Carter v. WORKERS'COMPENSATION APPEAL BOARD
v.
Workers' Compensation Appeal Board (Brinker International, Inc.), Respondent
Commonwealth Court of Pennsylvania.
BEFORE: PELLEGRINI, Judge; FRIEDMAN, Senior Judge; QUIGLEY, Senior Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Carl Carter (Claimant) appeals the order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) denying his petition for workers' compensation payments for eye, ear, head, neck, back and other injuries allegedly suffered on January 4, 2006, while he was working at the Corner Bakery (Employer).
On January 4, 2006, Claimant was hit or grazed in the head with an empty plastic coffee urn while at his job as a kitchen worker and walking deliveryman at the Corner Bakery in Philadelphia. Claimant alleged injuries as a result and filed a workers' compensation claim. The case came before the WCJ where Claimant testified live and three co-workers and four doctors testified by deposition. Each side presented dramatically different stories as to what happened at work that day and what occurred as a result.
Claimant testified that he was struck on the right side of the head and shoulder by a 25-pound empty plastic coffee urn that a co-worker was trying to remove from a high shelf with a broomstick. He sat down holding his head for a few minutes, then walked to a bank two blocks away where his wife worked. While at the bank, he lost consciousness and was rushed to the hospital. As a result of the accident, he suffered a complete loss of vision in his right eye and significant loss of vision in his left eye. In addition, he heard permanent ringing in his right ear and suffered severe headaches, neck, shoulder and back pain, a herniated disc in his back, right ulnar neuropathy, and various other symptoms. None of these conditions have improved, and he has never been able to go back to work. Claimant admitted that he had a history of eye problems, including past retinal surgeries in his native Guyana and in Brazil that left him with poor vision in the left eye and the ability to see only lights and shadows with his right eye. However, he testified that his vision became dramatically worse following the accident. He also admitted to a 1997 car accident in which he hurt his back and a 2002 slip and fall accident that required pain management treatment.
Claimant presented the testimony of two expert witnesses, Steven Ficchi, D.O. (Dr. Ficchi) and Edward Alexander, M.D. (Dr. Alexander). Dr. Ficchi, who used to have a general family practice but now concentrates solely on pain management, admitted that he has no expertise in the area of visual or auditory problems and that his diagnoses were based solely on what Claimant had told him. Dr. Ficchi testified that Claimant complained of pain and numbness, but that Claimant's right shoulder, lumbar spine and reflexes were normal, and that while he did have L4 and L5 radiculopathy, there was evidence that it predated the workplace accident. He concluded that Claimant's medical conditions were the direct result of his accident and that he was unable to return to his job.
Dr. Alexander, a physiatrist specializing in recovery from brain and spinal injuries, testified that he did not perform either a vision or auditory examination, that he did not perform the vision tests because ophthalmologists were more qualified to perform vision tests than him, and that he based his opinions on Claimant's vision changes since the accident solely on Claimant's representations. He added that an MRI scan of Claimant's shoulder appeared normal, and that tests done in 1997 and 2002 showed L4 radiculopathy and nerve root irritation in the lumbar region. He opined that as a result of the accident, Claimant was unable to work in any capacity.
Employer presented markedly different testimony before the WCJ. Claimant's supervisor testified that Claimant was grazed with a two-to-three pound empty plastic coffee urn that a co-worker removed from a high shelf with his hands, and that it never left the co-worker's hands as it came by Claimant's head. The co-worker, who was retrieving the coffee urn, said that he could not recall if the coffee urn ever left his hands and that it weighed no more than seven or eight pounds. The supervisor testified that Claimant appeared fine and that he did not fill out an incident report because it did not seem necessary. The co-worker testified that Claimant said "ouch" and sat down for a bit, but that he did not see him after that.
Employer also presented two expert witnesses, Richard Kaiser, M.D. (Dr. Kaiser) and Richard Bennett, M.D. (Dr. Bennett). Dr. Kaiser is an ophthalmologist specializing in retinal and vitreous injuries. Following an exam of Claimant's eyes and review of his medical records, he testified that Claimant had no vision in his right eye since at least 10 years before the accident and that the vision in his left eye had been bad for just as long. Based upon Claimant's medical records and the physical characteristics of Claimant's eyes, he concluded that Claimant had either retinal degeneration or a genetic disorder present since childhood. He opined that the accident had no effect on his vision, and that such an accident was incapable of affecting one's vision in the way that Claimant contended. Dr. Bennett is a neurologist who testified that hospital records showed that Claimant suffered no injuries in the accident, that Claimant's eye condition was the result of a long-term condition, and that his back problems could be documented to date back to the earlier accidents. Both doctors concluded that Claimant could perform the same work today as he could perform the day before the workplace accident.
Presented with this dramatically divergent testimony, the WCJ found credible the testimony of Claimant's supervisor that Claimant was grazed in the head with a two-to-three pound empty plastic coffee urn. He rejected the testimony of Claimant's experts because neither performed any tests on Claimant's vision or hearing and because both of them admitted that they had no expertise in those areas of medicine. He also rejected their testimony that Claimant's shoulder, neck and back injuries were the result of the workplace accident because they admitted that those problems predated the workplace accident. The WCJ accepted the testimony of Employer's experts in its entirety. As a result, the WCJ concluded that Claimant did not meet his burden of showing continued disability from his workplace injury. Claimant appealed to the Board, which affirmed the WCJ's decision. This appeal followed.[1]
On appeal, Claimant argues that the WCJ's findings were not based on substantial competent evidence and that the WCJ should have credited the testimony of Claimant's two experts. Because of these defects, the Board committed an error of law in affirming the WCJ's decision. Claimant's contentions are uncompelling.
On the matter of the competency of Claimant's experts, it was within the WCJ's discretion whether to accept Drs. Ficchi and Alexander's expert testimony. As this Court held in Mihadas v. Department of Transportation, 741 A.2d 249 (Pa. Cmwlth. 1999):
The law is well-settled that whether a witness may be permitted to testify as an expert is a decision that is within the sound discretion of the trial court. Bennett v. Graham, 552 Pa. 205, 714 A.2d 393 (1998). Such decisions will not be disturbed on appeal without a showing of abuse of discretion by the trial court. Id. Additionally, the law is settled that in order to qualify as a[n] expert in a given field, a witness must have a reasonable pretension to specialized knowledge on the subject matter in question. Id.
Mihadas, 741 A.2d at 252 (emphasis added). While it is true that a physician is competent to testify concerning areas of medicine that he is not specialized or certified in, Marriott Corporation v. Workers' Compensation Appeal Board (Knechtel), 837 A.2d 623 (Pa. Cmwlth. 2003), the requirement that the physician has "a reasonable pretension to specialized knowledge" must still be met. Furthermore, "[a]n opinion that is rendered where the medical professional does not have a complete grasp of the medical situation and/or the work incident can render the proffered opinion incompetent." Long v. Workers' Compensation Appeal Board (Integrated Health Services, Inc.), 852 A.2d 424, 428 (Pa. Cmwlth. 2004).
In the present case, Dr. Ficchi and Dr. Alexander testified that they did not conduct any tests on Claimant's eyes or ears; rather, they relied solely on Claimant's representation of his conditions before and after the workplace accident, evidencing a lack of a complete grasp on Claimant's medical situation. Additionally, Dr. Ficchi admitted that he had no expertise in the areas of visual or auditory problems, and Dr. Alexander admitted that he did not perform vision tests because specialists were more qualified than him. These admissions show that neither doctor had the necessary "reasonable pretention to specialized knowledge" in the fields of visual or auditory problems. It was well within the WCJ's discretion to find their testimony incompetent regarding Claimant's vision and hearing problems. Moreover, the WCJ properly rejected their testimony that Claimant's shoulder, neck and back problems were work-related because their testimony as a whole supported a finding that these issues were the result of the 1997 and 2002 accidents, predating Claimant's workplace accident.
Without the testimony of Drs. Ficchi and Alexander, Claimant is unable to meet his burden of proof. When the connection between the alleged injury and continuing disability is not obvious, expert medical testimony is required. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall), 517 Pa. 98, 534 A.2d 1389 (1987). Because it is not obvious that being grazed on the head by a two-to-three pound empty plastic coffee urn that was being taken down from a shelf a couple of feet above one's head would cause the various medical problems alleged, including permanent blindness, Claimant was required to present competent expert medical testimony, which he failed to do.
For the foregoing reasons, the order of the Board is affirmed.
ORDER
AND NOW, this 21st day of December, 2009, the order of the Workers' Compensation Appeal Board dated April 28, 2009, is affirmed.
[1] This Court's scope of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n. 2 (Pa. Cmwlth. 2003).
