J. Ascencio v. WCAB (PA DOC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Ascencio, :
Petitioner :
:
v. : No. 471 C.D. 2017
: Submitted: July 28, 2017
Workers' Compensation Appeal :
Board (Commonwealth of :
Pennsylvania/Department of :
Corrections), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: November 28, 2017
James Ascencio (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the order of a Workers’
Compensation Judge (WCJ) after remand, determining the injury description was not
well pled, and thus denying his claim petition. Claimant argues the WCJ’s initial
decision granting his claim petition based on his employer’s default in failing to file
a timely answer under Section 416 of the Workers’ Compensation Act (Act)1 should
be reinstated. He asserts the description “injury to the heart from exertion” qualifies
as a well-pled averment deemed admitted under Yellow Freight System, Inc. v.
Workmen’s Compensation Appeal Board, 423 A.2d 1125 (Pa. Cmwlth. 1981).
Upon review, we affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §821.
I. Background
For approximately 17 years, Claimant worked for the Department of
Corrections (DOC) at the State Correctional Institution at Fayette (Employer) as a
corrections officer. He alleged he sustained a work injury in 2010 when “[he] and
other officers rescued an inmate who [hung] himself, restrained the inmate, and
carried him to the medical ward.” Reproduced Record (R.R.) at 1a.
In 2013, Claimant filed a claim petition in which he alleged he
“sustained an injury to his heart while exerting himself at work.” Id. He sought
benefits for a remote, closed period of disability from September 13, 2012, to March
25, 2013. Employer filed an untimely answer.
The WCJ held hearings where Claimant made a motion under Yellow
Freight for the WCJ to deem the allegations in the claim petition admitted. Employer
offered no excuse for its untimely filing.
Claimant testified on cross-examination only. His counsel objected to
inquiries about the meaning of “injury to the heart.” WCJ’s Hr’g, Notes of
Testimony (N.T.), 10/4/13, at 4-5. The WCJ sustained the objection. Id. at 5.
Relevant here, Claimant testified he underwent a cardiac stress test in
2012 (two years after the exertion incident at work). On examination by the WCJ,
Claimant testified he had time off because of an injury to his heart. Id. at 10. He
elaborated, “my heart was totally clogged up. My arteries were totally clogged up.
They put me off duty immediately once they got the results of the stress test. They
2
said I could not work due to the stress and the physical physicality of my job.” Id.
As a consequence, Claimant had triple bypass surgery.
Initially, the respected WCJ granted the claim petition under Yellow
Freight. WCJ Op., 12/18/13, Finding of Fact (F.F.) No. 11 (Initial Decision). He
found:
[C]laimant did, indeed, sustain a cardiac injury, that is an injury
to his heart, while engaged in exertion in the course of his
employment[;] this injury occurred on July 3, 2010[;]
[C]laimant sustained his heart injury when he and other officers
rescued an inmate who had tried to hang himself…[;] [and] this
cardiac injury was sustained on [E]mployer’s premises.
F.F. No. 12. He also specifically “found that [C]laimant incurred full (that is, total)
disability for the period of September 13, 2012, to March 25, 2013, because of the
work injury.” F.F. No. 13 (emphasis added).
However, the WCJ exhibited considerable discomfort with his award
of ongoing medical treatment for Claimant’s cardiac injury. In his Conclusion of
Law (C.L.) No. 5, the WCJ stated in part: “Employer does not, however, have
liability for cardiac/heart ailments which are not causally connected to the cardiac
claim awarded in this case. That cardiac injury is an ‘injury to the heart,’ and
specifically that injury to the heart which occurred on July 3, 2010, and which
thereafter led to disability for the period September 13, 2010 [sic] to March 25,
2013.” In addition, the WCJ stated: “5. [sic] The precise pathology is not defined in
this decision given the procedural default which led to entry of this decision and
order. However, in the future, medical proofs that stand for the proposition that
possible later-in-time cardiac events that have no causal connection to the July 3,
3
2010 injury are cognizable as supporting a potential ‘no-causation’ defense to future
liability.” C.L. No. 5 [sic].2
Employer appealed.
The Board clearly shared the WCJ’s concern with “the lack of an injury
description beyond injury to the heart.” Bd. Op., 11/5/15, at 5 (Remand Order). The
Board determined the allegation “injury to the heart” was not well-pled, such that
Claimant did not meet his burden of proof. It reasoned that Claimant’s testimony
about his clogged arteries called into question the causal connection between the
work incident and his injury. Accordingly, the Board remanded to the WCJ,
directing him to accept additional evidence and make findings as to the sufficiency
of the evidence. Specifically, it noted Claimant “must proffer such evidence to
sustain his burden” so the WCJ may “render an appropriate determination based on
not only the well-pled factual allegations, but on all competent evidence of record.”
