G.M. Cooper (Deceased), S. Cooper, as Administratrix v. WCAB (Armstrong World Industries, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gene M. Cooper (Deceased), :
Sandra Cooper, as the :
Administratrix of the Estate :
of Gene M. Cooper, :
Petitioner :
:
v. : No. 1407 C.D. 2015
: Submitted: April 15, 2016
Workers' Compensation Appeal :
Board (Armstrong World :
Industries, Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: July 13, 2016
In this appeal, Sandra Cooper, Administratrix of the Estate of Gene
M. Cooper (Claimant), challenges that part of the Workers’ Compensation Appeal
Board’s (Board) decision that upheld a Workers’ Compensation Judge’s (WCJ)
decision denying Claimant’s request for unreasonable contest attorney fees. Upon
review, we affirm.
I. Background
In 2012, a WCJ issued a decision that determined Gene M. Cooper
(Decedent)1 sustained a 2004 work-related injury in the nature of toxic
1
Gene M. Cooper died in February 2014.
encephalopathy, resulting in Parkinsonian symptoms, as a result of his exposure to
chemicals during his employment with Armstrong World Industries, Inc.
(Employer). Pursuant to the WCJ’s 2012 decision, Employer was responsible for
the payment of any and all reasonable, necessary and related medical expenses that
Claimant incurred for the 2004 work injury. Employer was also directed to deduct
20% from Claimant’s weekly compensation benefits and pay that amount to
Claimant’s counsel as his attorney fee.
A few months later, Decedent filed the first of four penalty petitions,
alleging Employer’s insurer paid Decedent’s workers’ compensation benefits, but
refused to pay his attorney’s share. Decedent sought a 50% penalty. About a week
later, Decedent filed a second penalty petition, alleging Employer did not pay his
medical bills. Thereafter, in October 2012, Decedent filed two additional penalty
petitions, alleging Employer did not pay his medical bills and total disability
benefits. Employer denied the material allegations. Hearings ensued before a
WCJ.
After the hearings, the WCJ issued an extensive decision granting in
part and denying in part Decedent’s penalty petitions. The WCJ also determined
Decedent met his burden of proving a 2012 left hip fracture and all associated
treatment was causally related to his work injury. 2 Further, and of particular
import to the present appeal, the WCJ declined to award unreasonable contest
2
On this point, the WCJ explained that because there was a dispute as to the causal
relationship between the work injury and the medical expenses, a portion of the penalty petitions
necessarily included the elements of a review petition. The WCJ noted that strictness of
pleadings was not required; both parties had notice of the issue of causal relationship and
presented evidence on the issue.
2
attorney fees against Employer. The parties filed cross-appeals to the Board,
which affirmed. Claimant now petitions for review to this Court.
II. Issues
On appeal,3 Claimant argues the Board erred in affirming the WCJ’s
determination that Employer had a reasonable basis to contest payment for
expenses associated with Decedent’s hip fracture. Claimant also asserts the Board
erred by affirming the WCJ’s decision to bar Decedent from introducing relevant
testimony from a nurse that Employer’s insurer sent to assess Decedent’s medical
chart, which would have showed Employer knew all along the bills it refused to
pay were directly related to Decedent’s work injury, which, in turn, would have
shown Employer’s contest was unreasonable.
III. Discussion
A. Attorney Fees
1. Contentions
Claimant first asserts a remand is warranted with a direction to assess
reasonable costs and attorney fees as to Employer’s unreasonable contest on the
medical expenses related to Claimant’s hip fracture. Claimant advances several
arguments in support of her position that Employer’s contest was unreasonable.
3
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. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).
3
a. “Obvious” Causal Connection
First, Claimant argues Employer’s contest was inherently
unreasonable because the relationship between Decedent’s Parkinson’s disease and
toxic encephalopathy, which were previously deemed work-related, and the fall
that caused his hip fracture, was obvious. Where a claimant receives medical
treatment for new symptoms that allegedly arise from the accepted injury, and the
employer refuses to pay the associated bills, the burden of establishing that the
symptoms and treatments are related to the accepted injury turns on whether the
connection is “obvious.” See, e.g., Hilton Hotel Corp. v. Workmen’s Comp.
Appeal Bd. (Totin), 518 A.2d 1316 (Pa. Cmwlth. 1986). Claimant contends an
“obvious” connection “involves a nexus that is so clear that an untrained lay person
would not have a problem in making the connection between” the new symptoms
and the compensated injury; the new symptoms would be a “natural and probable”
result of the injury. See Kurtz v. Workers’ Comp. Appeal Bd. (Waynesburg Coll.),
794 A.2d 443, 448 (Pa. Cmwlth. 2002) (citations omitted). Claimant maintains
Kurtz controls here.
More particularly, Claimant argues, as explained in Kurtz, the
question is whether Decedent’s fall that caused his hip fracture was a “natural and
probable consequence” of his Parkinson’s disease and toxic encephalopathy.
Claimant asserts it obviously was. The general public is aware Parkinson's patients
are a significant fall risk. See http://www.pdf.org/en/fall09_fall_prevention (last
visited June 14, 2016) (Parkinson’s disease Foundation Website - outlining fall
prevention strategies). Claimant contends Decedent fell 23 times in the year before
and up to the time he broke his hip. She argues it is not a monumental leap to infer
4
that Decedent’s brain injury and Parkinson’s disease were what caused him to lose
his balance, fall and break his hip.
