S. Vandunk v. WCAB (SD of Philadelphia) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susette Vandunk, :
Petitioner :
:
v. : No. 996 C.D. 2017
: Submitted: November 22, 2017
Workers’ Compensation Appeal :
Board (School District of :
Philadelphia), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: December 27, 2017
Susette Vandunk (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming that portion of the
Workers’ Compensation Judge’s (WCJ) decision finding Claimant fully recovered
from her physical injuries and that she did not suffer disabling psychological injuries.
For the following reasons, we affirm.
I.1
Claimant worked for the School District of Philadelphia (Employer) as a
teacher at West Philadelphia High School for 13 years. On January 29, 2015, she
filed a claim petition for total disability benefits, alleging that on January 7, 2015, she
sustained face, neck and psychological injuries when she was struck in the face by a
student while teaching a class.2 While Employer ultimately issued a medical-only
notice of compensation payable for those listed injuries, it “issued a Notice of
Compensation Denial asserting that Claimant did not suffer wage loss as a result of
said injury and that the ‘extent of liability/disability is contested.’” (Certified Record
(C.R.) Item No. 4.) On October 31, 2015, Claimant also filed a review petition
alleging that she sustained an “unsightly disfigurement . . . developed as a result of
the January 7, 2015 work injury,” which Employer denied. (C.R. Item No. 2.)
II.
Before the WCJ, Claimant testified:
1
Because the Certified Record and the Reproduced Record do not contain the claim petition
or the penalty petition or any of the Employer’s responsive documents, we must rely on those
procedural facts as set forth in the WCJ’s and Board’s decisions.
2
Claimant also concurrently filed a penalty petition, which the WCJ denied, concluding:
While Employer appears to have filed the [Temporary Notice of
Compensation Payable], the first acknowledgment of the work injury,
twenty-one days after the injury as opposed to twenty, this Judge does
not find that Employer’s actions arise to the level of a penalty.
Employer properly acknowledged the work injury and later issued a
denial when contesting ongoing disability.
(Reproduced Record (R.R.) at 21a.) Claimant did not appeal this portion of the WCJ’s decision.
2
On January 7th [2015] I was in the English Four classroom
with another teacher; we co-teach together. And the
students had an assignment on laptops where they were
typing up the assignment. And I was walking through the
classroom, saving the assignments on my flash drive so they
could be printed. While helping a student, Kaleel Jenkins
decided to get up and walk to the laptop cart and put the
laptop in and take out his ID. And I saw this through my
peripheral vision.
***
So I said to him if anything’s missing out of that laptop cart
I’m going to hold you responsible. So he says to me,
excuse my language, Your Honor, [“]who the fuck are you
talking to? I’m not no nigger on the street. I’ll fucking
knock you out.[”] And I’m like [“]really, Kaleel? You
know you’re not supposed to go in the laptop cart. Again, if
anything’s missing I’m going to come looking for you.[”]
So then he gets up, goes back in his seat. He gets up out of
his seat, he walked to the front of the classroom. Now, my
co-teacher’s telling him [“]Kaleel, we’re not going to do
this. Kaleel, we’re not going to do this.[”] He pushes past
the co-teacher cause she has her hands out like this
(indicates). He pushes past her and over her shoulder
punches me in the face.
(R.R. at 31a-33a.)
She also testified that after the incident, she sought treatment at Mercy
Hospital of Philadelphia where she received seven stitches to her upper lip and
Tylenol with codeine for the pain. She also followed up with Employer’s panel
physicians who prescribed physical therapy and released her to light-duty work.
However, because light-duty work is not available for her job, she testified that she
has not returned to work. She now undergoes treatment with Dr. Lugiano, a
chiropractor, three times a week, as well as Dr. Andrew Lipton (Dr. Lipton) and Dr.
3
Byrne Solberg (Dr. Solberg), who regularly monitor her medical condition and
treatment.
Regarding her psychological injuries, Claimant testified that she is now
fearful of African American men who look like the student that attacked her. She has
nightmares and flashbacks. She does not feel capable of returning to her pre-injury
job because she cannot trust any students that come near her and fears turning her
back to write on the blackboard. She now sees Dr. Brian S. Raditz, Ed.D. (Dr.
Raditz), once per week for mental health therapy, which has helped her condition.
