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