G. Wilson v. WCAB (SD of Philadelphia) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Glorine Wilson, :
:
Petitioner :
:
v. : No. 834 C.D. 2019
: Submitted: December 20, 2019
Workers’ Compensation Appeal :
Board (School District of :
Philadelphia), :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 19, 2021
Glorine Wilson (Claimant), proceeding pro se, petitions for review of
an order of the Workers’ Compensation Appeal Board (Board) that affirmed a
decision of the Workers’ Compensation Judge (WCJ) denying Claimant’s claim
petition seeking indemnity benefits on the basis it was time barred by Section 315
of the Workers’ Compensation Act (Act)2 and denying her request for payment of
medical bills as either moot or unrelated to the accepted work injury. Claimant
contends that the WCJ’s decision is not supported by substantial evidence and asserts
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §602.
that her claim petition was timely filed and her medical bills are related to the work
injury. For the reasons that follow, we affirm the denial of indemnity benefits as
untimely, but we reverse the denial of medical expenses.
I. Background
Claimant sustained a work-related injury on April 11, 2014, during the
course and scope of her employment as a substitute teacher for the School District
of Philadelphia (Employer). On May 2, 2014, Employer issued a medical-only
notice of compensation payable (medical-only NCP), by which Employer agreed to
pay for Claimant’s medical treatment for the work injury, described as a contusion
of the head, soft tissue injury. WCJ’s Opinion, 6/12/18, Finding of Fact (F.F.) No.
1; Certified Record (C.R.) at 223.3
On May 8, 2017, Claimant filed a claim petition against Employer and
its third-party administrator, PMA Management Corp. (PMA). F.F. No. 2; C.R. at
7-9. Therein, Claimant described her injury as: “Contusion: face, over the eyes and
head {soft tissue} blurry vision,” with “[o]ngoing eye blurriness. Eye, face and
forehead pain and spasm.” F.F. No. 2; C.R. at 8. Claimant sought compensation for
lost wages and unpaid medical bills.
Employer filed a timely answer admitting it accepted an injury by
medical-only NCP, but denying the remainder of the allegations. Employer raised
an affirmative defense that the claim for indemnity benefits was time barred by the
3
Because the Certified Record was filed electronically and was not paginated, the page
numbers referenced in this opinion reflect electronic pagination.
2
statute of limitations. The matter was assigned to a WCJ, who held pretrial4 and
evidentiary hearings.
Before the WCJ, Claimant testified and presented evidence in support
of her claim. The WCJ summarized the evidence presented and made the following
relevant findings. Claimant testified that she was a retired employee who returned
to work for Employer as a substitute teacher. Claimant testified that she was injured
on April 11, 2014, when she was struck in the left eye, forehead, and front of her
head with a “loaded bookbag” by a student. F.F. No. 6a; C.R. at 7.
With regard to medical expenses, Claimant sought payment of a $950
medical bill from Thomas Jefferson University Hospitals for emergency room
treatment at Wills Eye Hospital5 on April 14, 2014. Claimant also sought
reimbursement of six copayments for follow-up ophthalmology services. The six
copayments, in the amount of $10 each, were for ophthalmology treatment received
from Adam DeBusk, D.O. (Dr. DeBusk), of Wills Eye Hospital and Steven Orlin,
M.D. (Dr. Orlin), of the Scheie Eye Institute between January 2015 and October
2017. F.F. Nos. 6b, 12a-f. Claimant testified that she sought payment from PMA
in 2015 for these expenses, but PMA’s claims adjuster “denied everything.” F.F.
No. 6c; C.R. at 107. As a result, Claimant submitted the ophthalmology bills to her
personal insurance carrier, and she made copayments on those bills. F.F. No. 6c.
4
At the pretrial hearing in June 2017, Claimant asserted that she was denied medical
services at the workers’ compensation clinic and treated with her own doctors. Claimant averred
that her personal insurance covered her treatment, not workers’ compensation, and that she made
copayments, for which she sought reimbursement. Claimant also asserted that she had been out
of work since 2016. Employer’s counsel moved to dismiss the indemnity portion of her claim as
untimely. The WCJ provided Claimant with 30 additional days to seek advice of counsel and
thereafter granted additional continuances at Claimant’s request. F.F. Nos. 3-5; C.R. at 75, 78.
5
Claimant clarified that the emergency treatment was at Wills Eye Hospital, but the service
was billed by its parent institution, Thomas Jefferson University Hospitals. F.F. No. 6b.
