W. Penn Allegheny Health Sys., Inc. v. Workers' Comp. Appeal Bd.

• Decision Date: 16 April 2021
• Docket Number: No. 85 C.D. 2020,85 C.D. 2020
• Citation: 251 A.3d 467
• Parties: WEST PENN ALLEGHENY HEALTH SYSTEM, INC. and BrickStreet Administration Services, Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (COCHENOUR), Respondent
• Court: Pennsylvania Commonwealth Court

251 A.3d 467

WEST PENN ALLEGHENY HEALTH SYSTEM, INC. and BrickStreet Administration Services, Petitioners

v.WORKERS’ COMPENSATION APPEAL BOARD (COCHENOUR), Respondent

No. 85 C.D. 2020

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 23, 2020

Decided April 16, 2021

Vito S. Bochicchio, Pittsburgh, for Petitioner.

George E. Clark, Pittsburgh, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge,¹ HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE FIZZANO CANNON

West Penn Allegheny Health System, Inc. (Employer) petitions for review from the December 16, 2019, decision and order of the Workers’ Compensation Appeal Board (Board) affirming in material respects the August 22, 2018, decision and order of the Workers’ Compensation Judge (WCJ), who granted the Claim Petition of Eda Cochenour (Claimant). Upon review, we affirm in part and reverse in part.

I. Background

Employer issued a medical-only Notice of Temporary Compensation Payable after Claimant reported neck and back injuries resulting from a September 14, 2016, incident on Employer's parking shuttle. Reproduced Record (R.R.) at 253a. Thereafter, Claimant filed a Claim Petition seeking temporary total disability (TTD) benefits as of September 20, 2016, for cervical, thoracic, and lumbar spine injuries

resulting from the incident. Id . at 1a-4a. On November 30, 2016, after an initial hearing on the Claim Petition, Employer issued a Notice Stopping Temporary Compensation and a Notice of Claim Denial asserting that Claimant's injuries had not occurred within the course and scope of employment. Id . at 334a-37a.

Claimant testified that she was employed by Employer as a nurse diabetes navigator earning $101,700 annually. R.R. at 40a. Claimant's position involved walking, standing, bending, and sitting. Id . On the morning of September 14, 2016, Claimant was traveling to her job at the hospital in an Employer-provided shuttle bus from a parking garage where she had an Employer-assigned parking space. Id . at 42a. Claimant contended that during the ride, the bus turned a corner to the left, hit a curb, bounced across the lanes in the street, and hit a curb on the other side of the street. Id . at 41a & 55a. Claimant was jostled but did not fall out of her seat. Id . at 56a.

Claimant did not immediately feel any symptoms following the shuttle incident. R.R. at 42a. Two days later, on a Friday when she was not working, Claimant felt spasms and numbness in her legs, numbness in her arms, weakness, a neckache, and a headache. Id . at 43a. Claimant reported the shuttle incident and her condition to Rose Scalla, a manager, when she returned to work on Monday, September 19, 2016. Id .

Claimant reported to Employer that she believed the shuttle driver on the date of injury was a younger-looking African-American male, but she remembered nothing else specific about him. R.R. at 85a-87a. Claimant reviewed two videos of footage from the day of the incident provided by the shuttle company but did not recognize herself in either video. Id . at 87a. She also recalled that the shuttle she was on took a different route than it usually took the day of the incident. Id . at 91a. In terms of pinpointing when the incident occurred, Claimant usually began her work shift at 7:00 a.m. and it took her at least five minutes to get from the shuttle drop off point to the time clock in her work area. Id . at 89a & 92a. Exhibit C-5 in the record is her timecard, which states that she clocked in that day at 6:57 a.m. See WCJ Decision, 8/22/18, at 9; Certified Record (C.R.) #9.

Claimant's condition made it difficult for her to walk and drive and she went out of work as of the next day, September 20, 2016. R.R. at 44a-45a. Claimant treated with her primary care physician, Dr. Schogel, and Dr. Alcala, a panel orthopedist, who both kept her out of work through October 26, 2016. Id . at 46a-47a & 49a-50a. When Claimant returned to work in October 2016, Dr. Alcala restricted her to working four hours a day, and Claimant also missed several days due to her condition, causing some lost wages. Id . at 47a-48a. Subsequently, Claimant underwent a laminectomy

in March 2017 and was out of work until she returned to work in mid-August on modified sedentary duty, full time with no ongoing wage loss. Id . at 204a-06a & 210a. Claimant received sporadic short-term and long-term disability payments while she was out of work. Id . at 212a-13a.

