Opinion
No. 1319 C.D. 2011
03-21-2012
Linda Yeager, Petitioner v. Workers' Compensation Appeal Board (Shamokin Area School District), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Linda Yeager (Claimant) petitions for review of the June 16, 2011, order of the Workers' Compensation Appeal Board (Board) insofar as it reversed the determination of a workers' compensation judge (WCJ) that Claimant is entitled to an award of compensation for a disfigurement claim pursuant to section 306(c)(22) of the Workers' Compensation Act (Act). We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(c)(22).
Claimant is employed by Shamokin Area School District (Employer) as a para-educator and works with students who have various mental disabilities. On January 20, 2009, one of the students assaulted Claimant, causing her to fall and hit her head on the corner of a desk. Employer issued a medical only notice of compensation payable and accepted liability for a contusion on the left side of Claimant's head. On June 9, 2009, Claimant filed a claim petition describing her injury as disfigurement to her left eye and seeking payment of medical benefits, counsel fees, and compensation for her disfigurement. Claimant later amended her claim petition to add concussion, brain damage, lacerations behind her left ear, and left shoulder and head damage, to the description of her alleged injuries. Thereafter, Employer filed a termination petition alleging that Claimant had fully recovered from her work injury as of September 1, 2009. The petitions were consolidated for hearings before the WCJ.
Claimant described the January 2009 incident, stating that she struck her head behind her left ear and thereafter experienced pain in her head, behind her left ear, on the left side of her neck and in her left shoulder. Claimant also detailed the course of her medical treatment, including treatment with an ophthalmologist and a neurologist. Claimant testified that she has had constant black floaters in her left eye and suffers daily from headaches, many that are quite severe and last for hours. Claimant stated that she presently takes Imitrex for her headaches as prescribed by her treating physician. Claimant acknowledged that she did not lose much time from work due to the work injury but added that she was not paid for time off to attend doctors' appointments. (WCJ's Findings of Fact Nos 4, 9.)
Claimant also offered the April 8, 2010, deposition testimony of Steven E. Mazlin, M.D., who first saw Claimant on November 11, 2009. Based on the history provided by Claimant, a review of her medical records, and his physical examination, Dr. Mazlin diagnosed Claimant as suffering from a persistent post- concussion syndrome that had triggered post-traumatic migraines and post-traumatic floaters. Dr. Mazlin noted that Claimant also had complained of a drooping left eyelid, stating "I wasn't sure what to make of [it]. It didn't look to me to be anything serious, though." (Reproduced Record (R.R.) at 149a.) Dr. Mazlin testified that Claimant's ongoing severe headaches, light sensitivity, and nausea reflect that she has not fully recovered from the work injury. However, after reviewing the report of Paul Shipkin, M.D., Employer's medical expert, Dr. Mazlin stated that he agreed with Dr. Shipkin's opinion with respect to Claimant's left eyelid. (WCJ's Finding of Fact No. 7.)
Employer presented the deposition testimony of Dr. Shipkin, who performed a neurological independent examination of Claimant on September 1, 2009. Dr. Shipkin testified that, in addition to his examination, he reviewed Claimant's medical records, including Dr. Mazlin's November 2009 report, and considered Claimant's complaints of headaches, floaters and eyelid drooping. With regard to Claimant's left eyelid, Dr. Shipkin did not believe that Claimant suffered from ptosis, explaining that Claimant did not consistently display a narrowing of the space of her left eyelid and that such symptoms improved noticeably when she was distracted. Dr. Shipkin concluded that Claimant had fully recovered from the accepted work injury. (WCJ's Finding of Fact No. 8.)
"Ptosis" means a "sinking down or prolapse of an organ." Stedman's Medical Dictionary 1289 (25th ed. 1990).
During the July 7, 2009, hearing, the WCJ viewed Claimant's right and left eyes and placed the following description of Claimant's left eye on the record:
There is a discoloration on the left eye and the left eye --- that is in the skin surrounding the eye. The left eye does not open as much as the right eye. There is also at the edge of
the left eye, a line as if there's a squint, that does not exist on the right eye.(WCJ's Finding of Fact No. 5.)
By decision and order dated August 26, 2010, the WCJ granted Claimant's claim petition in part and denied Employer's termination petition. The WCJ accepted Claimant's testimony as credible with respect to the headaches and floaters she suffered since the injury, but he rejected her testimony to the extent it was offered to establish that the injury resulted in a drooping left eyelid. The WCJ accepted Dr. Mazlin's testimony that Claimant suffered a concussion on January 20, 2009, and developed persistent post-concussion syndrome, post-traumatic migraines, and post-traumatic floaters in her left eye as a result of that injury. The WCJ rejected the contrary testimony of Dr. Shipkin but found Dr. Shipkin's testimony to be credible with respect to Claimant's left eyelid. Accordingly, the WCJ found that Claimant did not have ptosis and that the intermittent drooping of her left eyelid was not the result of her January 2009 work injury. (WCJ's Finding of Fact No. 12.)
Finally, citing his observation of Claimant, the WCJ found that "Claimant's facial disfigurement - in particular, the discoloration around her left eye - does meet the three requirements of a disfigurement claim" and awarded Claimant twenty weeks of compensation. (WCJ's Finding of Fact No. 15.)
Employer appealed to the Board, challenging only the award of benefits for the discoloration around Claimant's left eye. The Board concluded that Claimant failed to meet her burden of proof under section 306(c)(22) of the Act because there was no medical testimony that the discoloration is either permanent or serious or related to the work injury. By order dated June 16, 2011, the Board reversed the WCJ's disfigurement award and affirmed the remainder of the WCJ's decision.
On appeal to this Court, Claimant argues that the determination concerning a disfigurement is one of fact that can be established through the WCJ's observation. Claimant asserts that the Board erred in reversing the disfigurement award on the basis that she did not present medical evidence to demonstrate that her disfigurement is serious or permanent.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Initially, we note that section 306(c)(22) states as follows:
For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows: . . . . For serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment, sixty-six and two-thirds per centum of wages not to exceed two hundred seventy-five weeks.77 P.S. §513(c)(22). "Generally, competent medical evidence is necessary to support a finding of fact that disfigurement is permanent." McCole v. Workers' Compensation Appeal Board (Barry Bashore, Inc.), 745 A.2d 72, 76 (Pa. Cmwlth. 2000) (citation omitted). However, we have held that medical evidence was not necessary to support a finding of permanence in cases where circumstances permitted the WCJ to determine the question of permanence from his own observations. Id. See, e.g., Purex Corp. v. Workmen's Compensation Appeal Board, 445 A.2d 267 (Pa. Cmwlth. 1982). In Purex, the referee viewed the scars on the claimant's nose and forehead and a bend in the claimant's nose approximately fourteen months after the claimant's work injury, and we held that medical evidence was not necessary to establish that the claimant's disfigurement was permanent.
Under the circumstances presented here, however, the WCJ's observation alone is not sufficient to satisfy Claimant's burden to demonstrate that her injury is permanent. Although Claimant testified that the drooping of her left eyelid did not exist prior to the work injury, she presented no testimony or evidence concerning when the discoloration around her eye became evident. Moreover, there is nothing in the record to indicate that the discoloration around Claimant's left eye is related to her work injury, other than Claimant's statement that she believes it is. Because the discoloration around Claimant's eye is not obviously related to the injury to the back of Claimant's head, we conclude that a reasonable mind could not accept Claimant's opinion alone as sufficient to establish a causal relationship between the skin discoloration and the work injury. Absent substantial evidence establishing the cause or duration of the skin discoloration, the WCJ erred in awarding Claimant benefits under 306(c)(22) of the Law, and the Board properly reversed the WCJ's decision.
During the WCJ's observation, Claimant testified concerning the discoloration around her eye as follows:
[Employer's attorney]: But then [your attorney is] suggesting there's also a change in the skin color around your eye. Do you believe you have it?
[Claimant]: Yes.
[Employer's counsel]: And do you think that's related to the fall?
[Claimant]: Yes.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 21st day of March, 2012, the June 16, 2011, order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
(R.R. at 72a.)