3
Claimant testified that she sought ophthalmology treatment due to
blurriness and difficulty reading with her left eye and head pain on the left side. She
testified that she noticed these symptoms shortly after the work incident and reported
these symptoms during her emergency room visit. F.F. No. 6d. Claimant testified
that she still had a “little bit of the lump” over her left eye from the work incident
and suffers intermittent spasms on the left side of her head. F.F. No. 6e. Prior to the
work incident, Claimant was prescribed glasses and had dry eyes, but she denied
having blurry vision or reading difficulties beforehand. F.F. No. 6f, 6g; C.R. at 117.
In support, Claimant submitted an October 22, 2017, medical report of
Dr. DeBusk. In the report, Dr. DeBusk indicated that he saw Claimant for a follow-
up visit for a visual disturbance secondary to a history of traumatic brain injury. The
doctor opined that Claimant has a convergence insufficiency. He prescribed an MRI
scan and reading glasses. However, the report did not reference the work incident
or provide an opinion as to causation. F.F. No. at 14.
Employer’s counsel admitted responsibility for the April 14, 2014,
emergency room bill, but asserted that its claims adjuster was insisting on the
“correct forms” before releasing the payment. In a later proceeding, Employer’s
counsel advised that the emergency room bill was paid on February 7, 2018, which
Claimant confirmed. F.F. Nos. 9, 15.
With respect to her indemnity claim, Claimant testified she was out of
work for a few days after the work incident. She stopped working for Employer in
June 2015. Claimant calculated lost wages in the amount of $17,473.69 for 2014
and $6,214.26 for 2015. She testified that she never received lost wages from
Employer. Claimant never advised Employer she was not returning to work due to
4
blurred vision or reading problems. As a substitute teacher, Claimant could select
when she wanted to work. F.F. No. 6h-6l.
With regard to the timeliness of her claim petition, Claimant testified
that she accessed a claim petition form (LIBC-362 form) from the Department of
Labor and Industry’s (Department) website. She did not submit her claim petition
through the Workers’ Compensation Automation and Integration System (WCAIS).6
Aware of the statute of limitations, Claimant testified that she completed the form
during the first week of April 2017 and printed a copy for her records. However,
Claimant was not sure whether she electronically submitted the form. She did not
obtain a receipt regarding the filing. She followed up several weeks later with the
Department’s Bureau of Workers’ Compensation (Bureau) and learned that her
claim petition was not received. A Bureau representative suggested making a copy
of the completed claim petition and mailing it to the Bureau, which Claimant did.
Although Claimant testified that she mailed her claim petition at the end of April
2017, the envelope bore a United States Postal Service postmark of May 8, 2017.
Other than the copy she made for herself, Claimant offered no other documentation
regarding her initial filing. F.F. No. 8a-e.
Based on the testimony and evidence provided, the WCJ determined
that Claimant failed to meet her burden of proof. With regard to medical expenses,
the WCJ found that Employer paid the emergency room bill during the course of
proceedings rendering this portion of her claim moot. With regard to the six
copayments, Claimant’s evidence did not establish a causal connection between the
accepted work-related injury and her alleged vision issues. The accepted injury was
described as a head contusion, soft tissue injury and not an injury to the left eye.
6
The WCAIS is the Department’s web-based system that enables users to file petitions,
applications, forms, and other documents online.
5
Claimant’s medical evidence, even if accepted as credible, did not reference the 2014
work incident or provide an opinion as to causation. Claimant did not establish that
any medical expenses related to the accepted injury were not paid. F.F. Nos. 18-20.
With regard to the indemnity claim, the WCJ found that Claimant filed
the claim petition on May 8, 2017, more than three years after the date of injury.
Claimant offered no evidence to support the filing of a petition before the expiration
of the statute of limitations. There was no evidence that Employer intentionally or
unintentionally lulled Claimant into a false sense of security to toll the statute of
limitations. Thus, the WCJ determined her indemnity claim was time barred. F.F.
No. 17.
By decision and order circulated on June 12, 2018, the WCJ denied
Claimant’s claim petition upon determining that she failed to meet her burden of
proof regarding the payment of medical expenses and her claim for indemnity
benefits was time barred. From this decision, Claimant appealed to the Board, which
affirmed. Claimant now petitions this Court for review.7
II. Issues
On appeal, Claimant argues that the WCJ’s decision is not supported
by substantial evidence. Claimant contends that her claim petition should be treated
as timely filed based on her earnest attempts to file it electronically the first week in
April 2017. She also maintains that her medical expenses are related to her work
7
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. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).
6
injury and Employer failed to pay her medical expenses without adequate
justification.
III. Discussion
A. Indemnity Claim - Timeliness
Section 315 of the Act, 77 P.S. §602, provides that all claims for
workers’ compensation shall be forever barred, unless, within three years after the
injury, the parties agree to compensation or one of the parties shall have filed a
petition. Guthrie v. Workers’ Compensation Appeal Board (Keystone Coal Co.),
767 A.2d 634, 636 (Pa. Cmwlth. 2001). A filing by electronic submission is deemed
complete “upon receipt at the electronic address and in a format as prescribed by the
Department . . . .” 34 Pa. Code §131.11(a)(2) (emphasis added). A filing by mail is
deemed complete “upon deposit in the United States mail, properly addressed,
postage or charges prepaid, as evidenced by . . . [a] United States Postal Service
postmark.” 34 Pa. Code §131.11(a)(3)(i) (emphasis added).
However, the statute of limitations may be tolled where payments of
compensation have been made. 77 P.S. §602; Westinghouse Electric Corp./CBS v.
Workers’ Compensation Appeal Board (Korach), 883 A.2d 579, 586 (Pa. 2005). In
order to toll the limitations period of Section 315, the claimant must prove that
payments of compensation were made within three years of filing the claim petition
and that such payments were made by the employer with the intent that they be in
lieu of workers’ compensation under an equitable estoppel theory.8 Westinghouse,
8
As our Supreme Court explained:
Equitable estoppel arises in the workers’ compensation arena when
an employer, “by [its] acts, representations, or admissions, or by [its]
silence when [it] ought to speak out, intentionally or through
(Footnote continued on next page…)
7
883 A.2d at 586; Schreffler v. Workers’ Compensation Appeal Board (Kocher Coal
Co.), 788 A.2d 963, 971 (Pa. 2002). The controlling determination is the intent with
which the payments were made. Schreffler, 788 A.2d at 970; Golley v. Workers’
Compensation Appeal Board (AAA Mid-Atlantic), 747 A.2d 1253, 1256 (Pa.
Cmwlth. 2000). Merely paying bills submitted by a claimant does not establish
wrongdoing. Westinghouse, 883 A.2d at 586; Golley, 747 A.2d at 1256. The
claimant must prove that the actions relied on reasonably lulled her into a false sense
of security. Westinghouse, 883 A.2d at 586; Golley, 747 A.2d at 1256.
Upon review, substantial evidence supports the WCJ’s finding that
Claimant did not file her claim petition until May 8, 2017, which is beyond the three-
year statute of limitations from the April 11, 2014 date of injury. Although Claimant
testified that she attempted to timely file her claim petition electronically the first
week of April 2017, she conceded her efforts likely failed because the Department
never received it. C.R. at 151-53, 159. Claimant did not have a receipt for the
electronic submission. C.R. at 154. Ultimately, Claimant mailed a copy of her claim
culpable negligence induces another to believe certain facts to exist
and such other rightfully relies and acts on such belief, so that [she]
will be prejudiced if the former is permitted to deny the existence of
such facts.” In re Estate of Tallarico, [228 A.2d 736, 741 (Pa.
1967)]. Accord Northwestern National Bank v. Commonwealth, [27
A.2d 20 (Pa. 1942)]. The essential elements of estoppel are “an
inducement by the party sought to be estopped to the party who
asserts the estoppel to believe certain facts to exist—and the party
asserting the estoppel acts in reliance on that belief.” Blofsen v.
Cutaiar, [333 A.2d 841, 844 (Pa. 1975)] (emphasis in original). It
is well established that “in order for the [c]laimant to avail [herself]
of estoppel under the Act, [she] must prove that the [actions] relied
on must have reasonably lulled [her] into a false sense of
security. . . .”
Westinghouse, 883 A.2d at 586.
8
petition to the Department. Although Claimant believed that she mailed her claim
petition to the Department at the end of April 2017,9 the envelope bore a United
States Postal Service postmark date of May 8, 2017. C.R. at 9, 156.
Claimant offered no testimony to toll or extend the statute of limitations
by equitable estoppel. Claimant testified that she did not receive any payments for
lost time and Employer did not pay for her medical expenses, despite her repeated
attempts to obtain payments. She did not testify that Employer’s actions
intentionally or unintentionally deceived her or somehow lulled her into a false sense
of security sufficient to toll the statute of limitations. We, therefore, conclude that
the WCJ properly determined that Claimant’s claim for indemnity benefits was
barred by the statute of limitations.
B. Medical Expenses
When an employer issues a medical-only NCP, it acknowledges a work
injury and agrees to pay for medical expenses. Ingrassia v. Workers’ Compensation
Appeal Board (Universal Health Services, Inc.), 126 A.3d 394, 401 (Pa. Cmwlth.
2015). Pursuant to Section 301(c)(1) of the Act, 77 P.S. §411(1), an employer is
only liable to pay for a claimant’s medical expenses that arise from and are caused
by the work-related injury.
Where “a claimant receives medical treatment for new symptoms that
allegedly arise from the compensated injury, and the employer refuses to pay the
associated bills, the burden of establishing that the symptoms and treatments are
related to the compensable injury turns on whether the connection is obvious.”
9
We note that any postmark after April 11, 2017, would have been untimely.
9
Kurtz v. Workers’ Compensation Appeal Board (Waynesburg College), 794 A.2d
443, 447 (Pa. Cmwlth. 2002) (emphasis in original). As we explained:
If the new symptoms and the compensable injury are
obviously related, and benefits have not been terminated,
then the claimant will benefit from the presumption that
the new symptoms are related to the compensable injury
and, thus, [her] employment, and it will be the burden of
the employer to prove that the new symptoms complained
of are unrelated to the compensable injury. If, however,
the connection is not obvious, then the burden will be on
the claimant to establish the connection through
unequivocal medical testimony.
Kurtz, 794 A.2d at 448.
“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.” Kurtz, 794 A.2d at 447-48 (quoting
Tobias v. Workmen’s Compensation Appeal Board (Nature’s Way Nursery, Inc.),
595 A.2d 781, 784 (Pa. Cmwlth. 1991)). “This discernment often involves a ‘natural
and probable’ development . . . and could sometimes involve an immediacy of
occurrence such as an immediate back injury following heavy lifting.” Tobias, 595
A.2d at 784-85. The causal connection may be obvious where the claimant
experiences pain in the same body part as the original work injury. Haslam v.
Workers’ Compensation Appeal Board (London Grove Communication), 169 A.3d
704, 710 (Pa. Cmwlth. 2017); Kurtz, 794 A.2d at 448; but see Moyer v. Workers’
Compensation Appeal Board (Pocono Mountain School District), 976 A.2d 597, 599
n.3 (Pa. Cmwlth. 2009) (“[T]he causal link is not obvious if a claimant has a pre-
existing condition related to the same body part the claimant alleges was injured at
work.”).
10
For example, in Kurtz, the employer accepted responsibility for the
claimant’s head injury, which was described as “a grade two concussion with
retrograde amnesia and severe paracervical spasms.” Kurtz, 794 A.2d at 445. More
than a year later, the claimant sought medical treatment for pain that emerged “in
the area of the original injury.” Id. The employer refused to pay for his treatment.
Id. at 446. The claimant sought review with a WCJ, who ruled for the employer
upon determining that the claimant failed to meet his burden of proving, “by
unequivocal medical evidence, that his current condition was causally related to his
work injury.” Id. at 447. On appeal to this Court, the claimant argued that his new
symptoms, which included dizziness, headaches and a burning sensation in the
“same area as his original head pain” – “just two inches from the scar left by his
surgery” – were “obviously related to his original work-related injury,” and the
burden should be on the employer “to establish that the symptoms were unrelated to
the original injury.” Id. at 448. We agreed and opined: “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.” Id. Consequently, we determined that it was the employer’s
burden to prove that the claimant’s new symptoms were unrelated to the original
compensable work injury. Id. The employer failed to present substantial, competent
medical evidence to sustain its burden in this regard. Id. at 449. Thus, we reversed
and ordered the employer to pay the claimant’s medical expenses. Id.Here, Claimant sought payment/reimbursement for medical bills that
she alleged were connected to the work injury. She submitted a $950 bill for
emergency room treatment at Wills Eye Hospital on April 14, 2014, and
documentation for six $10 copays for treatment received thereafter. C.R. at 202,
11
204-10. During the WCJ proceedings, Employer paid the emergency room bill,10
thereby rendering this issue moot. F.F. Nos. 6(b), 9, 15, 16; C.R. at 165-66.