Nevertheless, Claimant asserts, before the WCJ, Employer attempted
to argue that, because no one saw Decedent fall when he broke his hip, the fall
theoretically could be related to something other than his various work induced
maladies. But, Claimant contends, the WCJ did not credit this argument; instead,
the WCJ formed a conclusion that Decedent’s fall resulted from his work injuries
because that conclusion was obvious. Indeed, Claimant argues, nothing presented
at the hearings regarding Decedent’s condition and its consequences was new
information to Employer.
b. “But-for” Causation
Next, Claimant asserts this Court previously applied a “but-for” test in
determining whether a claimant’s injuries were work-related. See Berro v.
Workmen’s Comp. Appeal Bd. (Terminix Int’l, Inc.), 645 A.2d 342 (Pa. Cmwlth.
1994). According to Claimant, in Berro, the claimant was involved in a car
accident while traveling to physical therapy for a work injury. This Court
determined the injuries sustained in the car accident were work-related. In so
doing, this Court applied a “but-for” test, and it determined “but-for” the
claimant’s initial work injury, he would not have been involved in the car accident.
Claimant asserts the same rationale applies here because but-for Decedent’s toxic
encephalopathy and Parkinson’s disease, he would not have been in the Dallastown
Nursing Center, the long-term nursing facility where he resided when he fell.
Thus, Claimant maintains Decedent’s hip fracture was work-related as it would not
5
have happened “but-for” his housing in the Dallastown Nursing Center for
treatment of his various conditions.
c. Review of Decedent’s Medical File
Claimant also argues Employer’s contest was unreasonable because
Nurse Ann Sehne (Nurse Sehne), who Employer’s insurance carrier sent to
Dallastown Nursing Center, reviewed Decedent’s medical records in October
2012. Claimant maintains it is reasonable to infer Nurse Sehne learned that
Decedent had a significant history of falls and these falls were connected to his
work-related movement disorders. Indeed, Claimant argues, it strains credulity to
infer Nurse Sehne reviewed Decedent’s records and concluded he was constantly
falling for some other reason.
Claimant asserts where, as here, an employer’s own medical
personnel is aware of a work injury, it is unreasonable for the employer to contest
payment of expenses related to the injury. See Wallace v. Workers’ Comp. Appeal
Bd. (Pittsburgh Steelers), 722 A.2d 1168 (Pa. Cmwlth. 1999) (where employer’s
physician knew from the beginning that injury was work-related, case was
remanded for determination of costs and attorney fees); Milton S. Hershey Med.
Ctr. v. Workmen’s Comp. Appeal Bd. (Mahar), 659 A.2d 1067 (Pa. Cmwlth. 1995)
(grant of unreasonable contest attorney fees upheld where employer’s physician
initially acknowledged work injury).
d. Alleged Inconsistency in WCJ’s Findings
Further, Claimant contends the WCJ’s factual reason for finding
Employer’s contest reasonable is internally inconsistent. Specifically, the WCJ
6
based his conclusion that Employer’s contest was “reasonable” on a medical form
someone submitted at York Hospital (where Decedent received treatment for his
hip fracture), which included a box that was checked off indicating the injury was
“not work related.” F.F. No. 33(c). On the other hand, Claimant asserts, the WCJ
specifically rejected this billing document as not credible as there was no evidence
the form was “completed by a medical provider.” F.F. No. 28(e). Claimant asks,
if the WCJ could so easily reject this document based on that obvious deficiency,
then “why shouldn’t have [Employer] also done the same?” Pet’r’s Br. at 16.
e. Failure to Present Medical Evidence
As a final point concerning the WCJ’s denial of unreasonable contest
attorney fees, Claimant argues that during the proceedings here, Employer did not
produce medical evidence or testimony to support its position that Decedent’s hip
fracturing fall was not causally related to his established work-related conditions.
As a result, Claimant asserts Employer’s contest was unreasonable per se. See
e.g., Lewistown Hosp. v. Workmen’s Comp. Appeal Bd. (Kuhns), 683 A.2d 702
(Pa. Cmwlth. 1996) (unreasonable contest where, at time contest was initiated,
employer had no medical evidence to support its position); Thomas v. Workmen’s
Comp. Appeal Bd. (Dress Barn), 672 A.2d 368 (Pa. Cmwlth 1996) (employer
presented no evidence to dispute claimant’s account of slip and fall at work,
making employer’s contest unreasonable, and thus, claimant was entitled to award
of attorney fees).
2. Analysis
Initially, we note, as the ultimate fact-finder in workers’ compensation
cases, the WCJ “has exclusive province over questions of credibility and
7
evidentiary weight ….” A & J Builders, Inc. v. Workers’ Comp. Appeal Bd.
(Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ may accept or reject
the testimony of any witness, including an expert witness, in whole or in part. Id.
Moreover, “[i]t 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.” Furnari v. Workers’
Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation
omitted). We examine the entire record to see if it contains evidence a reasonable
person might find sufficient to support the WCJ’s findings. Id. If the record
contains such evidence, the findings must be upheld, even though the record may
contain conflicting evidence. Id. Additionally, we must view the evidence in the
light most favorable to the prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence. Id.
