Opinion
No. 1755 C.D. 2012
05-03-2013
Dawn Graham, Petitioner v. Workers' Compensation Appeal Board (Wordsworth Academy), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Dawn Graham (Claimant) petitions for review of the Workers' Compensation Appeal Board (Board) Order which reversed the Workers' Compensation Judge's (WCJ) denial, in part, of Wordsworth Academy's (Employer) Petition to Terminate Compensation Benefits (Termination Petition).
I. Background
Claimant worked as a training administrator for Employer, which required that she oversee ten departments and ensure training compliance. Notes of Testimony, September 9, 2009, (N.T. 9/9/09) at 5. She worked forty hours per week at a salaried position. N.T. 9/9/09 at 5-6. Claimant sustained a work-related injury on January 26, 2009, when she tripped as she was climbing steps and hit her head on concrete. When she awoke, she tried to walk but later felt nauseous and dizzy, collapsed, and was driven to WorkNet. N.T. 9/9/09 at 7-10. Claimant's injuries consisted of contusions to her face, scalp and neck and she received benefits pursuant to a Notice of Compensation Payable (NCP). Claimant's benefits were modified as of March 30, 2009.
Some page numbers of the Reproduced Record are not visible.
Claimant also worked for Northwestern Human Services, a nonprofit organization, as therapeutic support staff, working one-on-one with children with behavioral issues. She worked fifteen-twenty hours per week earning $15.00 an hour. She also worked for Village Care Family Services, an early intervention center, as a human resource generalist. That position required Claimant to write policies and procedures, determine benefits and update files. She worked ten hours a week at $35.00 an hour. N.T. 9/9/09 at 13-15. As part of her Review Petition, Claimant alleged that her average weekly wage (AWW) should be amended to include the concurrent employment. The WCJ granted the Review Petition to include Claimant's wages for the concurrent employment. The Board affirmed. The AWW issue is not before this Court.
On March 30, 2009, Claimant returned to her regular position with Employer. She advised Andrew Gross, her supervisor, and Arlene Huggins in human resources, of her understanding of her limitations. Claimant testified that Employer thought she could perform her regular job for two hours but she did not always work two hours a day. N.T. 9/9/09 at 17-18. Claimant lost her pre-injury position during the period before she returned to work. N.T. 9/9/09 at 19. She experienced extreme fatigue, severe head pain that affected her vision, pressure in the back of her eyes and shooting pains to the top of her head. N.T. 9/9/09 at 10-13. Claimant could not read or write and experienced headaches and memory issues. N.T. 9/9/09 at 25. She worked until June 2, 2009, when Dr. McGinley, her family doctor, took her out of work.
On June 26, 2009, Claimant filed a Review Petition and alleged that the NCP should be amended to include a brain injury and concussion. Claimant also sought a reinstatement of total disability benefits.
On October 22, 2009, Employer filed a Termination Petition which alleged that as of July 21, 2009, Claimant fully recovered from the work injury and was able to return to unrestricted work.
Claimant continued to receive partial disability benefits of $417.40 per week. Claimant testified that she could not return to her pre-injury position with Employer because of extreme fatigue, headaches, and dazes that caused her to walk into walls. N.T. 9/9/09 at 36. Claimant did not return to work for her other employers. N.T. 9/9/09 at 42. Claimant's symptoms regressed in terms of her speech and language. N.T. 9/9/09 at 44.
Claimant also testified that her symptoms improved in that she was able to walk in a straight line, turn her head back and forth, and read paragraphs. She was also able to cook and grocery shop. Notes of Testimony, June 9, 2010, (N.T. 6/9/10) at 7-8. Claimant still suffered severe headaches and experienced memory issues. N.T. 6/9/10 at 11. Claimant saw a neuropsychologist, occupational therapist, rehabilitation doctor, neurologist and her family doctor. N.T. 6/9/10 at 14-16. Claimant testified that she could not return to work in any capacity because of cognitive fatigue, headaches, impaired reading and math skills and memory issues. N.T. 6/9/10 at 17-18.
Claimant submitted a Statement of Wages for her employment with Northwestern Human Service of Bucks County, which indicated an AWW of $299.23. She also submitted a Statement of Wages for her employment with Village Care Family Services, which indicated an AWW of $350.00. Exhibit C-9 consists of payroll records from Village Care Family Services from March 2008, to January 2009.
