Opinion
No. 2112 C.D. 2014
05-28-2015
Janet Cefalo, Petitioner v. Workers' Compensation Appeal Board (Gills Vestal Inc./Denny's), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Janet Cefalo (Claimant) asks whether the Workers' Compensation Appeal Board (Board) erred in affirming a Workers' Compensation Judge's (WCJ) decision that denied her claim petition. Claimant asserts the WCJ's decision is not supported by substantial evidence because the evidence clearly shows Claimant sustained a work injury. Discerning no error, we affirm.
Claimant filed a claim petition against her employer, Gills Vestal, Inc./Denny's (Employer), alleging she suffered an injury on November 20, 2012, in the nature of a herpes whitlow infection in the course and scope of her duties as a server/part-time manager. More particularly, Claimant alleged a customer accidentally spit in her eye, and the saliva infected her eye. She then touched her eye with her right thumb, which had a cut on it, spreading the infection to her thumb. Claimant notified Employer's general manager a week after the incident. Claimant sought indemnity benefits from November 23, 2012, to January 16, 2013, the date she returned to work, medical bills, and counsel fees.
Employer denied the material averments of the claim petition. Hearings before a WCJ ensued.
At the start of the first hearing, the WCJ asked whether Claimant's injury was an eye injury or a thumb injury. Claimant's counsel responded it was a thumb injury. WCJ's Hr'g, Notes of Testimony (N.T.), 2/8/13, at 6. At the second hearing, Claimant testified and offered various medical records in support of her claim petition. Employer did not present any evidence in opposition.
Claimant recounted the events leading to the injury. She testified, on the date of the incident, while working for Employer, she removed her glasses and was cleaning them. A customer approached her and started speaking to her. The customer accidentally spit while speaking. The customer's saliva made contact with her right eye. Claimant testified "it was like an ice cube hit it. It was very cold." N.T., 5/9/13, at 9. She awoke the next day at 2:00 a.m., and she could not see. She went to the emergency room, where she was diagnosed with a scratched cornea and given a prescription for eye drops. Shortly thereafter, her right thumb began to throb, and a black ring developed around it. She returned to the emergency room and received medication for shingles, different eye drops and pain medication for her thumb.
Claimant testified her symptoms continued to worsen, and she developed a high fever. She had swelling in the top of her right hand and finger, as well as pain. She again returned to the emergency room and was eventually admitted to the hospital. She began treating with Gary Decker, M.D., an infectious disease specialist. Dr. Decker placed Claimant on three different antibiotics. Thomas Byron, M.D., an upper extremity surgeon, performed surgery on her thumb to remove the infection. After leaving the hospital, she was placed on an intravenous antibiotic as well as medication for her hand and eye. Claimant testified she began to improve. She was out of work from November 23, 2012, until January 16, 2013. One week before returning to work, Claimant saw Dr. Decker for the last time. Since that date, she has not received any treatment.
In addition to her testimony, Claimant offered medical records, which included a report from Dr. Decker dated February 19, 2013. The WCJ described this record as follows:
According to Dr. Decker, the Claimant was first seen by him in consultation on November 27, 2012. According to Dr. Decker, the Claimant had been diagnosed on an outpatient basis with herpes simplex infection of the right eye. According to Dr. Decker, the Claimant shortly thereafter developed pain and swelling on the right thumb and was seen in the emergency room on either one or two occasions. According to Dr. Decker, the Claimant was admitted to the hospital with a rapidly progressive necrotizing right thumb infection. Dr. Decker's initial impression was that the Claimant suffered herpes whitlow infection of the right thumb which she inoculated from an infection of her right eye. Dr. Decker opined that he was very concerned about the severity and complexity of Claimant's infection. Dr. Decker opined that because the Claimant worked as a food server and
due to the fact that herpes infections are spread human to human, he felt strongly that she likely contracted the infection from a patron at the restaurant during the course of employment. According to Dr. Decker, he consulted Dr. Thomas Byron, an upper extremity surgeon. According to Dr. Decker, Dr. Byron performed a deep incision and drainage of the Claimant's right thumb. According to Dr. Decker, the Claimant was treated with multiple broad-spectrum antibiotic agents. According to Dr. Decker, the Claimant had a PICC line placed, and she was discharged to her home to receive a four to six week course of IV Cefazolin therapy. According to Dr. Decker, he saw the Claimant on December 11, 2012, and he was pleased with the Claimant's progress. According to Dr. Decker, he saw the Claimant on January 8, 2013, for a final visit. Dr. Decker performed a physical examination and noted that the Claimant's right thumb had healed very nicely and there was a very small area of eschar. Dr. Decker opined that overall, Claimant's prognosis would be deemed cured. Dr. Decker opined that Claimant's diagnosis was herpes whitlow infection of the thumb with secondary Staph cellulitis and lymphangitis. Dr. Decker opined that the Claimant could not perform any of her work duties between Claimant's initial visit and her discharge from his care on January 8, 2013. Dr. Decker opined that he released the Claimant to return to work as of January 16, 2013. Dr. Decker opined that it is highly likely that the Claimant acquired her herpes virus infection from someone she encountered during the course of her work. Dr. Decker opined that this was his opinion because no family members or close contact had any evidence of any type of herpes infection prior to the Claimant's illness. Dr. Decker opined that herpes viruses are transferred from human to human and because of the close contact she has with patrons at work, it is highly likely she was infected with the virus during the course of employment. Dr. Decker opined that these viruses can be directed directly through droplets from person-to-person and possibly even from handling of a fomite, such as plates, cutlery, or glasses prior to their disinfection and washing. Dr. Decker opined he was stating his opinions with a high degree of medical certainty.WCJ's Op., 10/25/13, Finding of Fact (F.F.) No. 5 (emphasis added).
