Opinion
No. 2256 C.D. 2013
09-25-2014
Central Susquehanna Intermediate Unit #16, Petitioner v. Workers' Compensation Appeal Board (Shingara), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Central Susquehanna Intermediate Unit #16 (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision and order of the Workers' Compensation Judge (WCJ) granting the Claim Petition of Marcy Shingara (Claimant) and awarding her total disability benefits. For the reasons set forth below, we reverse.
Claimant, a teacher's assistant who worked with autistic children at Employer's school, was "head-butted" in the back of her neck by an 11-year-old student on November 20, 2009 while she was working in the classroom. (WCJ Decision Findings of Fact (F.F.) ¶¶3a, 8a, Reproduced Record (R.R.) at 187-188, 193; 12/9/10 Hearing Transcript (H.T.) at 4-5, R.R. at 4-5.) Claimant experienced pain in her neck, right arm and right hand, and headaches following this injury and was treated with epidural injections. (WCJ Decision F.F. ¶¶3a-3c, 8a, R.R. at 188, 193; 12/9/10 H.T. at 5-9, R.R. at 5-9.) Claimant, however, continued to work after the injury at the same job and same rate of pay as before. (WCJ Decision F.F. ¶¶3b, 8a, R.R. at 188, 193; 12/9/10 H.T. at 6, 12, R.R. at 6, 12.) Employer accepted Claimant's November 2009 injury as a work-related injury for medical purposes only, listing the injury as a cervical and thoracic contusion. (WCJ Decision F.F. ¶¶1a, 2, R.R. at 187.)
In April 2010, Claimant gave notice to Employer that she intended to retire on September 17, 2010. (WCJ Decision F.F. ¶¶3d, 8a, R.R. at 188, 193; 12/9/10 H.T. at 12-15, R.R. at 12-15; Employer Ex. 1, R.R. at 158.) Claimant worked through the end of the 2009-2010 school year, resumed her job with Employer at the start of the 2010-2011 school year, and retired on September 17, 2010 in accordance with her April 2010 notice. (WCJ Decision F.F. ¶¶3b, 8a, R.R. at 188, 193; 12/9/10 H.T. at 12-13, R.R. at 12-13.) Claimant also worked for another employer, Knoebel's Amusement Park, doing cleaning work in the summers. (WCJ Decision F.F. ¶¶3e, 8a, R.R. at 188, 193; 12/9/10 H.T. at 10-12, R.R. at 10-12; 5/3/11 H.T. at 41-42, R.R. at 147-148.) Claimant returned to her job at Knoebel's in the summer of 2010 and worked there until the end of September 2010. (WCJ Decision F.F. ¶¶3e, 8a, R.R. at 188, 193; 12/9/10 H.T. at 11-12, R.R. at 11-12; 5/3/11 H.T. at 42, R.R. at 148.)
Claimant's retirement coincided with her 65th birthday, which was September 15, 2010. (12/9/10 H.T. at 23-24, R.R. at 23-24.) Claimant did not inform Employer that she was retiring because of her work-place injury or difficulty performing her job, and her retirement was a regular retirement, not a disability retirement. (12/9/10 H.T. at 15, R.R. at 15; 5/3/11 H.T. at 13, 26-28, 31, 43-44, R.R. at 119, 132-134, 137, 149-150; Employer Ex. 1, R.R. at 158; Employer Ex. 4, R.R. at 160-164; Employer Ex. 5, R.R. at 165-172.) Employer asked Claimant if she would be interested in working as a substitute after her retirement, and Claimant responded that she could not substitute at that time. (12/9/10 H.T. at 19, R.R. at 19; 5/3/11 H.T. at 14-19, R.R. at 120-125.)
Claimant felt that the pain from her injury made it too difficult to work and that she could no longer do her job properly because of the injury. (WCJ Decision F.F. ¶¶3b, 7a, 8a, R.R. at 188, 192-193; 12/9/10 H.T. at 7-9, R.R. at 7-9; 5/3/11 H.T. at 37-38, 40-41, R.R. at 143-144, 146-147.) Claimant admitted that her pain and symptoms did not worsen and stayed approximately the same between November 2009 and September 17, 2010. (12/9/10 H.T. at 21, 23, R.R. at 21, 23.) Claimant received favorable ratings on all aspects of her job performance in her regular 2010 evaluation in April 2010. (Employer Ex. 4, R.R. at 160-164; 5/3/11 H.T. at 9-11, R.R. at 115-117.) Claimant wrote on her April 2010 evaluation:
List any duties included in your current job description that you no longer perform:(Employer Ex. 4, R.R. at 161.)
There are not any at this time.
Following her September 17, 2010 retirement, Claimant was examined by orthopedic surgeon Dr. Amir Fayyazi, who diagnosed her as suffering from aggravation of preexisting cervical degenerative disc disease and neural foraminal stenosis resulting in upper extremity radiculopathy. (WCJ Decision F.F. ¶¶4a, 4e, 8b, R.R. at 188-189, 193; Claimant Ex. 1 Fayyazi Dep. at 8, 12, 16, 22-23, R.R. at 35, 39, 43, 49-50; 5/3/11 H.T. at 44, R.R. at 150.) Dr. Fayyazi, after evaluation and physical therapy, recommended C4-5 and C5-6 cervical decompression and fusion surgery. (WCJ Decision F.F. ¶¶4c, 8b, R.R. at 189, 193; Claimant Ex. 1 Fayyazi Dep. at 11, 13-16, R.R. at 38, 40-43; 12/9/10 H.T. at 7-8, R.R. at 7-8; 5/3/11 H.T. at 45-46, R.R. at 151-152.) Dr. Fayyazi performed that surgery on December 16, 2010. (WCJ Decision F.F. ¶¶4c, 8b, R.R. at 189, 193; Claimant Ex. 1 Fayyazi Dep. at 17, R.R. at 44; 5/3/11 H.T. at 45-46, R.R. at 151-152.) Claimant's neck, shoulder and arm pain improved after the surgery, but she continued to have headaches. (WCJ Decision F.F. ¶¶4d, 8b, R.R. at 189, 193; Claimant Ex. 1 Fayyazi Dep. at 19, 21, R.R. at 46, 48.)
Three petitions were filed by Claimant and Employer after Claimant's retirement: on September 24, 2010, Claimant filed a Modification/Review Petition seeking to expand the description of her work-related injury and seeking payment for surgery; on October 12, 2010, Employer filed a Termination Petition asserting that Claimant had fully recovered from her work-related injury as of September 10, 2010; and on November 4, 2010, Claimant filed a Claim Petition seeking disability benefits. (WCJ Decision F.F. ¶¶1a-1c, R.R. at 187; Termination Petition.) Employer answered Claimant's Modification/Review Petition disputing Claimant's medical claim and denying that Claimant's termination of her employment was caused by her injury. (WCJ Ex. 4.) Employer issued a Notice of Compensation Denial in response to the Claim Petition admitting that Claimant had suffered a work-related injury, but denying that Claimant had any disability from that injury and asserting that there was "no medical evidence to support disability as related to injury." (WCJ Decision F.F. ¶2, R.R. at 187; WCJ Ex. 1.)
The WCJ held consolidated hearings on the three petitions at which Claimant and two Employer witnesses, Claimant's supervisor and Employer's human resources director, testified. Depositions of Dr. Fayyazi and Dr. Richard Schmidt, an orthopedic surgeon who examined Claimant on behalf of Employer, were also submitted. On October 18, 2011, the WCJ issued a decision granting Claimant's Modification/Review Petition and Claim Petition and denying Employer's Termination Petition. In this decision, the WCJ ruled that Claimant's work-related injury was "an aggravation of preexisting cervical degenerative disc disease and neural foraminal stenosis resulting in upper extremity radiculopathy," ordered that Employer pay Claimant disability benefits "from September 17, 2010 until modified, suspended or terminated," and ordered that Employer "continue to pay Claimant's causally related medical expenses." (WCJ Decision Conclusions of Law (C.L.) ¶¶2, 4 and Order, R.R. at 194-95.) Employer timely appealed and the Board affirmed on November 19, 2013. This appeal followed.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether constitutional rights were violated. BJ's Wholesale Club v. Workers' Compensation Appeal Board (Pearson), 43 A.3d 559, 562 n.1 (Pa. Cmwlth. 2012).
In this Court, Employer challenges only the award of disability benefits, not the expansion of the work-related injury or the denial of its Termination Petition insofar as it relates to medical benefits. Employer argues that the WCJ erred in granting the Claim Petition because there was no competent medical evidence that Claimant was unable to work at her time-of-injury job when she retired. We agree.
In their briefs, Employer and Claimant also argue at length concerning whether Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010), and City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013), support reversal or affirmance. Both Day and Robinson involve the employer's burden of proof on a petition to modify or suspend disability benefits where the claimant's disability has already been established. Robinson, 67 A.3d at 1195, 1209-10; Day, 6 A.3d at 635-37, 641. As the WCJ and the Board recognized (WCJ Decision C.L. ¶2, R.R. at 194; Board Op. at 2, 6, R.R. at 176, 180) and both parties agreed at oral argument, this case involves a Claim Petition and the burden of proof is on Claimant, not Employer. Accordingly, neither Day nor Robinson is dispositive here.
On a Claim Petition, the burden of proof is on the claimant to prove both that she has suffered a work-related injury and that the injury resulted in a disability. Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800, 802 (Pa. 1985); Reyes v. Workers' Compensation Appeal Board (AMTEC), 967 A.2d 1071, 1077 (Pa. Cmwlth. 2009) (en banc); Albert Einstein Healthcare v. Workers' Compensation Appeal Board (Stanford), 955 A.2d 478, 481 (Pa. Cmwlth. 2008); School District of Philadelphia v. Workers' Compensation Appeal Board (Lanier), 727 A.2d 1171, 1172 (Pa. Cmwlth. 1999). Disability, under the Workers' Compensation Act (the Act), requires not merely impairment, but loss of earning power. BJ's Wholesale Club v. Workers' Compensation Appeal Board (Pearson), 43 A.3d 559, 562 (Pa. Cmwlth. 2012); Albert Einstein Healthcare, 955 A.2d at 481; Lanier, 727 A.2d at 1172. "[A]lthough a claimant may suffer a work-related physical disability, it is only if that physical disability occasions a loss of earnings that a worker will be 'disabled' under the meaning of the Act and will be entitled to receive compensation." BJ's Wholesale Club, 43 A.3d at 563 (quoting Bissland v. Workmen's Compensation Appeal Board (Boyertown Auto Body Works), 638 A.2d 493 (Pa. Cmwlth. 1994)).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Accordingly, "[i]n a proceeding on a claim petition, the claimant bears the burden of establishing a work-related injury rendering the claimant incapable of performing the time-of-injury job." Vista International Hotel v. Workmen's Compensation Appeal Board (Daniels), 742 A.2d 649, 654 (Pa. 1999). Where the claimant's time-of-injury job is available to her after the work-related injury at no loss of earnings, the claimant must prove her inability to perform her time-of-injury job by unequivocal medical testimony. Albert Einstein Healthcare, 955 A.2d at 481-84; Lanier, 727 A.2d at 1172-74. "Unless the causal connection between an injury and disability is obvious, unequivocal medical evidence is needed to establish that connection." Reyes, 967 A.2d at 1077.
Claimant failed to satisfy her burden of proof to show disability. It was undisputed that Claimant worked at her job for almost nine months after her injury at the same pay, that she suffered no loss of earnings until she retired, and that no change in her job or her medical condition occurred in the period between her injury and her retirement. Claimant testified that she retired because of pain from the injury and because she believed that she could not do the job, and asserted that she would have worked to age 70 or beyond if she had not been injured. (12/9/10 H.T. at 7-9, R.R. at 7-9; 5/3/11 H.T. at 37-41, R.R. at 143-147.) While the WCJ found this testimony credible (WCJ Decision F.F. ¶8a, R.R. at 193), Claimant was required to prove an inability to perform her job by medical evidence and her testimony, regardless of its credibility, cannot satisfy the requirement of medical evidence. Reyes, 967 A.2d at 1074-78; Albert Einstein Healthcare, 955 A.2d at 481-84; Lanier, 727 A.2d at 1173-74.
The record is devoid of any competent medical evidence that the November 2009 work injury made Claimant unable to perform her duties as a teacher's assistant or that she was unable to perform that job when she retired in September 2010. While Dr. Fayyazi opined that Claimant's pain, the aggravation of her preexisting cervical degenerative disc disease and neural foraminal stenosis, and her upper extremity radiculopathy were caused by the November 2009 head butt to her neck (Claimant Ex. 1 Fayyazi Dep. at 12, 16, 22-23, R.R. at 39, 43, 49-50), he did not testify that this condition disabled her from working at her time-of-injury employment or that it required her to retire from the workforce. Dr. Fayyazi did not restrict Claimant from working prior to her December 2010 surgery. (Id. at 32, R.R. at 59; 5/3/11 H.T. at 46, R.R. at 152.) Dr. Fayyazi testified as to Claimant's condition in October 2010, when he first examined her:
Q. Was she able to work, in your opinion, as of this first visit?(Claimant Ex. 1 Fayyazi Dep. at 13, R.R. at 40) (emphasis added). The only other medical witness, Dr. Schmidt, testified that Claimant was able to work without any medical restrictions after her November 2009 injury. (Employer Ex. 2, Schmidt Dep. at 16-18, 44, R.R. at 76-78, 104.)
A. Actually, I didn't -- that was the first time I had met her and I didn't comment on her work status. I'm sure she was able to perform some type of activities, but I'm not sure if she could perform her duties without restriction.
Dr. Fayyazi's testimony that he was "not sure" whether Claimant could perform her job without restriction is not sufficient to satisfy Claimant's burden to prove that she was disabled by the November 2009 injury. Medical expert testimony that is less than positive or is based upon possibilities is equivocal and does not constitute legally competent evidence. Lewis, 498 A.2d at 802; Potere v. Workers' Compensation Appeal Board (Kemcorp), 21 A.3d 684, 690 (Pa. Cmwlth. 2011); Lanier, 727 A.2d at 1173-74. The fact that the WCJ found Dr. Fayyazi's testimony credible does not change this. Whether expert testimony is equivocal is an issue of competence, not credibility, and is a question of law subject to this Court's plenary, de novo review. Lewis, 498 A.2d at 803; BJ's Wholesale Club, 43 A.3d at 565; Potere, 21 A.3d at 690. "[A] WCJ's credibility determination cannot serve to preclude this Court from determining whether an expert's testimony was equivocal. The law is equally well settled that questions relating to the equivocality of an expert's testimony are questions of law fully subject to this Court's review." Potere, 21 A.3d at 690.
Claimant argues that she testified that the physician who treated her for her November 2009 injury prior to her retirement, Dr. Lin, put her under light-duty work restrictions. (5/3/11 H.T. at 37, 40, R.R. at 143, 146; 12/9/10 H.T. at 12, 24, R.R. at 12, 24.) This disputed contention, however, was not supported by any medical evidence. Dr. Lin did not testify or provide any medical report or opinion and no medical records or other documents were introduced at the hearing showing that Claimant was subject to any restrictions after the November 2009 injury. Indeed, Dr. Fayyazi admitted that there was nothing in the records that he reviewed concerning Claimant that indicated that she was under any work restriction related to her November 2009 injury. (Claimant Ex. 1 Fayyazi Dep. at 27, R.R. at 54.)
Employer's witnesses testified that Claimant was not under any work restrictions with respect to her November 2009 injury in April 2010, when she gave notice of her retirement, or in September 2010, when she retired. (5/3/11 H.T. at 13-14, 22-24, 30-31, R.R. at 119-120, 128-130, 136-137.) --------
Dr. Fayyazi did unequivocally testify that Claimant was unable to work due to her surgery from December 16, 2010 until she recovered from the surgery. (Id. at 19-22, 24, R.R. at 46-49, 51.) This temporary inability to work, however, caused Claimant no loss of earnings because she had already retired and was no longer working or seeking any employment at the time of the surgery. Claimant testified that she was no longer working after her retirement and finishing her summer job at the end of September 2010, and admitted that she turned down Employer's offer of part-time work as a substitute. (12/9/10 H.T. at 19-20, R.R. at 19-20; 5/3/11 H.T. at 42, R.R. at 148.)
Where a claimant has retired from the workforce, disability benefits cannot be awarded on a Claim Petition for periods after that retirement unless the claimant establishes that she was forced into retirement by the work-related injury, even if the claimant proves that she subsequently became disabled as a result of the work-related injury. Republic Steel Corp. v. Workmen's Compensation Appeal Board (Petrisek), 640 A.2d 1266, 1268-70 (Pa. 1994); City of Philadelphia v. Workmen's Compensation Appeal Board (Defruscio), 695 A.2d 910, 913 (Pa. Cmwlth. 1997) (en banc). Claimant's testimony that she retired because of pain and difficulties from her injury is not sufficient to show that she was forced into retirement by the injury, given the absence of any medical evidence that the condition that prompted her retirement disabled her from continuing to work at her job. A claimant may prove the motive for her retirement by her own testimony, where there is medical evidence that her condition was disabling, and does not need to show that a physician recommended that she retire. Alpine Group v. Workers' Compensation Appeal Board (DePellegrini), 858 A.2d 673, 675 n.2, 677 (Pa. Cmwlth. 2004); Scalise Industries v. Workers' Compensation Appeal Board (Centra), 797 A.2d 399, 404-05 & n.21 (Pa. Cmwlth. 2002). The claimant, however, cannot meet her burden of proof on a Claim Petition to show that the retirement was forced by the work-related injury without medical evidence that her condition prevented her from continuing her employment. Scalise Industries, 797 A.2d at 404 (to show that the claimant was forced to retire "unequivocal medical evidence must be presented on behalf of a claimant that a work-related injury or disease precludes continuation of employment"); Defruscio, 695 A.2d at 913 (reversing disability benefits where claimant retired due to work-related hearing loss because medical testimony was insufficient to show that hearing loss which prompted his retirement prevented him from continuing to work for employer).
Because there was no competent medical evidence that Claimant's November 2009 injury made her unable to do her job and her loss of earnings was due solely to her retirement, Claimant failed to satisfy her burden of proof to show disability. The Board's order must therefore be reversed insofar as it affirmed the WCJ's granting of the Claim Petition and awarding of disability benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 25th day of September, 2014, the order of the Workers' Compensation Appeal Board (Board) in the above matter is REVERSED insofar as it affirmed the granting of Claimant Marcy Shingara's Claim Petition. This case is REMANDED to the Board to remand to a Workers' Compensation Judge (WCJ) with instructions to vacate the provisions of the WCJ decision in this matter that grant the Claim Petition and that order that Petitioner pay Claimant workers' compensation disability benefits. This Order does not reverse the order of the Board insofar as it affirmed the provisions of the WCJ decision expanding the description of Claimant's work-related injury and denying Petitioner's Termination Petition, and Claimant's past and continued entitlement to payment of medical expenses causally related to the work-related injury found by the WCJ are unaffected by this Order.
Jurisdiction relinquished.
/s/_________
JAMES GARDNER COLINS, Senior Judge