Where a claimant succeeds in a litigated case, he is entitled to
reasonable attorney fees pursuant to Section 440 of the Workers’ Compensation
Act (Act)4 unless the employer meets its burden of establishing facts sufficient to
prove a reasonable basis for its contest. Hansen v. Workers’ Comp. Appeal Bd.
(Stout Road Assocs.), 957 A.2d 372 (Pa. Cmwlth. 2008). This Section “is intended
to deter unreasonable contests of workers’ claims and to ensure that successful
claimants receive compensation undiminished by costs of litigation.” Dep’t of
4
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L.
25, 77 P.S. §996.
8
Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 1037, 1049 (Pa.
Cmwlth. 2011) (citation omitted).
The issue of whether an employer’s contest is reasonable is a legal
conclusion based on the WCJ’s findings of fact. Hansen. The reasonableness of
an employer’s contest depends on whether the contest was prompted to resolve a
genuinely disputed issue or merely to harass the claimant. City of Phila. v.
Workers’ Comp. Appeal Bd. (Cospelich), 893 A.2d 171 (Pa. Cmwlth. 2006).
Here, in determining Employer presented a reasonable contest with
regard to Decedent’s fall and resultant hip fracture, the WCJ made the following
findings and conclusions (with emphasis added):
[29 (a).] [Decedent] was living at Dallastown Nursing
Center in July 2012. He was able to ambulate freely within the
facility. At approximately 3:00 a.m. he fell and fractured his
left hip. The fall was unwitnessed. He was transported to York
Hospital, where he was admitted for treatment, including open
reduction internal fixation of the hip fracture. … Dr. [Timothy]
Martin [(Decedent’s Physician)] credibly testified that
[Decedent’s] metabolic encephalopathy, Parkinsonism, and
dementia could all make him prone to falling. [Decedent’s
Physician] credibly testified Parkinson’s patients have a four-
fold to five-fold increased risk of suffering a hip fracture.
While [Decedent’s Physician] conceded he could not know for
sure whether [Decedent] fell because of some cause
independent of the underlying work-related conditions, there is
no evidence of any other cause for [Decedent’s] July 2012 fall
leading to the left hip fracture. The left hip fracture was
causally related to the work injury and Employer is responsible
for payment of the medical bills for treatment of the left hip
fracture …. The York Hospital bills were submitted to
Employer in March 2013 and have not been paid to date.
Employer has violated the Act. However, based upon: the
[Health Care Financing Administration (HCFA)] forms
9
submitted by York Hospital, which indicated the treatment was
not work related; the medical reports from York Hospital,
which failed to indicate there was a causal relationship between
the work injury and the hip fracture; the lack of an obvious
causal relationship between the hip fracture and [Decedent’s]
work-related injuries; and the possibility that [Decedent’s
Physician’s] opinions could have been found non-credible,
equivocal, or incompetent; I do not find that any penalty is
warranted based upon Employer’s failure to timely pay the
York Hospital bills.
****
33. [Decedent] has requested an Order directing Employer to
pay attorney’s fees for an unreasonable contest. For the
following reasons, I find that Employer’s contest to the Penalty
Petitions was reasonable.
****
c. Employer had a reasonable basis to contest the
Penalty Petition arising out of allegedly unpaid medical
expenses allegedly related to the work injury. … The
July 2012 left hip fracture was not obviously related to
the work injury. As such, it was [Decedent’s] burden to
prove the left hip fracture and resulting treatments related
thereto were causally related to the work injury. Despite
not presenting the testimony or report of a physician of
its own choosing, Employer elicited testimony from
[Decedent’s Physician] on cross-examination which
formed a significant basis to legitimately dispute whether
[Decedent] presented unequivocal medical testimony
sufficient to meet his burden of proof. Moreover, the bill
for the left hip fracture which Employer received from
York Hospital was properly submitted with a HCFA
form indicating the treatment was not work-related. …
[Decedent] presented [his Physician’s] testimony at the
August 12, 2013 hearing. [Decedent’s Physician’s]
testimony … did not definitively resolve the causal
relationship between the left hip fracture, the disputed
medications, and the work injury. … Although I have
found a violation of the Act and imposed a penalty, I also
find Employer had several genuine issues in dispute
10
related to the allegedly unpaid medical expenses[.] The
contest was reasonable.
****
2. If an employee receives treatment for new symptoms that
allegedly arise from a work-related injury and the employer
refuses to pay the associated medical bills, which party has the
burden of proof regarding causal relationship is dependent on
the following: (1) If the causal connection is not obvious the
burden is on the employee to establish the connection through
unequivocal medical testimony. (2) If the causal connection is
obvious, the burden is on the employer to prove that the new
symptoms are not related. [Kurtz]. An ‘obvious’ connection
‘involves a nexus that is so clear that an untrained lay person
would not have a problem in making the connection between’
the new symptoms and the compensated injury; the new
symptoms would be a ‘natural and probable’ result of the
injury. Id. at 447-448, citing, Tobias v. WCAB (Nature’s Way
Nursery, Inc.), 595 A.2d 781, 784 [(Pa. Cmwlth. 1991);]
McDonnell Douglas Truck Services, Inc. v. WCAB (Feldman),
655 A.2d 655 (Pa. Cmwlth. 1995). When the connection
between the injury and the alleged work-related cause is not
obvious, it is necessary to establish the cause by unequivocal
medical evidence. [Hilton Hotel Corp.].
