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Casne v. Workers' Compensation Appeal Board

December 4, 2008

DEBORAH CASNE, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (STAT COURIERS, INC., AND STATE WORKERS' INSURANCE FUND), RESPONDENTS



The opinion of the court was delivered by: President Judge Leadbetter

SUBMITTED: September 26, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Claimant, Deborah Casne, petitions for review of the Workers' Compensation Appeal Board's (Board) order affirming the order of the Workers' Compensation Judge (WCJ) terminating benefits. She challenges the WCJ's determination that she fully recovered from her work-related injury. We affirm.

Claimant was employed as a delivery driver for respondent, STAT Couriers, Inc. (Employer). On January 12, 2005, Claimant was driving a vehicle for Employer when another vehicle rear-ended her vehicle, causing her to suffer a neck and upper back strain. Pursuant to a notice of compensation payable, Claimant received disability benefits of $308.49 per week.

Employer then required Claimant to undergo a physical examination. On February 14, 2006, Dr. Julius J. Huebner examined Claimant and ultimately concluded she had fully recovered from her work-related injury and could return to work. On June 26, 2006, Employer filed a termination petition, alleging as of February 14, 2006, Claimant had fully recovered from her work-related injury. Claimant filed an answer, denying she had fully recovered.

The WCJ reviewed testimony from Claimant, Dr. Huebner, and Dr. Milton J. Klein, who had treated Claimant. The WCJ was also presented with numerous medical documents related to Claimant's injury. The WCJ found Claimant credible in part and not credible in part. Further, the WCJ found Dr. Huebner more credible than Dr. Klein. On June 26, 2007, the WCJ granted the termination petition, terminating Claimant's benefits effective February 14, 2006. Claimant appealed, arguing the WCJ's determination was not supported by substantial evidence, and that Dr. Huebner never examined her neck; thus, the WCJ erred as a matter of law in relying on his opinion. The Board affirmed. Claimant filed the instant petition for review, arguing that: (1) Dr. Huebner's testimony was insufficient to support the WCJ's conclusion that Claimant had fully recovered from her work-related injury; and (2) the Board erred in affirming the WCJ's finding discrediting Claimant's testimony in part.

In a termination petition, an employer has to prove the disability related to the compensable injury has ceased. Lewis v. Workers' Comp. Appeal Bd. (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007); see also Section 423 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. This must be shown by competent medical evidence. Paul v. Workers' Comp. Appeal Bd. (Integrated Health Servs.), 950 A.2d 1101 (Pa. Cmwlth. 2008), appeal denied, ___ Pa. ___, ___ A.2d ___ (No. 334 WAL 2008, filed November 5, 2008). Further, "in order to terminate benefits, an employer must address all of a claimant's injuries." Paul, 950 A.2d at 1104.

Although Claimant's first argument is couched in terms of whether there was substantial evidence to support the finding of full recovery, it is undisputed that Dr. Huebner opined that Claimant had fully recovered. This testimony was credited, and that certainly amounts to substantial evidence. Claimant argues, however, that Dr. Huebner did not have an adequate basis for his opinion, i.e., that it was incompetent, because, she asserts, Dr. Huebner did not examine her neck. A medical expert's opinion is not rendered incompetent unless it is solely based on inaccurate or false information. Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997). The opinion of a medical expert must be viewed as a whole, and even inaccurate information will not render the opinion incompetent unless it is dependant on those inaccuracies. Deitrich v. Workmen's Comp. Appeal Bd. (Shamokin Cycle Shop), 584 A.2d 372 (Pa. Cmwlth. 1990). Whether an expert's opinion is incompetent is a question of law subject to our plenary review.

Here, Dr. Huebner examined Claimant and reviewed multiple reports, including those dealing with Claimant's spine and the steroid injections she received. Dr. Huebner's Report, February 14, 2006, Reproduced Record (R.R.) at 183a. He concluded that she did not need further treatment and could perform any work activities. Id. at 184a. In his deposition, Dr. Huebner stated that he performed a physical examination of Claimant, noting that she expressed subjective complaints of pain in the muscles to the side of her neck. Dr. Huebner's Deposition, R.R. at 198a. He also stated that he gently pressed on different muscle groups during the examination. Id. at 199a. Dr. Huebner did not recall performing a range of motion test on Claimant's neck because the majority of her complaints were in the trapezius area of her neck and had more of a character of muscle pain than spine pain. Id. at 215a. However, he palpated the trapezius area of her neck and her cervical*fn1 spine as part of his routine examination. Id. He did not document the results of that part of the examination, other than describing diffuse tenderness on palpation. Id. He reviewed the police report from Claimant's 2005 accident, some of Dr. Klein's reports, and physical therapy reports, as well as x-rays, a CT scan, and an MRI of Claimant's cervical spine. Id. at 200-02a. He found "no sign of any injury to the spine itself, meaning the bones, ligaments, or disc material of the cervical spine." Id. at 209a.*fn2 He also found no objective evidence of ongoing neck strain, such as "muscle spasm, muscle atrophy, a deformity in terms of loss of the normal cervical lordosis," when he examined her. Id. at 221-22a.

Claimant's arguments go to the weight and credibility of the evidence and not to its competency. A reviewing court does not reweigh the evidence or review witness credibility; a reviewing court determines whether the WCJ's findings have the requisite measure of support in the record. Lehigh County VoTech Sch. v. Workmen's Comp. Appeal Bd. (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). The WCJ was free to accept Dr. Huebner's testimony that he did, in fact, examine her neck, and that based upon both his physical examination and his review of tests and records*fn3 he was able to render a medical judgment as to her recovery. Viewing Dr. Huebner's testimony in its entirety, it is simply not incompetent, and fully supports the WCJ's conclusion.

Next, Claimant challenges the WCJ's determination that she was, in significant part, not credible. Historically, credibility of witnesses has been viewed as the sole province of the fact-finder. However, Section 422(a) of the Act, as amended, 77 P.S. § 834, imposes a requirement that WCJs explain the rationale for their decisions and the reasons for rejecting or discrediting competent evidence. Specifically, that Section 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 ...


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