In addition to feeling like an “emotional wreck” (R.R. at 45a), Claimant
also has severe daily headaches, pain in her teeth with cold and sensitivity, and pain
in her neck. She had no neck injuries or treatment, dental symptomatology or
psychological history prior to the attack. Regarding her mouth, Claimant testified
that she had to go back to Mercy Hospital because her sutures became infected. She
described their removal as “the worst pain in my life . . . .” (R.R. at 36a.) Because
she experiences tooth pain on the upper left side of her mouth, she consulted an oral
surgeon who did not recommend specific treatment but, rather, advised that her
symptoms would dissipate over time.
III.
A.
At a subsequent hearing before the WCJ, Claimant testified that she
consulted with a plastic surgeon regarding the scar on the upper-left side of her lip,
but the surgeon stated that a procedure “will not change the scar. It will always be
4
there.” (R.R. at 60a.) Claimant testified that she is self-conscious of her upper lip
area and it bothers her when she eats.
Claimant also submitted the deposition testimony of Dr. Lipton, who is
board-certified in family medicine and osteopathic neuro-musculoskeletal medicine.
Dr. Lipton testified that he is one of Claimant’s treating physicians and that Dr.
Solberg, who works with Dr. Lipton, initially examined Claimant on January 29,
2015. During that examination:
Dr. Solberg noted there was some area on the lip that had
evidence of recent sutures. [Claimant] had mildly limited
range of motion in the cervical spine and tenderness to
palpation in cervical spine as well. He said there was mild
tenderness to palpation in the thoracic spine and no lumbar
spine paraspinal musculature tenderness . . . with full range
of motion in the lumbar spine and full reflexes to the upper
and lower extremities. And that was the extent of his
physical exam.
***
His impression was traumatically induced headache and
sensitivity to pain in her teeth, cervical trauma, with
cervical and upper back sprain, ongoing sleeplessness and
some difficulty with mental concentration.
(R.R. at 81a-82a.) Dr. Solberg recommended therapy, injections, medication and an
oral surgery consult.
Dr. Lipton first examined Claimant on February 13, 2015, during which
Claimant’s reported pain level was a seven out of ten; she was going to the
chiropractor three times a week. Upon performing a physical exam, Dr. Lipton
5
noticed a scar on Claimant’s lip consistent with her history, and that her cervical
spine was restricted in all planes of motion, both actively and passively. There were
no neurological symptoms from her spine, but she did have hypertonicity and
tenderness of palpation, and some restriction in the thoracic spine. A subsequent
MRI showed degenerative disc disease in the cervical spine.
Dr. Lipton’s diagnosis is work-related “[p]ost-traumatic cervicalgia,
cervical disc disease with multilevel disc bulging, cervical radiculitis, headache,
dental pain and jaw trauma, and thoracic strain and sprain . . . [as well as] post-
traumatic stress disorder from the assault.” (R.R. at 90a-91a.) He does not believe
that Claimant is physically and/or mentally capable of returning to her prior job
duties yet, and recommends light or sedentary work that does not require interacting
with many people.
Claimant also submitted the deposition testimony of Dr. Raditz, who is a
certified clinical psychologist and first examined Claimant on February 4, 2015. The
Board summarized3 that testimony as follows:
Dr. Raditz diagnosed Claimant with adjustment disorder
with mixed anxiety and depressed mood, as well as pain
disorder associated with psychological factors and a general
medical condition. (Raditz pp. 15-16). He opined that this
diagnosis was the direct result of Claimant’s January 7,
2015 work injury. (Raditz p. 16). He further opined
3
We are unable to find in the Certified Record the deposition transcript of Dr. Raditz.
While the Reproduced Record provides a deposition transcript taken on August 10, 2015, that
testimony relates to an entirely different workers’ compensation claim for a different claimant. (See
R.R. at 148a.) Accordingly, we must look to the summary and findings provided by the WCJ and
Board.
6
Claimant will continue to need treatment for her
psychological condition and cannot return to her pre-injury
job with Defendant. (Raditz pp. 22-23).
(C.R. Item No. 8.)
Claimant also submitted the independent medical examination (IME)
report of Anna Kornbrot, D.M.D., dated September 10, 2015. According to that IME
report, Claimant’s work injury caused her to have a lip laceration, which requires
cosmetic repair, and
caused her teeth to be concussed and contributed to her
need for root canal treatment on tooth number 10. She did
have pre-existing periodontal dental issues that may have
been exacerbated by the injury but I believe the injury
contributed to her tooth problem. As for her jaw pain, she
is able to open maximally to within normal limits. She has
no deviation of her jaw opening. No joint noises were
heard upon opening and closing her jaw. She is apparently
getting some physical therapy that includes treatment for
her jaw pain and that would likely be all that could be done
to address it. From a dental perspective, in my opinion, she
should be able to work without restriction.
(R.R. at 169a.)4
B.
Employer submitted the October 5, 2015 deposition testimony of Dr.
Gladys Fenichel (Dr. Fenichel), who is board certified by the American Board of
4
The IME report is not contained in the Certified Record.
7
Psychiatry and Neurology. She examined Claimant once on May 26, 2015, and
found no objective findings consistent with any type of psychiatric disorder. She
further did not see any signs of anxiety or depression, and opined that Claimant did
not have any work-related psychiatric disorder that would cause any type of disability
or prevent her from returning to work.
Employer also submitted the deposition testimony of Dr. Christian Fras,
M.D. (Dr. Fras), who is board certified in orthopedic surgery. He examined Claimant
once on May 8, 2015, and opined that Claimant was fully recovered from her work-
related orthopedic injuries including contusion, lip laceration and any injuries to her
face and neck. He further opined that she required no work restrictions and could
return to her pre-injury job without restriction. Claimant required no future medical
care for her work injuries.
IV.
On September 13, 2016, the WCJ issued a Decision and Order granting
Claimant’s claim petition, in part, but finding that she fully recovered from her
physical injuries and did not suffer disabling dental or psychological injuries. The
WCJ also denied Claimant’s review petition relating to the scar on her lip.
Specifically, the WCJ found as follows:
This Judge finds that Claimant sustained disabling work
injuries of headache, cervical sprain and strain, left-sided
jaw pain and sensitivity in her upper left central incisor
tooth, requiring a root canal on January 7, 2015. . . . Her
dental injuries were not disabling at any time. Claimant
also suffered work-related adjustment disorder with mixed
anxiety and depressed mood, as well as a pain disorder
associated with psychological factors and a general medical
condition, however her mental injuries were not disabling at
8
any time. Claimant has fully recovered from her headaches
and cervical sprain and strain as of the date of Dr. Fras’
examination on May 8, 2015.
(C.R. Item No. 5.)
Significantly, the WCJ made the following credibility determinations:
10. Claimant’s testimony is credible and persuasive in
part. Her description of the nature of the incident is not
contested. The mechanism of injury is consistent with the
nature of her symptoms. However, this Judge does not
find that Claimant suffered any ongoing disability after
May 8, 2015.
11. Dr. Lipton’s testimony that Claimant sustained a
disabling work injury on January 7, 2015 is found credible
in part. This Judge rejects Dr. Lipton’s diagnosis of post-
traumatic cervicalgia, cervical disc disease with multilevel
disc bulging, and cervical radiculitis. However, this Judge
finds that any disability that Claimant suffered as a
result of the work injury resolved as of May 8, 2015.
12. Dr. Raditz’s testimony that Claimant sustained a mental
injury on January 7, 2015 is accepted in part. This Judge
accepts his diagnosis regarding her mental condition as
credible based upon this Judge’s own observation of
Claimant in the courtroom. However, this Judge rejects
his testimony that Claimant is disabled from returning
to work due to her diagnoses. This Judge also rejects his
opinion that she is not capable of gainful employment as
a teacher due to her mental symptoms.
13. Dr. Fras’ testimony is found credible and persuasive
as to the nature of the injuries sustained, in addition to
those found credible as diagnosed by Dr. Lipton. This
Judge finds that Claimant suffered a cervical sprain and
strain injury as a result of the work incident, and that she
had fully recovered as of the date of Dr. Fras’
examination.
9
***
15. Dr. Fenichel’s testimony is credible in part. This
Judge finds credible Dr. Fenichel’s opinion that Claimant
did not sustain disabling mental injuries as a result of
the work injury. However, where her testimony otherwise
conflicts with that of Dr. Raditz, her testimony is rejected.
