Opinion

J. Rice v. Spirac USA, Inc. (WCAB)

Court
Commonwealth Court of Pennsylvania
Filed
Jul 3, 2023
Status
Unpublished
On the bench
Covey, J.
Cited by
0 cases
Authority
More cited than 23.6%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Rice, :

Petitioner :

:

v. :

:

Spirac USA, Inc. :

(Workers’ Compensation :

Appeal Board), : No. 1239 C.D. 2022

Respondent : Submitted: June 5, 2023

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: July 3, 2023

Jeffrey Rice (Claimant) petitions this Court for review of the Workers’

Compensation (WC) Appeal Board’s (Board) November 2, 2022 order affirming the

WC Judge’s (WCJ) decision that denied Claimant’s Claim Petition for WC benefits

(Claim Petition). Claimant presents four issues for this Court’s review: (1) whether

Spirac USA, Inc.’s (Employer) expert testimony was competent; (2) whether the

WCJ capriciously disregarded evidence; (3) whether the WCJ’s judgment was

manifestly unreasonable; and (4) if Claimant prevails, whether he is entitled to

counsel fees.1 After review, this Court affirms.

1

Claimant also presented the issue of whether the WCJ erred by finding Claimant’s

expert’s testimony incompetent. See Claimant Br. at 4. However, the Board disagreed with the

WCJ and determined Claimant’s expert’s testimony was indeed competent. Employer argues that

the WCJ was correct, but Employer did not appeal from the Board’s decision. Thus, that issue is

not properly before this Court.

Claimant is a Regional Sales Manager for Employer. Claimant

allegedly contracted necrotizing fasciitis, a bacterial disease resulting in multiple

surgeries, by an exposure to Escherichia coli (E. coli) bacteria while on a one-day

overnight business trip to Little Rock, Arkansas, on August 5, 2019. See

Reproduced Record (R.R.) at 6a. On September 9, 2019, Employer issued a Notice

of WC Denial (NCD). The NCD indicated that the claim was denied because

Claimant did not suffer a work-related injury, and the injury was not within the scope

of his employment.2 See R.R. at 5a. On October 22, 2021, Claimant filed the Claim

Petition, therein alleging total disability from August 5, 2019, and ongoing.

The WCJ held hearings on February 16 and April 18, 2022. On May

13, 2022, the WCJ denied the Claim Petition, concluding that Claimant failed to

meet his “burden of persuasion, particularly as to the timing of the bacterial

exposure[.]” WCJ Dec. at 5. The WCJ adopted and attached Employer’s Summary

of Evidence. Claimant appealed to the Board. On November 2, 2022, the Board

affirmed the WCJ’s decision. The Board concluded: “Taken as a whole, [Claimant’s

expert, Jeffrey D. Gaber, M.D., FACP’s (Dr. Gaber),3] testimony is not equivocal,

he did not recant his opinions, and he explained that he held his opinions within a

reasonable degree of medical certainty. We therefore do not agree that Dr. Gaber’s

opinion was deficient.” Board Dec. at 12. However, the Board continued:

“Notwithstanding, we cannot agree that the [WCJ’s] credibility determinations were

inadequate.” Id. Claimant appealed to this Court.4

2

The NCD indicated that the injury included a leg amputation. See R.R. at 4a.

3

The reference to FACP indicates that Dr. Gaber is a Fellow of the American College of

Physicians.

4

“Our scope of review in a [WC] appeal is limited to determining whether necessary

findings of fact are supported by substantial evidence, whether an error of law was committed, or

whether constitutional rights were violated.” Pocono Mt. Sch. Dist. v. Kojeszewski (Workers’

Comp. Appeal Bd.), 280 A.3d 12, 16 n.4 (Pa. Cmwlth. 2022).

2

Claimant first argues that Employer’s expert, S. Michael Phillips,

M.D.’s (Dr. Phillips) opinions are incompetent. Specifically, Claimant contends

that, when considered as a whole, and in conjunction with his July 26, 2020 report,

Dr. Phillips’ opinions are not supported by a correct, complete foundation - his

opinion is contrary to criteria identified in his report, and he disregards - or did not

know - necessary facts, such as a meeting that occurred in a waste water equipment

warehouse. Claimant cites Long v. Workers’ Compensation Appeal Board

(Integrated Health Service, Inc.), 852 A.2d 424 (Pa. Cmwlth. 2004), to support his

position.

The law is well settled:

[A] determination of whether certain medical evidence is

competent is a conclusion of law reviewable on appeal.

Dillon v. Workers’ Comp. Appeal Bd. (City of Phila.), 853

A.2d 413 (Pa. Cmwlth. 2004)[.] . . . Competency, when

applied to medical evidence, is merely a question of

whether a witness’s opinion is sufficiently definite and

unequivocal to render it admissible. Cerro Metal Prods.

v. Workers’ Comp. Appeal Bd. (Plewa), 855 A.2d 932 (Pa.

Cmwlth. 2004)[.] . . .

In addition, a medical expert’s opinion is not rendered

incompetent unless it is based solely on inaccurate

information. Am. Contracting Enters., Inc. v. Workers’

Comp. Appeal Bd. (Hurley), 789 A.2d 391 (Pa. Cmwlth.

2001). Moreover, “[t]he 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 Corp. v. Workers’ Comp. Appeal Bd. (Knechtel),

837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003).

Pryor v. Workers’ Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1203 (Pa.

Cmwlth. 2006).

The Long Court held: “An opinion that is rendered where the medical

professional does not have a complete grasp of the medical situation and/or the work

3

incident can render the proffered opinion incompetent.” Long, 852 A.2d at 428. In

Long,

[the e]mployer [] offered the deposition of Dr. Murray

Robinson[ (Dr. Robinson)], who at [the e]mployer’s

request examined [the c]laimant on August 20, 1999. In

his report, Dr. Robinson state[d] that [the c]laimant

suffered from cervical disc disease and cervical

radiculopathy because of the progression of her disc

herniation, which was caused by the injury sustained on

April 10, 1999. Dr. Robinson stated that the [c]laimant’s

work injury aggravated her preexisting C5-6 herniated

disc. Dr. Robinson also stated that the [c]laimant should

consider cervical surgery and could perform only

sedentary work.

Subsequently, and it is alleged at the urging of [the]

employer’s counsel, Dr. Robinson reviewed pictures of the

bathroom mirror that it is alleged fell upon [the c]laimant,

and Dr. Robinson revised his opinion and issued a new

report on November 4, 1999. Dr. Robinson’s revised

opinion was that based on the pictures he reviewed, the

mirror in the picture could not have caused [the

c]laimant’s cervical spine injury, or any of the associated

soft tissue injury. Dr. Robinson stated that the [c]laimant

did not sustain trauma significant enough to cause a head

injury. Dr. Robinson then opined that the most likely

cause for the progression of [the c]laimant’s C5-6 disc

herniation was the [c]laimant’s degenerative disc disease.

On cross-examination, Dr. Robinson admitted that he

had no information upon which to base his conclusion.

He stated that he had no idea how much the mirror that

struck [the c]laimant weighed, of what material it was

made, the rate of speed it could fall[,] or the distance it

could have fallen.

Id. at 426-27 (emphasis added; internal record citations omitted). The Long Court

concluded, based on the above, that Dr. Robinson’s testimony was incompetent.

Here, Dr. Phillips was well aware that Claimant contracted E. coli, and that Claimant

was alleging that he contracted it in Little Rock, Arkansas, based on news reports

4

that there had been an outbreak of E. coli in Arkansas two and a half months before

Claimant’s work visit. See R.R. at 361a.

Dr. Phillips expressly testified:

Now, the thing that I want to point out at this point is that

this degree of infection, which was bilateral, which had a

long antecedent history of multiple infections in the same

area, which extended from -- according to the [computed

tomography scan or] CT, from the knee to the ankle,

without any abscess formation, didn’t happen overnight.

That type of an infection and so on will require several

weeks to get as severe as it was. Certainly it would be

much -- it had to have occurred long before he went on this

business trip.

R.R. at 349a. Dr. Phillips concluded:

Q. . . . . Let me just ask you a couple of questions just

going off of your report rather than just you having to refer

and read it in. You’ve indicated in your testimony that

there was a long history of infection that preceded the trip

to Arkansas and also the amputation itself, that he had

active lesions both before, during, and after the trip -- I

guess he got down there on August 5th, he left there on

August the 6th -- and that there was no unusual exposure

to any kind of bacteria during that time, he wasn’t going

to places where there was standing water or handling

fouled water of any type, that we’re aware of, based upon

his testimony.

Doctor, with regard to the infection itself, based upon that

criteria, do you have an opinion within a reasonable degree

of medical certainty as to whether the infection that set in

and was addressed in the first week and second week of

August 2019, which ultimately resulted in the amputation

of the right leg, was at all related to [Claimant’s] work

activities or any exposures during those work activities?

A. Yes. My opinion is that there’s no evidence of any

unusual exposure during that period of time, and there is

no relationship between his work activity and the course

of this illness. It would have happened if he went on that

trip or if he didn’t go on the trip.

5

R.R. at 360a-361a.