Remand Order at 6.
On remand, the same WCJ held an additional hearing, where Claimant
preserved his objection to the Board’s Remand Order. Claimant did not submit
additional evidence. However, Employer submitted a medical report of Dr. Jeffrey
Garrett who examined Claimant in December 2015 (Employer’s Medical Report).
Following the hearing, the WCJ denied the claim petition. After noting
Claimant rested on the pleadings, he acknowledged the law of the case was that
2
The Initial Decision includes two Conclusions of Law No. 5; references to the second are
cited as “C.L. No. 5 [sic],” which represents Conclusion of Law No. 6.
4
“description of injury, [as] ‘heart’ does not constitute a well-pleaded allegation,
legally sufficient to support a claim.” WCJ Op., 6/10/16, F.F. No. 12 (Remand
Decision). He concluded Claimant did not meet his burden of proof because he
declined to submit additional evidence, such as medical opinions. The WCJ afforded
no weight to Employer’s Medical Report. F.F. No. 13. Claimant appealed.
The Board affirmed, reasoning that Claimant did not meet his burden
of proving a work injury. It also finalized its Remand Order for appeal purposes.
Claimant petitioned for review to this Court, challenging the Remand
Order. He seeks to reinstate the Initial Decision. Employer filed a notice of
intervention, and filed a brief. This matter is now ready for disposition.
II. Discussion
On appeal,3 Claimant argues Employer was precluded from challenging
the well-pled allegations in the claim petition because its answer was untimely. In
support, he cites Yellow Freight. He contends the Initial Decision was consistent
with Section 416 of the Act, and the deemed admissions thereunder. He asserts the
injury description was well pled. In addition, he emphasizes Employer was not
permitted to submit evidence to rebut deemed admissions.
Section 416 of the Act provides that “[i]f a party fails to file an answer
and/or fails to appear in person or by counsel at the hearing without adequate excuse,
3
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 1037(Pa. Cmwlth. 2011).
5
the [WCJ] hearing the petition shall decide the matter on the basis of the petition and
evidence presented.” 77 P.S. §821 (emphasis added). The phrase “evidence
presented” in Section 416 means only evidence presented by the claimant, not
evidence presented by the employer.4 Yellow Freight. Nonetheless, a claimant has
no duty to present additional evidence of well-pled facts. Hildebrand v. Workmen’s
Comp. Appeal Bd. (Fire Dep’t/City of Reading), 532 A.2d 1287 (Pa. Cmwlth. 1987).
Under Yellow Freight, all well-pled facts are deemed admitted.
However, such allegations must be legally sufficient to support the claim. Greeley
v. Workers’ Comp. Appeal Bd. (Matson Lumber Co.), 647 A.2d 683 (Pa. Cmwlth.
1994). Legal conclusions and the legal effect of allegations are not admitted.
Bensing v. Workers’ Comp. Appeal Bd. (James D. Morrissey, Inc.), 830 A.2d 1075(Pa. Cmwlth. 2003). Further, an employer does not waive questions of law by failing
to file a timely answer. D’Errico v. Workers’ Comp. Appeal Bd. (City of Phila.),
735 A.2d 161 (Pa. Cmwlth. 1999) (en banc). Causation is an element that requires
a legal determination. Dandenault v. Workers’ Comp. Appeal Bd. (Phila. Flyers,
Ltd.), 728 A.2d 1001 (Pa. Cmwlth. 1999).
Moreover, the failure to file a timely answer is not tantamount to a
default judgment. Heraeus Electro Nite Co. v. Workmen’s Comp. Appeal Bd.
(Ulrich), 697 A.2d 603 (Pa. Cmwlth. 1997) (en banc), appeal dismissed, 721 A.2d
1095 (Pa. 1999). Therefore, “an employer’s failure to timely file an answer ‘does
4
However, an employer is only precluded from submitting evidence relating to a
claimant’s injury and disability through the deadline for filing a timely answer. Heraeus Electro
Nite Co. v. Workmen’s Comp. Appeal Bd. (Ulrich), 697 A.2d 603 (Pa. Cmwlth. 1997) (en banc),
appeal dismissed, 721 A .2d 1095 (Pa. 1999); see also Ghee v. Workers’ Comp. Appeal Bd. (Univ.
of Pa.), 705 A.2d 487 (Pa. Cmwlth. 1997) (en banc).
