Wolfe v. Martellas Pharm. (Workers' Comp. Appeal Bd.)
| Decision Date | 31 August 2022 |
| Docket Number | 432 C.D. 2021 |
| Parties | Danielle Wolfe, Petitioner v. Martellas Pharmacy (Workers' Compensation Appeal Board), Respondent |
| Court | Pennsylvania Commonwealth Court |
Danielle Wolfe (Claimant) petitions for review of the March 26, 2021 Order of the Workers' Compensation Appeal Board (Board), which, in relevant part, reversed the decision of a Workers' Compensation Judge (WCJ) that had denied Martellas Pharmacy's (Employer) Petition to Terminate Benefits (Termination Petition), and reduced the amount of unreasonable contest attorney's fees the WCJ had awarded. On appeal, Claimant argues that the Board erred in determining that the testimony of Employer's medical expert could legally support the termination of Claimant's benefits as of August 10, 2017, and in making a corresponding reduction in the awarded unreasonable contest attorney's fees. Upon review, we affirm.
Claimant worked for Employer as a cashier and was injured on June 10, 2017, when a six-foot metal gate she was raising fell and struck her on the top of her head. Claimant finished her shift but has not returned to work. Claimant began receiving workers' compensation benefits on June 12, 2017, after Employer initially recognized her injury, described as a skull contusion, in a June 28, 2017 Notice of Temporary Compensation Payable (NTCP) issued pursuant to Section 406.1(d)(6) of the Workers' Compensation Act (Act).[2] Employer did not issue a Notice Stopping Temporary Compensation (NSTC), but issued a Medical-Only Notice of Compensation Payable (MO-NCP)[3] on September 8, 2017, at which time Claimant stopped receiving indemnity benefits. Claimant filed a Reinstatement Petition and Penalty Petition, asserting that Employer's failure to pay indemnity benefits pursuant to an "open" Notice of Compensation Payable (NCP) and failure to pay for medical treatment related to the work injury violated the Act. (WCJ Decision, Finding of Fact (FOF) ¶ 4.)[4] In addition, Claimant requested the assessment of unreasonable contest attorney's fees. Employer filed answers that denied the material allegations of Claimant's petitions. On January 9, 2018, Employer filed the Termination Petition alleging that Claimant had fully recovered from the work injury as of August 10, 2017, based on the opinion of John Talbott, M.D. (Dr. Talbott), who conducted an independent medical evaluation (IME) of Claimant on that date.
(Id. ¶¶ 5, 18.) The WCJ held multiple hearings, at which both parties presented evidence.
Claimant testified to the following.[5] Claimant was opening the store and she pushed a six-foot metal gate up, bent down to unlock a door, and the gate came down striking her on her head. After Claimant sustained the work injury, she saw her family doctor and then treated with Jonathan French, M.D. (Dr. French), who recommended vestibular and vision therapy, which Claimant still engages in along with daily home exercises. Claimant experiences double vision and dizziness that occurs prior to migraine headaches several times per week, which are triggered by excessive walking and driving. Claimant acknowledged having been diagnosed with and treated for migraine headaches prior to the work injury, and that she asked that her hours be reduced and frequently missed work because of her pre-work injury medical condition. Claimant's symptoms after the work injury differed from the symptoms from which she suffered prior to the work injury. Claimant was restricted from working on June 12, 2017. Sometime after Claimant was injured at work, she spoke with Employer's operations manager (Supervisor), who offered her part-time work as a clerk at Employer's Franklin Street location, where she had been working. Claimant declined to work at the Franklin Street location, and instead asked to work at Employer's Windber location because it was closer and involved less workload.