As for the six copayments, these payments were made to Penn
Medicine Department of Ophthalmology, Penn Eye Care Scheie Eye Institute, and
Neuro-Ophthalmology (Dr. DeBusk) for treatment related to her left eye provided
between January 6, 2015, and October 17, 2017. F.F. No. 12a-f; C.R. at 163, 204-
10. The WCJ determined that the connection between Claimant’s head contusion
sustained in the April 11, 2014 work incident and subsequent treatment for her left
eye was not obvious, and placed the burden on Claimant to prove the connection. In
this regard, the WCJ erred.
When the record evidence is viewed cumulatively, it is hard to fathom
that Claimant’s left eye issues are not related to the compensable work injury.
Employer accepted liability for Claimant’s April 11, 2014 injury by issuing a
medical-only NCP, which described the part of the body injured as “head (soft
tissue)” and the nature of the injury as “contusion.” C.R. at 223. Significantly,
Employer described Claimant’s injury as “hit with backpack above left eye.” C.R.
at 223 (emphasis added).
Days after the incident, Claimant sought emergency room treatment for
her injury from Wills Eye Hospital – a hospital specializing in eye treatment – for
pain and blurriness in her left eye. C.R. at 111. She testified that the work injury
caused bruising, swelling, and a big bump just above her left eye; Claimant still has
a residual lump. C.R. at 114. A few months after the incident, Claimant followed
up with Drs. DeBusk and Orlin for treatment related to her left eye. Dr. DeBusk
reported that he saw Claimant for a “follow-up visual disturbance thought to be
10
The WCJ admonished Employer and its carrier for the delay in paying this bill, which
was obviously connected to the work injury, based on a paperwork formality. See C.R. at 166-67.
12
secondary to her history of traumatic brain injury.” C.R. at 212. Claimant’s new
symptoms included blurred vision, difficulty reading, pain, and intermittent spasms
in the left eye. C.R. at 114-15. These symptoms are in the same area as the original
injury. Claimant did not experience any of these symptoms before the work incident.
C.R. at 117.
Under the circumstances, an untrained layperson would not have a
problem in making the connection between the new symptoms of blurred vision,
difficulty reading, pain, and intermittent spasms in her left eye after being forcefully
struck just above the left eye with a backpack full of books. We, therefore, conclude
that the causal connection between Claimant’s new symptomology and compensable
injury is obvious. See Kurtz; see also Haslam, 169 A.3d at 710 (obvious where
compensable injury described right and left foot fractures and new symptoms
consisted of a pain condition in the same body parts); DTE Energy Co., Inc. & Old
Republic Insurance Co., Petitioners v. Workers’ Compensation Appeal Board
(Weatherby) (Pa. Cmwlth., No. 418 C.D. 2020, filed January 28, 2021) (obvious
connection between the accepted leg/back injury and subsequent treatment for back
pain).11
Because of the obvious nature of the connection, Claimant was entitled
to a presumption of work-relatedness12 and the burden fell on Employer to prove that
the treatment was not related to the original injury. See id. Employer offered no
11
Section 414(a) of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414(a).
12
But for the presumption, we agree that Claimant’s medical evidence fell short of
establishing a causal connection. Dr. DeBusk’s report did not reference a work incident and did
not provide a medical opinion connecting Claimant’s left eye issues to the head contusion. C.R.
at 212.
13
medical evidence to rebut this presumption. Thus, we conclude that the WCJ erred
in concluding that Employer was not responsible for medical expenses related to
Claimant’s compensable work injury.
IV. Conclusion
Accordingly, we affirm the order of the Board insofar as it upheld the
denial of indemnity benefits, but we reverse the denial of medical expenses.
Employer is ordered to pay Claimant’s medical expenses associated with the
treatment of her ongoing symptoms arising from the April 11, 2014 work injury.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Glorine Wilson, :
:
Petitioner :
:
v. : No. 834 C.D. 2019
:
Workers’ Compensation Appeal :
Board (School District of :
Philadelphia), :
:
Respondent :
ORDER
AND NOW, this 19th day of March, 2021, the order of the Workers’
Compensation Appeal Board, dated April 30, 2019, is AFFIRMED IN PART,
insofar as it upheld the denial of Glorine Wilson’s (Claimant) claim for indemnity
benefits and REVERSED IN PART, as to the denial of her medical expenses. The
School District of Philadelphia is ordered to pay Claimant’s medical expenses
associated with the treatment of her ongoing symptoms arising from the April 11,
2014 work injury.
__________________________________
MICHAEL H. WOJCIK, Judge