3. [Decedent] has cited Kurtz and Gens v. WCAB
(Rehabilitation Hosp.), 631 A.2d 804 (Pa. Cmwlth. 1993) to
argue that he should not bear the burden of proof with regard to
the hip fracture. I have previously ruled, at least twice, that
Kurtz and Gens do not apply to the instant matter. Kurtz and
Gens stand for the proposition that a [c]laimant does not bear
the burden of proving treatment for new symptoms is causally
related to a work injury when the causal connection between
those new symptoms and the compensable injury is obvious.
The [2012 WCJ] Decision … found [Decedent’s] compensable
work injury to be ‘toxic encephalopathy resulting in
Parkinsonian symptoms.’ The compensable work injury could
also be expanded to include dementia, seizure disorders, and
GERD. Regardless, while it may be true that [Decedent’s]
previously adjudicated work-related injuries can lead to falls
and an increased likelihood of hip fracture; a hip fracture is not
a ‘natural and probable result’ of the work injuries, nor is the
11
connection between the work injuries and the hip fracture such
that ‘an untrained lay person would not have a problem in
making the connection.’ The lack of an obvious connection is
established by the billing records submitted by York Hospital,
which indicated the hip fracture was not related to [Decedent’s]
work, as well as by [Decedent’s Physician’s] concessions that
[Decedent] could have suffered a hip fracture entirely unrelated
to his work injury and that no one could know for sure whether
the hip fracture was caused by something independent of the
work injuries. Neither Kurtz nor Gens alleviate [Decedent] of
the burden of proving the causal connection between his left hip
fracture and his work injuries.
4. [Decedent] has also argued that he should not have to
establish a causal connection between any new conditions,
injuries, or treatment received while in Dallastown Nursing
Center based upon [Berro]. Berro held that injuries sustained
by a claimant while driving to physical therapy for a work
injury were compensable. [Decedent’s] argument is,
essentially, because [Decedent] [was] in Dallastown Nursing
Center for treatment of his work injury, anything that happens
to him in Dallastown Nursing Center is a compensable work
injury. Berro is distinguishable from the instant matter.
Specifically, Berro turned on the definition of ‘injury arising in
the course of his employment.’ The Berro Court noted the
definition includes ‘all other injuries sustained while the
employee is actually engaged in the furtherance of the business
or affairs of the employer, whether upon the employee’s
premises or elsewhere ….’ The claimant in Berro was
furthering the employer’s business because he was attending
physical therapy in an effort to return to work. In the present
matter, [Decedent] was not at Dallastown Nursing Center in an
effort to return to work. Rather, he was living at Dallastown
Nursing Center, albeit because his work injury was such that he
was required to live in a skilled nursing home. In any event, he
was not receiving treatment on a continual basis. And he was
not receiving treatment when he broke his left hip in an
unwitnessed fall in the middle of the night in July 2012.
[Decedent’s] actions when he fell in July 2012 and broke his
left hip were not ‘in furtherance of the business or affairs of the
employer.’ Berro does not alleviate [Decedent] of his burden
of proving the causal connection between the undisputed
medical treatment and the work injury.
12
****
6. Regardless, [Decedent] has met his burden of proving that
the July 2012 left hip fracture and all associated treatment for
the same was causally related to the work injury. Employer has
argued that [Decedent’s Physician’s] testimony in this regard
was equivocal and insufficient to meet … [Decedent’s] burden
of proof. An expression of medical opinion will satisfy the
standard of unequivocal medical testimony if the expert
testified that in the expert’s professional opinion there is a
relationship or that the expert thinks or believes there is a
relationship. The testimony of the expert must be considered as
a whole, and complete medical certainty is not required.
Reservations relating to medical or scientific details do not
affect the admissibility of the medical opinion as long as the
expert does not recant the opinion or belief expressed.
Liveringhouse v. WCAB (ADECCO), 970 A.2d 508 (Pa.
Cmwlth. 2009). Employer’s argument in this case is based
upon several limited concessions made by [Decedent’s
Physician] during cross-examination. Despite those
concessions, [Decedent’s Physician] did not recant his opinion
or belief that he believed there was a relationship between the
[Decedent’s] work injury and the July 2012 fall and hip
fracture. …
****
17. An award of attorney’s fees to the claimant is the rule and
the exclusion is the exception to be applied only where the
record establishes that the contest is reasonable. Lemansky v.
WCAB (Hagan Ice Cream Co.), 738 A.2d 498 (Pa. Cmwlth.
1999). The burden is on the employer to present sufficient
evidence to establish the reasonable basis for a contest. Weiss
v. WCAB [(Birch)], 526 A.2d 839 (Pa. Cmwlth. 1988). Where
the employer contests the claimant’s petition but fails to
demonstrate that there was a reasonable basis to question
claimant’s allegations therein, the contest was not reasonable.
Pruitt v. WCAB (Lighthouse Rehabilitation), 730 A.2d 1025
(Pa. Cmwlth. 1999). Employer presented sufficient evidence to
establish a reasonable basis to contest the Penalty Petitions.
13
WCJ’s Op., 5/19/14, Finding of Fact (F.F.) Nos. 29(a), 33(c); Concl. of Law Nos.
2-4, 6, 17. We discern no error in the WCJ’s decision not to award Claimant
unreasonable contest fees with regard to Employer’s contest of the causal
connection between Decedent’s previously adjudicated work-related conditions
and his subsequent fall and resultant hip fracture.
First, the WCJ properly rejected Claimant’s contentions premised on
Kurtz and Berro. More specifically, neither Kurtz nor Berro addressed the issue of
unreasonable contest attorney fees. Rather, both cases addressed issues of
causation between an accepted work injury and a subsequent injury. Here, the
WCJ found Claimant established a causal relationship between his previously
adjudicated work-related conditions and his subsequent fall and hip fracture
through the testimony of Decedent’s Physician. Thus, Claimant already prevailed
on the issue of causation. Further, as the WCJ aptly recognized, both Kurtz and
Berro are factually distinguishable from this case.
More particularly, in Kurtz, the claimant suffered a head injury, and
the employer accepted liability for a concussion with retrograde amnesia and
severe para-cervical spasms. The claimant subsequently underwent surgery to
relieve his head pain. Over a year later, he again experienced pain in the area of
his original injury, and he underwent treatment. The claimant submitted medical
bills for that treatment to the employer’s workers’ compensation insurance carrier,
which refused to pay them on the ground the claimant’s current head pain was
unrelated to the original work injury. The claimant then filed a petition to review
medical bills and a reinstatement petition. A WCJ determined the claimant did not
14
meet his burden of proof, and, therefore, the treatments he received as a result of
the head pain were not causally related to the original work injury. The Board
affirmed.
On further appeal by the claimant, this Court determined the WCJ and
the Board erred in applying the burden of proof. More particularly, because the
employer accepted liability for the claimant’s head injury, any natural and probable
symptoms resulting from that injury were presumed to be related to that injury, and
it was the employer’s burden to establish otherwise. We stated:
In the case sub judice, [the] [c]laimant’s head injury was
acknowledged by [the] [e]mployer through the [notice of
compensation payable], and, thus, [the] [c]laimant’s original
injuries were admittedly compensable and related to his
employment. There is no indication from the record that there
was any termination of benefits or any final receipt.
Accordingly, any natural and probable symptoms arising from
[the] [c]laimant’s compensable head injury are presumed to be
related to that injury and it is [the] [e]mployer’s burden to
establish otherwise.
[The] [c]laimant complained of dizziness and headaches
and a burning sensation that were in the same area as his
original head pain; just two inches from the scar left by his
surgery. [The] [c]laimant indicated that the pain he felt was of
the same type, although not as intense, as from the initial injury.
It is difficult to imagine that similar pain appearing in such
close proximity to the area of the original injury is not a natural
and probable result of the original injury and, therefore,
obviously related to such injury. Although the pain-free period
of time between [the] [c]laimant’s surgery and the recurrence of
pain does not bolster the obviousness of the connection, the
passage of time alone will not defeat it. We, therefore, hold
that [the] [c]laimant’s new symptoms obviously appear to be
related to the original injury and it was [the] [e]mployer’s
burden, under these facts, to establish that the symptoms are
indeed unrelated to the original compensable injury.
15
Id. at 448 (footnotes omitted). Ultimately, we determined the testimony of the
employer’s medical expert was equivocal and, as a result, could not satisfy the
employer’s burden of proving the claimant’s medical bills were not associated with
the claimant’s original injury.
Here, unlike in Kurtz, Decedent’s original injury was toxic
encephalopathy resulting in Parkinsonian symptoms. As the WCJ recognized,
although Decedent’s original work injuries could lead to falls and an increased
likelihood of hip fracture, a hip fracture is not a natural and probable result of the
work injuries. Nor is the connection between the work injuries and the hip fracture
such that an untrained lay person would not have a problem in making the
connection. Thus, the WCJ properly distinguished Kurtz from the present case.
This determination is bolstered by the fact that Decedent’s Physician
conceded that Decedent could have suffered a hip fracture entirely unrelated to his
work injuries, and no one could know for certain whether the hip fracture was
caused by something independent of the work injuries. F.F. No. 29(a); WCJ’s
Hr’g, 8/12/13, Notes of Testimony (N.T.) at 132-33. In short, no error is apparent
in the WCJ’s determination that the causal connection between Claimant’s original
work injuries, toxic encephalopathy and Parkinsonian symptoms, and Claimant’s
subsequent fall and resultant hip fracture is not obvious. Thus, we discern no error
in the WCJ’s denial of unreasonable contest attorney fees on this basis.
In addition, in Berro, this Court held that, where a claimant sustained
injuries in an accident while driving to physical therapy for treatment of earlier
16
work-related injuries, the injuries sustained in the car accident were compensable.