6
not automatically satisfy the claimant’s burden of proof.’” PIAD Precision Casting
v. Workers’ Comp. Appeal Bd. (Bosco), 922 A.2d 967, 972 (Pa. Cmwlth. 2006). A
claimant still “has the burden of establishing a right to compensation and proving all
necessary elements to support an award in a claim petition proceeding.” Id.Here, Claimant did not submit any evidence to support his claim,
relying on the pleadings to satisfy his burden of proof. Hildebrand.
We consider whether the description of injury, “injury to the heart,”
qualifies as a well-pled fact that is legally sufficient to sustain the claim petition. In
addition, Claimant bore the burden of showing a causal relationship between his
overexertion in 2010 and the remote closed period between September 2012 and
March 2013, for which he seeks workers’ compensation.
A. Well-Pled Injury Description
In support of the legal sufficiency of his claim petition, Claimant relies
on Hildebrand. There, the claimant alleged heart disease as a result of exposure to
fumes, heat, smoke and gases as a firefighter. He alleged a specific disease, and the
cause of the disease by a condition common to other firefighters performing their
jobs. Significantly, the causal relationship between the injury, “heart disease,” and
the work conditions was clear. Id. at 1288. Further, in Hildebrand, there was no
dispute as to causation, or to the legal sufficiency of the injury description. As a
result, this Court did not consider the legal sufficiency of the allegations.
7
Here, by contrast, Employer challenged the legal sufficiency of the
allegation “injury to the heart.” Employer also disputed any causal relationship
between the alleged work injury in 2010, and the need for triple bypass surgery in
September 2012, more than two years later.
The “injury to the heart” allegation is, of itself, vague. Clearly, the
description of the injury is not a medical diagnosis and, as recognized by the WCJ,
no pathology is defined. Initial Decision, C.L. No. 5 [sic]. Not surprisingly, the
WCJ struggled to explain the contours of the cardiac injury for which ongoing
medical treatment was awarded. Id., C.L. No. 5.
The Claim Petition form itself distinguishes “injury” from “disease”
and “illness.” See R.R. at 1a (form inquiry nos. 1, 2, 3, 4, 6). Thus, by his specific
averment of “injury,” Claimant does not appear to plead a cardiac disease or illness.
Id. However, the Claimant’s testimony that his “arteries were totally clogged up”
sounds similar to a disease allegation. N.T., 10/4/13 at 10.
Nevertheless, paired with an explanation of the circumstances, and tied
to overexertion, the non-specific “injury” averment could be sufficient to qualify as
a compensable injury depending on additional well-pled allegations or evidence.
However, Claimant did not meet his burden here.
B. Legal Sufficiency
On his claim petition, Claimant bore the burden of proving all elements
necessary to support an award of compensation. Heraeus. This includes proving his
8
injury arose in the scope of employment and is causally related thereto. See Section
301(c)(1) of the Act, 77 P.S. §411(1). Thus, Claimant had to relate the alleged work
injury to the period for which he seeks compensation.
Here, despite the Board casting doubt as to the legal sufficiency of his
allegations in its first opinion, Claimant elected to rely on his pleadings alone.
This Court holds that whether an injury is causally related to
employment requires a legal determination. Neidlinger v. Workers’ Comp. Appeal
Bd. (Quaker Alloy/CMI, Int’l), 798 A.2d 334 (Pa. Cmwlth. 2002); Dandenault.
Causation is an element essential to Claimant’s claim petition that is incapable of
being admitted by procedural default. D’Errico; Neidlinger.
Claimant did not allege sufficient additional facts from which the WCJ
could discern causation between an “injury” at work and a remote period of
disability. The pleadings allege Claimant suffered an “injury to the heart” in July
2010. R.R. at 1a (form inquiry 1). Claimant sought compensation for the closed
period of September 12, 2012, to March 25, 2013. Id. (form inquiry 9). Thus, the
pleadings evince a more than two-year gap between the single incident of exertion
in July 2010, and his time off starting in September 2012.
The pleadings do not clearly state the “injury” caused the claimed
period of disability. Rather, in response to the form inquiry: “9. Did the problem
cause you to stop working?” Claimant checked the “Yes” box. R.R. at 2a (emphasis
added). Important for our current disposition, despite an opportunity to offer more
9
detail as to the “problem” that caused Claimant to stop working, see id. (form inquiry
No. 15), Claimant offered no further explanation to relate the overexertion in 2010 to
the stress test results and “clogged arteries” that took him off work from September
2012 through March 2013. This significant gap between the alleged injury and the
period of disability invites an explanation that does not appear in the claim petition.