Based on the evidence presented, the WCJ found Claimant did not submit any competent evidence establishing she was exposed to a herpes virus during the course and scope of her employment. In addition, the WCJ did not find any evidence to establish Claimant's right thumb came in contact with her right eye. The WCJ determined Dr. Decker's opinion as to the cause of Claimant's infection lacked a factual foundation and was not based on the record evidence. Thus, the WCJ denied Claimant's claim petition. Claimant appealed to the Board, which affirmed. Claimant then filed a petition for review in this Court.
On appeal, Claimant contends substantial evidence does not support the denial of benefits. Specifically, she argues her testimony combined with the various medical records proves her thumb injury was work-related.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
The WCJ, as the ultimate fact-finder in workers' compensation cases, "has exclusive province over questions of credibility and evidentiary weight ...." A & J Builders, Inc. v. Workers' Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013) (quoting Anderson v. Workers' Comp. Appeal Bd. (Penn Ctr. for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010)). The WCJ's authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. A & J. The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part. Id. We are bound by the WCJ's credibility determinations. Id.
In a claim proceeding, the claimant bears the burden of proving she suffered a work-related injury in the course and scope of her employment, and the injury results in a loss of earning power. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592 (Pa. 1993); Morrison v. Workers' Comp. Appeal Bd. (Rothman Inst.), 15 A.3d 93 (Pa. Cmwlth. 2010). In cases where the causal relationship between the injury and the employment is not obvious, a claimant must establish causation by unequivocal medical testimony. Lynch v. Workmen's Comp. Appeal Bd. (Teledyne Vasco), 680 A.2d 847 (Pa. 1996); Sw. Airlines/Cambridge Integrated Serv. v. Workers' Comp. Appeal Bd. (King), 985 A.2d 280 (Pa. Cmwlth. 2009).
Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that, in his professional opinion, he believes a certain fact or condition exists. Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012). An expert is permitted to express an opinion based on facts of which he has no personal knowledge so long as those facts are supported by evidence of record. City of Phila. v. Workers' Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 771 (Pa. 2011); Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d 1062, 1066 (Pa. 1997). "[T]he supposed facts forming the basis of that determination must be proven by competent evidence and accepted as true by the [WCJ]." Somerset Welding and Steel v. Workmen's Comp. Appeal Bd. (Lee), 650 A.2d 114, 118 (Pa. Cmwlth. 1994). However, where "the foundation for the medical evidence is contrary to the established facts in the record, or is based on assumptions not in the record," such expert medical testimony is not competent. AT & T v. Workers' Comp. Appeal Bd. (Hernandez), 707 A.2d 649, 653 (Pa. Cmwlth. 1998).
Here, the WCJ found Claimant did not meet her burden of proving a work injury. Claimant testified a customer spit in her right eye while working for Employer, and she contracted a herpes infection in that eye from the incident. N.T., 5/24/13, at 9. However, Claimant's testimony was contradicted by the history she provided to the hospital. According to the emergency room record, Claimant indicated she was also "employed as a beautician and [was] unaware ... of the etiology of this infection." Supplemental Reproduced Record at 14b (emphasis added).
Furthermore, Claimant was not seeking compensation for an eye injury but for a thumb injury. However, Claimant did not testify her right thumb was cut or that she touched her right thumb to her right eye. See N.T., 5/24/13, 9-19. Only her attorney advanced this position in his opening remarks at the hearing. N.T., 2/8/13, at 7, 9. Claimant's counsel's statement does not constitute evidence regarding the cause of Claimant's injury. See Commonwealth v. LaCava, 666 A.2d 221 (Pa. Cmwlth. 1995). Although Claimant alleged facts related to her thumb injury in her claim petition, Employer denied the averments and demanded strict proof in its answer. Certified Record, Answer to Claim Pet., 1/22/13, at ¶4. As a result, the alleged facts were not deemed admitted. Cf. Section 414 of the Workers' Compensation Act ("Every fact alleged in a claim petition not specifically denied by an answer ... shall be deemed to be admitted."). Consequently, Claimant offered no proof to establish that her right thumb was cut and came into contact with her right eye.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §821. --------
As for her medical evidence, Dr. Decker opined Claimant suffered from a "herpes Whitlow infection of the right thumb, which she inoculated from [an] infection of her right eye." Reproduced Record at 9a. Dr. Decker felt strongly that Claimant likely contracted the infection from a patron at the restaurant during the course of employment because she worked as a food server and herpes infections are spread human to human. Id. However, his report did not have an adequate basis in fact to support his opinion. More particularly, the report did not contain a history that Claimant's right thumb had a laceration or that she touched her infected eye with her thumb. See id. at 9a-11a. Claimant did not establish these facts at the hearing. As a result, the WCJ rejected Dr. Decker's opinion because it lacked the proper factual foundation to establish causation, and it was not based on the evidence of record. F.F. No. 6.
Upon review, substantial evidence supports the WCJ's determination that Claimant's injury did not occur within the course and scope of her employment with Employer. Thus, we discern no error in the WCJ's denial of Claimant's claim petition.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 28th day of May, 2015, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge