Opinion
No. 676 C.D. 2013
11-15-2013
Estate of Susanna K. Stenger, Petitioner v. Workers' Compensation Appeal Board (Gateway Health, Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Estate of Susanna K. Stenger (Petitioner) petitions for review of the March 21, 2013 Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision denying Susanna K. Stenger's (Claimant) claim petitions and penalty petition. On appeal, Petitioner argues that: (1) the WCJ erred by requiring unequivocal medical evidence to establish that Claimant's disability was work related; (2) Gateway Health, Inc.'s (Employer) medical expert's testimony was equivocal and legally incompetent; (3) the WCJ erred by making an adverse inference against Claimant because she did not present the testimony of her treating physicians; and (4) the WCJ erred in denying Claimant's penalty petition. Discerning no error, we affirm.
Claimant died on December 15, 2012. (Claimant's Br. at 6-7.)
Claimant began her employment with Employer in June 1997 as a nurse's aide and was employed as the director of medical records on April 12, 2006. (WCJ's Decision, Findings of Fact (FOF), ¶ 1.) On April 12, 2006, Claimant was called upon to accompany a nurse's aide on a visit to a patient's home to assist the aide in caring for the patient. (FOF ¶ 1.) While assisting with the patient's care, Claimant injured her right shoulder. (FOF ¶ 1.) As a result, Claimant went to the emergency room the following morning, April 13, 2006, where she received two injections in her right buttock. (FOF ¶ 1.) Shortly thereafter, Claimant began to experience nausea, unsteadiness, and paralysis-type symptoms, which culminated in her hospitalization for an extended period followed by three years in a nursing and rehabilitation facility before returning home on March 15, 2009. (FOF ¶ 1.)
Claimant filed her first claim petition on March 3, 2009 alleging that, on April 12, 2006, she suffered a work-related injury in the nature of "a right shoulder/upper back sprain/strain with the introduction of staphylococcus aureus into the blood stream by an intramuscular injection of Toradol and Phenergan resulting in, inter alia, septicemia and ultimately, marked cognitive dysfunction, drooped eyelids, impaired eye movements with persistent double vision, quadra[-]paralysis and no movement in her legs." (WCJ Decision at 1.) Claimant also filed a penalty petition alleging that Employer violated the Workers' Compensation Act (Act) by failing to issue a Notice of Compensation Denial. On March 26, 2009, Claimant filed a second claim petition alleging "specific loss of use of arms and of legs, loss of vision, and facial disfigurement as a result of the introduction of staphylococcus aureus into her blood stream." (WCJ Decision at 1.) Employer filed timely responsive answers to Claimant's claim and penalty petitions denying the material allegations contained in each petition. The claim and penalty petitions were consolidated and hearings before the WCJ ensued.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4; 2501 - 2708.
In support of her petitions, Claimant and her husband, James Stenger, testified on Claimant's behalf. Claimant also presented the deposition testimony of Richard Kasdan, M.D., a board certified neurologist, and Christopher Martin, M.D., who is board certified in occupational medicine. In opposition to Claimant's petitions, Employer presented the deposition testimony of Donald J. McGraw, M.D., who is board certified in occupational and environmental medicine.
Claimant was deposed at her home; however, the WCJ was present for Claimant's testimony.
Claimant testified on August 8, 2009 as to the circumstances surrounding her right shoulder injury on April 12, 2006, the treatment and injections she received the next morning at the emergency room for that injury, the onset of the symptoms that occurred shortly thereafter, and the extensive medical treatment that followed. (FOF ¶ 1.) Claimant testified regarding her current condition and the daily care she requires as a result. (FOF ¶1.) Claimant testified that: (1) she requires the assistance of caretakers on a daily basis for hygiene purposes; (2) she does not have the ability to keep her left eye open and she must hold her right eye open to see; (3) she cannot use her left arm at all, but uses her right arm to drink and feed herself; (4) she has no feeling in her legs; and (5) her legs are paralyzed, leaving her unable to walk, stand, or crawl. (FOF ¶1.) Claimant testified that she has undergone a great deal of testing and exploratory surgery to ascertain the cause of her debilitating condition and expected to be undergoing surgery on her bladder. (FOF ¶ 1.) Claimant testified that "she had a history of sarcoid that is swollen lymph glands around the lungs." (FOF ¶ 1.)
Claimant testified that she began experiencing nausea and unsteadiness the afternoon or evening of April 13, 2006. (Claimant's Dep. at 11.)
Mr. Stenger testified at a hearing held on January 26, 2010 as to the circumstances surrounding Claimant's injury to her right shoulder and the extensive medical care Claimant required following the onset of nausea and paralysis-type symptoms after Claimant receive the two injections in her right buttock. (FOF ¶ 2.) Mr. Stenger explained the modifications he has made to the family home to provide for Claimant and described his observations regarding Claimant's debilitating condition. (FOF ¶ 2.) Mr. Stenger testified again at a hearing held on January 26, 2011 regarding Claimant's income in 2005 and 2006 and Claimant's limited use of her hand and arms. (FOF ¶ 6.)
Dr. Kasdan testified that he examined Claimant on December 19, 2008, developed a history from Claimant and her husband, and reviewed Claimant's extensive medical records. (FOF ¶ 3.) Dr. Kasdan explained that the injections that Claimant received to her right buttock consisted of a pain reliever and anti-inflammatory agent that is typically used with a soft tissue injury of the type Claimant experienced. (FOF ¶ 3.) Based on his examination and Claimant's history, Dr. Kasdan opined that Claimant's current condition was that of a functionally quadriplegic caused by a bacterium, which entered her blood stream through the two injections she received for the right shoulder injury that evolved into an acute infection. (FOF ¶ 3.) Dr. Kasdan testified that blood cultures performed confirmed the presence of staphylococcus aureus in Claimant's blood stream and that it was his opinion that it was introduced into Claimant's deep musculature when the Toradol was injected into Claimant's right buttock. (FOF ¶ 3.) Dr. Kasdan testified that "[C]laimant's body did not fight off the bacteria that spread into her blood vessels and was ultimately delivered to her cervical spine where it grew, pressing on the spinal cord causing the damage to [the spinal cord]," which resulted in Claimant's current condition. (FOF ¶ 3.) Dr. Kasdan believed that is was completely speculative to blame Claimant's condition on her prior history of pulmonary sarcoid. (FOF ¶ 3.) On cross-examination, Dr. Kasdan conceded "that becoming a quadriplegic from an injection of Toradol was unusual and, in fact, extremely rare." (FOF ¶ 3.)
Although Dr. Kasdan testified on direct examination that he examined Claimant on one occasion on February 18, 2009, Dr. Kasdan testified on cross-examination that he examined Claimant on December 19, 2008. (Dr. Kasdan's Dep. at 7, 24; FOF ¶ 3.) Dr. Kasdan's report, which is attached to his deposition as Exhibit 3, is dated February 18, 2009 and the report states that he examined Claimant in his office on December 19, 2008.
Dr. Martin testified that he reviewed an abstract of Claimant's medical records, as well as the testimony of Claimant and Mr. Stenger. Based upon this review, Dr. Martin opined that "the bacteremia observed in the blood cultures of the claimant were the result of the injections the claimant received for treatment of her right should strain." (FOF ¶ 4.) Dr. Martin based his opinion on the fact that there was no other source found for Claimant's infection and that the timing of the onset of Claimant's symptoms was compatible with an injection related staph aureus septicemia. (FOF ¶ 4.)
Dr. McGraw testified that he examined Claimant on behalf of Employer on December 15, 2009, took an extensive history, and reviewed a large volume of records. (FOF ¶ 5.) Dr. McGraw opined that, "based on his review of the extensive documentation of the claimant's case that he poured [sic] over in great detail, he could find no relationship between the claimant's muscle strain of April 12, 2006 and its treatment and the subsequent tragic illness she developed." (FOF ¶ 5.) With regard to what he believed caused Claimant's debilitating condition,
Dr. McGraw testified that a rheumatologist, infectious disease specialist and a neurologist who examined the claimant, all agreed she had small vessel vasculitis and also concurred there appeared to be a viral encephalomyelitis as well as her underlying sarcoidosis. Dr. McGraw noted that at one point the claimant also had a para[-]spinal mass in the spine and a biopsy of that showed no evidence of any type of infectious abscess. He stated that it seemed to indicate there was no bacterial presence in the central nervous system. Dr. McGraw also noted the claimant had a positive staph aureus while she was in Pittsburgh with no obvious source of that infection. That infection was treated and she was negative for staph when transferred to the Cleveland Clinic. Dr. McGraw testified he found it quite significant that in no time throughout the course of the claimant's treatment, either in Pittsburgh or in Cleveland, did any of the multiplicity of specialist clinicians treating her suggest any of her problems were related to the staph that was cultured in her blood. (Dr. McGraw depo. at pg. 30.) Dr. McGraw testified the claimant's rather unusual and aggressive neurologic problem developed as a complication of her
underlying autoimmune impairment due to her sarcoid and together with a viral inflammatory process that was documented by the vasculitis.(FOF ¶ 5.) According to Dr. McGraw, "vasculitis is an inflammatory condition of the vascular system" to which Claimant had a predisposition "based on her long history of sarcoidosis, generally regarded as an autoimmune condition indicating an impaired immune system." (FOF ¶ 5.)
Based on the evidence presented, the WCJ found as follows:
The claimant's disabling condition that developed following a reported right shoulder strain of April 12, 2006 is unrelated to that reported injury. The claimant's loss of use of her left lower extremities is likewise unrelated to the right shoulder strain she reported on April 12, 2006.
In making this finding, I have fully relied on the very credible testimony of Dr. Donald McGraw, whom I found to be far more credible than either Dr. Kasdan or Dr. Martin. Dr. McGraw thoroughly and convincingly explained and supported the basis of his opinions that were reached following his extensive review of all of the claimant's treatment records from the beginning of her treatment. I found it clear that it was Dr. McGraw who had the best understanding of the claimant's condition and her entire history that brought her to him in December 2009. Dr. McGraw fully convinced me that the intramuscular injection the claimant received for pain she was experiencing from the April 12, 2006 work injury had no relationship to the paralysis she developed throughout her entire body. Dr. McGraw very carefully explained what vasculitis was and the relationship of it to the claimant's pre-existing sarcoidosis with its compromise of the immune system. Dr. McGraw fully explained that an intramuscular injection is not something that involves the blood stream and was the least likely explanation of the claimant's condition. He further provided the essential information that no bacteria was ever found in the claimant's central nervous system and she was negative for any bacteria by the time she was hospitalized at Cleveland Clinic. On cross-examination, Dr. McGraw yielded no
ground and carefully explained that much of the record claimant's counsel was attempting to use dated from the first month of the claimant's treatment and many of the ideas being floated for the claimant's condition were subsequently proved to be wrong.(WCJ Decision at 13-14.) Accordingly, the WCJ concluded that Claimant failed to prove that the "April 12, 2006 right shoulder strain and the intramuscular injection she received for it led to any of her subsequent disability or to any loss of use of her limbs." (WCJ Decision, Conclusions of Law (COL), ¶ 1.) The WCJ further concluded that Claimant failed to show that Employer violated the Act. (COL ¶ 2.) Therefore, the WCJ denied and dismissed Claimant's claim and penalty petitions.
I found that neither Dr. Martin nor Dr. Kasdan offered any opinion that I found to be credible. I note first of all that Dr. Martin never examined the claimant and his review of the medical records was limited to the abstract form of them that he received. Although Dr. Kasdan did examine the claimant on a single occasion, I found Dr. Kasdan's opinions to be conclusions that were not based on anything near the detailed analysis offered by Dr. McGraw. Neither Dr. Martin nor Dr. Kasdan provided the detailed analysis of the records in reaching their opinions. Those opinions appear not much more impressive than simply saying it must have been the injection, I do not see anything else.
I found it significant that the claimant presented no testimony from any of her treating physicians. Her opining physicians performed no more than independent medical examinations that were much less thorough than the carefully documented examination of Dr. McGraw. As Dr. McGraw testified repeatedly during cross-examination, the early opinions considered by attending physicians were subsequently proved to be incorrect as further testing was completed.
I found that both the claimant and her husband were extremely credible. I attended the deposition of the claimant at her home and was impressed by her dignity and her efforts to answer questions and go over all of the symptoms of her condition. Her condition is indeed a tragic one, but I could not find it related to anything that happened to her right shoulder on April 12, 2006 or the injections that she underwent. Mr. Stenger also offered credible testimony regarding his wife's condition and her many difficulties. He is a brave man, who is working hard each day to improve his wife's existence.
There are no facts in the record to reflect a violation of the Workers' Compensation Act. No evidence was ever presented reflecting a disability related to an April 12, 2006 right shoulder strain.
Claimant appealed the WCJ's Decision to the Board, which, after thoroughly analyzing Claimant's arguments, affirmed. Petitioner now petitions this Court for review.
This Court's 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." DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 999 n.2 (Pa. Cmwlth. 2007). --------
In support of this appeal, Petitioner first argues that the WCJ erred by requiring unequivocal causal medical testimony that Claimant's debilitating injuries were related to the initial treatment for her work-related right shoulder strain. Petitioner asserts that this standard applies only when the injuries are not obvious and the credible testimony of Claimant and her husband shows that she had an obvious, immediate, adverse reaction to the injections she received to treat her right shoulder strain. Petitioner argues that why Claimant had an immediate adverse reaction to the injections is not the question and that all Claimant had to show was the undisputed fact that she had an immediate, adverse reaction to work-related treatment.
In response, Employer contends that Petitioner has waived this issue because Claimant failed to raise it before the WCJ or the Board. Upon review of Claimant's appeal to the Board, we agree with Employer that this issue is not preserved for review because it was not specifically raised for consideration by either the WCJ or the Board; therefore, the issue is waived. See Rule 1551 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1551 ("No question shall be heard or considered by the court which was not raised before the government unit . . ."). Moreover, even if this issue had been properly preserved, Petitioner would not prevail.
An obvious injury "is one that immediately manifests itself while a claimant is in the act of doing the kind of work which can cause such an injury." Giant Eagle, Inc. v. Workers' Compensation Appeal Board (Thomas), 725 A.2d 873, 876 (Pa. Cmwlth. 1999). In addition, even "where the work-related nature of the initial injury is obvious, but its relation to ongoing disability may not be, there is a need for more than lay evidence, i.e., for medical evidence." Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). While the fact that Claimant was suffering from nausea, unsteadiness, or paralysis shortly after receiving the injections may have been obvious to a lay person, given the medical evidence presented in this matter, we do not believe that a lay person could see a clear connection between the injections Claimant received for her right shoulder strain and the onset of the nausea, unsteadiness, and paralysis. Claimant testified that she became nauseated and unsteady the afternoon or evening after she received the injections; however, she testified that the paralysis did not begin until approximately three days later. (Claimant's Dep. at 11, 16, 20.) Accordingly, the WCJ did not err by requiring unequivocal medical evidence to establish that Claimant's disability was related to the right shoulder strain she experienced on April 12, 2006.
Next, Petitioner argues that Dr. McGraw's testimony was legally incompetent because it directly conflicted with the accepted medical fact that people get infections from intramuscular injections. Petitioner argues further that Dr. McGraw's entire testimony is equivocal because he could not identify any specific cause for her debilitating condition. Instead, Petitioner asserts, Dr. McGraw "surmises that everything from diabetes, to vessel inflammation, to an undiagnosed viral infection could have been the cause of [Claimant's] condition." (Claimant's Br. at 19.) Petitioner contends that the only thing Dr. McGraw seemed sure of was that the staph infection that Claimant's physicians identified as the cause of her disability could not be the cause of her condition. Thus, Petitioner argues, the WCJ erred by relying upon Dr. McGraw's testimony for the finding that Claimant's debilitating condition is not work related.
Initially, we note that it is well-settled that the claimant "bears the burden of establishing a right to compensation and of proving all 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). Here, the WCJ did not find Claimant's medical experts credible that Claimant's disabling condition, which developed following her right shoulder strain on April 12, 2006, is related to that reported injury. Petitioner does not challenge these credibility determinations, but instead challenges the WCJ's acceptance of Dr. McGraw's testimony as credible on the basis that his testimony was incompetent and equivocal. Notwithstanding that Employer did not bear the burden of proof, we will address Petitioner's arguments.
"The question of the competency of evidence is one of law and fully subject to our review." Taylor v. Workers' Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). "Where an expert's opinion is based on an assumption that is contrary to the established facts of record, that opinion is [incompetent]." Id. However, "[a] medical expert's opinion is not rendered incompetent unless it is solely based on inaccurate or false information." American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (emphasis in original). "[I]t is well established that the opinion of a medical expert must be viewed as a whole, and that inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies." Id. (Emphasis in original.)
In determining whether a medical expert's testimony is equivocal, we must examine the testimony as a whole without taking words or phrases out of context. Bemis v. Workers' Compensation Appeal Board (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011). "A medical expert's testimony is unequivocal if, after providing a foundation, he testifies that he believes or thinks the facts exist." Id. However, "[i]f a medical expert's testimony is less than positive or is based on possibilities, it does not constitute unequivocal testimony." Cyclops Corporation/Sawhill Tubular Division v. Workmen's Compensation Appeal Board (Paulsen), 632 A.2d 617, 621 (Pa. Cmwlth. 1993).
Our review of Dr. McGraw's testimony reveals that it is both competent and unequivocal. While Petitioner states that Dr. McGraw's testimony is incompetent because it directly conflicts with the accepted medical fact that people get infections from intramuscular injections, Petitioner does not offer a citation to any credible record evidence stating that such infections are an accepted medical fact. Moreover, even if it were to be accepted as a medical fact that people get infections from such injections, this does not render Dr. McGraw's testimony incompetent. Dr. McGraw's testimony was not based upon an assumption that a person cannot ever develop an infection from intramuscular injections. Dr. McGraw testified that, while he would not use the word "never," he did take into account the possibility, but then rejected the conclusion that the intramuscular injections received by Claimant in this case caused her debilitating condition. (Dr. McGraw's Dep. at 33-34, R.R. at 61a-62a.) Dr. McGraw explained that it was incomprehensible how an injection into the muscle of Claimant's buttock "would lead to a blood stream infection that would ultimately end up in her central nervous system" and that "no bacteria was ever cultured from her central nervous system, which is where all the problems leading to her unfortunate condition evolved." (Dr. McGraw's Dep. at 34, R.R. at 62a.)
As pointed out by the Board, Petitioner's challenge to the competency of Dr. McGraw's testimony is more of a challenge to the credibility of the doctor's testimony and the weighing of that testimony by the WCJ. However, such considerations are within the province of the WCJ, not this Court. See Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992) (stating that "the appellate role is not to reweigh the evidence or review the credibility of witnesses").
We conclude further that Dr. McGraw's testimony is unequivocal and unwavering in his opinion that the injections Claimant received to treat her right shoulder strain were unrelated to Claimant's tragic condition. Dr. McGraw testified, within a reasonable degree of medical certainty after reviewing the voluminous medical records and examining Claimant, that Claimant's disability was caused by "a combination of autoimmune, small vessel vasculitis, which was demonstrated on biopsy, together with a viral encephalopathy." (Dr. McGraw's Dep. at 25, R.R. at 53a.) When Dr. McGraw's opinion was challenged on cross-examination, he remained steadfast in his belief regarding the cause of Claimant's condition. (Dr. McGraw's Dep. at 39-89, R.R. at 67a-114a.) Dr. McGraw unequivocally refuted Claimant's assertions that staphylococcus aureus was the etiological agent of her diagnosis by pointing out that this alleged cause was "subsequently proven to be wrong because the epidural abscess was biopsied and there was nothing there." (Dr. McGraw's Dep. at 85, R.R. at 110a.)
Accordingly, we conclude that Dr. McGraw's testimony was not legally incompetent or equivocal.
Next, Petitioner argues that the WCJ erred by making an adverse inference against Claimant because she did not present the testimony of her treating physicians when the physicians were available to both Claimant and Employer. Petitioner contends that none of Claimant's treating physicians were peculiarly within the reach of and knowledge of only Claimant. Petitioner asserts that Employer had the opportunity and could have deposed any or all of Claimant's treating physicians if it had chosen to do so.
"A WCJ is permitted, but not required, to draw an adverse inference based on a claimant's failure to call attending physicians." William Penn School District v. Workers' Compensation Appeal Board (Westerman), 717 A.2d 589, 592 (Pa. Cmwlth. 1998). "Generally, an adverse inference is permissible only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties." Id.
Here, we agree with the Board that no error was committed on the part of the WCJ since she did not draw an impermissible adverse inference. When the WCJ's entire explanation is reviewed as to why she found Employer's medical expert more credible than Claimant's medical experts, it appears that the WCJ was simply stating the many reasons for her credibility determinations. (WCJ Decision at 13-14.) Given this context, the WCJ's statement, that she found it significant that Claimant did not present the testimony of any of her treating physicians, implies that the WCJ made the statement in order to indicate more weight could not be given to the testimony of the medical experts Claimant did present for litigation purposes only. See D.P. "Herk" Zimmerman, Jr., Inc. v. Workmen's Compensation Appeal Board (Himes), 519 A.2d 1077, 1080 (Pa. Cmwlth. 1987) (While not mandated, "greater credence may be given to the testimony of a treating physician than to a physician who examines simply to testify for litigation purposes."). Therefore, the WCJ did not err by making an improper adverse inference as argued by Petitioner.
Finally, Petitioner argues that the WCJ erred by not finding that Employer violated the Act by not issuing a Notice of Compensation Denial. However, the determination that a claimant is entitled to basic workers' compensation benefits is a precondition to the imposition of penalties under the Act. Zuchelli v. Workers' Compensation Appeal Board (Indiana University of Pennsylvania), 35 A.3d 801, 807 n.5 (Pa. Cmwlth. 2011) (citing Wyche v. Workers' Compensation Appeal Board (Pimco), 706 A.2d 1297, 1300 (Pa. Cmwlth. 1998)). Thus, a claim petition must be granted as well as an award against which a WCJ can use to measure penalties. Brutico v. Workers' Compensation Appeal Board (U.S. Airways, Inc.), 866 A.2d 1152, 1156 (Pa. Cmwlth. 2004). Because Claimant's claim petitions were denied and no benefits were granted, no penalties could be awarded in this case. Id.
Accordingly, for the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 15, 2013, the Order of the Workers' Compensation Appeal Board entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge