Graham v. Workers' Comp. Appeal Bd.

• Decision Date: 03 May 2013
• Docket Number: No. 1755 C.D. 2012,1755 C.D. 2012
• Parties: Dawn Graham, Petitioner v. Workers' Compensation Appeal Board (Wordsworth Academy), Respondent
• Court: Pennsylvania Commonwealth Court

Dawn Graham, Petitioner v. Workers' Compensation Appeal Board (Wordsworth Academy), Respondent

No. 1755 C.D. 2012

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: February 22, 2013

May 3, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY

Dawn Graham (Claimant) petitions for review of the Workers' Compensation Appeal Board (Board) Order which reversed the Workers' Compensation Judge's (WCJ) denial, in part, of Wordsworth Academy's (Employer) Petition to Terminate Compensation Benefits (Termination Petition).

I. Background

Claimant worked as a training administrator for Employer, which required that she oversee ten departments and ensure training compliance. Notes of Testimony, September 9, 2009, (N.T. 9/9/09) at 5.¹ She worked forty hours per week at a salaried position.² N.T. 9/9/09 at 5-6. Claimant sustained a work-relatedinjury on January 26, 2009, when she tripped as she was climbing steps and hit her head on concrete. When she awoke, she tried to walk but later felt nauseous and dizzy, collapsed, and was driven to WorkNet. N.T. 9/9/09 at 7-10. Claimant's injuries consisted of contusions to her face, scalp and neck and she received benefits pursuant to a Notice of Compensation Payable (NCP). Claimant's benefits were modified as of March 30, 2009.

On March 30, 2009, Claimant returned to her regular position with Employer. She advised Andrew Gross, her supervisor, and Arlene Huggins in human resources, of her understanding of her limitations. Claimant testified that Employer thought she could perform her regular job for two hours but she did not always work two hours a day. N.T. 9/9/09 at 17-18. Claimant lost her pre-injury position during the period before she returned to work. N.T. 9/9/09 at 19. She experienced extreme fatigue, severe head pain that affected her vision, pressure in the back of her eyes and shooting pains to the top of her head. N.T. 9/9/09 at 10-13. Claimant could not read or write and experienced headaches and memory issues. N.T. 9/9/09 at 25. She worked until June 2, 2009, when Dr. McGinley, her family doctor, took her out of work.

On June 26, 2009, Claimant filed a Review Petition and alleged that the NCP should be amended to include a brain injury and concussion. Claimant also sought a reinstatement of total disability benefits.

On October 22, 2009, Employer filed a Termination Petition which alleged that as of July 21, 2009, Claimant fully recovered from the work injury and was able to return to unrestricted work.

Claimant continued to receive partial disability benefits of $417.40 per week. Claimant testified that she could not return to her pre-injury position with Employer because of extreme fatigue, headaches, and dazes that caused her to walk into walls. N.T. 9/9/09 at 36. Claimant did not return to work for her other employers. N.T. 9/9/09 at 42. Claimant's symptoms regressed in terms of her speech and language. N.T. 9/9/09 at 44.

Claimant also testified that her symptoms improved in that she was able to walk in a straight line, turn her head back and forth, and read paragraphs. She was also able to cook and grocery shop. Notes of Testimony, June 9, 2010, (N.T. 6/9/10) at 7-8. Claimant still suffered severe headaches and experienced memory issues. N.T. 6/9/10 at 11. Claimant saw a neuropsychologist, occupational therapist, rehabilitation doctor, neurologist and her family doctor. N.T. 6/9/10 at 14-16. Claimant testified that she could not return to work in any capacity because of cognitive fatigue, headaches, impaired reading and math skills and memory issues. N.T. 6/9/10 at 17-18.

Claimant submitted a Statement of Wages for her employment with Northwestern Human Service of Bucks County, which indicated an AWW of $299.23. She also submitted a Statement of Wages for her employment with Village Care Family Services, which indicated an AWW of $350.00. Exhibit C-9 consists of payroll records from Village Care Family Services from March 2008, to January 2009.

Jeanne Pelensky, M.D., (Dr. Pelensky), board-certified in internal medicine, physical medicine and rehabilitation, testified by deposition on behalf of Claimant. Dr. Pelensky initially saw Claimant on September 4, 2009, at which time she obtained a history of the work incident and Claimant's complaints and performed an examination. Deposition of Dr. Pelensky, February 18, 2010, (Dr. Pelensky Deposition), at 15-18. Prior to being seen by Dr. Pelensky, Claimant was seen by a colleague, Dr. Hopwood, a neuropsychologist. Dr. Pelensky Deposition at 18. Dr. Pelensky reviewed Dr. Hopwood's evaluations, which took place on May 21, 2009, and May 29, 2009, which indicated that Claimant did not perform as well as would be expected for someone at her level of training. Dr. Pelensky Deposition at 20. Dr. Pelensky opined that Claimant suffered a concussion after the fall at work and continued experiencing post-concussion symptoms which included memory problems, dizziness, irritability, cognitive problems and limited endurance to perform activities that involved thinking, and a traumatic brain injury. Dr. Pelensky Deposition at 24. Dr. Pelensky opined that Claimant's work-related injuries were worse than contusions because she had persistent cognitive and balance deficits, headaches and stiffness. Dr. Pelensky Deposition at 26.

Dr. Pelensky saw Claimant in November 2009, and on January 21, 2010, at which times Claimant's complaints continued. Dr. Pelensky Deposition at 36. Her diagnoses were persistent post-concussive syndrome with ongoing cognitive deficits and persistent headache. Dr. Pelensky Deposition at 42. Dr. Pelensky opined that Claimant was not capable of returning to work in any capacity and had not recovered from her work-related injuries. Dr. Pelensky Deposition at 45.

Employer presented the testimony of Christopher King, Psy.D. (Dr. King), a licensed psychologist. He evaluated Claimant on July 21, 2009, at which time he obtained a history of the work incident and treatment and reviewed medical records. Deposition of Dr. King, April 13, 2010 (Dr. King Deposition), at 8-9. Dr. King testified that a CT scan of Claimant's head was performed on the day of the incident and was normal. Dr. King Deposition at 11. Dr. King opined that the worsening of symptoms several days after a trauma or event, as Claimant reported, was not consistent with post-concussion syndrome because concussion-related symptomatology is felt immediately. Dr. King Deposition at 14. On February 4, 2009, there was no indication of a problem or objective evidence of memory impairment. An MRI from February 11, 2009, was normal. Dr. King Deposition at 15. When Dr. King evaluated Claimant her presentation was normal, with no evidence of emotional distress or anxiety, no evidence of any word finding problems or dysarthria of speech, and she demonstrated normal mental stamina. Dr. King Deposition at 21. Dr. King administered a standardized mental status examination to assess orientation and basic cognitive abilities and Claimant performed well within normal limits. Dr. King Deposition at 30-31. Dr. Kingopined that Claimant had fully recovered as of the time of his examination and could return to her pre-injury position. He found no evidence of a brain injury, and there were no objective findings to substantiate Claimant's complaints. Dr. King Deposition at 34-35.

By a Decision and Order of November 23, 2010, the WCJ denied the Review Petition with respect to the nature of injuries and determined that Claimant did not establish that she sustained additional work-related injuries in the nature of post-concussive syndrome with cognitive deficits.

The WCJ denied the Reinstatement Petition, and concluded that Claimant did not meet her burden of proving that her benefits should be reinstated to total disability as of June 3, 2009. The WCJ granted total disability benefits from January 26, 2009, through March 30, 2009, and partial disability benefits as of March 31, 2009, and ongoing based on the corrected AWW. The WCJ granted the Termination Petition in part, and determined that Employer proved that Claimant fully recovered from any mild concussion she may have sustained, but did not prove that Claimant fully recovered from the face, neck and scalp contusions.

The WCJ determined:

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17. This Judge [WCJ] had the opportunity to observe Claimant on two occasions and finds her credible in part. Her testimony is credible relative to the events surrounding the work injury and her concurrent employment. Regarding her allegations relative to the Review Petition, Claimant alleges symptoms in the nature of difficulty reading and performing math,headaches, cognitive fatigue, and speech, language and memory problems. This Judge [WCJ] could detect none of these symptoms during either of Claimant's two testimonies. Claimant was very well-spoken and appeared to have no difficulty remembering the details of the work injury and her treatment. Her speech was fluent and she had no difficulty answering the questions posed by the attorneys. Based on her testimony, which revealed no indication of a brain injury/cognitive difficulties, Claimant needed to present medical evidence that connected her alleged symptoms to her work injury, and present competent medical evidence to support her contention that she was unable to work as of June 2, 2009.

18. The testimony of Dr. Pelensky is found to be not credible relative to the issue of whether Claimant sustained a traumatic brain injury as a result of the work injury. Dr. Pelensky's opinions are based on Claimant's subjective complaints. She offered no explanation for Claimant's symptoms in the face of normal diagnostic studies, including a normal brain MRI and normal CT scan. She offered no explanation as to how Claimant could have intact memory relative to recalling her medical treatment and the details of her work injury, with fluent

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