Dr. Gary Schmidt, M.D., a board-certified orthopedic surgeon, performed a laminectomy

on Claimant and still treats her. R.R. at 273a & 278a. Dr. Schmidt testified that he saw and examined Claimant for the first time on November 29, 2016, after she had been referred to him by Dr. Alcala. Id. at 50a-51a & 268a-69a. At that time, Claimant was back to work on a part-time basis, but Dr. Schmidt took her out of work entirely due to her condition. Id . at 270a. Dr. Schmidt testified that, given Claimant's account of the incident, her age-appropriate degenerative changes in the neck and back, and her history of fibromyalgia, it was reasonable that she did not note severe pain until two days after the incident. Id . at 283a, 300a, & 304a. Dr. Schmidt opined that the September 14, 2016, incident caused Claimant to sustain disabling work-related injuries in the nature of an exacerbation of underlying spondylosis at C5-6 and stenosis at L4-5. Id . at 277a-78a.

Employer's medical witness, Dr. Thomas Kramer, M.D., testified that he diagnosed Claimant with lumbar and cervical sprain

/strain injuries, but was skeptical whether her injuries were work-related because he knew of no evidence of the incident other than her statement. R.R. at 436a & 444a-54a. However, Dr. Kramer did not deny that an injury occurred in some manner and acknowledged that pain and inflammation from such an injury can take several days to become symptomatic. Id . at 459a-60a.

Employer also presented Barbara Thon, a senior paralegal in Employer's legal department for medical malpractice and liability. R.R. at 95a. In early October 2016, Claimant reported to Ms. Thon that on September 14, 2016, she had been on a shuttle driven by a young African-American male when it hit a curb and Claimant was jostled. Id . at 96a & 100a-01a. Claimant explained to Ms. Thon that she had not reported the incident immediately because she did not feel pain or symptoms, but that she began feeling worse afterwards and was currently treating and out of work on her doctors’ orders. Id . at 100a. Ms. Thon forwarded the information to attorneys in her department and had no further contact with Claimant or involvement in this case. Id . at 102a-03a.

Mary Motte, whose work in Employer's insurance department included addressing any liability issues or claims arising out of its shuttle service, also testified for Employer. R.R. at 362a. Ms. Motte stated that she learned about the September 14, 2016, incident after Claimant "called in and said that she was hurt on a shuttle." Id . at 363a. She testified that no other employee reported an incident or an injury on a shuttle on September 14, 2016, and that Employer's internal investigation showed no evidence that an incident occurred. Id . at 366a-70a.

Employer witness James Zamaris was an account manager for the company that contracts with Employer for parking and shuttle services. R.R. at 105a-06a. Mr. Zamaris received an email forwarded from his supervisor (original sender and date unknown) asking for information regarding a potential incident that occurred on a shuttle between 6:30-7:00 a.m. on September 14, 2016. Id . at 106a-07a. The runs are driven by four regular drivers and take 10-20 minutes each, depending on traffic. Id . at 108a & 118a-19a. One of the drivers, Tahajud Ghafoor, known as "T," was a younger-looking African-American male, which is what the request mentioned. Id . at 109a-10a & 124a. Mr. Zamaris testified that neither "T" nor the other African-American shuttle driver that day reported an incident or injury that morning or afterwards. Id . at 111a & 114a. The shuttle "T" was driving that day was larger and "can't deviate real well" off the regular route due to its size. Id . at 114a. Mr. Zamaris believed an inquiry was made to "T" about what may have happened, but Mr. Zamaris did not know the result of that inquiry except that "T" declined to provide a written statement. Id . at 116a-17a.

In response to the request for information, Mr. Zamaris secured available video footage of two runs driven by "T" on the day and around the time of the alleged incident. R.R. at 110a-16a. Mr. Zamaris did not request, receive, or view any other footage from other drivers or runs that day, which by the time of his testimony would have been deleted and recorded over by subsequent video. Id . at 115a & 121a-23a. He acknowledged that video of the other drivers was available, but he only sought video from runs driven by "T" during the relevant time and date because he was asked to provide video of a younger-looking African-American driver and he deduced it was "T." Id . at 122a-24a.

Roger Rosser, the safety manager for the shuttle company, testified that Mr. Zamaris asked him to pull the video for the day and time at issue and review it for any unusual incidents or evidence of reckless driving by a younger-looking African- American male driver, whom Mr. Rosser, like Mr. Zamaris, deduced to be "T." R.R. at 155a & 164a. Generally, one view of the company's video showed the passengers in the interior bus cabin, and another view recorded outward from the windshield to show the route being taken. Id . at 156a. The video storage cards last 30-35 days before being recorded over unless they are pulled due to a reported incident. Id . at 158a. Based on the information provided by Mr. Zamaris, Mr. Rosser pulled the footage from the two runs driven by "T" between 6:33 a.m. and 6:56 a.m. Id . at 158a-60a. Mr. Rosser did not pull or review video of any other runs...