Jeanne Pelensky, M.D., (Dr. Pelensky), board-certified in internal medicine, physical medicine and rehabilitation, testified by deposition on behalf of Claimant. Dr. Pelensky initially saw Claimant on September 4, 2009, at which time she obtained a history of the work incident and Claimant's complaints and performed an examination. Deposition of Dr. Pelensky, February 18, 2010, (Dr. Pelensky Deposition), at 15-18. Prior to being seen by Dr. Pelensky, Claimant was seen by a colleague, Dr. Hopwood, a neuropsychologist. Dr. Pelensky Deposition at 18. Dr. Pelensky reviewed Dr. Hopwood's evaluations, which took place on May 21, 2009, and May 29, 2009, which indicated that Claimant did not perform as well as would be expected for someone at her level of training. Dr. Pelensky Deposition at 20. Dr. Pelensky opined that Claimant suffered a concussion after the fall at work and continued experiencing post-concussion symptoms which included memory problems, dizziness, irritability, cognitive problems and limited endurance to perform activities that involved thinking, and a traumatic brain injury. Dr. Pelensky Deposition at 24. Dr. Pelensky opined that Claimant's work-related injuries were worse than contusions because she had persistent cognitive and balance deficits, headaches and stiffness. Dr. Pelensky Deposition at 26.
Dr. Pelensky saw Claimant in November 2009, and on January 21, 2010, at which times Claimant's complaints continued. Dr. Pelensky Deposition at 36. Her diagnoses were persistent post-concussive syndrome with ongoing cognitive deficits and persistent headache. Dr. Pelensky Deposition at 42. Dr. Pelensky opined that Claimant was not capable of returning to work in any capacity and had not recovered from her work-related injuries. Dr. Pelensky Deposition at 45.
Employer presented the testimony of Christopher King, Psy.D. (Dr. King), a licensed psychologist. He evaluated Claimant on July 21, 2009, at which time he obtained a history of the work incident and treatment and reviewed medical records. Deposition of Dr. King, April 13, 2010 (Dr. King Deposition), at 8-9. Dr. King testified that a CT scan of Claimant's head was performed on the day of the incident and was normal. Dr. King Deposition at 11. Dr. King opined that the worsening of symptoms several days after a trauma or event, as Claimant reported, was not consistent with post-concussion syndrome because concussion-related symptomatology is felt immediately. Dr. King Deposition at 14. On February 4, 2009, there was no indication of a problem or objective evidence of memory impairment. An MRI from February 11, 2009, was normal. Dr. King Deposition at 15. When Dr. King evaluated Claimant her presentation was normal, with no evidence of emotional distress or anxiety, no evidence of any word finding problems or dysarthria of speech, and she demonstrated normal mental stamina. Dr. King Deposition at 21. Dr. King administered a standardized mental status examination to assess orientation and basic cognitive abilities and Claimant performed well within normal limits. Dr. King Deposition at 30-31. Dr. King opined that Claimant had fully recovered as of the time of his examination and could return to her pre-injury position. He found no evidence of a brain injury, and there were no objective findings to substantiate Claimant's complaints. Dr. King Deposition at 34-35.
By a Decision and Order of November 23, 2010, the WCJ denied the Review Petition with respect to the nature of injuries and determined that Claimant did not establish that she sustained additional work-related injuries in the nature of post-concussive syndrome with cognitive deficits.
The WCJ denied the Reinstatement Petition, and concluded that Claimant did not meet her burden of proving that her benefits should be reinstated to total disability as of June 3, 2009. The WCJ granted total disability benefits from January 26, 2009, through March 30, 2009, and partial disability benefits as of March 31, 2009, and ongoing based on the corrected AWW. The WCJ granted the Termination Petition in part, and determined that Employer proved that Claimant fully recovered from any mild concussion she may have sustained, but did not prove that Claimant fully recovered from the face, neck and scalp contusions.
The WCJ determined:
....
17. This Judge [WCJ] had the opportunity to observe Claimant on two occasions and finds her credible in part. Her testimony is credible relative to the events surrounding the work injury and her concurrent employment. Regarding her allegations relative to the Review Petition, Claimant alleges symptoms in the nature of difficulty reading and performing math,
headaches, cognitive fatigue, and speech, language and memory problems. This Judge [WCJ] could detect none of these symptoms during either of Claimant's two testimonies. Claimant was very well-spoken and appeared to have no difficulty remembering the details of the work injury and her treatment. Her speech was fluent and she had no difficulty answering the questions posed by the attorneys. Based on her testimony, which revealed no indication of a brain injury/cognitive difficulties, Claimant needed to present medical evidence that connected her alleged symptoms to her work injury, and present competent medical evidence to support her contention that she was unable to work as of June 2, 2009.
18. The testimony of Dr. Pelensky is found to be not credible relative to the issue of whether Claimant sustained a traumatic brain injury as a result of the work injury. Dr. Pelensky's opinions are based on Claimant's subjective complaints. She offered no explanation for Claimant's symptoms in the face of normal diagnostic studies, including a normal brain MRI and normal CT scan. She offered no explanation as to how Claimant could have intact memory relative to recalling her medical treatment and the details of her work injury, with fluent and concise speech, and yet allegedly have cognitive difficulties, problems with reading and math, and walking into walls. While she opined Claimant's symptoms are the result of the work injury, she never explained how such an injury occurred and how the injury resulted in the alleged symptoms. Further, this Judge [WCJ] finds not credible her testimony that Claimant was unable to continue to work her pre-injury position, two hours a day, as of June 2, 2009, since her opinion is based solely on Claimant's subjective complaints.
19. The testimony of Dr. King is credible that Claimant may have sustained a mild concussion with no evidence of a brain injury as a result of the work injury; at the time of the exam, Claimant's presentation was perfectly normal and her speech was fluent and articulate; there were no objective findings on examination nor in the
medical records he reviewed; and Claimant was fully recovered from the work injury, from a neuropsychological standpoint, as of the date of his exam. Dr. King's opinions are more consistent with the normal diagnostic studies and he offered an explanation as to why Claimant did not sustain post-concussive symptoms or a brain injury as a result of the work injury.WCJ's Decision, November 23, 2010, (Decision) Finding of Fact Nos. 17-19 and Conclusion of Law No. 5 at 7; Reproduced Record (R.R.) at 208a-209a.
....
CONCLUSIONS OF LAW
....
5. Defendant [Employer] met its burden of proving Claimant was fully recovered from any mild concussion Claimant may have sustained as a result of the work injury, but did not meet its burden of proving Claimant was fully recovered from the work injury of face, scalp and neck contusions. The only medical testimony presented was that of a neuropsychologist, and Dr. King did not testify that he physically examined the face, scalp and neck.
Claimant and Employer appealed. Claimant challenged the WCJ's determination that she did not establish she suffered from work-related post-concussive syndrome with cognitive deficits, headaches, stiffness, traumatic brain injury and frontal lobe dysfunction, depression and anxiety. Claimant also argued that the WCJ erred when she decided not to reinstate her ongoing benefits to total disability as Claimant's earning power was adversely affected by her work injury. Claimant further maintained that the Termination Petition should have been denied in its entirety because she continued to experience problems from her work injuries.
Employer contended that the WCJ erred when it determined that Claimant was not recovered from her face, scalp and neck contusions when it presented credible evidence that she had no residual impairment from the work injury.
The Board affirmed the denial of the Reinstatement Petition and also modified the Review Petition and reversed with respect to the Termination Petition:
First, with regard to Claimant's challenge to the denial of her request to amend the description of injury, the burden was on Claimant...Because the WCJ rejected her testimony in this respect and that of Dr. Pelensky as to her opinion of the additional work-related injuries, including a traumatic brain injury, she could not meet her burden in this regard....However, we do note that Dr. King testified that while he questioned whether Claimant met the criteria for a concussion, given the records, he would accept that she sustained a mild concussion. The WCJ accepted Dr. King's testimony and as such, we will modify the Decision and Order to reflect that the NCP is amended to include a mild concussion as part of the work-related injury.
....
As to the Termination Petition, Claimant argues that it should have been denied in total because Defendant [Employer] failed to present competent medical evidence that her work-related disability ceased whereas she presented convincing evidence that she suffers from residuals of the work injury. We reject this contention in that it is premised upon Claimant's assertion that she suffered alleged additional compensable injuries in the nature of post-concussive syndrome with cognitive deficits, as testified to by Dr. Pelensky, that continue to disable her. As discussed, Claimant did not meet her burden in this respect.
Defendant [Employer], on the other hand, contends that the WCJ erred in denying the Termination Petition in part because the evidence establishes that Claimant has recovered from her face, scalp and neck contusions. We agree.Board's Opinion, August 17, 2012, at 10-14; Reproduced Record (R.R.) at 222a-226a.
....
...[I]n this case, Dr. Pelensky opined that Claimant's work-related injuries were worse than contusions in that she sustained post-concussive syndrome and a traumatic brain injury, and as of January 21, 2010, Dr. Pelensky's only diagnoses were persistent post-concussive syndrome with ongoing cognitive deficits and headache. Dr. Pelensky did not otherwise address the face, scalp and neck contusions, which were the acknowledged work injuries. Additionally, Dr. King testified that the work injury was described as face, scalp and neck contusions and a mild concussion. Claimant's complaints when he saw her included headaches, balance problems, and fatigue, but there is no indication that she offered complaints regarding her acknowledged work-related contusions. Moreover, as of September 9, 2009, Claimant agreed that she has no cuts, scrapes or bruises and no scarring from the work injury. Given all of this evidence, and the fact that Dr. King opined that Claimant had fully recovered from her work-related conditions as of the time of his examination on July 21, 2009, we believe the WCJ erred in denying the Termination Petition....
