M. Pierre v. WCAB (The Rittenhouse) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Marie Pierre, : Petitioner : : v. : : Workers' Compensation Appeal Board : (The Rittenhouse), : Respondent : BEFORE: No. 71 C.D. 2008 Submitted: April 4, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: July 3, 2008 Marie Pierre seeks review of the order entered by the Workers' Compensation Appeal Board (Board) affirming a Workers' Compensation Judge's (WCJ) decision to deny Pierre's claim petition. The question presented is whether the Board erred in affirming denial of the claim petition for an obvious disability where the credited evidence supports an award and the Board and WCJ read one sentence out of context from the medical opinion of Pierre's medical witness. Pierre began working as a housekeeper for The Rittenhouse in 1995. Although she has had back pain since an incident in 1995, Pierre continued to work and performed her duties until July 18, 2003 when she reported for work but was unable to walk beyond the entrance to her assigned building. She has not worked since July 18, 2003. In February 2003, Pierre fell in an elevator and injured her right side and back. On July 13, 2005, she filed a claim petition seeking payment for loss of wages and medical bills, citing full disability as of July 18, 2003. There is no dispute that Pierre's back problems have rendered her disabled. The only material factual dispute in this matter concerns causation of Pierre's disability. In support of her claim, Pierre submitted deposition testimony of Randall N. Smith, M.D. Upon reviewing his testimony, the WCJ noted: Dr. Smith's diagnoses include mechanical low back pain from myofascially discogenic problems; in other words, the muscle, ligaments, discs and joints were wearing out. [Pierre's] work as a housekeeper for [The Rittenhouse] deteriorated her preexisting condition. She has not fully recovered. Dr. Smith disagrees that [Pierre's] degenerative arthritis is extensive enough to cause her symptoms. "[I]t's the mechanical muscle ligaments and joints all combined as a result of those work activities that is the reason why she's having this level of pain." (Dep. Dr. Smith at 17). The major contributing factor to Claimant's disability is her continuing work, doing the physical activities on top of the already damaged structures. WCJ's Decision, Findings of Fact No. 2.h. The Rittenhouse presented testimony from Joseph Bernstein, M.D., who reviewed Dr. Smith's records and other medical history. After reviewing Dr. Bernstein's testimony, the WCJ noted: [Pierre] has underlying degenerative joint disease and degenerative disc disease. She stopped working in July of 2003, but there was nothing in the records to indicate any work related event caused her to stop working. [Pierre] is capable of working with restrictions, but she is probably not capable of returning to her housekeeping position. Dr. Bernstein is unable to relate the restrictions to any work related condition or event . . . . Findings of Fact No. 5.g. The WCJ credited Pierre's testimony regarding her symptoms and her inability to perform the duties of her prior housekeeping position. The WCJ found Dr. Bernstein's testimony, that the underlying problem was degenerative joint and 2 disc disease, was more credible and persuasive than Dr. Smith's testimony that Pierre's continuing to work was a major contributor to her inability to resume working. The WCJ noted three factors as the basis for crediting Dr. Bernstein over Dr. Smith. First, Dr. Smith did not initially relate Pierre's disability to her work for The Rittenhouse. Second, a comparison of MRI results from April 22, 2003 and March 29, 2005 showed progressive degenerative changes consistent with Dr. Bernstein's opinion that progressive unrelated degenerative joint and disc disease caused Pierre's disability. Third, "Dr. Smith first testified that if Claimant were able to stop working sooner than she did, the process may have been 'shut off,' but he later acknowledged this testimony was speculative." Finding of Fact No. 8.b. Pierre argues that the WCJ "mischaracterized Dr. Smith's opinions and read one sentence out of context in finding the opinion speculative." Pierre's Brief at 12. According to Pierre, Dr. Smith testified unequivocally, based upon his examinations and review of relevant medical records, that Pierre suffers disabling mechanical low back pain from myofascially discogenic problems and neuropathic pain syndrome due to her continuing to work as a housekeeper at The Rittenhouse. Pierre further argues that while Dr. Smith testified that it would be speculative to state whether Pierre's condition would have been irreversible had she stopped work at an earlier time, his opinion that Pierre's work aggravated her condition was not speculative. Evidently, Pierre theorizes that the WCJ mischaracterized Dr. Smith's statement as to a discrete point by applying it to his entire opinion. The Board concluded that when the WCJ noted Dr. Smith's acknowledgement as to the speculative nature of his testimony relative to the possibility that Pierre's condition may have been "shut off" had she stopped work sooner, the WCJ was making a credibility finding and not ruling on overall competency of Dr. Smith's testimony. 3 The Court's review of the Board's order is limited to deciding whether Pierre's constitutional rights have been violated, whether an error of law has been committed and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Visteon Sys. v. Workers' Compensation Appeal Board (Steglik), 938 A.2d 547 (Pa. Cmwlth. 2007). If the WCJ's findings of fact rest upon competent evidence, the Court will not disturb them. Futura Agency, Inc. v. Workers' Compensation Appeal Board (Marquez), 878 A.2d 167 (Pa. Cmwlth. 2005). In determining whether the necessary findings are supported by substantial evidence, the appellate role is not to reweigh the evidence or to reassess witness credibility. Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). Questions of evidentiary weight, credibility and resolution of conflicts in medical testimony are matters within the WCJ's exclusive province. Peterson v. Workers' Compensation Appeal Board (Wal Mart), 938 A.2d 512 (Pa. Cmwlth. 2007); Bethenergy Mines. Under well-settled principles, the WCJ acted within her discretion in crediting Dr. Bernstein's testimony. The WCJ's findings, including her credibility determinations as between the conflicting medical testimony, do indeed rest upon competent evidence. Also, the Court does not agree with Pierre that the WCJ took any of Dr. Smith's statements out of context in making credibility determinations. Pierre is incorrect in her assertion that the WCJ's finding with respect to a single statement was a finding that Dr. Smith's entire opinion was speculative. What the WCJ found was simply that the testimony of Dr. Bernstein was more credible and persuasive than that of Dr. Smith. The WCJ listed Dr. Smith's acknowledgement that one of his statements was speculative as one of three principal factors in 4 finding that Dr. Bernstein's testimony was more persuasive and credible than Dr. Smith's. The WCJ's remaining stated reasons for her credibility findings are sufficient to indicate a sound exercise of her discretion independent of the finding at issue. Accordingly, the WCJ's credibility findings are amply supported by Dr. Bernstein's testimony and Pierre's relevant medical history. Pierre argues as well that Dr. Bernstein's opinion actually supports her claim. Although Dr. Bernstein found that Pierre's degenerative joint and disc disease was not related to her work, Pierre contends nevertheless that Dr. Bernstein also found that Pierre's job duties would aggravate her symptoms. Interestingly, the portion of the record that Pierre cites to support her contention discloses no such finding by Dr. Bernstein. See R.R. at 98a. Nonetheless, the Board rejected Pierre's argument, holding her to the standard of actually establishing that she did in fact sustain a work-related aggravation of her pre-existing condition. The Board noted Dr. Bernstein's opinion that nothing related to Pierre's work caused her to stop working, as her inability to work was caused by the natural progression of her degenerative joint and disc disease. The Board aptly cited Vazquez v. Workmen's Compensation Appeal Board (Masonite Corp.), 687 A.2d 66, 69 (Pa. Cmwlth. 1996), where this Court held: "a claimant with a preexisting, non-work related condition, although disabled from the workplace because of this condition, is not entitled to benefits where the workplace did not cause or aggravate the condition." While Pierre argues that the evidence of record is sufficient to support an award of benefits, the Court does not disagree. Benefits may be awarded where a pre-existing condition is aggravated or accelerated by a work-related injury, even if the underlying disease or condition was not caused by a work-related incident. Wynn v. Workmen's Compensation Appeal Board (Department of Transportation), 5 466 A.2d 769 (Pa. Cmwlth. 1983); Lewistown Hosp. v. Workmen's Compensation Appeal Board (Kuhns), 683 A.2d 702 (Pa. Cmwlth. 1996). However, the claimant always bears the initial burden of proving that the aggravation or acceleration of a pre-existing condition causing her disability was job-related; and, it is within the WCJ's discretion to accept or reject a witness' testimony, in whole or in part. Wynn. The reviewing court's role is simply to determine whether the WCJ's findings have the requisite measure of support in the record, not to determine whether contrary facts might be supported as well. Bethenergy Mines. Because the WCJ's findings are supported by substantial evidence and Pierre has failed to demonstrate an error of law or a constitutional violation, the Court affirms the Board's order. DORIS A. SMITH-RIBNER, Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Marie Pierre, : Petitioner : : v. : : Workers' Compensation Appeal Board : (The Rittenhouse), : Respondent : No. 71 C.D. 2008 ORDER AND NOW, this 3rd day of July, 2008, the order of the Workers' Compensation Appeal Board is affirmed. DORIS A. SMITH-RIBNER, Judge

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