Nanni v. Workers' Comp. Appeal Bd.
| Decision Date | 30 January 2015 |
| Docket Number | No. 795 C.D. 2014,795 C.D. 2014 |
| Court | Pennsylvania Commonwealth Court |
| Parties | Cheryl Nanni, Petitioner v. Workers' Compensation Appeal Board (Brunner, MD), Respondent |
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
Petitioner Cheryl Nanni (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed a decision of a Workers' Compensation Judge (WCJ), denying Claimant's Petition to Review Compensation Benefits, through which Claimant sought to add depression to Claimant's identified work-related injuries. We affirm the Board's order.
In an earlier decision dated September 23, 2009 (2009 WCJ Decision), WCJ Sarah C. Makin addressed a claim petition Claimant filed relating to a work injury Claimant sustained on April 2, 2008. WCJ Makin noted that the parties had submitted a stipulation of facts, which WCJ Makin incorporated into her decision. According to the incorporated factual findings, Claimant alleged that she "sustained a disabling respiratory condition in the course of her employment with Douglas J. Brunner, M.D., (Employer) as a result of repetitive exposure to airborne irritants at work through April 2, 2008." (2009 WCJ Decision, Finding of Fact (F.F.) no. 4.) Employer and his insurer accepted the claim as compensable and, pursuant to an examination and diagnosis by Employer's physician, identified Claimant's work-related injury as chronic sinusitis. WCJ Makin determined that Claimant was disabled beginning on April 3, 2008, as a consequence of her work-related injury and was entitled to weekly compensation of $468.78.
Claimant filed a review petition on November 1, 2010. The review petition, while noting that Claimant was seeking to add an injury to the identified chronic sinusitis, did not state what specific injury or injuries Claimant sought to add to her identified work-related injury. The WCJ conducted a hearing on December 15, 2010. During that hearing, Claimant testified regarding difficulty she was having with her vision and about her mental condition. Specifically, Claimant briefly testified regarding her treatment with a psychiatrist and a psychologist, the latter of which predated the on-set of her work-related chronic sinusitis. Claimant's testimony can be summarized as indicating that she believed she needed to see those mental health specialists, in part because she was experiencing mental health problems as a result of her work-related sinusitis injury. Claimant did not testify that she was suffering specifically from depression as a result of her work injury. Claimant's counsel, however, stated that "from a psychological perspective, it's depression." (Reproduced Record (R.R.) at 24.)
Claimant submitted medical reports and/or letters from various physicians, including (1) Joseph R. Spiegel, M.D, an apparent specialist in the field of Otolaryngology, who performed endoscopic sinus surgery on Claimant in March 2008; (2) Frances E. Marchant, M.D., whose letterhead indicates he is associated with an "ENT" practice; (3) Laurence D. Fine, M.D., whose letterhead indicates he is a neurologist; (4) Jeffrey J. Dekret, M.D., Claimant's psychiatrist; and (5) Edward J. Murphy, Psy.D. Claimant also submitted a memorandum from Jeffrey E. Celebre, Ph.D., Claimant's psychologist. In response, Employer presented the deposition testimony of Gladys Fenichel, M.D., who testified as an expert in the field of psychiatry, and a medical report by James N. Palmer, M.D., the Director of Rhinology in the Department of Otorhinolaryngology at the University of Pennsylvania.
The WCJ denied Claimant's review petition. She reasoned that although Claimant established that she suffers from depression, Claimant failed to prove that her work injury caused her depression. On appeal to the Board, Claimant raised several challenges. Claimant challenged the WCJ's finding of fact number 3, relating to the credibility of Dr. Celebre and Dr. Fenichel, arguing:
The "reasons" for the [WCJ's] credibility determinations are unsupported by the evidentiary record when "considered in its entirety". The record was summarized in a manner to support the WCJ's desired conclusion, leading to an erroneous perception that the credibility determinations are supported by the evidence. Although a WCJ is not required to itemize every line of testimony of documentary evidence, relevant omissions from the evidence presented adversely effected the basis of the credibility determinations.
(Claimant's Appeal to the Board, Addendum to Appeal.) Claimant also challenged the WCJ's findings of fact numbers 4-32, based upon her assertion that "[a]lthough the WCJ sets forth a detailed, and largely accurate description of the evidence, relevant omissions to the evidence adversely impact the credibility determinations." (Id.) Finally, Claimant challenged the WCJ's conclusion of law number 3, in which the WCJ concluded that Claimant failed to satisfy her burden to prove that her depression is related to her work-related injury. Claimant contended that conclusion of law number 3 is erroneous "to the extent [it is] based upon erroneous credibility determinations." (Id.)
The Board rejected what it characterized as Claimant's assertion that the WCJ's decision was not reasoned under Section 422(a) of the Workers' Compensation Act (Act).1 The Board reviewed the medical reports and/or letters Claimant submitted and determined that the WCJ did not overlook or fail to consider the opinions expressed therein. The Board also rejected Claimant's assertion that the testimony of Employer's expert, Dr. Fenichel, is not competent. The Board concluded also that the explanations the WCJ provided for not accepting as credible the statements of Claimant's medical experts were sufficient.
Claimant raises the following issues in this appeal:2 (1) whether the testimony of Employer's medical expert was equivocal; (2) whether the WCJ failed to render a reasoned decision in accordance with Section 422(a) of the Act; and (3) if the testimony of Employer's medical expert was equivocal, and, thus, not competent, whether the WCJ's decision is based upon an improper capricious disregard of competent evidence. The ultimate issue in this matter, however, concerns the question of whether Claimant established that there is a causal connection between her work injury and her depression.
When a claimant seeks to add injuries to those previously accepted in a notice of compensation payable, the claimant bears the burden to prove that there is a material mistake—i.e., that "the accepted injury fails to include all of the injuries that the claimant suffered in the work incident." Cinram Mfg. Inc. v. Workers' Comp. Appeal Bd. (Hill), 932 A.2d 346, 349 (Pa. Cmwlth. 2007), affirmed, 975 A.2d 577 (Pa. 2009). Additionally, when the causal connection between the work incident and the alleged injury is not obvious, a claimant also bears the burden to establish causation and can do so only by offering unequivocal medical evidence. Namani v. Workers' Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850, 856 n.4 (Pa. Cmwlth. 2011), appeal denied, 47 A.3d 849 (Pa. 2012).
In this matter, there is no dispute regarding the fact that Claimant has depression. The key question, as noted above, is whether Claimant satisfied her burden to prove a causal connection between her work injury and her depression. Our review of the medical statements of Claimant's experts, except Dr. Celebre, indicates that none of them provided an unequivocal medical opinion that Claimant's depression is related to her work-related sinusitis or treatment of her sinusitis. Dr. Marchant did comment in a letter to a referring physician that, at the time she examined Claimant on December 6, 2010, Claimant had an "array of complaints, including some depression, some bad dreams associated with the use of Singulair." (R.R. at 60.) Dr. Marchant also noted in the "impressions" section of her letter that there were "[p]ossible significant psychological effects from Singulair and even Astepro." (R.R. at 61.) The WCJ specifically mentioned this aspect of Dr. Marchant's statement in finding of fact number 19. Although these statements of Dr. Marchant suggest that Claimant may have suffered some psychological effect from medication Claimant was taking to treat her work-related injury, Dr. Marchant's statement is insufficient to support an alleged causal connection between Claimant's depression and her work injury. Dr. Marchant only referred generally to the relationship between the treatment for Claimant's work-related sinusitis and her depression. Dr. Marchant did not express an unequivocal medical opinion that either the treatment for Claimant's work injury or the work injury itself caused Claimant's depression. Thus, Dr. Marchant's statement would not be sufficient to support the causal connection Claimant was required to establish.
Claimant also submitted a letter dated August 24, 2010, that her treating psychiatrist, Dr. Dekret, sent to Maria Melli, M.D., Claimant's primary care physician. (R.R. at 69.) In that letter, Dr. Dekret stated that he had been treating Claimant for approximately one year, and he treated her depression with Cymbalta 30 mg daily. (Id.) Dr. Dekret stated that Claimant's core symptoms of depression responded to lower doses of Cymbalta. (Id.) Dr. Dekret stated that Claimant's problems of tiredness and poor concentration seemed to him to be "more related to her sinusitis." (Id.) Dr. Dekret did not indicate that those particular symptoms were related to Claimant's depression. Dr. Dekret did not specifically state that Claimant's work-related injury caused her to suffer from depression. Consequently, this statement does not constitute an unequivocal medical opinion establishing a causal connection between Claimant's work injury and her...
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