We explained that “but for” driving for treatment of his earlier work injury, the
claimant would not have been in a position to be involved in a car accident in
which he sustained further injuries. This Court further stated:
[I]t is in the interest of the employer that [the] [c]laimant seek
rehabilitation and treatment in order to recover from the initial
work-related injury. [The employer] will clearly benefit by not
having to pay compensation as a result of [the] [c]laimant[’s]
recovery and return to work. As a result, we believe [the]
[c]laimant[’s] trip to the physical therapy session falls within
the ‘special circumstances’ exception to the general rule that an
employer is not liable for injuries which occur while the
employee is travelling off the premises. See Peterson [v.
Workmen’s Comp. Appeal Bd. (PRN Nursing Agency), 597
A.2d 1116, 1119 (Pa. 1991)].
In view of the foregoing, we conclude that [the]
[c]laimant[’s] injuries sustained … while driving directly to his
physical therapy session, which was part of his treatment for his
initial … work-related injury, are causally-related to his
employment and that [the] [c]laimant[’s] attendance at the
physical therapy sessions was in the furtherance of the interests
of his employer. Accordingly, we hold that [the] [c]laimant[’s]
injuries resulting from the automobile accident are compensable
under Section 301(c)(1) of the Act, [77 P.S. §411(1)].
Berro, 645 A.2d at 345.
Here, unlike in Berro, Claimant’s injury did not occur while he was
traveling to or in the process of receiving medical treatment when he suffered the
unwitnessed fall. Further, Claimant was not housed at the Dallastown Nursing
Center with the prospect of returning to work. Thus, the WCJ here determined
Decedent’s actions when he fell and broke his hip in July 2012 were not “in
furtherance of the business or affairs of the employer.” WCJ’s Op., 5/19/14,
17
Concl. of Law No. 4. In short, the WCJ correctly determined Berro did not
alleviate Decedent of his burden of proving the requisite causal connection
between his original work conditions and the subsequent fall and hip fracture.
We also reject Claimant’s assertion that Employer’s contest was
unreasonable on the ground that Nurse Sehne reviewed Decedent’s medical
records at Dallastown Nursing Facility and, therefore, it was reasonable to infer
that Nurse Sehne learned that Decedent had a significant history of falls and these
falls were connected to his work-related movement disorders. In support of this
argument, Claimant references the testimony of Susan Boone, administrator of
Dallastown Nursing Facility, who provided Nurse Sehne access to Decedent’s
medical records when she visited the facility. See Pet’r’s Br. at 14 (citing N.T.,
8/12/13, at 59-63). Our review of the cited testimony does not support Claimant’s
argument.
In particular, Boone offered no definitive testimony which indicated
that, based on her review of Decedent’s medical records, Nurse Sehne knew of
Decedent’s history of falls or that Decedent’s work-related conditions caused
Decedent’s fall that resulted in the hip fracture. Thus, as the WCJ found: “Nurse
Boone provided Nurse Sehne access to Claimant’s entire chart, although she did
not know if Nurse Sehne read the chart. Nurse Sehne saw [Decedent], but did not
examine him. Nurse Sehne did not ask Nurse Boone any questions about any of
the care [Decedent] was being provided.” F.F. No. 12(c) (emphasis added). In
short, although the WCJ could draw an inference in Claimant’s favor based on
Boone’s testimony that she provided Nurse Sehne access to Decedent’s medical
18
records, the WCJ did not do so, and this Court cannot do so on appeal. Furnari; A
& J Builders.
Claimant also maintains the WCJ erred in denying unreasonable
contest attorney fees where the WCJ’s decision contains a factual inconsistency.
Specifically, Claimant contends the WCJ based his conclusion that Employer’s
contest was “reasonable” on a medical form someone submitted at York Hospital,
which included a checked off box indicating the injury was “not work related,”
F.F. No. 33(c); however, the WCJ also specifically rejected this billing document
as not credible as there was no evidence the form was “completed by a medical
provider.” F.F. No. 28(e). Contrary to Claimant’s assertion, we see no
inconsistency.
To that end, in determining Decedent’s hip fracture was related to his
established work-related conditions, the WCJ rejected the York Hospital billing
documents to the extent those documents suggested Decedent’s hip fracture was
unrelated to the established work-related conditions. F.F. No. 28(e). In so doing,
the WCJ stated there was no evidence that the HCFA form indicating that the
treatment for Decedent’s hip fracture was unrelated to the work injury was
completed by a medical provider. Id.
Further, as one reason for determining Employer presented a
reasonable contest with regard to the payment of medical expenses for Decedent’s
hip fracture, the WCJ stated the bill Employer received for Decedent’s hip fracture
was properly submitted with a HCFA form indicating the treatment was not work-
19
related. F.F. No. 33(c). We perceive no inconsistency between Finding of Fact
No. 28(e) and 33(c). In Finding of Fact No. 28(c), the WCJ explained why the
HCFA form did not alter his determination that the hip fracture was related to
Decedent’s work conditions. However, in Finding of Fact No. 33(c), the WCJ
explained why Employer had a reasonable basis to contest the payment of medical
expenses for the hip fracture based on a form Employer received that stated the hip
fracture was not related to Decedent’s work conditions.
Thus, the challenged findings relate to two distinct issues: (1) the
issue of whether Decedent’s hip fracture was causally related to his previously
adjudicated work-related conditions, and, therefore, whether Employer was
responsible for the medical bills for the hip fracture; and, (2) the issue of whether
Employer presented a reasonable contest with regard to whether Decedent’s hip
fracture was related to his previously adjudicated work-related conditions where,
among other things, Employer received a HCFA form that indicated the hip
fracture was not work-related. We discern no inconsistency in the manner in
which the WCJ discussed the HCFA form in these different contexts.
Finally, we reject Claimant’s contention that Employer’s contest was
unreasonable on the ground that Employer did not present any credible medical
evidence that Decedent’s hip fracture was not related to his work conditions. To
that end, as the WCJ properly stated, although Employer did not present medical
evidence from a physician of its own choosing, it elicited testimony from
Decedent’s Physician on cross-examination that formed a significant basis to
legitimately dispute whether Decedent presented unequivocal medical evidence to
20
meet his burden of showing the hip fracture was, in fact, related to his work
conditions.
As this Court previously stated, “[t]he fact that the employer did not
adduce medical evidence, but rather chose to rely upon the cross-examination of
the claimant’s physician does not render [its] basis for contest unreasonable.”
Cleaver v. Workmen’s Comp. Appeal Bd. (Wiley), 456 A.2d 1162, 1163 (Pa.
Cmwlth.1983). Also, “an employer’s contest may be adjudged reasonable where
the evidence lends itself to contrary inferences.” McGuire v. Workmen’s Comp.
Appeal Bd. (H.B. Deviney Co.), 591 A.2d 372, 374 (Pa. Cmwlth. 1991) (citation
omitted). Thus, a reasonable contest is established when medical evidence is
conflicting or susceptible to contrary inferences and there is an absence of
evidence that an employer’s contest was frivolous or filed to harass a claimant. N.
Phila. Aviation Ctr. v. Workmen’s Comp. Appeal Bd. (Regan), 551 A.2d 609 (Pa.
Cmwlth. 1988). Here, the testimony of Decedent’s Physician as a whole is
susceptible to contrary inferences as to causation and, therefore, raised a genuinely
disputed issue as to whether Decedent’s fall and resultant hip fracture was causally
related to his established work-related conditions. Thus, no error is apparent in the
WCJ’s decision not to award unreasonable contest attorney fees on this basis.
B. Exclusion of Nurse Sehne’s Testimony
1. Contentions
Claimant also contends the Board erred in affirming the WCJ’s
decision to preclude Decedent from presenting Nurse Sehne’s testimony. Claimant
asserts Decedent asked for permission to present the testimony of Nurse Sehne,
who was employed by the insurer and went to Dallastown Nursing Center to
21
examine Decedent’s medical records. Claimant argues Nurse Sehne was given
Decedent’s entire file, including a list of all the falls he suffered. Decedent
intended to call Nurse Sehne to testify to the fact that she was well aware that
Decedent’s Parkinson’s disease, seizures and toxic encephalopathy constantly
caused him to fall. Claimant asserts, if the WCJ permitted Decedent to present this
testimony, there would have been no doubt that Employer’s contest as to the
expenses associated with Decedent’s hip fracture was patently unreasonable. See
Wallace; Mahar.
Claimant maintains the WCJ precluded Nurse Sehne’s testimony
because he believed the medical testimony from Decedent’s treating physician was
sufficient. Claimant argues this was an abuse of discretion where Nurse Sehne’s
testimony was directly relevant to what Employer knew, and when it knew it.
Claimant argues when Nurse Sehne went to Dallastown Nursing Center and
reviewed Decedent’s entire file, including a list of all his falls, Nurse Sehne asked
no questions and made no remarks about whether the Center was providing
unnecessary treatment that would go unpaid. Claimant contends it is reasonable to
infer from this visit and review of Decedent’s records that Nurse Sehne came to the
same obvious conclusion the WCJ reached, Decedent constantly fell because of his
Parkinsonism, dementia, encephalopathy and seizures. Thus, Claimant asserts, if
the insurer’s own nurse knew this, Employer’s contest was unreasonable. As a
result, Claimant contends the Board erred in affirming the WCJ’s decision to
exclude this relevant evidence.
22
2. Analysis
The admission of evidence is within the sound discretion of the WCJ.
Washington v. Workers’ Comp. Appeal Bd. (Pa. State Police), 11 A.3d 48, 59 (Pa.
Cmwlth. 2011). In addition, a WCJ may properly exclude evidence that is
irrelevant, confusing, misleading, cumulative, or prejudicial. Id. This Court will
not overturn a WCJ’s determinations regarding the admission of evidence absent
an abuse of discretion. Id. “An abuse of discretion occurs where the WCJ’s
judgment is manifestly unreasonable, where the law is not applied or where the
record shows that the action is the result of partiality, prejudice, bias or ill will.”
Allegis Grp. & Broadspire v. Workers’ Comp. Appeal Bd. (Coughenaur), 7 A.3d
325, 327 n.3 (Pa. Cmwlth. 2010).
Here, with regard to the presentation of Nurse Sehne’s testimony, the
following exchange occurred:
[WCJ]: So you want to present [Decedent’s Physician] live[?]
[Decedent’s Counsel]: Of course. If you’re going to --- if it’s
your position [Berro] doesn’t apply, [Gens] doesn’t apply;
it’s on [Claimant] to prove that something that happened to
somebody while they’re hospitalized for a work-related
injury has to be proven, then I need [Decedent’s Physician].
[Employer’s Counsel]: But a report will do it, Judge.
[Decedent’s Counsel]: No, it won’t.
[WCJ]: Well, a report could potentially do it, but that doesn’t
mean they’re precluded from taking the testimony.
[Decedent’s Counsel]: How do you make a credibility
determination?
23
[WCJ]: So I’ll allow you to take the testimony. And we’ll go
ahead and do it live, if that’s how you want to do it. That’s fine
with me. Now, is that all we need to address the medical bills?
[Decedent’s Counsel]: No. …
[Decedent’s Counsel]: [Nurse] [Ann] Seine [sic]. She was the
nurse manager that was sent by [Employer’s workers’
compensation insurance carrier] to Dallastown.
[WCJ]: Sue Boone [the administrator of Dallastown Nursing
Center] can address that.
[Decedent’s Counsel]: That’s hearsay.
[WCJ]: We’ll see if there’s an objection.
[Decedent’s Counsel]: And then what happens when there is?
[Employer’s Counsel]: But Judge, the bills are being paid.
That’s what I don’t understand. The bills are all being paid.
There’s no allegation that Dallastown, because they’re not
getting paid, is asking [Decedent] to go somewhere else.
They’re all being paid. I’ll give you the updated payments.
You know, it’s a big to do about nothing. The bills are being
paid within the first two weeks of the month for which the bills
are being incurred. They’re being paid within that 30 day
period.
[WCJ]: … I understand your position. There’s obviously a
difference of opinion on that.
[Decedent’s Counsel]: I’m just telling the Court, hearsay.
[WCJ]: Well, I mean, look, if Sue Boone says that she told
[Ann] Seine [sic] when the payments need to be made, then
that’s what Sue Boone says. I really don’t know what else
you’re trying to get out of [Ann] Seine [sic], frankly.
[Decedent’s Counsel]: A lot.
[Employer’s Counsel]: Judge, there’s nothing. I’m going to
object to --- there’s nothing in her testimony that’s going to be
24
relevant. We’ll see what Ms. Boone says and then you can
address the issue at that time.
[WCJ]: Right. I’m not going to permit testimony from [Ann]
Seine [sic]. …
[Decedent’s Counsel]: I want to enter an objection on the
record about [Ann] Seine [sic]. [Ann] Seine is - -- may I put it
on the record, please?
[WCJ]: Yes.
[Decedent’s Counsel]: Yeah. Let me tell you what else I was
going to get from [Nurse] [Ann] Seine [sic]. That it would be
ridiculous to separate a hip fracture with Parkinson’s, and that
she was there and saw everything and knew by her visit to
Dallastown and [Decedent], that it would be ridiculous and
biologically implausible to separate a hip fracture from a
Parkinson's patient.
[Employer’s Counsel]: Judge, she’s not a medical witness ---.
[Decedent’s Counsel]: And a causal - -- she’s a nurse. And
Your Honor, guess what she has? First-hand experience. She
was there. No hearsay. And I could find out, pretty quickly,
how many times she’s seen Parkinson's patients. Pretty quickly,
how many ---.
[Employer’s Counsel]: How is that relevant?
[WCJ]: We'll cover it with [Decedent’s Physician].
[Decedent’s Counsel]: Okay. All right. But I want that
objection ---.
[WCJ]: I understand ---.
N.T., 7/17/13, at 35-42. Upon review, we discern no abuse of discretion in the
WCJ’s decision to exclude the testimony of Nurse Sehne.
25
More particularly, while Claimant now contends Nurse Sehne’s
testimony was necessary to show that Employer’s contest of Decedent’s hip
fracture was unreasonable in order to obtain attorney fees, as evidenced by the
above-quoted exchange, Decedent’s counsel did not offer this as the reason he
sought to present Nurse Sehne’s testimony below. Rather, before the WCJ
Decedent’s counsel indicated he wished to present Nurse Sehne’s testimony in
order to establish a causal connection between Decedent’s unwitnessed fall and
resultant hip fracture and his work-related conditions. The WCJ determined that,
because this issue would be covered by Decedent’s Physician’s testimony, Nurse
Sehne’s testimony was not necessary. In light of the fact that Decedent’s counsel
did not inform the WCJ that he wished to present Nurse Sehne’s testimony in order
to show Employer’s contest of Decedent’s hip fracture was unreasonable, no abuse
of discretion is apparent in this regard.
Further, Decedent’s counsel offered no clear explanation as to how
Nurse Sehne’s testimony would be distinct from and not covered by Decedent’s
Physician’s testimony on the issue of the causal connection between Decedent’s
established work-related conditions and his fall and subsequent hip fracture.
Therefore, no abuse of discretion is apparent in the WCJ’s decision to exclude
Nurse Sehne’s testimony.
For all the foregoing reasons, we affirm.
ROBERT SIMPSON, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gene M. Cooper (Deceased), :
Sandra Cooper, as the :
Administratrix of the Estate :
of Gene M. Cooper, :
Petitioner :
:
v. : No. 1407 C.D. 2015
:
Workers' Compensation Appeal :
Board (Armstrong World :
Industries, Inc.), :
Respondent :
ORDER
AND NOW, this 13th day of July, 2016, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge