Opinion
No. 1986 C.D. 2008.
Submitted: February 12, 2009.
Filed: July 2, 2009.
BEFORE: SMITH-RIBNER, Judge; JUBELIRER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Sports Physical Therapists (Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed an order of a Workers' Compensation Judge (WCJ), on remand, granting the Review and Reinstatement Petitions of Kimberly Rodgers-Pomroy (Claimant) pursuant to the Pennsylvania Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 — 1041.4; 2501 — 2708. We affirm.
On August 10, 1992, Claimant sustained work-related hand injuries during the course and scope of her work for Employer. Employer subsequently issued a Notice of Compensation Payable (NCP) describing Claimant's injuries as "R Hand" (hereinafter, the 1992 Injury). Claimant thereafter received temporary total disability benefits under the Act. Subsequently, the parties executed a Supplemental Agreement suspending Claimant's benefits based upon her return to work as of June 5, 1995, without wage loss.
On March 20, 1996, Claimant was working for a different employer, Novacare, when she sustained another work-related injury (hereinafter, the 1996 Injury). By NCP recognizing the injury as "strain to right wrist," Claimant thereafter received total disability benefits under the Act until December 13, 1999, at which time she executed a Compromise and Release Agreement (hereinafter, the Agreement) settling her claim for a lump sum payment.
Employer, Sports Physical Therapists, was subsequently purchased by Novacare.
In July of 1997, Claimant underwent reconstructive surgery on her right wrist, and thereafter ceased working. Claimant attempted to return to work for one day in the wake of that surgery, but was unable to continue. Claimant was awarded Social Security disability benefits in September, 1999.
On December 19, 2001, Claimant filed a Petition to Reinstate Benefits (Reinstatement Petition) alleging a worsening of her previous injury, and seeking reinstatement of her benefits as of July 8, 1997. On March 27, 2002, Claimant filed a Petition to Review Benefits (Review Petition) alleging a material mistake in the NCP that was issued in relation to the 1992 Injury, due to its failure to recognize an injury to Claimant's left hand.
On July 16, 2002, Employer filed a Petition to Terminate Benefits (Termination Petition) alleging that Claimant had fully recovered from her 1992 work injuries as of July 17, 2002.
The Petitions were consolidated, and hearings before a WCJ ensued. By opinion and order dated February 13, 2004 (the 2004 WCJ Opinion), the WCJ denied Employer's Termination Petition, and granted Claimant's Review and Reinstatement Petitions, amending the NCP to include Claimant's left and right wrist injuries, with associated conditions. The WCJ reinstated Claimant's temporary total disability benefits under the Act as of July 8, 1997. Employer appealed to the Board.
Employer did not appeal from the WCJ's denial of Employer's Termination Petition.
The Board heard Employer's appeal without taking further testimony or evidence. Following review of the record, the Board remanded the matter to the WCJ for findings and conclusions related to whether the doctrine of res judicata barred Claimant's Review and Reinstatement Petition litigation, and if not, for findings consistent with this Court's opinion in Jeanes Hospital v. Workers' Compensation Appeal Board (Hass), 819 A.2d 131 (Pa.Cmwlth. 2003). Following the Board's remand, but prior to the WCJ's subsequent remand decision, our Supreme Court reversed this Court's opinion in Jeanes Hospital v. Workers' Compensation Appeal Board (Hass), 582 Pa. 405, 872 A.2d 159 (2005). In part relevant to the instant proceedings, the Supreme Court inJeanes Hospital held, most generally stated, that an NCP is materially incorrect if the accepted injury does not reflect all of the injuries sustained in the initial work incident, as well as all injuries that result or flow from the original injury.
Most generally stated, the doctrine of res judicata encompasses two principles providing that subsequent suits on a particular cause of action, or issue, are foreclosed when that cause or issue is the subject of a prior final order involving identical causes or issues, identical parties, and certain other essentiality and identity factors. See generally, Henion v. Workers' Compensation Appeal Board (Firpo Sons, Inc.), 776 A.2d 362 (Pa.Cmwlth. 2001); C.D.G., Inc. v. Workers' Compensation Appeal Board (McAllister), 702 A.2d 873 (Pa.Cmwlth. 1997).
On remand, the WCJ made additional findings and ultimately concluded that Claimant's actions and/or issues were not barred by res judicata, on the basis that Employer and Novacare did not share an identity as parties to the prior and current actions. The WCJ specifically found that the instant Reinstatement and Review Petitions involved the 1992 Injury, while the Agreement precluded any additional future litigation in relation only to the 1996 Injury.
The WCJ summarized the testimony of the parties' respective medical experts, ultimately finding credible and accepting the testimony of Claimant's medical expert, and rejecting the testimony of Employer's expert. The WCJ concluded that Claimant had satisfied her Review Petition burden, under the Act and Jeanes Hospital, of demonstrating that the 1992 NCP was materially incorrect and should be amended to include bilateral wrist injuries, and that Claimant had sustained her burden under the Reinstatement Petition. By order dated December 19, 2005, the WCJ granted Claimant's Review and Reinstatement Petitions, amended the 1992 NCP to include bilateral wrist injuries and related conditions, reinstated Claimant's temporary total disability benefits, and directed Employer to reimburse Claimant's litigation costs.
Employer again appealed to the Board. The Board heard the appeal without receiving any additional evidence or testimony. Following its review of the record, the Board affirmed the WCJ's order by order dated September 29, 2008. Employer now appeals.
This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of Board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).
We first address Employer's arguments that the testimony of Claimant's medical expert was incompetent and unsupported by substantial evidence. Before the WCJ, Claimant presented the testimony of orthopedic surgeon Dr. Scott Fried, who examined and began treating Claimant on July 24, 2001. Briefly summarized, Dr. Fried testified in relevant part as to the extent of Claimant's 1992 Injury, the subsequent surgeries and treatments therefor, and the conditions that developed therefrom. Dr. Fried testified that Claimant remains currently disabled, and unable to return to work. The WCJ found Dr. Fried's testimony credible, and accepted it in its entirety.
Employer's issues have been reordered in the interests of clarity.
Employer argues that Dr. Fried's testimony was incompetent due to the fact that Dr. Fried's initial examination of Claimant occurred over eight years after Claimant's 1992 Injury, coupled with the fact that, in Employer's view, Dr. Fried did not base his opinions upon all of the available medical records relating to Claimant's treatment prior to Dr. Fried's initial examination. Employer emphasizes that Dr. Fried did not review Claimant's treatment records that were created immediately after the occurrence of Claimant's 1992 Injury. We disagree that this testimony was incompetent.
As Employer correctly points out, a medical expert may base an opinion on facts of which he has no personal knowledge, if those facts are supported by the record. Newcomer v. Workers' Compensation Appeal Board (Ward Trucking Co.), 547 Pa. 639, 692 A.2d 1062 (1997). It is well settled that a medical expert need not have performed a contemporaneous examination of a claimant within the period for which the expert is rendering an opinion. National Fiberstock Corp. v. Workers' Compensation Appeal Board (Grahl), 955 A.2d 1057 (Pa.Cmwlth. 2008).
Employer also emphasizes our holding in Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa.Cmwlth. 2002), in which we stated that a testifying medical expert must demonstrate a knowledge of the claimant's prior relevant medical records and treatment and diagnostic history to be deemed competent to render an expert medical opinion. Chik-Fil-A, however, is factually distinguishable from the instant matter, and does not stand for the absolute proposition advanced by Employer herein. In that case, the testifying medical expert demonstrated that he had no knowledge whatsoever of any of the claimant's prior relevant medical records and treatment, or of any previous diagnostic test results; as such, his testimony as to the causation of the claimant's injuries in that matter was deemed incompetent.Chik-Fil-A, 792 A.2d at 688-689.
In the instant matter, however, it is inarguable from reviewing his testimony as a whole that Dr. Fried had, and testified to, a basis of knowledge in Claimant's prior medical history, diagnoses, and treatments. Reproduced Record (R.R.) at 90a-137a. It is that foundation upon which Dr. Fried based his opinions, unlike the medical expert inChik-Fil-A. Id.
It is axiomatic, in workers' compensation proceedings, that there is no requirement that a testifying medical expert review all prior medical records. Calex, Inc. v. Workers' Compensation Appeal Board (Vantaggi), 968 A.2d 822 (Pa.Cmwlth. 2009). We have explained that "the fact that a medical expert does not have all of a claimant's medical records goes to the weight given the expert's testimony, not its competency." Marriott Corporation v. Workers' Compensation Appeal Board (Knechtel), 837 A.2d 623 (Pa.Cmwlth. 2003) (additional citation omitted).
Herein, the record shows that Dr. Fried did in fact review, at a minimum, a significant portion of Claimant's medical records predating his examination and treatment, notwithstanding Employer's emphasis on those records that the witness either did not review, or to which he did not testify. R.R. at 90a-102a; 105a-126a, 130a-137a. As such, his testimony is competent as a matter of law. Newcomer; Calex; National Fiberstock.
Further, Employer's reliance upon any records not relied upon by Dr. Fried, upon inconsistencies in the expert's testimony with other evidence presented, or upon Dr. Fried's examinations, treatment and review of Claimant and her history which predate his involvement, are matters that affect only the credibility of the witness's testimony, and the weight to be accorded thereto, which matters are the sole province of the WCJ as fact finder in this matter. Calex; Marriott Corporation. As such, Employer's arguments on these issues are without merit.
The WCJ, as the ultimate fact finder in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight. 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). In our appellate function, this Court will not reweigh the evidence presented before a WCJ upon review. Id.
We next note that Employer places great emphasis upon its view of the causation of Claimant's 1997 reconstructive surgery, and whether that surgery was occasioned by Claimant's 1992 Injury or her 1996 Injury. Dr. Fried testified that Claimant's 1997 surgery was related to Claimant's 1992 Injury. R.R. at 99a-102a. The record clearly reveals that Dr. Fried's opinion of the 1997 surgery, and of any resultant disability therefrom, was founded upon his review of Claimant's prior medical history. R.R. at 99a-102a. Dr. Fried's detailed testimony thereon is, therefor, competent. Newcomer; Calex; National Fiberstock.
Employer further founds its argument on this point upon the facts surrounding which insurance company ultimately refused, and which insurance company ultimately provided, coverage for that surgery. As with our above disposition, this point upon which Employer heavily relies in its challenge to the competency of Dr. Fried's testimony is a matter of evidentiary weight and credibility, which matters are the province of the WCJ. General Electric. A WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Id.
To the limited extent to which Employer challenges the sufficiency of the evidence upon which the WCJ made his findings in relation to Dr. Fried's testimony, both in relation to Dr. Fried's testimony as a whole, and in relation to Dr. Fried's testimony regarding the 1997 surgery, the above cited portions of the record to this matter constitute substantial evidence supporting those findings.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11 (Pa.Cmwlth. 1988).
Employer, in the most general terms, advances challenges to the sufficiency of the evidence at several points in its argument to this Court. Employer does not, however, challenge any particular finding as made by the WCJ. As Employer has deigned not to elaborate in detail upon any of these generalized challenges, neither will we address them with any more specificity than that set forth herein. We note, however, that our review of the record as a whole reveals substantial evidence supporting each of the WCJ's findings implicated in Employer's challenges.
Next, Employer argues that substantial evidence does not support the WCJ's finding that the 1992 NCP injury description was incorrect, the amendment of which was the subject of Claimant's Reinstatement Petition. In relevant part, the WCJ found, after summarizing the testimony of Claimant and Dr. Fried:
A review petition is limited to a review or modification of a notice of compensation payable or supplemental agreement which is in some material respect incorrect, and such modification may occur at any time. Birmingham Fire Insurance Company v. Workmen's Compensation Appeal Board (Kennedy), 657 A.2d 96 (Pa.Cmwlth. 1995). It is the burden of the party seeking modification of the notice of compensation payable, or supplemental agreement, to prove that a material mistake of fact or law was made at the time the notice of compensation payable was issued. Id.
15. Claimant's testimony is credible. Claimant's return to modified duty work following her work injury and numerous surgeries supports her credibility. Her testimony demonstrates that in addition to injuring her right wrist on August 19, 1992, she also injured her left wrist and ultimately developed debilitating symptoms throughout both arms. . . .
* * *
16. The testimony of Dr. Fried is credible and accepted in its entirety. His opinion is that the Claimant suffered tears of the ligaments and cartilage in both wrists due to the trauma at work on August 10, 1992. His opinion also establishes that due to the impaired use of her arms due to the wrist injuries, Claimant developed left ulnar neuropathy, right radial neuropathy and right brachial plexopathy. These conditions are related to the August 10, 1992 work injury. . . .
WCJ Opinion at 4 (emphasis added).
The transcript of testimony from Claimant mirrors the WCJ's summarization of that testimony, both in the above-quoted finding, and in the WCJ's more detailed Finding 13 recounting Claimant's statements. R.R. at 24a-31a, 33a-37a, 42a-43a, 46a-47a, 50a-54a, 66a-69a; WCJ Opinion at 2-4. That testimony from Claimant, in the aspects cited herein as well as in whole and as found credible, constitutes substantial evidence supporting the WCJ's findings. Mrs. Smith's Frozen Foods.
Similarly, the transcript of testimony from Dr. Fried mirrors the WCJ's summarization of his testimony. R.R. at 90a-103a, 109a-124a, 129a-137a; WCJ Opinion at 3-4. That testimony from Dr. Fried, in the aspects cited herein as well as in whole and as found credible, constitutes substantial evidence supporting the WCJ's findings. Mrs. Smith's Frozen Foods.
In its challenge to the sufficiency of the evidence supporting the WCJ's findings, Employer also argues that other selected evidence of record contradicts the testimony as summarized by the WCJ, and contradicts the findings as made thereon. However, in determining whether substantial evidence supports a WCJ's finding of fact, it is irrelevant that the record reveals evidence that would support a contrary finding; the relevant inquiry is whether the record contains substantial evidence supporting the actual findings that were made. Grabish v. Workmen's Compensation Appeal Board (Trueform Foundations, Inc.), 453 A.2d 710 (Pa.Cmwlth. 1982). As such, Employer's challenges to the sufficiency of the evidence supporting the WCJ's findings must fail.
Finally, Employer argues that the Board erred in affirming Claimant's Reinstatement Petition because her testimony alone is insufficient to meet her burden of proof. Given our disposition of Employer's challenges to the competency and sufficiency of Dr. Fried's testimony, and that testimony's support of the WCJ's grant of Claimant's Reinstatement Petition, we need not address the sufficiency of Claimant's testimony as the sole support for that grant.
A claimant seeking reinstatement following a suspension of benefits must prove that: (1) through no fault of her own, the claimant's disability, i.e., earning power, is again adversely affected by the work-related injury, and; (2) the disability which gave rise to the original claim continues. McKay v. Workmen's Compensation Appeal Board (Osmolinski), 688 A.2d 259 (Pa.Cmwlth. 1997) (additional citation omitted). Once a claimant testifies that his or her prior work-related injury continues, the burden shifts to the employer to prove the contrary. Latta v. Workmen's Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 642 A.2d 1083 (1994). Although there is a presumption that a work-related injury persists, it is a claimant's burden on a petition for reinstatement to affirmatively establish that work-related injury caused his or her present disability and loss of earning power; under certain factual patterns, claimant's testimony alone may be insufficient. See Sacred Heart Hospital v. Workers' Compensation Appeal Board (Mutis), 703 A.2d 577 (Pa.Cmwlth. 1997).
Accordingly, we affirm.
ORDER
AND NOW, this 2nd day of July, 2009, the order of the Workers' Compensation Appeal Board dated September 29, 2008, at A06-0217, is affirmed.