II. Present Controversy
Claimant raises two issues on appeal: 1) whether the Board erred when it reversed the WCJ's decision that Employer failed to meet its burden of demonstrating that the Claimant's work-related contusions resolved and 2) whether the WCJ erred when it failed to grant the Claimant's Reinstatement Petition because the only evidence of record shows that she suffered a total work-related wage loss on June 2, 2009?
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). --------
A. Whether the Board erred when it reversed the WCJ's decision that
Employer failed to meet its burden of demonstrating that the Claimant's
work-related contusions resolved?
Claimant contends that the Board's reversal of the WCJ's denial of the Employer's Termination Petition and determination that Claimant's work injuries resolved was error as a matter of law.
In a termination proceeding, the burden of proof is on the employer to establish that the claimant fully recovered from his work-related injury or, that any remaining disability is no longer the result of the work injury. GA & FA Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001).
The Board determined the WCJ erred when it denied the Termination Petition in part because the evidence established that Claimant recovered from her face, scalp and neck contusions. The Board relied on Jackson v. Workers' Compensation Appeal Board (Resources for Human Development), 877 A.2d 498 (Pa. Cmwlth. 2005). In Jackson, the employer filed a termination petition which alleged that Shelby Jackson (Jackson) recovered from her back, knee and arm injuries, including a bruised elbow. The WCJ granted the Petition but Jackson argued that the evidence was insufficient because the employer's expert never addressed the established arm injury or examined her arms. The Court indicated that the evidence was sufficient for the WCJ to find that Jackson recovered from all of her work injuries, including a bruised elbow, as Jackson's treating doctor testified that he did not find an arm injury and this was not contradicted by the employer's expert. Further, Jackson credibly testified before the WCJ that her only current complaints consisted of back, hip and knee problems. The Court held that Jackson, in essence, conceded that she did not continue to suffer from the bruised elbow and there was nothing for the employer to prove in that regard.
Similarly, here Claimant admitted that she had no cuts, bruises or scrapes, and had no scarring on her face. N.T. 9/9/09 at 32. Additionally, Dr. Pelensky did not address the face, scalp and neck contusions. There was no evidence that Claimant continued to suffer from face, scalp, or neck contusions as of July 21, 2009. This Court must conclude that the Board did not err when it determined that Claimant's work-related contusions resolved.
B. Whether the WCJ erred when it failed to grant the Claimant's
Reinstatement Petition because the only evidence of record shows that she
suffered a total work-related wage loss on June 2, 2009?
Claimant contends that the WCJ erred when she failed to grant Claimant's Reinstatement Petition because the only evidence of record was that she suffered a total work-related wage loss on June 2, 2009.
With regard to a petition to reinstate compensation benefits, Section 413(a), of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772, provides:
A workers' compensation judge designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its workers' compensation judge, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed....
When benefits have been suspended the claimant's burden is less onerous because it is presumed that the requisite causal connection exists. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). The Supreme Court explained:
No such causal connection must be shown in a 'suspension of benefits' situation. A 'suspension of benefits' is supported by a finding that the earning power of the claimant is no longer affected by his disability....Should a claimant seek to have a suspension lifted, he is required to demonstrate only that the reasons for the suspension no longer exist. Simply, a claimant must show that while his disability has continued, his loss of earnings has recurred. Certainteed Corporation and Aetna Casualty & Surety Company v. Workmen's Compensation Appeal Board (Williams), 125 Pa.Commw. 311, 559 A.2d 971 (1989), appeal denied, 524 Pa. 612, 569 A.2d 1370 (1989)....
In such suspension situations, the causal connection between the original work-related injury and the disability which gave rise to compensation is presumed. First, it is presumed because the causal connection between the original work-related injury and disability was initially either not contested by the employer or established by competent proof by the employee at the time of the original disability claim. Second, it is presumed because with a mere suspension of benefits, there is no contention by any party that the liability of the employer has terminated. The only fact established at a suspension of benefits is that the earning power of a claimant has improved to a point where benefits are no longer necessary. Since the disability continues to exist, the liability of the employer for the injury has not terminated. Therefore, in these situations the causal connection between the original work-related injury and the disability goes unquestioned.
Id. at 33-34, 584 A.2d at 305. (emphasis in original).
In the present controversy, Claimant sought to reinstate her total disability benefits as of June 2, 2009, when she went off work.
The WCJ rejected the testimony of Claimant and Dr. Pelensky that Claimant was unable to work two hours per day at her time of injury job due to her work-related injury. The WCJ accepted Dr. King's credible testimony that Claimant fully recovered. The WCJ, as the ultimate fact finder in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, including a medical witness, in whole or in part. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995).
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 3rd day of May, 2013, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge