J. DeSue v. Bank of America (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joanne DeSue, :
:
Petitioner :
:
v. : No. 151 C.D. 2021
:
Bank of America (Workers’ :
Compensation Appeal Board), :
:
Respondent :
Bank of America, :
:
Petitioner :
:
v. : No. 183 C.D. 2021
: Submitted: October 15, 2021
Joanne DeSue (Workers’ :
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 21, 2022
In these consolidated cross-petitions,1 Joanne DeSue (Claimant) and
Bank of America (Employer) petition for review of the order of the Workers’
1
By order dated April 15, 2021, this Court consolidated the cross-petitions and designated
Joanne DeSue as the petitioner pursuant to Pennsylvania Rule of Appellate Procedure 2136.
Compensation Appeal Board (Board) affirming the decision of a workers’
compensation judge (WCJ), which granted Claimant’s Claim Petition for a closed
period and dismissed her Review Petition to expand her work injury to include a
psychological injury. Claimant argues that the WCJ erred by misapplying the
burden of proof and by relying upon legally incompetent opinion evidence in
rendering his decision. Employer argues that the WCJ erred by admitting the
allegations in Claimant’s Claim Petition based upon our holding in Yellow Freight
Systems, Inc. v. Workmen’s Compensation Appeal Board (Madara), 423 A.2d 1125(Pa. Cmwlth. 1981), on the basis that Claimant failed to timely raise the issue. For
the reasons that follow, we reverse in part, vacate in part, and remand for further
proceedings.
I. Background
On August 5, 2016, Claimant filed a Claim Petition against Employer
alleging that she sustained a work-related injury while in the course of her
employment as a paralegal. Specifically, Claimant alleged she sustained cervical,
lumbar spine and left knee injuries as well as an aggravation of preexisting
degenerative joint disease. Claimant alleged that she fell at work in 2012, and that
continuing work activity created a repetitive trauma that ultimately caused her to
separate from employment on August 8, 2013 -- alleged disability date. Claimant
sought full disability benefits from August 9, 2013, onward, as well as the payment
of medical bills for ongoing disability. Reproduced Record (R.R.) at 1a-3a. On
September 19, 2016, Employer filed an untimely Answer2 to the Claim Petition
denying the material allegations contained therein. R.R. at 7a-8a.
2
Employer’s Answer was filed more than 20 days after the allotted time for filing an
answer to the Claim Petition.
2
The Claim Petition was assigned to a WCJ, who held multiple
evidentiary hearings between October 2016 and February 2019. In support of her
Claim Petition, Claimant testified, in relevant part, that she began working for
Employer in 2011 as a litigation specialist. Her job with Employer entailed
repetitive typing and clicking a mouse on the computer all day long. WCJ’s Opinion,
12/20/2019, Finding of Fact (F.F.) No. 6(b)-(c).
In 2007, while working at a prior job, which entailed less computer
work, Claimant experienced tingling in her right thumb. Claimant sought medical
treatment, which included physical therapy recommended by Joseph C. Maroon,
M.D. (Dr. Maroon), and an MRI study. Claimant stopped working because of the
injury, but she did not file a claim for workers’ compensation benefits. While off
work for the injury, Claimant was laid off. Soon thereafter, Claimant resumed
employment with a different law firm and experienced no physical problems
between then and the start of 2012. F.F. No. 6(d)-(f); R.R. at 29a.
In February 2012, while working for Employer, Claimant’s heel got
stuck in the carpet and she fell. She immediately notified her manager by email.
Claimant missed a few days from work, but she did not seek medical care or file a
claim for workers’ compensation benefits. Claimant then resumed full duties. F.F.
No. 6(g).
In early 2013, Claimant began experiencing neck pain that went into
her upper back; tingling, burning and heaviness of her arm; and tingling of her
fingers, which worsened. In February 2013, Claimant returned to Dr. Maroon, who
ordered an MRI study and physical therapy. Her symptoms progressively worsened.
She continued to see Dr. Maroon as well as her primary care physician (PCP), James
Gleason, M.D. (Dr. Gleason), and went to physical therapy. At Dr. Maroon’s
3
referral, Claimant saw Megan H. Cortazzo, M.D. (Dr. Cortazzo), a pain specialist.