Claimant introduced Dr. French's report and deposition testimony.[6] Dr. French is a neuropsychologist who first examined Claimant on June 20, 2017. Dr. French explained that Claimant did not lose consciousness when struck, but did experience headache, tinnitus, nausea, photosensitivity, and dizziness. Dr. French opined that Claimant's "post-concussion symptom scale score" was severe, her ocular and vestibular motor screening was abnormal, he diagnosed her as suffering from a cerebral concussion and post-concussion syndrome, and he recommended that she not work at that time.[7] (Certified Record (C.R.) Item No. 25 at 9-10.) Dr. French saw Claimant on September 6, 2017, and released her back to work at that time with some restrictions. However, at a following visit on October 17, 2017, Claimant expressed difficulty getting to work due to driving and felt unsafe traveling to that position; thus, Dr. French disabled Claimant again.
Employer presented Supervisor's testimony at the June 28, 2019 hearing.[8]Supervisor first reached out to Claimant by letter on July 24, 2017, reminding Claimant of the proper procedures for alerting Employer of whether she intended to return, and Supervisor spoke with Claimant on September 11, 2017, concerning her return. Supervisor asked when Claimant would be going back to work, to which Claimant explained that Dr. French had restricted her work to four hours per day, five days per week, and she felt that she could not work Saturdays or evenings as she could not work alone. Claimant also claimed she could not drive any lengthy distance; thus, she could only work at the Windber location. Supervisor explained that Claimant was not employed at the Windber location, and that work was available to her at the Franklin Street location within the hour restrictions she required. Employer offered Claimant transportation as a solution to her driving restriction, but Claimant declined as she felt she could not be inside a moving vehicle at all.
Employer offered the deposition testimony of Dr. Talbott, a board-certified neurologist, who conducted an IME of Claimant on August 10, 2017.[9] Dr. Talbott performed a physical evaluation of Claimant, reviewed Claimant's medical records, and took Claimant's account of the work injury, her symptoms, and her medical history, including Claimant's ongoing issues with headaches prior to the work injury. Dr. Talbott opined that although Claimant likely had a minimal concussion at the time of the work injury, by the time of his evaluation, she was experiencing a continuation of her pre-work injury symptoms, which included headaches, sensitivity to noise and light, and nausea. (C.R. Item No. 43 at 14.) Based on this evaluation and review, Dr. Talbott concluded that Claimant had made a full recovery of the work injury as of August 10, 2017, and placed no restrictions on her ability to perform her pre-injury job.
On December 27, 2019, the WCJ issued a Decision based on the above factual and procedural background. The WCJ first rejected Claimant's legal argument that the NTCP converted to an open NCP that recognized an ongoing loss of earnings related to Claimant's work injury, due to Employer's failure to issue an NSTC.
(WCJ Decision, Conclusion of Law (COL) ¶ 2.) The WCJ concluded that Employer's MO-NCP properly stopped the NTCP, as authorized by Section 121.17 of the Board's Regulations (Regulations), 34 Pa. Code § 121.17, even though the Act's provisions appeared to "contemplate[] a specific notice being sent to Claimant that advised Claimant of the stoppage of temporary compensation and that Claimant must file a petition to establish any liability on the part of the employer." (Id.) The WCJ observed that, until a court invalidated the regulation, the WCJ would not punish Employer for following the regulation. Having concluded that Employer had validly stopped the NTCP, the WCJ then considered whether Claimant had met her burden of proving a loss of earning power and a violation of the Act as asserted in her petitions.
The WCJ found that "Claimant suffered a work-related skull contusion and concussion on June 10, 2017 that disabled her through August 10, 2017," and no longer "suffer[ed] any work-related disability after August 10, 2017," crediting Claimant's testimony as to the existence of the work injury and Dr. Talbott's testimony as to Claimant's full recovery from that injury. (FOF ¶¶ 24-25 (emphasis omitted).) The WCJ further credited Claimant's evidence regarding the unpaid medical bills, lien, and out-of-pocket expenses, and found that these bills and expenses were related to the work injury, which Employer should have paid. (Id. ¶ 27 (emphasis omitted).) For these reasons, the WCJ held that Claimant had met her burden of proof on the Review Petition, which was treated as a Claim Petition, with Claimant's disability benefits being suspended as of August 10, 2017, as well as on the Penalty Petition. (COL ¶¶ 4-5.)
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