Opinion
No. 80 C.D. 2014
12-17-2014
Heather Willis Huber, Petitioner v. Workers' Compensation Appeal Board (Great Scott Broadcasting), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Heather Willis Huber (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) ruling on petitions filed by Claimant and by her employer, Great Scott Broadcasting (Employer). The Board affirmed the decision of the Workers' Compensation Judge (WCJ) on both petitions. The Board's adjudication amended the description of Claimant's work injury, and it increased the amount of her average weekly wage. However, it found no basis for the grant of penalties, and it terminated Claimant's benefits because she was fully recovered from her work injury, even as amended. We affirm.
Background
Claimant worked for Employer as a private-duty licensed practical nurse assigned to care for Mrs. Scott, the widow of Employer's founder. On January 28, 2010, Claimant was injured while assisting Mrs. Scott into the shower. Claimant continued working for several days and then left work and sought medical treatment. Employer issued a Notice of Compensation Payable (NCP) describing the injury as an acute strain of the neck and right shoulder and paying total disability benefits in the amount of $845 per week, the maximum rate for any claimant injured in 2010. The NCP listed Claimant's average weekly wage as $1,792.71.
On April 6, 2010, Alan E. Cooper, M.D., did an independent medical examination of Claimant and opined that she had fully recovered from her work injury. Employer filed a petition seeking to terminate Claimant's workers' compensation benefits as of April 6, 2010. Claimant's answer denied that she was recovered.
Claimant then filed a review petition in order to amend the NCP to add injuries to her hands, low back and right knee as well as anxiety and depression to the recognized work injury. Claimant challenged the average weekly wage in the NCP as too low because it did not include room, board and other in-kind compensation. Claimant then filed a penalty petition asserting that Employer had violated the Workers' Compensation Act (Act) because it did not reimburse certain of her medical expenses and had mailed some of her disability payments to the wrong address.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
The petitions were consolidated and assigned to a WCJ, who held several hearings. Both Claimant and Employer appeared and presented evidence.
Claimant testified that on January 28, 2010, she was helping Mrs. Scott walk to the shower, when Mrs. Scott's knees buckled, forcing Claimant to support all of her weight for several minutes before lifting her into a wheelchair. During the course of this incident, Claimant injured her neck and shoulder. Claimant continued working for five days and then left work because of the increasing neck and shoulder pain.
Claimant testified that, initially, her hands were not affected, but by March 2010, she had pain in her right thumb and wrist that traveled up her arm. At some point, Claimant also developed pain in her left hand, including two fingers. On March 29, 2010, Claimant underwent a functional capacity evaluation that required her to engage in various movements to determine what level of work she was capable of performing. Claimant stated that after the evaluation, she developed pain in her right knee.
Claimant testified that her work injury caused her to develop anxiety because she had an overwhelming desire to get better and return to work. Claimant had a close relationship with Mrs. Scott, who suffered from Alzheimer's disease, and wanted to return to work because Mrs. Scott did not do well with strangers. When Claimant was not able to do so, she became depressed. Her depression intensified when Mrs. Scott entered a nursing home, where she died in November 2010. Claimant felt guilty, believing that Mrs. Scott would have had a better outcome in Claimant's care.
Claimant testified on November 18, 2010, that Mrs. Scott had "died last week." Reproduced Record at 68a.
On cross-examination, Claimant acknowledged that she was being treated for anxiety and depression at the time she was injured. She attributed that depression to two incidents: the death of a family member and a change to night shift at work. The latter incident led to a psychiatric episode that required hospitalization. Claimant testified that the anxiety and depression that followed her work injury was worse than any previous episode. After the work injury, Claimant first saw a mental health professional in July 2010.
Relevant to her challenge to the average weekly wage in the NCP, Claimant testified that Employer provided her a house, rent free, across the street from Mrs. Scott's house. Claimant shared the house with a husband and wife who were housekeepers for Mrs. Scott. Employer also paid for food and groceries. Claimant ate breakfast and lunch with the other employees at Mrs. Scott's house, and she was always invited to have dinner there as well if she wished. Employer provided Claimant with a vehicle, including gas and auto insurance. Claimant estimated that she used the vehicle ten percent of the time to run errands for Mrs. Scott and the remainder was for her own use. Claimant provided documentation on the value of the house, food and vehicle.