(C.R. Item No. 5) (emphasis added).
Claimant appealed the WCJ’s determination, and the Board reversed the
WCJ’s denial of disfigurement and dental benefits. However, the Board affirmed the
WCJ’s finding that Claimant fully recovered from her physical injuries and did not
suffer a disabling psychological injury because those determinations were grounded
in credibility determinations. Claimant then filed this petition for review.5
V.
On appeal, Claimant contends that there is not substantial evidence to
support the WCJ’s determination that she fully recovered from her physical injuries
and did not suffer disabling psychological injuries. According to Claimant, this is
because the WCJ arbitrarily and capriciously disregarded her testimony as well as Dr.
Lipton’s and Dr. Raditz’s testimonies and used credibility determinations as “fig
leaves to cover instances where a particular outcome or result is the real goal . . . .”
(Claimant’s Brief at 22.)
5
In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether there has been a violation of constitutional rights, whether errors of law have
been committed or a violation of appeal board procedures, and whether necessary findings of fact
are supported by substantial evidence. Lehigh County Vo–Tech School v. Workmen’s
Compensation Appeal Board (Wolfe), 652 A.2d 797, 799 (Pa. Cmwlth. 1995).
10
However, the WCJ did not disregard Claimant’s offered testimony, but
instead found Employer’s offered testimony more credible and persuasive.
Specifically, the WCJ made credibility determinations rejecting Dr. Raditz’s opinion
that Claimant’s psychological condition caused her to become disabled and accepted
Dr. Fenichel’s testimony that Claimant’s psychological condition did not cause any
disability. The WCJ also rejected Claimant’s and Dr. Lipton’s testimony regarding
the current state of her physical injuries and accepted as credible Dr. Fras’ testimony
that, within a reasonable degree of medical certainty, those injuries were fully
recovered at the time of his examination.
What Claimant is essentially asking us to do is adopt her version of
events, which we are not free to do. As we have stated over and over and over again,
“[t]he 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’ Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238
(Pa. Cmwlth. 2013) (quoting Anderson v. Workers’ Compensation Appeal Board
(Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010)). The WCJ is free to
accept or reject the testimony of any witness in whole or in part, including a medical
witness. US Airways v. Workers’ Compensation Appeal Board (Johnston), 713 A.2d
1192, 1195 (Pa. Cmwlth. 1998). We are bound by these credibility determinations
and cannot overturn them on appeal. “Moreover, it is irrelevant whether the record
contains evidence to support findings other than those made by the WCJ; the critical
inquiry is whether there is evidence to support the findings actually made.” A & J
Builders, Inc., 78 A.3d at 1238.
11
Accordingly, the Board’s order is affirmed.6
________________________________
DAN PELLEGRINI, Senior Judge
6
Although not raised as a separate issue in her brief or petition for review, several
comments by Claimant seem to assert that the WCJ did not issue a reasoned decision because she
failed to offer proper justification for her credibility determinations relating to testimony involving
Claimant’s mental health. While that issue is likely waived because it was not properly raised and
developed, the WCJ did issue a reasoned decision. The WCJ credited Claimant’s and Dr. Raditz’s
testimonies regarding her mental condition, but rejected that Claimant suffered an actual disability
based on the WCJ’s personal observations as well as what she found to be the more credible
testimony of Dr. Fenichel, who personally examined Claimant and “noted that Claimant’s
appearance . . . indicated a level of self-concern and attention that Dr. Fenichel does not see as an
indicator of a psychiatric disorder.” (R.R. at 18a.) Obviously, this explanation does not leave us
imagining “why the WCJ believed one witness over another.” Dorsey v. Workers’ Compensation
Appeal Board (Crossing Construction Company), 893 A.2d 191, 196 (Pa. Cmwlth. 2006), appeal
denied, 916 A.2d 635 (Pa. 2007).
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susette Vandunk, :
Petitioner :
:
v. : No. 996 C.D. 2017
:
Workers’ Compensation Appeal :
Board (School District of :
Philadelphia), :
Respondent :
ORDER
AND NOW, this 27th day of December, 2017, it is hereby ordered that
the order of the Workers’ Compensation Appeal Board dated June 22, 2017, in the
above captioned matter is affirmed.
________________________________
DAN PELLEGRINI, Senior Judge