Relative to Dr. Phillips’ testimony, the WCJ described, in relevant part:

6. . . . . [O]n the medical opinions expressed by Dr.

Phillips, [Employer’s] medical expert, whose opinions are

accepted over those presented by Dr. Gaber, as in conflict.

In this regard, inter alia, while Dr. Gaber medically

implicated the Arkansas visit in that symptoms developed

within days of the visit, Dr. Phillips opined that

Claimant’s bacterial infection was so severe within the

relevant time period as to preclude the Arkansas visit

as being the source of Claimant’s condition. In sum, as

noted by Dr. Phillips, Claimant’s bacterial infection

(caused by E.[ ]coli - which is ubiquitous in nature,

appearing everywhere) was so severe that its progression

would have occurred whether [C]laimant had visited Little

Rock, Arkansas, or not. (Dr. Phillips, [R.R. at 361a.]) As

noted by Dr. Phillips, Claimant’s infection required

“several weeks to get as severe as it was . . . it had to

have occurred long before he went on this business

trip.” (Dr. Phillips, [R.R. at 349a], [e]mphasis

[s]upplied)[.]

7. In accepting Dr. Phillips’ medical opinions - negating

the Arkansas visit - . . . on the merits, Dr. Phillips’

opinions find support in the multiple medical records

he reviewed. His opinions were reasonable, clear, cogent,

and fully explained in every way[.]

WCJ Dec. at 5 (emphasis added).

After thoroughly reviewing Dr. Phillips’ testimony, see R.R. at 329a-

386a, and Dr. Phillips’ July 26, 2020 report, see R.R. at 421a-439a, this Court agrees

with the WCJ. Contrary to Claimant’s assertions, Dr. Phillips’ testimony and July

26, 2020 report were both internally consistent, consistent with each other, and fully

supported by the medical records Dr. Phillips reviewed. Concerning whether Dr.

Phillips disregarded - or did not know - particular facts, such as a meeting that

occurred in Arkansas in a waste water equipment warehouse, that “goes to the weight

given the expert’s testimony, not its competency.” Pryor, 923 A.2d at 1203 (quoting

6

Marriott Corp., 837 A.2d at 631 n.10). Accordingly, because Dr. Phillips’ testimony

“is sufficiently definite and unequivocal to render it admissible,” it is competent.

Pryor, 923 A.2d at 1203.

Claimant next argues that Employer’s Summary of Evidence that the

WCJ adopted was insufficient/misleading. Specifically, Claimant contends that

Employer omitted reference to (i.e., capriciously disregarded) necessary facts,

impacting the WCJ’s credibility evaluation, including the unrefuted fact that

Claimant attended a meeting in a waste water equipment warehouse in Arkansas,

and that Dr. Phillips did not know or identify that fact. Therefore, Claimant asserts

that the WCJ’s credibility rationale was not supported by the record as a whole.

Initially, the WCJ stated at the close of the July 12, 2021 hearing: “And,

of course, I need a Summary of Evidence, . . . separately filed as an exhibit due to

the virus situation.” R.R. at 458a. Claimant’s counsel responded: “Yes.” Id.

Further, “a WCJ ‘may adopt, verbatim, findings of fact submitted by a party so long

as substantial evidence in the record supports the findings.’ [Cnty.] of Del[.] v.

Workmen’s Comp[.] Appeal [Bd.] (Thomas), . . . 649 A.2d 491, 495 ([Pa. Cmwlth.]

1994) (emphasis added) . . . .” Dillon v. Workers’ Comp. Appeal Bd. (City of Phila.),

853 A.2d 413, 421(Pa. Cmwlth. 2004); see also McCarraher v. Workers’ Comp.

Appeal Bd. (Eagleville Hosp.) (Pa. Cmwlth. Nos. 1983, 1991 C.D. 2014, filed Nov.

3, 2015), slip op. at 15 (“[W]e discern no error in the WCJ’s decision to reference

and append to his decision [the e]mployer’s summary of the evidence, and then

render ‘hard’ findings that fully resolved the petitions before him.”).5

Claimant essentially argues that Employer’s Summary of Evidence

misstated facts. Specifically, Claimant testified:

5

This Court’s unreported memorandum opinions may be cited “for [their] persuasive

value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal

Operating Procedures, 210 Pa. Code § 69.414(a). McCarraher is cited for its persuasive value.

7

Q. Okay. Was there any point in time that you recall in

Arkansas that your right ankle was exposed to water?

A. Just the shower, you know, at a hotel.

Q. Do you recall if it rained at all?

A. It rained, I think, when I was leaving. The afternoon

that I was leaving I believe it rained. There were some

storms that came through that also delayed flights

somewhat.

And then I was at a manufacturer’s representative’s office

that was an equipment supplier that was involved in water

and wastewater, and they had a shop where they brought

used equipment in that had been exposed to water and

waste[ ]water applications. So it’s industrial-type

warehousing.

R.R. at 42a. Employer’s Summary of Evidence provided, in pertinent part:

Claimant stated that while on his trip to Arkansas, his right

ankle was exposed to water when he showered at his hotel.

He attended a meeting at a manufacturer

representative’s/equipment supplier’s offices which

contained a shop that contained equipment which may

have been exposed to waste[ ]water applications. He made

no mention of visiting that shop or handling the

equipment. He had something to drink which contained

ice which he assumed was made with local water.

R.R. at 603a.

Claimant asserts that, in addition, the WCJ

much like Dr. Phillips, disregarded the ‘actual, objective

factors’ upon which Dr. Gaber based his opinion:

[] [t]he known latency period for the specific bacteria

involved; [] [t]he open wound and pre[]existing immune

deficiency hastening [C]laimant’s reaction to exposure; []

[m]ultiple news articles of known, high levels of E[.] coli

bacteria in Arkansas in the weeks preceding [C]laimant’s

business meeting; [] [t]he meeting occurring in a

warehouse storing used waste water equipment; [] [t]he

list of criteria cited by Dr. Phillips fully supports Dr.

8

Gaber’s opinions; [] [t]he list of criteria cited by Dr.

Phillips contradict Dr. Phillips’ opinions; and [] [t]he

absence of any other logical explanation for when/where

[C]laimant was exposed.

Claimant Br. at 21-22.

Importantly, the WCJ stated:

At the outset[,] [i]t is noted the relevant infection, -

necrotizing fasciitis, with sepsis - with horrendous impact

requiring amputation of the right leg above the knee - is

not in dispute. Rather, the claim has been denied, with the

determinative issue being whether the infection was

initialed [sic] by an E.[ ]coli exposure during the one-day

trip to Arkansas. No incident is asserted - as is common

in injury/accident cases - and on review, while

environmental factors have been presented, e.g., news

reports of E.[ ]coli, and beach closings somewhat distance

[sic] from Little Rock and earlier than August 2019 - the

determinative causal factor is medical in nature.

R.R. at 598a. The WCJ further noted: “Within the focus of Dr. Phillips’ testimony

and opinions, the testimony of [] Claimant is likewise accepted – it being again noted

however that[,] here, the essential determinative issue as to causation is a medical

question.” R.R. at 599a. The WCJ concluded:

On the outstanding Claim Petition[,] [] Claimant had the

burden of proof to establish all elements of

compensability; pursuant to the Findings [of Fact], there

has been a failure in the burden of persuasion,

particularly as to the timing of the bacterial exposure,

resulting in a denial of the Claim Petition, with

corresponding rejection of the medical/subrogation claim.

Id. (emphasis added).

“It is well established that the WCJ is the ultimate fact[-

]finder and is empowered to determine witness credibility

and evidentiary weight. The WCJ, therefore, is free to

accept or reject, in whole or in part, the testimony of any

witness, including medical witnesses.” Griffiths v.

Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72,

9

76 (Pa. Cmwlth. 2000). In a substantial evidence

challenge,

it is irrelevant whether the record contains

evidence to support findings other than those made

by the WCJ; the critical inquiry is whether there is

evidence to support the findings actually made. . . .

We review the entire record to determine if it

contains evidence a reasonable mind might find

sufficient to support the WCJ’s findings. . . . If the

record contains such evidence, the findings must

be upheld even though the record contains

conflicting evidence.

Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933

A.2d 1095, 1101 (Pa. Cmwlth. 2007) (citations omitted).

This inquiry requires that we “view the evidence in the

light most favorable to the prevailing party and give [that

party] the benefit of all inferences reasonably deduced

from the evidence.” Edwards v. Workers’ Comp. Appeal

Bd. (Epicure Home Care, Inc.), 134 A.3d 1156, 1161-62

(Pa. Cmwlth. 2016).

Columbia Cnty. Comm’rs v. Rospendowski (Workers’ Comp. Appeal Bd.), 286 A.3d

436, 445-46 (Pa. Cmwlth. 2022).

Here, the WCJ made it clear that he did not believe Claimant contracted

E. coli in Arkansas because he believed Dr. Phillips’ testimony that, based on the

medical evidence, Claimant contracted E. coli before his trip to Arkansas.

“[V]iew[ing] the evidence in the light most favorable to the prevailing party[,

Employer,] and giv[ing] [Employer] the benefit of all inferences reasonably deduced

from the evidence[,]” Rospendowski, 286 A.3d at 445-46 (quoting Edwards, 134

A.3d at 1161-62), this Court holds that substantial evidence supported the WCJ’s

findings. Accordingly, the WCJ’s credibility rationale was supported by the record

as a whole.

Claimant next argues that the WCJ’s judgment was manifestly

unreasonable. Specifically, Claimant contends

10

a capricious disregard of evidence and/or an abuse of

discretion are NOT limited to circumstances of willful

conduct by a WCJ, but include situations where

‘overwhelming evidence’ contrary to the decision reached

could not logically have been overlooked, and/or where

the judgment exercised was manifestly unreasonable.

Based on the evidence [] cited above, either or both

circumstances apply here, based largely on having adopted

an insufficient Summary of Evidence, which does not

adequately or accurately convey the necessary facts of the

case. As a result, there was necessary evidence that was

disregarded by the WCJ in assessing credibility and

competence; and an exercise of judgement that was not

reasonable in light of the disregarded facts.

Claimant Br. at 22.

A capricious disregard only occurs when the WCJ

deliberately ignores relevant, competent evidence.

Capasso v. Workers’ Comp. Appeal Bd. (RACS Assocs.,

Inc.), 851 A.2d 997, 999 (Pa. Cmwlth. 2004). Capricious

disregard of evidence “is a deliberate and baseless

disregard of apparently trustworthy evidence.” Williams

v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless

Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004).

Nonetheless, “where there is substantial evidence to

support [a WCJ’s] factual findings, and those findings

in turn support the conclusions, it should remain a rare

instance in which an appellate court would disturb an

adjudication based upon capricious disregard.” Leon

E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd.

(Marlowe), . . . 812 A.2d 478, 487 n.14 ([Pa.] 2002).

Dep’t of Corr. - SCI Chester v. Faison (Workers’ Comp. Appeal Bd.), 266 A.3d 714,

736 (Pa. Cmwlth. 2021) (emphasis added).

Further,

a WCJ’s decision must satisfy the reasoned decision

requirements of Section 422(a) of the [WC] Act [(Act)],[6]

6

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

11

77 P.S. § 834. Section 422(a) [of the Act] provides, in

relevant part, that

[a]ll 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.

77 P.S. § 834. To satisfy the reasoned decision

requirements, a WCJ must set forth the rationale for the

decision by specifying the evidence relied upon and

reasons for accepting it. Daniels [v. Workers’ Comp.

Appeal Bd. (Tristate Transp.)], 828 A.2d [1043,] 1047

[(Pa. 2003)]; Dorsey v. Workers’ Comp. Appeal Bd.

(Crossing Constr. Co.), 893 A.2d 191, 194 (Pa. Cmwlth.

2006). In the face of conflicting evidence, the WCJ “must

adequately explain the reasons for rejecting or discrediting

competent evidence.” 77 P.S. § 834. “Section 422(a) [of

the Act] does not require the WCJ to discuss all of the

evidence presented[ ]” but only “to make the findings

necessary to resolve the issues raised by the evidence

and relevant to the decision.” Dorsey, 893 A.2d at 194

n.4. “[T]he purpose of a reasoned decision is to spare the

reviewing court from having to imagine why the WCJ

believed one witness over another[ ]” and to “permit

adequate appellate review.” Id. at 194, 196.

Faison, 266 A.3d at 736-37 (emphasis added).

Here, as stated above, the WCJ made clear that he did not believe

Claimant contracted E. coli in Arkansas because he believed Dr. Phillips’ testimony

that, based on the medical evidence, Claimant contracted E. coli before his trip.

Because “there is substantial evidence to support [the WCJ’s] factual findings, and

those findings in turn support the conclusions,” Faison, 266 A.3d at 736 (quoting

Marlowe, 812 A.2d at 487 n.14), and the WCJ “ma[d]e the findings necessary to

resolve the issues raised by the evidence and relevant to the decision[,]” Faison, 266

12

A.3d at 737 (quoting Dorsey, 893 A.2d at 194 n.4), the WCJ’s judgment was not

manifestly unreasonable.7

For all of the above reasons, the Board’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge

7

Having disposed of all issues in Employer’s favor, the issue of whether Claimant is

entitled to counsel fees is moot.

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Rice, :

Petitioner :

:

v. :

:

Spirac USA, Inc. :

(Workers’ Compensation :

Appeal Board), : No. 1239 C.D. 2022

Respondent :

ORDER

AND NOW, this 3rd day of July, 2023, the Workers’ Compensation

Appeal Board’s November 2, 2022 order is affirmed.

_________________________________

ANNE E. COVEY, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.