Claimant also saw Daniel Wecht, M.D. (Dr. Wecht), a neurological surgeon, for a
second opinion. Her current PCP, Matthew A. Vasil (Dr. Vasil), prescribed Xanax
for health-related anxiety. F.F. No. 6(h)-(k).
Claimant testified that she stopped working completely on August 8,
2013. Claimant explained that “by the end [she] was literally picking [her] right arm
up with [her] left to put it on the desk to try to type.” F.F. No. 6(l); R.R. at 37a.
When she terminated her employment, she advised Employer’s human resource
manager that her work activities were aggravating her symptoms. Claimant has not
worked anywhere since August 8, 2013. Claimant testified that she continues to
have symptomology, which has impacted her daily life, and that she cannot return
to her preinjury job because of her constant pain. Claimant received long-term
disability benefits through her Employer. As of October 27, 2016, Claimant was
treating with her PCP only, no specialists. F.F. No. 6(l)-(o), (s).
At the WCJ hearing held on March 23, 2018, Claimant’s counsel, citing
Yellow Freight, moved to have all facts alleged in the Claim Petition deemed
admitted because of Employer’s failure to file a timely answer.3 F.F. No. 7. On
March 26, 2018, Claimant filed a Review Petition alleging that she is also suffering
from psychological symptoms and disability as a result of her work injury, and she
3
Section 416 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as
amended, 77 P.S. §821, permits an answer to a claim petition to be filed within 20 days of service
upon the employer. Additionally, it provides that “if a party fails to file an answer and/or fails to
appear in person or by counsel at the hearing without adequate excuse, the [WCJ] hearing the
petition shall decide the matter on the basis of the petition and evidence presented.” Id. In Yellow
Freight, we interpreted Section 416 to mean that the untimeliness of an employer’s answer admits
all well-pled allegations in the petition and bars the employer from introducing evidence of an
affirmative defense. 423 A.2d at 1127-28.
4
sought to amend her claim to include a psychological condition. Employer filed a
timely and responsive Answer. F.F. No. 4.
In support of her Review Petition, Claimant testified that she had never
received treatment from a psychiatrist or psychologist or any healthcare professional
in that field. She had previously taken a small dosage of Xanax at bedtime for
insomnia. After the fall, Claimant sought mental health treatment from Anna
Mathew, M.D. (Dr. Mathew), who is board certified in internal medicine and
occupational and environmental medicine, and Gary Breisinger, M.A. (Dr.
Breisinger), a psychologist. F.F. No. 6(v)-(w).
At the last hearing on February 8, 2019, Claimant testified that she
barely leaves the house and is depressed, anxious, and in constant pain. In addition
to increased doses of Xanax, Claimant is also taking Cymbalta for depression.
Claimant’s physicians had suggested surgery as a possibility, but Claimant had not
pursued this course of treatment. Claimant testified that she was not engaged in any
physical therapy program. F.F. No. 6(x)-(z).
Claimant presented the deposition testimony of Dr. Mathew, who first
saw Claimant in November 2016, at which time Claimant provided her with a history
of her injury that she had fallen at work and subsequently developed pain in the neck
and right arm, which Claimant described as “burning and tingling.” F.F. No. 8. Dr.
Mathew reviewed the 2013 MRI report, which described a posterior central and right
posterior lateral C5-C6 herniation that was compressing the right nerve root. The
2013 MRI report also noted a right posterior lateral disc protrusion at the C6-C7
level with mild to moderate central canal narrowing. Dr. Mathew testified that
Claimant had a herniated disc that was aggravated by performing computer work at
her job. Dr. Mathew saw Claimant several times, most recently on April 26, 2018.
5
At her last two visits with Claimant, Dr. Mathew noted weakness of the right thumb,
and unchanged pain and functional difficulties. She testified that Claimant’s
neurological status is slowly worsening because of nerve root impingement. She
anticipates a gradual worsening, which may result in myelopathy requiring surgery.
Dr. Mathew is treating Claimant with ibuprofen and Zanaflex, a muscle relaxant.
Dr. Mathew testified that Claimant is not capable of returning to her job as a
paralegal. Noting moderate to marked depression, Dr. Mathew prescribed Cymbalta
and referred her to Dr. Breisinger. F.F. No. 8.
Claimant also presented the deposition testimony of Dr. Breisinger,
who testified that he first saw Claimant on November 9, 2017, and has since seen
her 38 times, most recently on October 23, 2018. Dr. Breisinger rated Claimant’s
depression and anxiety as moderate to marked. He diagnosed her with “major
depressive disorder, single episode, moderate,” and “somatic symptom disorder.”
R.R. at 268a. His prognosis is guarded. Dr. Breisinger opined that Claimant cannot
perform her job as a paralegal because she cannot maintain consistency at anything.
He testified that Claimant’s worsening condition following the work injury
intensified her anxiety and depression. He opined that his psychological diagnoses
are directly related to the February 2012 fall and aftermath, meaning her
deteriorating medical condition, failed attempts at treatment, and attendant financial
reality that she cannot get the medical care she needs. Dr. Breisinger testified that
continuing work activity through August 2013 contributed to the psychological
component of her injury. F.F. No. 9.
In opposition, Employer offered the deposition testimony of Howard J.
Senter, M.D. (Dr. Senter), a board-certified neurosurgeon, who was deposed on
September 6, 2018. Dr. Senter saw Claimant on February 9, 2017, at which time he
6
obtained a history from her and reviewed her medical records, and diagnostic
studies, including MRI studies taken in 2007, 2013, and 2015, as well as her course
of treatment and symptomology. Dr. Senter testified that Claimant’s pain was not
severe enough to warrant surgery. Based upon his examination and review of
records, Dr. Senter testified that, if Claimant sustained an injury on February 12,
2012, at most, it was a cervical sprain and strain from which she has fully recovered
because those types of injuries typically resolve in three to four months. As to
Claimant’s aggravation from continuing to work until August 2013, Dr. Senter
testified that her work activity would not have specifically aggravated her
preexisting condition. He opined that it is in the nature of degenerative disc disease
to progress. He noted that there is no neurosurgical study that has ever shown that
sitting at a desk and using a mouse accelerates preexisting cervical degenerative disc
disease. When asked whether Claimant’s continuing work activity from February
2012 through August 8, 2013 aggravated, exacerbated, or accelerated her preexisting
condition, he testified that anyone who claims that would be medically incorrect.
Dr. Senter noted that the 2013 and 2015 MRI studies showed Claimant’s condition
worsened even though she had stopped working. Dr. Senter did not agree that
Claimant has a herniated disc, opining that she has a disc osteophyte complex and
neuroforaminal stenosis. He continuously disagreed that working at a computer with
a mouse aggravated or accelerated any preexisting condition. He testified that, as of
the time of his evaluation, Claimant could return to her preinjury job and did not
require any work-related treatment. F.F. No. 10.
Employer also offered the deposition testimony of Robert Wettstein,
M.D., who is board certified in psychiatry and forensic psychiatry. Dr. Wettstein
testified that he evaluated Claimant on June 4, 2018. Based upon the history he
7
obtained, review of her medical records, and mental status examination, he
diagnosed her with somatic symptom disorder with persistent pain, which he related
to her chronic upper extremity pain and radiculopathy. He opined that psychological
treatment is necessary for the foreseeable future. Dr. Wettstein did not reach a
conclusion about the work-relatedness of her chronic pain and did not offer a specific
opinion as to her ability to work. F.F. No. 11.
Based upon the evidence presented, the WCJ found that Claimant gave
notice of her work injury to her Employer on April 13, 2013, when she advised
Employer’s human resource manager that her work injuries were aggravating her
symptoms. F.F. No. 12.
As for the applicability of Yellow Freight, the WCJ determined that
Employer’s Answer was untimely. Claimant filed her Claim Petition on August 5,
2016, but Employer did not file its Answer until September 19, 2016, which is
beyond the 20-day statutory deadline, without adequate excuse. Applying Yellow
Freight, the WCJ determined that, as a consequence of its untimely Answer,
Employer admitted to all allegations prior to September 19, 2016, including that
Claimant’s work activities through August 8, 2013, aggravated her preexisting
condition as to render her unable to perform her preinjury job as a paralegal. The
WCJ found that Employer did not admit any liability after September 19, 2016, and
ongoing. The WCJ placed the burden on Claimant to prove “by a preponderance of
the evidence that she continues to be entitled to benefits on and after the September
19, 2016 filing date.” F.F. No. 13.
As for Claimant’s physical disability, the WCJ found that Claimant
suffered a temporary, total disability from September 19, 2016, through February 8,
2017. In reaching this finding, the WCJ relied primarily upon Dr. Mathew’s
8
uncontradicted opinion that Claimant was disabled during this time as a result of a
work-related aggravation of her preexisting condition. F.F. No. 15.
As of February 9, 2017, the WCJ found that Claimant was no longer
suffering from any impairment or disability from a work-related aggravation of her
preexisting condition but that her ongoing symptoms were related to her preexisting
condition only. In reaching this finding, the WCJ relied upon the medical opinion
of Employer’s expert, Dr. Senter, who the WCJ found competent and credible.
Insofar as Dr. Mathew’s opinions contradicted those of Dr. Senter, the WCJ rejected
Dr. Mathew in favor of Dr. Senter. The WCJ explained that Dr. Senter noted that
Claimant had symptoms as far back as 2007 from her preexisting condition,
including a nerve root compression on the right at C5-C6 level in 2007. Dr. Senter
also noted that the 2013 MRI indicated a continuing presence of the right C5-C6
nerve root compression and the 2015 MRI continued to show the same nerve root
compression. Dr. Senter noted that the 2015 MRI showed a worsening of Claimant’s
underlying condition during a period that Claimant was no longer working. Dr.
Mathew could not explain Claimant’s worsening condition while Claimant was not
working. F.F. No. 15.
The WCJ rejected Dr. Breisinger’s opinion. The WCJ noted that Dr.
Breisinger did not see Claimant until “November 9, 2017, well after the date of Dr.
Senter’s evaluation of February 9, 2017.” F.F. No. 16. Dr. Breisinger’s opinion that
Claimant’s “physical symptomatology[,] which has caused the . . . psychological
impairment was related to the work injury cannot be adopted as fact.” F.F. No. 16.
The WCJ explained that, “[w]hile it certainly appears that [Claimant] does have a
psychological impairment due to the physical symptoms she is experiencing,” noting
that “both Dr. Wettstein and Dr. Breisinger have come to that conclusion after very
9
thorough evaluations of [Claimant],” the psychological “impairment cannot be
related to the work injury in that I have found [Claimant] to be fully recovered from
that work injury as of February 9, 2017.” F.F. No. 16.
Ultimately, the WCJ concluded that Claimant is entitled to
compensation for the closed period commencing August 9, 2013, to September 19,
2016, as a result of Employer’s late Answer, and from September 19, 2016, through
February 8, 2017, having established a temporary, total disability from the work-
related aggravation of her preexisting condition by unequivocal medical testimony.
However, the WCJ concluded that Claimant did not establish any residual physical
impairment or disability on or after February 9, 2017. Thus, the WCJ terminated
benefits effective February 9, 2017. The WCJ also concluded that Claimant did not
establish any psychological impairment as a result of the work injury or pain
symptomology, having determined that Claimant had fully recovered from her work-
related physical injury as of February 9, 2017. The WCJ credited Employer for any
unemployment compensation, short-term disability, and leave of absence benefits it
paid to Claimant during the period of the award. WCJ’s Opinion, 12/20/2019,
Conclusions of Law Nos. 3-8.
By decision and order circulated on December 20, 2019, the WCJ
granted Claimant’s Claim Petition for the closed period of August 9, 2013, through
to and including February 8, 2017, and terminated benefits effective February 9,
2017. The WCJ held Employer liable for reasonable and necessary medical
expenses incurred during this period but ruled Employer is not liable for any
treatment after February 9, 2017. The WCJ dismissed Claimant’s Review Petition.
From this decision, both Employer and Claimant sought review with the Board,
which affirmed. Claimant and Employer then filed the instant cross-petitions.
10
II. Issues
On appeal,4 Claimant contends that the WCJ misplaced the burden of
proof on Claimant to prove an ongoing disability. Because Employer filed a late
answer, Claimant maintains that she was entitled to a presumption that her disability
continued and the burden was on Employer to overcome that presumption. In
addition, Claimant asserts that Employer did not offer competent evidence to rebut
the presumption of ongoing disability or the onset of psychological injuries. The
testimony of Employer’s medical expert, Dr. Senter, was not legally competent to
sustain Employer’s burden because he refused to accept Claimant’s recognized work
injury. Therefore, the WCJ’s determination to terminate benefits as of February 9,
2017, and to deny her Review Petition are not supported by competent substantial
evidence.
Employer counters that the WCJ erred by applying Yellow Freight on
the basis that Claimant waived this issue by not raising it in a timely manner before
the WCJ, thereby prejudicing Employer’s defense. Otherwise, Employer maintains
that the WCJ’s decision is supported by substantial, competent evidence.
III. Discussion
A. Yellow Freight
Claimant’s first issue and Employer’s counter issue regarding the
applicability of Yellow Freight are intertwined. Claimant argues that the WCJ erred
by placing the burden on her to prove an ongoing disability after September 19,
2016. Pursuant to Yellow Freight and progeny, when an answer is filed late, all well-
4
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Frankiewicz v. Workers’ Compensation Appeal Board (Kinder Morgan, Inc.),
177 A.3d 991, 995 n.2 (Pa. Cmwlth. 2017).
11
pled allegations in a claim petition are deemed admitted and the claimant is entitled
to a rebuttable presumption of ongoing disability benefits after the last date on which
the answer could have been filed. Because Employer failed to file a timely Answer,
it was Employer’s burden to produce competent medical evidence to rebut the
presumption of ongoing disability.
Employer counters that Claimant waived the Yellow Freight issue by
not timely raising it before the WCJ. The first time the issue was raised was at the
fifth hearing held on March 23, 2018,5 which was 18 months after Claimant filed her
Claim Petition and 13 months after Employer’s medical examination in defense of
the claim. Relying upon Smale v. Workers’ Compensation Appeal Board (Dana
Corp.) (Pa. Cmwlth., No. 696 C.D. 2014, filed July 30, 2015), Employer maintains
that Claimant waived the issue and is not entitled to any deemed admissions.
Section 416 of the Act requires an adverse party to file an answer to a
claim petition within 20 days of service. 77 P.S. §821. “If a party fails to file an
answer and/or fails to appear in person or by counsel at the hearing without adequate
excuse, the [WCJ] hearing the petition shall decide the matter on the basis of the
petition and evidence presented.” Id. As interpreted in Yellow Freight, this means
that the WCJ shall decide the matter on the allegations on the face of the claim
petition, which are deemed admitted, and the evidence presented by the claimant.
Straub v. Workmen’s Compensation Appeal Board (City of Erie), 538 A.2d 965, 967
(Pa. Cmwlth. 1988), aff’d, 598 A.2d 27 (Pa. 1991); see Yellow Freight, 423 A.2d at
1127. However, a claimant does not have to corroborate the admitted factual
allegations. Rite Aid Corp. v. Workers’ Compensation Appeal Board (Bennett), 709
5
A total of seven hearings were held: October 27, 2016, January 9, 2017, June 28, 2017,
November 8, 2017, March 23, 2017, June 1, 2018, and February 8, 2019.
12
A.2d 447, 449 (Pa. Cmwlth. 1998); Heraeus Electro Nite, Co. v. Workmen’s
Compensation Appeal Board (Ulrich), 697 A.2d 603, 608 (Pa. Cmwlth. 1997).