Complicating the matter, in response to the WCJ’s inquiries during the
initial hearing, Claimant testified that he only learned his “arteries were totally
clogged up” in 2012. N.T., 10/4/13, at 10. Thus, Claimant attributed his necessity
for taking time off to his clogged arteries discovered after a cardiac stress test
performed years after the alleged work injury. Stated differently, there is a conflict
between the averment of a non-specific heart injury, as distinguished from a claim
for heart disease or illness, and testimony that appears to involve heart disease.
Importantly, a causal relationship between an incident of overexertion
in 2010 and triple bypass surgery in 2012 is not so obvious as to be clear to a
layperson. Tobias v. Workmen’s Comp. Appeal Bd. (Nature’s Way Nursery, Inc.),
595 A.2d 781 (Pa. Cmwlth. 1991). In the absence of an obvious causal connection,
a claimant may establish causation through unequivocal medical evidence. Cardyn
v. Workmen’s Comp. Appeal Bd. (Heppenstall), 534 A.2d 1389 (Pa. 1987).
Hildebrand illustrates that a claimant may establish the entirety of his
claim without submitting medical evidence as to causation. We distinguish
Hildebrand because, in that case, the well-pled allegations allowed a layperson to
deduce a causal relationship between exposure to gas, smoke and fumes and heart
10
disease. Also notable, there, the legal sufficiency of the allegations was not before us
as it is now. Id. at 1290 n.7 (noting employer did not challenge the “legal sufficiency
of the allegations”).
Further, in Hildebrand there was nothing vague about the injury
description; therefore, unlike this case, there was no concern that in the future
problems could arise identifying the injury for purposes of the ongoing medical
treatment part of the award. The future problem of identifying the injury for
purposes of ongoing medical treatment may be the clearest indicator that an injury
description is not well-pled.
Claimant draws this Court’s attention to no allegations in his claim
petition that explain the relationship between the injury and the remote disability for
which he seeks compensation. A claimant who relies solely on the well-pled
allegations of his complaint, without an obvious causal relationship between the
injury and disability, may do so at his peril.
In sum, we discern no error in the Board’s Remand Decision when it
determined, under the unique facts of this case, that Claimant’s injury averment was
not well-pled. As discussed above, there are several reasons for our conclusion.
First, the injury description itself is vague, lacking any identified pathology. Second,
Claimant pled a significant lapse of time between the injury and the onset of
disability, resulting in a causation situation which would be beyond lay experience
and training and would require expert evidence. Third, despite an opportunity to do
so, Claimant did not plead any further explanation of his injury or of causation.
11
Fourth, as anticipated by the WCJ in his Initial Decision, there may be future
problems identifying the pled heart injury for purposes of the ongoing medical
treatment part of the award. Fifth, the Claimant offered testimony that may describe
heart disease, as distinct from the heart injury pled in his claim petition.
C. Employer’s Medical Evidence
On remand, Claimant did not submit any evidence. In addition,
Claimant did not, on his own motion, present additional evidence beyond the
allegations in the claim petition. By failing to timely answer, Employer lost the
opportunity to submit evidence to rebut any of the well-pled allegations. Heraeus.
However, we discern no well-pled allegations linking the work injury
to the period of disability. Therefore, it would not have been error for the WCJ to
accept competent evidence as to causation.
The WCJ did not afford Employer’s Medical Report any weight for
several reasons.5 Therefore, its admission did not affect the result here.
III. Conclusion
For the foregoing reasons, we affirm the Board.
ROBERT SIMPSON, Judge
5
Employer submitted Employer’s Medical Report without any accompanying evidence as
to the authoring physician’s expertise or his experience. As a result, the WCJ was unable to assess
the author’s reliability. WCJ Op., 6/10/16, F.F. No. 13. Employer also did not make the author
of the report available for cross-examination as though a trial deposition. In addition, the WCJ
noted Employer’s Medical Report constituted uncorroborated hearsay. Id.12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Ascencio, :
Petitioner :
:
v. : No. 471 C.D. 2017
:
Workers' Compensation Appeal :
Board (Commonwealth of :
Pennsylvania/Department of :
Corrections), :
Respondent :
ORDER
AND NOW, this 28th day of November, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge