony, October 6, 2005, (N.T.) at 9; R.R. at 13a. She stopped working on July 15, 2005, because she experienced pain when she used the hammer, which was a required part of her job. N.T. at 10; R.R. at 14a. Claimant believed she could not return to work. N.T. at 14; R.R. at 18a. On cross-examination, Claimant admitted that Dr. David Kuntz at Lancaster 2 Orthopedic Group released her to work full duty on March 21, 2005. N.T. at 15; R.R. at 19a. Claimant presented the deposition testimony of William Burch, M.D. (Dr. Burch), board-certified in orthopedics and Claimant s treating physician. Dr. Burch first treated Claimant on July 14, 2005. Dr. Burch diagnosed her with a probable radial collateral ligament rupture to the MP joint right thumb and she was status post surgical repair of this ruptured ligament. Deposition of William Burch, M.D., April 18, 2006, (Dr. Burch Deposition) at 17; R.R. at 39a. Dr. Burch recommended that Claimant not work at that time and gave her a note to that effect. Dr. Burch Deposition at 18; R.R. at 40a. Dr. Burch continued to treat Claimant. His diagnosis essentially remained unchanged. Dr. Burch noted that Claimant s first MP joint of her thumb was not aligned properly and there was some arthritis of the right MP joint of the right thumb. Dr. Burch Deposition at 28, 31; R.R. at 50a, 53a. Dr. Burch opined that Claimant could not return to work. Dr. Burch Deposition at 31; R.R. at 53a. Dr. Burch further opined that Claimant s injuries were the direct result of her work for Employer. Dr. Burch Deposition at 34; R.R. at 56a. Employer presented the deposition testimony of Lawrence J. Goren, M.D. (Dr. Goren), Employer s plant physician who examined Claimant on June 7, 2005. When Claimant complained about pain in her wrist when she used the hammer, Dr. Goren was asked to examine her. Dr. Goren also reviewed some medical records and took a history. Dr. Goren diagnosed Claimant with posttraumatic degenerative joint disease of the MCP joint. Deposition of Lawrence J. 3 Goren, M.D., July 19, 2006, (Dr. Goren Deposition) at 18; R.R. at 117a. Dr. Goren reviewed Claimant s job and testified within a reasonable degree of medical certainty that she could perform the job and did not have to use the hammer if she believed that she was unable to use it without pain. Dr. Goren Deposition at 21-22; R.R. at 120a-121a. Employer also presented the deposition testimony of Karl Jensen (Jensen), safety director for Employer. Jensen testified that Dr. Kuntz released Claimant to her time of injury job before Claimant returned to work. Jensen Deposition at 10-11; R.R. at 164a-165a. Jensen testified that after Claimant complained of pain she was moved to the sorter position. Jensen Deposition at 13; R.R. at 167a. Once Claimant complained of using the hammer in the sorting position, she was informed that she did not have to hammer. Jensen Deposition at 16; R.R. at 170a. In early April 2005, Claimant received a written warning or reprimand for continuing to use the hammer after she was told not to do so. Jensen Deposition at 18; R.R. at 172a. After the reprimand, Claimant continued to use the hammer. On June 3, 2005, Jensen gave her a final warning for continuing to hammer and for not following directions. Jensen Deposition at 21; R.R. at 175a. On July 12, 2005, Claimant informed her supervisor that she had to go to the hospital because her thumb hurt because she used the hammer. Jensen Deposition at 28; R.R. at 182a. On July 15, 2005, Claimant received a final written warning 4 and a three day suspension for disregarding instructions regarding the use of the hammer. Jensen Deposition at 30; R.R. at 184a.1 The WCJ granted Claimant s claim petition as of June 1, 2004, but suspended benefits on and after June 1, 2004. The WCJ ordered Employer to make payment of Claimant s work-related medical expenses, litigation expenses, and statutory interest. The WCJ made the following relevant findings of fact: 3. . . . . The judge finds that the testimony of Messrs. Jensen, Remollino, and Rodriguez, and Dr. Goren is more credible than the testimony of claimant and Dr. Burch. The judge finds that the testimony of Dr. Goren is more credible and persuasive than the testimony of Dr. Burch because Dr. Goren s examination of the claimant was more comprehensive, with the evaluations through the various tests during Dr. Goren s examination, than the examinations of the claimant by Dr. Burch and because Dr. Goren viewed the performance of the claimant s job and Dr. Burch did not see the performance of the claimant s job and have a familiarity of the various involved tasks of the job, of the weights involved during the claimant s performance of the job, and of the locations of the sorted items during the claimant s performance of the job. .... 8. The claimant testified, and the judge finds that the claimant received a three day suspension from work immediately before the cessation of her employment with the defendant [Employer] on July 15, 2005 because she used a hammer despite previous directives to the contrary by the claimant s supervisor. The claimant testified, but the judge does not find that the claimant ceased work on July 15, 2005 because she worked with heavy parts, her 1 Employer presented the deposition testimony of Fred Rodriguez, hard iron supervisor and Claimant s former supervisor, and Edward Remollino, production supervisor for Employer and Claimant s former supervisor, who both corroborated Jensen s testimony. 5 hammering activities caused pain and the work was difficult. The evidence, particularly the testimony of Messrs. Jensen and Remollino established, and the judge finds that the claimant did not perform work on and after July 15, 2005 because the defendant [Employer] suspended the claimant s employment with effective dates of July 15, 18, and 19, 2005 as a result of claimant s non-compliance with the defendant s [Employer] prohibition of the claimant s use of a hammer and for no reason with a relationship to a work injury and because the claimant did not resume scheduled work on and since July 20, 2005 despite the lack of a termination of her employment. .... 40. The judge finds that although Dr. Burch testified that he recommended that the claimant should not work with the degree of pain on July 14, 2005 and that she should engage in limited activity, the claimant could and did perform work on July 14, 2005, could not and did not perform work on July 15, 16, and 17, 2005[2] as a result of her suspension from employment and not as a result of any work injury of June 1, 2004, July 12, 2005, or otherwise. Based on the record, including Dr. Burch s testimony about his recommendation of no work for the claimant on July 14, 2005, the judge finds that no evidence established that the claimant could not perform work on and after July 14, 2005 as a result of a work injury, inclusive of a work injury on June 1, 2004 and/or July 12, 2005 and with a reasonable degree of medical certainty. .... 49. Based on the record, including the testimony of Dr. Goren, the judge finds that the evidence did not establish that the claimant had a loss of earnings or earning power, or disability, as a result of a work injury on or after June 1, 2004, inclusive of on or after July 14, 2005. Based on the record, including the testimony of the claimant and Dr. Burch, the judge finds that claimant sustained an injury to the right thumb on June 1, 2004. 2 The WCJ lists the dates of July 15, 18, and 19, 2005, in Finding of Fact No. 8. 6 WCJ s Decision, February 5, 2007, Finding of Fact Nos. 3,8, 40, and 49 at 1-2 and 7-8; R.R. at 280a-281a, and 286a-287a. Claimant appealed to the Board which affirmed. Claimant contends that the Board erred because it affirmed the WCJ s denial of wage loss benefits and because the WCJ s decision was not wellreasoned and did not address whether Claimant aggravated a pre-existing condition.3 Claimant asserts that there is no support for the WCJ s findings and conclusions that Claimant s earning loss after July 12, 2005, was not work-related and that Claimant suffered no work-related disability. Claimant asserts that Claimant s wage loss resulted from her suspension from work for using the hammer and that was the nature of the injury described on the medical only notice of compensation payable. Because Claimant s use of the hammer directly benefited Employer, Claimant argues that she could not refuse work without receiving a written reprimand. This Court disagrees. First, the medical only notice of compensation payable did not acknowledge disability. As the Board stated, we see no inconsistency between the recognition that a particular event (i.e., using a hammer) caused an injury while also determining that the same event was a violation of 3 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 7 policy which required discipline, such that earnings loss related to the discipline (a suspension of three days) would not be compensable. Where earnings loss is attributable to the fault of the claimant, it is not compensable. Board Opinion, September 28, 2007, at 10-11; R.R. at 303a-304a. Beyond the three day suspension period, Claimant asserts that she should be entitled to benefits. Again, this Court does not agree. In a claim petition the claimant bears the burden of proving all elements necessary to support an award. Innovative Spaces v. Workmen s Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). To sustain an award, the claimant has the burden of establishing a work-related injury which resulted in disability.4 If the causal relationship between the claimant s work and the injury is not clear, the claimant must provide unequivocal medical testimony to establish a relationship. Holy Family College v. Workmen s Compensation Appeal Board (KYCEJ), 479 A.2d 24 (Pa. Cmwlth. 1984). Here, the WCJ determined that Claimant failed to shoulder this burden. The WCJ found neither Claimant nor Dr. Burch credible. Claimant asserts there that there is no support for the Judge s finding that Claimant s wage loss on and after July 12, 2005, was unrelated to the work injury. Claimant ignores the fact that it was her burden to prove her entitlement to benefits. She failed to meet this burden. Further, Dr. Goren testified that Claimant was capable of 4 For workers compensation purposes, disability is equated with a loss of earning power. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). 8 performing the sorter position. Jensen testified that the position was available for Claimant after she returned from the suspension, but she stopped working. The WCJ found both Dr. Goren and Jensen credible. The WCJ, as the ultimate finder of fact in compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen s Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ s findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995). Claimant essentially asks this Court to reweigh the evidence. This Court will not do so. Claimant next asserts that the Board erred when it determined that Employer was not required to produce a Notice of Ability to Return to Work form after Employer sent Claimant to undergo a medical examination following the July 12, 2005, injury. However, because Claimant never established that she was entitled to benefits and simply stopped working, there was no reason under Section 306(b)(3) of the Act5 for the Employer to issue such a notice. 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(3). Section 306(b)(3) provides: (3) If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following: (i) The nature of the employe s physical condition or change of condition. (Footnote continued on next page ¦) 9 Claimant next contends that the Board erred when it determined that the WCJ issued a reasoned decision and did not address whether Claimant aggravated a pre-existing condition. Section 422(a) of the Act, 77 P.S. §834, provides: Neither the board nor any of its members nor any workers compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. 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 (continued ¦) (ii) That the employe has an obligation to look for available employment. (iii) That proof of available employment opportunities may jeopardize the employe s right to receipt of ongoing benefits. (iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer s contentions. 10 adjudication shall provide the basis for meaningful appellate review. In Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003), our Pennsylvania Supreme Court stated that absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstance of witness demeanor, 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. (Footnote omitted and emphasis added). Our Pennsylvania Supreme Court further explained in Daniels that where the factfinder has had the advantage of seeing the witnesses testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible, in the absence of some special circumstance, could be sufficient to render the decision adequately reasoned. Id. at 77, 828 A.2d at 1053. With respect to whether the WCJ satisfied the reasoned decision requirement in his rejection of Dr. Burch, the WCJ in Finding of Fact No. 3 clearly articulated the basis for his acceptance of Dr. Goren s testimony over that of Dr. Burch. The WCJ explained that Dr. Goren s examination was more comprehensive and that Dr. Goren viewed the performance of Claimant s job and had a familiarity of the duties of Claimant s job. Claimant does not explain what the WCJ failed to articulate in making her credibility determinations. Claimant also asserts that the WCJ failed to consider whether Claimant suffered an aggravation of an earlier injury. This assertion misses the point. The WCJ found that Claimant sustained a work-related injury. However, the WCJ found that Claimant did not suffer any disability. So, regardless of whether Claimant suffered 11 a new injury or an aggravation of an old one, there was a finding of no disability. This Court is satisfied that the WCJ issued a reasoned decision. Affirmed. ____________________________ BERNARD L. McGINLEY, Judge 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Minerva Rivera, Petitioner v. Worker's Compensation Appeal Board (Buck Company, Inc.), Respondent : : : : : : : : No. 2015 C.D. 2007 ORDER AND NOW, this 15th day of April, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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