In support of her penalty petition, Claimant testified that she received therapeutic massages at a beauty salon and paid $50 for one of her pain medicine prescriptions. Employer did not reimburse her for either expense. Claimant also testified that Employer did not send her disability compensation payments to the correct address. Specifically, in May 2010, Claimant advised Employer by letter that she had left the Employer-provided house and was staying in Milford Square, Pennsylvania. On June 22, 2010, Claimant advised Employer by letter that she had moved to Wyomissing, Pennsylvania. There was a delay in Employer's response to her second letter. Claimant did not testify about how long it took Employer to start using the correct address. When asked about the delay caused by the need to have her payments forwarded by the postal service, Claimant replied "I don't really recall;" she estimated that it took an extra six or seven days. Reproduced Record at 91a (R.R. ___).
Claimant presented the deposition testimony of Jason T. Bundy, M.D., who is board certified in anesthesiology and specializes in chronic pain. Dr. Bundy first saw Claimant on August 24, 2010, for complaints of pain in her neck, low back, right thumb and right knee. Dr. Bundy diagnosed Claimant with myofacial neck and low back pain, which he treats with trigger point injections, massage therapy, acupuncture and various medications. Dr. Bundy referred Claimant to an orthopedic surgeon for her thumb and knee pain. When her pain persisted, Dr. Bundy ordered a lumbar MRI, which showed a chronic bilateral L5 spondylolysis defect. The cervical MRI he ordered in August 2010 showed age-related degenerative disc disease. When Dr. Bundy last examined Claimant on August 16, 2011, she was still in pain. Dr. Bundy opined that Claimant had not recovered from her work injury to the neck and right shoulder and that the work injury also included the low back, right hand and right knee. He based his causation opinion upon Claimant's statement that her back and hand pain dated to the work incident and her knee pain dated to the functional capacity evaluation.
Dr. Bundy had Claimant undergo a right knee x-ray in August 2011, which did not show any fracture. Dr. Bundy testified that Claimant would need an MRI to determine if there is a meniscal tear or other internal derangement.
Claimant presented the deposition testimony of A. Lee Osterman, M.D., a board certified orthopedic surgeon with an added qualification in hand surgery. Dr. Osterman initially saw Claimant on November 29, 2010, for hand and wrist pain. Dr. Osterman diagnosed Claimant with chronic cervical sprain; nerve irritation in the brachial plexus area; right trigger thumb; active de Quervain's tenosynovitis bilaterally right worse than left; and low-grade nerve irritation in the right wrist and arm. Dr. Osterman did surgery on February 10, 2011, to free up the tendons and nerves and release the trigger thumb on her right hand. Claimant's condition steadily improved after surgery. Dr. Osterman opined that Claimant's right hand and wrist problems were caused by the work injury for two reasons: (1) the mechanism of injury described by Claimant would cause stretching of the nerves and tendons; and (2) Claimant's symptoms appeared within eight to ten weeks after the incident with Mrs. Scott, which is a normal interval of time for the manifestation of such an injury. Dr. Osterman testified that as of his last examination of Claimant on May 2, 2011, Claimant was not recovered from her neck and shoulder injury and needed work restrictions for her right hand and wrist condition.
Finally, Claimant presented the deposition testimony of Martin D. Cheatle, Ph.D., a licensed psychologist who first evaluated Claimant on September 7, 2010. Claimant's medical records revealed a long history of depression and anxiety, as well as a bipolar disorder and a personality disorder. Dr. Cheatle described Claimant as a "brittle person psychologically," who is more susceptible to depression and anxiety than the average person when faced with a stressful situation. Notes of Testimony, May 5, 2011, at 30 (N.T. ___); Supplemental Reproduced Record at 122 (S.R.R. ___). Dr. Cheatle testified that the pain from Claimant's work injury coupled with her inability to do her job exacerbated her pre-existing psychological problems and resulted in disabling depression and anxiety. When Dr. Cheatle last saw Claimant on March 31, 2011, he believed that her pain was "contribut[ing] to" her depression. N.T. 25; S.R.R. 121.
For its part, Employer offered the deposition testimony of Dr. Alan Cooper, a board certified orthopedic surgeon, who did independent medical examinations of Claimant on April 6, 2010, and January 25, 2011. Dr. Cooper reviewed Claimant's medical records, including a February 19, 2010, cervical MRI that showed no pathology in Claimant's neck. During his April 2010 examination, Claimant complained of pain in her neck, pain in her shoulders, and tingling in the middle and ring fingers of her left hand. Claimant did not complain of any problems in her low back, right knee or right hand. The physical examination revealed no objective findings to support Claimant's subjective pain complaints, which Dr. Cooper found exaggerated and to defy anatomic explanation. Dr. Cooper opined that Claimant had fully recovered from the work injury, which was a sprain of the neck and right shoulder, and could work without restrictions.
After Claimant filed her review petition seeking to expand the work injury, Dr. Cooper did the second IME on January 25, 2011. Dr. Cooper examined Claimant's right thumb and wrist and diagnosed trigger finger and de Quervain's tenosynovitis. Dr. Cooper opined that this diagnosis was not related to the work injury because the mechanism of the work incident could not cause that condition and, further, the symptoms would have appeared immediately, not months after the work incident. Dr. Cooper examined Claimant's right knee and noted some tenderness and crepitation consistent with osteoarthritis of the patellofemoral joint. Dr. Cooper described this as a chronic condition not caused by the work injury or by any of the movements she did in the March 2010 functional capacity evaluation. Dr. Cooper pointed out that Claimant did not complain of any knee problems at his April 2010 examination, which took place shortly after the functional capacity evaluation. The first complaint of knee pain to appear in the medical records was in August 2010, over five months later. Dr. Cooper stated that a knee trauma would produce symptoms much sooner. Dr. Cooper found Claimant's low back to be normal.
Employer also offered the deposition testimony of Jerome I. Gottlieb, M.D., a board certified psychiatrist who did an independent psychiatric evaluation of Claimant on April 8, 2011. Claimant gave Dr. Gottlieb many reasons for her depression but physical pain was not one of them. Nor did she appear to be in pain. Dr. Gottlieb diagnosed Claimant with a personality disorder and a bipolar disorder, which were manifested in her current severe, disabling depression. Dr. Gottlieb pinpointed Mrs. Scott's death, for which Claimant blames herself, as the principal cause of her current depression episode. Dr. Gottlieb opined that neither Claimant's work injury nor the pain it caused were substantial contributing factors to Claimant's current depression. In addition to Mrs. Scott's death, Dr. Gottlieb testified that Claimant's loss of her job, financial difficulties, and a recent break-up with a boyfriend all contributed to her current depression.
The parties submitted as a joint exhibit a video and audio recording of the March 29, 2010, functional capacity evaluation and the report prepared by Jeffrey Hudak, who administered the evaluation. His report described the various activities done by Claimant, the consistency of her efforts and any complaints she voiced during the tasks. Hudak concluded that Claimant put forth a consistent effort and that she could do medium work lifting from the floor to waist level and sedentary work lifting from the waist to overhead. The WCJ reviewed Hudak's report and watched the video but did not listen to the audio portion.
The WCJ denied in part and granted in part Claimant's review petition. He added a psychological injury to the NCP but refused to add new physical injuries.
The WCJ found that Claimant was "somewhat credible" overall. However, the WCJ specifically rejected her contention that the work injury caused the delayed onset of symptoms in her low back, wrists, hands, fingers or thumbs or that the functional capacity evaluation injured her right knee. WCJ Decision, March 20, 2012, at 27; Finding of Fact No. 22. The WCJ credited Dr. Cooper's opinion that Claimant's work injury was limited to her neck and right shoulder and rejected the contrary opinions of Dr. Bundy and Dr. Osterman. Accordingly, the WCJ left the physical injuries in the NCP unchanged.
The WCJ has complete authority over questions of credibility, conflicting medical evidence and evidentiary weight. Sherrod v. Workmen's Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995).
With respect to Claimant's mental injury, the WCJ credited the opinion of Dr. Gottlieb and of Dr. Cheatle, to the extent it agreed with Dr. Gottlieb's opinion. The WCJ found that Claimant's pre-existing depression and anxiety were exacerbated when her work injury forced her to stop working. Accordingly, the WCJ amended the NCP to include an aggravation of pre-existing depression and anxiety.
The WCJ agreed that the average weekly wage on the NCP was incorrect. The WCJ accepted Claimant's evidence that the value of the lodging provided by Employer was $207.69 per week and the board was $96.72 per week. The WCJ rejected Claimant's assertion that the value of her vehicle, insurance and gasoline provided by Employer should be included in her average weekly wage concluding that the vehicle was a fringe benefit. Consistent with these findings, the WCJ amended the NCP to increase the average weekly wage to $2,097.12 ($1,792.71 + $207.69 + $96.72). However, this did not affect Claimant's total weekly disability benefit, which was the 2010 maximum of $845 per week.
With respect to Employer's termination petition, the WCJ rejected Dr. Cooper's opinion of full recovery as of the first IME in April 2010. However, the WCJ credited Dr. Cooper's opinion that Claimant was fully recovered from her acknowledged physical work injuries as of the second IME on January 25, 2011. The WCJ found that Claimant's work-related aggravation of depression and anxiety was a transient condition that did not continue after Claimant recovered from her physical work injury. As of the date of Dr. Gottlieb's evaluation, Claimant's depression persisted, but it was no longer related to the work injury. Therefore, the WCJ granted Employer's termination petition as of January 25, 2011, for Claimant's physical injuries and as of April 8, 2011, i.e., the date of Dr. Gottlieb's evaluation, for the psychological injury.
The WCJ denied Claimant's penalty petition. The WCJ found that Claimant did not establish that her salon massages were recoverable out-of-pocket therapeutic expenses or that she had properly submitted the $50 prescription to Employer for reimbursement. The WCJ found that the misdirected compensation checks caused only a normal postal forwarding delay that was, at most, a de minimis violation that did not warrant an assessment of penalties.
Finally, the WCJ concluded that Employer's contest as to all petitions was reasonable and, accordingly, denied Claimant's request for an award of quantum meruit attorney's fees. Claimant appealed, and the Board affirmed. Claimant then petitioned for this Court's review.
This Court's 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. Cytemp Specialty Steel v. Workers' Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth. 2012). Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a finding. Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
Claimant raises three issues for our consideration. First, Claimant argues that her constitutional right to due process was violated because the WCJ did not listen to the audio recording of the functional capacity evaluation. Second, Claimant asserts that the WCJ's finding that Claimant is fully recovered from her work injuries is not supported by substantial evidence. Third, Claimant contends that the WCJ and the Board erroneously concluded that Employer's contest was reasonable. We address these issues seriatim.
Due Process
Claimant first argues that the WCJ violated her due process rights. Claimant contends that had the WCJ listened to the audio portion of the recording of her functional capacity evaluation, he would have heard her complain of wrist, hand and thumb pain. The gravamen of Claimant's argument is that the WCJ deprived her of due process by capriciously disregarding this "material evidence." Claimant requests a remand for the WCJ to listen to the audio and render new findings.
Due process requires that a party have an opportunity to present its case. City of Philadelphia v. Workers' Compensation Appeal Board (Rooney), 730 A.2d 1051, 1052 (Pa. Cmwlth. 1999). The Board stated that it was not addressing Claimant's due process argument because its review does not include constitutional issues. Board Opinion at 8 n.2.
The capricious disregard of "material, competent evidence is an appropriate component of appellate consideration in every case" in which such question is properly raised. Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). A capricious disregard of evidence is described as "a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Bonatesta v. Northern Cambria School District, 48 A.3d 552, 558 (Pa. Cmwlth. 2012) (quoting Agostino v. Township of Collier, 968 A.2d 258, 264 (Pa. Cmwlth. 2009)).
In his discussion of the functional capacity evaluation, the WCJ explained that:
I reviewed the [functional capacity evaluation] video and report.... Because of unclear sound quality and my intent to not mishear or misinterpret conversation, I muted the session.WCJ Decision, March 20, 2012, at 23; Finding of Fact No. 19. The WCJ rendered extremely detailed findings about the video. Twice the WCJ watched a portion of the video where Claimant knelt and crawled both forward and backward on her knees; he "did not observe any difficulty, hesitation, or apparent incident" that could have caused an injury to Claimant's right knee. Id. at 25; Finding of Fact No. 19(e). The WCJ noted that Claimant gestured to her wrists and right thumb while performing fine manipulation and grasping activities, but she had no apparent difficulty using her wrists, fingers or thumbs in those activities. She was able to freely move and use her hands throughout the video. The WCJ noted that his observations were largely consistent with Jeffrey Hudak's report, which listed Claimant's complaints during the evaluation and the results of each task. The list did not include a complaint of knee pain.
Although not relevant to our analysis, the audio evidence does not support Claimant's contentions that she complained of pain in her knee.
Although the WCJ did not listen to the audio, he did not capriciously disregard that evidence. The WCJ's detailed observations are supported by Hudak's report, which documented each of Claimant's complaints, and did not mention knee pain.
Claimant testified that her thumb, hand and wrist problems started in March 2010. Accordingly, the WCJ made specific findings about what the video showed relevant to that claim. The video showed Claimant pointing to her wrists and right thumb, but it also showed her doing the fine grasping exercises without difficulty. The WCJ did not ignore Claimant's assertions about her hand but, rather, expressly acknowledged them. In any case, the WCJ's reasons for not adding finger, hand or wrist injuries to the NCP had nothing to do with what she said, or did not say, during the functional capacity evaluation. Accordingly, a remand is unnecessary.
Termination
Claimant next argues that the WCJ erred in granting the termination petition because his findings of full recovery are not supported by substantial evidence. With respect to her physical condition, Claimant's argument focuses on her right knee and her hands, which the WCJ did not add to the work injury.
Claimant apparently does not take issue with the WCJ's finding that she fully recovered from her original neck and shoulder injury or that she did not sustain a low back injury.
The claimant bears the burden of proving she sustained additional compensable work injuries besides those accepted by the employer. Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577, 582 (Pa. 2009). Claimant argues that she met this burden with the audio evidence. She also argues that the WCJ capriciously disregarded Dr. Cooper's testimony that Claimant told him she began to feel right knee pain while crawling during the functional capacity evaluation.
The WCJ addressed Dr. Cooper's testimony in his findings of fact; he did not capriciously disregard it. Claimant ignores an important fact, i.e., that she told Dr. Cooper during the second IME in January 2011 that she injured her knee during the evaluation. Dr. Cooper credibly testified that at the first IME on April 6, 2010, done shortly after the March 29, 2010, functional capacity evaluation, Claimant did not mention that the evaluation caused knee pain. The WCJ was free to accept Dr. Cooper's testimony and because he did, Claimant was unable to meet her burden of proving that she injured her knee during the evaluation.
Claimant disputes the following statement by the WCJ: "I infer that [Claimant's] failure to seek or receive any treatment for her right knee was due to lack of symptomatology, not lack of insurance." WCJ Decision, March 20, 2012, at 27; Finding of Fact No. 22. Because Claimant did not sustain a work-related knee injury, this statement is irrelevant.
Claimant next challenges the WCJ's finding that Claimant's hand condition was not work-related. Claimant asserts that Dr. Osterman offered an uncontradicted opinion that Claimant's hand condition was attributable to the work incident. Claimant contends that the WCJ did not explain his rejection of Dr. Osterman's opinion.
Unless a credibility assessment is tied to a witness's demeanor, the WCJ must articulate "the actual objective basis for the credibility determination ... for the decision to be a 'reasoned' one which facilitates effective appellate review." Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 2003). A WCJ is permitted to reject even uncontroverted evidence presented by the party bearing the burden of proof, but he must make a specific finding and articulate a reasonable explanation for doing so. Acme Markets, Inc. v. Workmen's Compensation Appeal Board (Annette Pilvalis), 597 A.2d 294, 296-97 (Pa. Cmwlth. 1991).
This requirement is found in Section 422(a) of the Act, which provides, in relevant part, as follows:
All 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. The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.77 P.S. §834 (emphasis added).
The WCJ offered a reasoned explanation for rejecting Dr. Osterman's opinion on causation. Specifically, the WCJ found that there
did not appear to be hand or wrist involvement in the work incident, as the occurrence was described [by Claimant]. As earlier stated, she had nothing to grasp onto sufficiently tightly to cause [a] thumb injury.WCJ Decision, March 20, 2012, at 27; Finding of Fact No. 22. The WCJ then stated: "I do not find that the mechanism of injury as described by Claimant is consistent with the conditions diagnosed by Dr. Osterman." WCJ Decision, March 20, 2012, at 28; Finding of Fact No. 23.
Claimant's assertion that Dr. Osterman's opinion on causation was uncontradicted is incorrect. Dr. Cooper contradicted that opinion. He credibly testified that Dr. Osterman's diagnosis was not related to the work injury because the mechanism of injury could not cause that condition and, further, the symptoms would have manifested immediately, not months later. It was Claimant's burden to prove that the work incident she described injured her hand, but she failed to do so. The WCJ rejected her evidence in favor of Dr. Cooper's opinion, as is the WCJ's prerogative.
This Court may not disturb this determination because the WCJ is the ultimate fact finder and has complete authority over questions of credibility. Davis v. Workers' Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000).
Claimant also argues that the WCJ erred in granting Employer's termination petition with regard to the psychological injury. Claimant argues the finding that she fully recovered from her work-related depression is not supported by substantial evidence because it is undisputed that Claimant's depression continues.
In a termination proceeding, the employer bears the burden of proving that the claimant fully recovered from his work injury and has no remaining disability, or that any remaining disability is no longer related to the work injury. Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998).
Claimant's depression and anxiety pre-dated the January 2010 work injury. S.R.R. 7-8, 11. Claimant's review petition did not identify the injuries she wished to add to the NCP. At the first hearing, Claimant's counsel stated that Claimant had disabling depression and anxiety "[a]s a result of the work injury...as a result of her injuries, it has become overwhelming." Notes of Testimony, August 17, 2010, at 10.
When a physical stimulus such as the work injury leads to disabling depression, the depression is a compensable injury. Bogdanski v. Workers' Compensation Appeal Board (City of Pittsburgh), 813 A.2d 949, 953 (Pa. Cmwlth. 2002). This is so even if the claimant already had depression, because aggravation of a pre-existing psychological condition is compensable. Hirschberg v. Workmen's Compensation Appeal Board (Commonwealth of Pennsylvania, Department of Transportation), 474 A.2d 82, 84 (Pa. Cmwlth. 1984).
The WCJ granted Claimant's petition to add depression and anxiety to the NCP because he found that the physical work injury, which caused Claimant's inability to work, aggravated Claimant's pre-existing condition. However, the WCJ also found that the aggravation was transient and ended when Claimant recovered from her physical work injuries. This finding is supported by Dr. Gottlieb's credible testimony.
The WCJ agreed that Claimant was still depressed. However, Claimant herself acknowledged that her current depression was triggered by Mrs. Scott's death, for which Claimant blames herself. This Court has explained that a claimant "must establish that his mental condition was aggravated or precipitated by actual, and not merely perceived or imagined, employment events." Hirschberg, 474 A.2d at 85. A disabling aggravation of a pre-existing psychological condition based on the claimant's "honest, but mistaken, perception of job" events is not compensable. Id.
The record evidence does not establish a causal connection between Claimant's work injury and Mrs. Scott's death, other than Claimant's subjective self-blame. Because Claimant's transient bout of depression caused by her work injury has resolved and Claimant's ongoing depression is caused by her unsubstantiated perception that she is responsible for Mrs. Scott's death, the WCJ did not err in granting the termination petition.
Once the claimant returns to her baseline condition, entitlement to benefits ceases. Bethlehem Steel Corporation v. Workmen's Compensation Appeal Board (Baxter), 708 A.2d 801, 804 (Pa. 1998). An employer that successfully establishes full recovery need not show job availability. Laird v. Workmen's Compensation Appeal Board (Michael Curran & Associates), 585 A.2d 602, 603 (Pa. Cmwlth. 1991).
Unreasonable Contest
Claimant argues that the WCJ and the Board erred in concluding that Employer's contest was reasonable in its entirety. Claimant contends that she is entitled to an award of attorney's fees because Employer's contest was in some aspects unreasonable.
Under Section 440 of the Act, 77 P.S. §996, a claimant who is successful in whole or in part in the litigation is entitled to an award of attorney's fees, unless the employer's contest is reasonable. The employer has the burden of presenting sufficient evidence to establish a reasonable basis for its contest. Frankford Hospital v. Workers' Compensation Appeal Board (Walsh), 906 A.2d 651, 656 (Pa. Cmwlth. 2006). The reasonableness of an employer's contest generally depends on whether the contest was prompted to resolve a genuinely disputed issue, which can be a legal or factual issue, or both. McGuire v. Workmen's Compensation Appeal Board (H.B. Deviney Co.), 591 A.2d 372, 374 (Pa. Cmwlth. 1991). Whether an employer's contest is reasonable is a question of law fully reviewable on appeal. Essroc Materials v. Workers' Compensation Appeal Board (Braho), 741 A.2d 820, 826 (Pa. Cmwlth. 1999).
Section 440(a), added by the Act of February 8, 1972, P.L. 25, provides in relevant part:
In any contested case where the insurer has contested liability in whole or in part ... the employe ... in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.77 P.S. §996(a).
Claimant argues that Employer's contest of the average weekly wage issue was unreasonable because Employer offered no evidence that conflicted with Claimant's evidence of the value of her room, board and vehicle. Claimant also argues that Employer's contest was unreasonable because it sought a termination as of April 6, 2010, but did not prove full recovery from all injuries until April 8, 2011. Finally, Claimant argues that Employer's contest was unreasonable because it mailed her compensation payment to the incorrect address after being notified of Claimant's address change, in violation of the Act.
The WCJ made the following finding regarding Employer's contest:
I find that Employer engaged in a reasonable contest throughout this protracted matter. It offered medical evidence concerning the identity of Claimant's injuries and the nature and extent of her disability. It prevailed on one "medical" bill. Claimant did not prove that it unlawfully failed to pay the prescription. Its delay in changing Claimant's mailing address was excusable and not of long duration or adverse effect. Its defenses to Claimant's assertions concerning the AWW calculation were reasonable and partially successful. It did fail to include board and lodging at the outset. However, Claimant was already receiving the maximum [total disability] benefit rate. Further, [Employer's] counsel conceded at the first hearing that some measure of compensation should be included. Finally, the calculations were exceedingly difficult and not without legitimate dispute.WCJ Decision, March 20, 2012, at 31; Finding of Fact No. 32.
It is irrelevant that Claimant was the only party to submit evidence relevant to her average weekly wage. As found by the WCJ, the calculations of Claimant's room and board were difficult and Employer legitimately disputed what portion of the room and board receipts were attributable to Claimant because she shared the house and meals with other employees. Further, Employer prevailed on its legal argument that the vehicle should not be included in the average weekly wage. The average weekly wage issue was genuinely disputed by Employer.
Claimant argues that the WCJ incorrectly excluded the vehicle, gasoline and insurance from the average weekly wage. It is irrelevant because, as noted above, Claimant received the maximum disability compensation rate. Further, the issue is moot because benefits have been terminated due to her full recovery. --------
The same is true for the issue of full recovery. Employer filed its termination petition based on Dr. Cooper's opinion that Claimant had fully recovered from the physical injuries listed in the NCP by April 6, 2010. Claimant did not allege and prove the existence of another injury until after Employer filed its termination petition. That the termination was not granted until April 8, 2011, is of no moment. Employer presented medical evidence which, if believed by the WCJ, would have supported a termination of the acknowledged injuries as of April 6, 2010.
Finally, the contest regarding the misdirected checks was necessarily reasonable. The WCJ found the delay in changing Claimant's mailing address in Employer's system to be "excusable" and denied the penalty petition. Claimant was not successful in litigating the penalty petition and is not entitled to unreasonable contest fees.
Conclusion
For all the above-stated reasons, we affirm the Board's order in each respect.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 17th day of December, 2014, the order of the Workers' Compensation Appeal Board dated December 19, 2013, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge