A. Drago v. WCAB (Channellock, Inc.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony Drago, Petitioner v. Workers' Compensation Appeal Board (Channellock, Inc.), Respondent BEFORE: : : : : : : : : No. 61 C.D. 2008 Submitted: April 25, 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: July 3, 2008 Anthony Drago (Claimant) petitions for review of the order of the Workers Compensation Appeal Board (Board) which affirmed the Workers Compensation Judge s (WCJ) denial of benefits. Claimant worked as a CNC1 operator for Channellock, Inc. (Employer). His job entailed stamping out handles for pliers on a machine. Claimant missed work due to a non-work related hernia operation from August 11, 2004, through September 26, 2004. He returned to work in a light duty capacity from September 27, 2004, to October 24, 2004. On October 24, 2004, Claimant resumed his full duty job. 1 CNC is an abbreviation for computer numerical control. Claimant experienced back problems on November 8 or 9, 2004, and informed his supervisor, Lynn Hostetler (Hostetler). On November 12, 2004, Claimant told Hostetler that his back pain was unbearable and requested to be moved to a light duty position. On November 15, 2004, Claimant s family physician, Marianne Suprys, M.D. (Dr. Suprys) directed Claimant to cease working. Dr. Suprys referred Claimant to Dr. Robert Landfried for steroid injections on December 3, 2004, and on December 17, 2004. As a result of the injections, Claimant developed an infection and possible abscess in his neck. Claimant was hospitalized and received treatment for the infection. Claimant underwent physical therapy for two hours a day three times a week for a period of four weeks. Dr. Suprys released Claimant to work with restrictions on March 7, 2005. Claimant worked a light duty position for four hours a day beginning on March 7, 2005. On February 2, 2005, Claimant petitioned for benefits and alleged that he suffered Disc desiccation with loss of disc height at L1-2, L3-4 adn [sic] L4-5 and right paracentral HNP at L4-5 due to [r]epetitive lifting and twisting at work. Claim Petition, February 2, 2005, at 1; Reproduced Record (R.R.) at 99. Claimant testified before the WCJ and explained his job: My job was . . . to set up the machine when they d need a run; change programs, and also operate the machine. I had to load one piece at a time for eight hours. . . . Notes of Testimony, March 18, 2005, (N.T.) at 6; R.R. at 205. Claimant further explained: They brought a work pallet to me; . . . it has about 30, 40 pans on it; I have to lift it up on my work station, and as I run the part, I put the part in an empty pan, and then 2 when the pan was empty, I put it on a pallet. There was [sic] two pans, left side and right side of the pliers, and then you just went back and forth loading the machine. Each pan weighed between thirty-five to approximately fifty or sixty pounds. N.T. at 6; R.R. at 205. The week before November 12, 2004, Claimant s back was just getting tired . . . it just progressively . . . got worse. N.T. at 7; R.R. at 206. Claimant made an appointment to see his chiropractor. Claimant informed Hostetler that his back was getting weak. N.T. at 7-8; R.R. at 206-207. On November 12, 2004, Claimant was in so much pain I couldn t handle it and he informed the foreman s secretary. N.T. at 9-10; R.R. at 208-209. When Claimant returned to work on March 7, 2005, his primary duty was picking burrs off of [sic] pliers and filing the burrs off the pliers. N.T. at 24; R.R. at 223. Claimant remained in this light duty position and increased his hours from four to eight per day. Notes of Testimony, June 24, 2005, (N.T. 6/24/05) at 6, Notes of Testimony, February 3, 2006, (N.T. 2/3/06) at 14, and Notes of Testimony, February 2, 2007, (N.T. 2/2/07) at 6; R.R. at 145, 118, and 779. Claimant was pretty much pain free in the light duty position. N.T. 2/3/06 at 16; R.R. at 120. After he experienced pain in his back and legs, Claimant underwent surgery for a dynamic stabilization of L4-5 with use of the Dynesys system.2 N.T. 2/2/07 at 7; R.R. at 780. Claimant testified that he planned to go back to work full time in March 2007. N.T. 2/2/07 at 8; R.R. at 781.3 2 The Dynesys Dynamic Stabilization System combines the surgical approach of traditional fusion with the philosophy of dynamic stabilization which uses flexible materials to stabilize the spine while preserving anatomical structures. See www.zimmer.com. 3 Fisher filled out the disability benefits application for Claimant because he was in too much pain and did not believe that people could read his handwriting. N.T. 2/3/06 at 30; (Footnote continued on next page ¦) 3 Claimant presented the deposition testimony of Richard Paul Bonfiglio, M.D. (Dr. Bonfiglio), board-certified in physical medicine and rehabilitation. Dr. Bonfiglio examined Claimant on October 11, 2005, took a history, and reviewed medical records. Dr. Bonfiglio opined that the frequent lifting and turning required as a regular part of the patient s [Claimant] job was a factor contributing to his accelerated development of degenerative changes in his spine. Deposition of Richard Paul Bonfiglio, M.D. October 12, 2005, (Dr. Bonfiglio Deposition) at 24; R.R. at 327. Dr. Bonfiglio explained that Claimant had preexisting degenerative changes prior to his pain in November 2004. Dr. Bonfiglio Deposition at 25-26; R.R. at 328-329. Dr. Bonfiglio testified that Claimant s underlying degenerative condition made him more prone to disc herniation but that the work that he did with the repeated lifting was also a significant contributing factor to the disc herniating. . . . Dr. Bonfiglio Deposition at 28; R.R. at 331. Dr. Bonfiglio testified within a reasonable degree of medical certainty that Claimant would never be able to return to his time of injury job because of the significant lifting involved and should, instead, work with restrictions of not lifting or carrying more than ten pounds and to avoid bending, twisting, and climbing as much as possible. Dr. Bonfiglio Deposition at 30-31; R.R. at 333-334. On cross-examination, Dr. Bonfiglio admitted that he only evaluated Claimant on one occasion.4 Dr. Bonfiglio Deposition at 33; R.R. at 336. (continued ¦) R.R. at 134. She explained that she mistakenly noted October 15, 2004, as the date Claimant developed symptoms. N.T. 2/3/06 at 30; R.R. at 134. 4 Claimant did not present testimony from his treating physician, Dr. Suprys. 4 Employer presented the deposition testimony of Jon B. Tucker, M.D. (Dr. Tucker), a board-certified orthopedic surgeon. On June 5, 2005, Dr. Tucker examined Claimant, took a history, and reviewed medical records. Dr. Tucker diagnosed Claimant with non-work-related multilevel disc degeneration at three levels of his lumbar spine, L2-3, L3-4, and L4-5. The lower level had herniated with a gradual onset and progression of symptoms. Deposition of Jon B. Tucker, M.D., December 5, 2005, (Dr. Tucker Deposition) at 11; R.R. at 256. Dr. Tucker attributed the herniation to disease not injury. Dr. Tucker Deposition at 12; R.R. at 257. Dr. Tucker opined that Claimant s work activities were not a substantial contributing factor in his development of degenerative disc disease and a disc herniation. Dr. Tucker Deposition at 14; R.R. at 259. Dr. Tucker restricted Claimant only from jobs that involved prolonged sitting and lifting while in a seated position. Dr. Tucker opined that from a standing position Claimant could lift up to 75 pounds without any significant restriction. Dr. Tucker Deposition at 18; R.R. at 263.5 The WCJ dismissed Claimant s petition for benefits. The WCJ found Anderhalt and Hostetler credible. The WCJ found neither Claimant nor Fisher credible. The WCJ made the following relevant findings of fact: 14. This Workers Compensation Judge does not ascribe much credibility to the testimony of Dr. Bonfiglio. That 5 Beth Anderhalt, Employer s secretary, testified that Claimant requested short term disability forms after the November 2004, injury. Anderhalt explained that short term disability was for non-work-related claims. N.T. 6/24/05 at 15-16; R.R. at 154-155. Hostetler described Claimant s time of injury and light duty jobs. Claimant informed Hostetler that he thought he strained his back and a week later exclaimed that his back was killing him and he requested light duty or to be sent home. N.T. 6/24/05 at 39; R.R. at 178. 5 testimony was based on a one-time visit to the doctor which had been set up for the claimant by his attorney and then had the doctor testify the very next day. Dr. Bonfiglio never treated the claimant or made any attempt to contact his treating physicians. This Workers Compensation Judge draws an adverse inference from claimant s failure to rely upon one of the several treating physicians whose care was an integral part of his case. 15. This Workers Compensation Judge ascribes much credibility to the testimony of Dr. Tucker. His testimony was more extensive and detailed than the testimony of Dr. Bonfiglio. It was based upon a complete review of the records and makes much logical and sequential sense as compared to the testimony of Dr. Bonfiglio. WCJ s Decision, February 28, 2007, (Decision), Findings of Fact Nos. 14-15 at 6; R.R. at 8. Claimant appealed to the Board which affirmed. One of the issues raised was whether the WCJ erred when he drew an adverse inference from Claimant s failure to call his physician, Dr. Suprys, as a witness. The Board determined: In this case there was no indication that Claimant s treating physicians were outside Defendant s [Employer] reach or knowledge. However, as we have already stated, because Claimant bore the burden of proof in this matter, and the WCJ rejected Claimant s testimony, and the testimony of his medical witness for reasons unrelated to Claimant s failure to call his treating physicians as witnesses, namely because the WCJ found Defendant s [Employer] medical expert to be more credible based on his comparatively extensive and detailed testimony, we conclude that any error that the WCJ may have made in drawing an adverse inference against Claimant was harmless. Board Opinion, December 10, 2007, at 9. 6 Claimant contends6 that the WCJ erred when he drew an adverse inference from Claimant s failure to call Dr. Suprys for a causation opinion and that the Board erred when it concluded that the WCJ committed harmless error.7 In Marriott Corporation v. Workers Compensation Appeal Board (Knechtel), 837 A.2d 623, 631 (Pa. Cmwlth. 2003), this Court held that the missing witness rule,8 which permits an adverse inference, is applicable where the uncalled witness is only within the reach of and knowledge of one of the parties. 6 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 Claimant also contends that the WCJ capriciously disregarded competent evidence sufficient to establish that Claimant was disabled as a result of a work-related injury. Because of this Court s disposition of the first issues, this Court need not review this alleged error. 8 In Marriott, this Court explained the missing witness rule: The missing witness rule provides that [w]here evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him. Marriott, 837 A.2d at 631, quoting, Allingham v. Workmen s Compensation Appeal Board (City of Pittsburgh), 659 A.2d 49, 53 (Pa. Cmwlth. 1995), petition for allowance of appeal denied, 543 Pa. 717, 672 A.2d 310 (1996). 7 Here, there is nothing in the record to indicate that Claimant was the only party who had the opportunity to call Dr. Suprys. The Board correctly determined that the WCJ erred. Claimant next contends that the Board erred when it concluded that the WCJ committed harmless error when he drew the adverse inference against Claimant. Claimant argues that he was prejudiced by the adverse inference because it led the WCJ to accept Dr. Tucker s testimony as credible over the testimony of Dr. Bonfiglio. This Court has previously addressed the concept of harmless error in the workers compensation context. In United States Steel Mining Company, LLC v. Workers Compensation Appeal Board (Sullivan), 859 A.2d 877 (Pa. Cmwlth. 2004), petition for allowance of appeal denied, 582 pa. 705, 871 A.2d 195 (2005), Thomas Sullivan, Jr. (Decedent) became partially disabled because he contracted the occupational disease, anthracosilicosis, when he worked as a coal miner for United States Steel Mining Company, LLC (US Steel). Decedent died in 2000. Decedent s wife, Nancy Sullivan (Sullivan), filed a fatal claim petition. Sullivan presented the deposition testimony of Cyril H. Wecht, M.D. (Dr. Wecht) and Curtis S. Goldblatt, M.D. (Dr. Goldblatt). Dr. Wecht opined that Decedent s principal cause of death was cancer but that Decedent s coal workers pneumoconiosis was a secondary disease process and a substantial contributing factor to Decedent s death. Dr. Goldblatt opined that Decedent s death was caused by cardiac failure precipitated by numerous disease processes but that coal 8 workers pneumoconiosis was a significant contributing factor. Sullivan, 859 A.2d at 879-880. US Steel presented the deposition testimony of Stephen T. Bush, M.D. (Dr. Bush) and Everett F. Oesterling, Jr., M.D. (Dr. Oesterling). Dr. Bush did not believe that Decedent ever suffered from coal workers pneumoconiosis. Dr. Oesterling opined that coal workers pneumoconiosis or exposure to coal dust did not play any role in Decedent s death. Sullivan, 859 A.2d at 880-881. The workers compensation judge found the testimony of Dr. Bush and Dr. Oesterling credible and rejected the testimony of Dr. Wecht and Dr. Goldblatt to the extent that they contradicted the opinions of Dr. Bush and Dr. Oesterling. The workers compensation judge determined that neither coal workers pneumoconiosis nor exposure to coal dust significantly contributed to Decedent s death and denied the petition. The Board reversed on the basis that the medical opinions of Dr. Bush and Dr. Oesterling were incompetent as a matter of law because both of them denied that Decedent suffered from disabling coal workers pneumoconiosis even though in a 1985 decision a referee found Decedent had anthracosilicosis which was a term interchangeable with coal workers pneumoconiosis and which was irreversible. The Board remanded for further findings of fact based on competent evidence of record. Sullivan, 859 A.2d at 880881. On remand, the workers compensation judge found that coal workers pneumoconiosis was a substantial contributing cause of death based upon 9 the credible testimony of Dr. Wecht and Dr. Goldblatt. The workers compensation judge granted the claim petition. The Board affirmed. Sullivan, 859 A.2d at 881. Before this Court, US Steel contended that even if the testimony of its medical witnesses was incompetent, Sullivan still failed to meet her burden because the workers compensation judge initially found her medical witnesses not credible or persuasive. US Steel characterized the workers compensation judge s reliance upon the incompetent testimony of Dr. Bush and Dr. Oesterling as harmless error. This Court determined that the error was not harmless: [T]he WCJ s reliance upon incompetent medical evidence plainly could not be severed from the WCJ s credibility determination of Claimant s [Sullivan] evidence. This conclusion is highlighted by the fact that Dr. Oesterling testified that if Decedent had a significant coal workers pneumoconiosis, then this disease would have been a contributing factor in Decedent s death. . . . Further, the WCJ s initial decision indicates or suggests that had he not relied upon Employer s [US Steel] incompetent evidence, he may have made a different credibility determination on evidence that was rejected only to the extent that it contradicted the incompetent evidence. In fact, the WCJ did make a different credibility finding after reviewing the evidence not disqualified. Therefore, having rendered void the critical testimony of Drs. Bush and Oesterling on grounds of incompetency, it plainly followed that the Board should remand the case to the WCJ in order to re-evaluate the competent testimony of record. In other words, the WCJ s reliance upon the incompetent testimony of Drs. Bush and Oesterling was not, as Employer [US Steel] 10 asserts, harmless error. (Citation and footnote omitted. Emphasis in original and added). Sullivan, 859 A.2d at 883. The concept of harmless error is not unique to workers compensation cases. For instance, in Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579 (Pa. Super. 2002), petition for allowance of appeal denied, 573 Pa. 692, 825 A.2d 639 (2003), a medical malpractice action, our Pennsylvania Superior Court stated that if evidentiary rulings are the basis for a new trial, the rulings must not only be erroneous but also harmful to the complaining party. Similarly, in Commonwealth ex rel. Buchakjian v. Buchakjian, 447 A.2d 617, 622 (Pa. Super. 1982), our Superior Court stated Often an erroneous evidentiary ruling will not require reversal. But where, as here, erroneously admitted evidence goes to the heart of the issue, we must reverse and remand for another hearing. In criminal law, in Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978), our Pennsylvania Supreme Court articulated the standard for harmless error as an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. The Supreme Court in Story stated that an error will not be held harmless unless the appellate court determines that the error did not contribute to the verdict. Id. at 409, 383 A.2d at 164. Our Pennsylvania Supreme Court elaborated that an error is harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Id. at 412, 383 A.2d at 166. 11 This Court must determine if the WCJ s error was harmless. The Board determined that the error was harmless because the WCJ found Dr. Tucker more credible than Dr. Bonfiglio not only because of the adverse inference but also because the WCJ found that Dr. Tucker s testimony was more extensive and detailed than the testimony of Dr. Bonfiglio. It was based upon a complete review of the records and makes much logical and sequential sense as compared to the testimony of Dr. Bonfiglio. Decision, Finding of Fact No. 15 at 6; R.R. at 8.9 It is indiscernible from the record how Dr. Tucker s testimony was more extensive and detailed in comparison to Dr. Bonfiglio s. Bonfiglio s deposition testimony was greater in content. Actually, Dr. Although the Board determined that the WCJ found Dr. Tucker credible for reasons other than the adverse inference, there is no way for such a determination to be reached objectively and without speculation. As in Sullivan, upon remand this WCJ may make a different credibility determination, and it plainly follows that the Board should remand for the WCJ to reevaluate based upon the proper evidence of record. Although this Court realizes that the standard of harmless error is not exactly the same in criminal law as in workers compensation or other administrative law, this Court finds the Supreme Court s reasoning in Story instructive, that is, whether the error could have contributed to the WCJ s decision, and if so, it was not harmless. 9 In workers compensation cases, the WCJ is the ultimate finder of fact, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any 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). 12 Accordingly, this Court vacates the order of the Board and remands with instructions to remand to the WCJ for the WCJ to make new credibility determinations and arrive at a decision without considering any adverse inference. ____________________________ BERNARD L. McGINLEY, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony Drago, Petitioner v. Workers' Compensation Appeal Board (Channellock, Inc.), Respondent : : : : : : : : No. 61 C.D. 2008 ORDER AND NOW, this 3rd day of July, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is vacated and this case is remanded to the Workers Compensation Appeal Board with instructions to remand the case to the Workers Compensation Judge for proceedings consistent with this opinion. Jurisdiction relinquished. ____________________________ BERNARD L. McGINLEY, Judge

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