Under Yellow Freight, because every factual allegation asserted in the
claim petition is admitted as true, the employer is barred from presenting any
affirmative defenses or evidence to rebut the facts deemed admitted. Heraeus, 697
A.2d at 608; Straub, 538 A.2d at 967. However, an employer is not precluded from
offering evidence in rebuttal to facts that a claimant did not specifically allege in a
claim petition. Heraeus, 697 A.2d at 608. Further, an unexcused late answer admits
facts, but not legal conclusions. Bensing v. Workers’ Compensation Appeal Board
(James D. Morrissey, Inc.), 830 A.2d 1075 (Pa. Cmwlth. 2003). As we explained in
Heraeus, an employer’s failure to timely file an answer to a claim petition is not the
equivalent of a default judgment. Heraeus, 697 A.2d at 608. “[A]n employer [that]
files a late answer is still entitled to an opportunity to prove events, such as changes
in disability, that may have occurred after the last day when the late answer should
have been filed.” Rite Aid, 709 A.2d at 449 (emphasis added); accord Heraeus,
697 A.2d at 608.
In support of its position that Claimant waived the Yellow Freight issue
and, consequently, is not entitled to any admission of facts pled in the Claim Petition,
Employer relies on Smale.6 In Smale, this Court held that because the Yellow Freight
issue was not raised before the WCJ, it was waived. Critically, we noted, “not only
did Claimant fail to raise this issue at the initial WCJ hearing, he did not raise it at
either of the following two WCJ hearings.” Smale, slip op. at 8. Indeed, it is the
6
Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa. R.A.P. 126(b), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a), unreported
panel decisions of this Court filed after January 15, 2008, may be cited for their persuasive value.
Smith v. Philadelphia Office of Judicial Records, 240 A.3d 673 (Pa. Cmwlth. 2020).
13
failure to raise the issue at all before the agency that triggers waiver. See Section
703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a) (stating that “[a] party
[that] proceeded before a Commonwealth agency under the terms of a particular
statute . . . may not raise upon appeal any . . . question [other than the validity of
the statute] not raised before the agency. . . .”); Pa. R.A.P. 1551(a) (stating general
rule that “[o]nly questions raised before the government unit shall be heard or
considered,” with limited exceptions).
Such is not the case here because Claimant raised the Yellow Freight
issue on the record before the WCJ, albeit at a later stage of the proceeding.
Although Employer claims it was prejudiced by the delay, it does not describe how.
We note that both of Employer’s medical witnesses, Drs. Senter and Wettstein,
testified by deposition months after Claimant’s counsel raised the Yellow Freight
issue at the March 23, 2018 hearing,7 thereby giving Employer ample time to
develop its defense accordingly. We, therefore, conclude that the Yellow Freight
issue was preserved, and we reject Employer’s arguments to the contrary.
We next address whether the WCJ properly applied Yellow Freight.
Because Employer filed an untimely answer without adequate excuse, the WCJ
properly treated all averments in the Claim Petition as admitted pursuant to Yellow
Freight. The admitted allegations are that Claimant sustained cervical, lumbar spine,
and left knee injuries, as well as an aggravation of preexisting degenerative joint
disease after she fell at work in 2012 and experienced repetitive trauma from
continuing work activity through August 8, 2013; the physical injuries disabled her
from performing her preinjury job; her last day of work was August 8, 2013; and she
7
Dr. Senter was deposed on September 6, 2018; Dr. Wettstein was deposed on December
4, 2018. R.R. at 182a; 392a.
14
provided notice to Employer on August 8, 2013. R.R. at 1a-3a. Claimant also
alleged that she was disabled as of August 9, 2013, and “ongoing.” R.R. at 3a.
Despite these deemed admissions, the WCJ placed the burden on
Claimant “to prove by a preponderance of evidence that she continues to be entitled
to benefits on and after the September 19, 2016 filing date.” F.F. No. 13. Pursuant
to Yellow Freight, Claimant was entitled to the presumption of an ongoing disability
as a result of her work-related injury. Heraeus, 697 A.2d at 609 n.10. It was
Employer’s burden to rebut this presumption. Id. In this regard, we conclude that
the WCJ erred.
As for whether the misplacement of the burden of proof constitutes
harmless error or reversible error depends upon whether a different result would
have been reached had the burden been correctly placed. City of Philadelphia v.
Civil Service Commission, 824 A.2d 346, 349 (Pa. Cmwlth. 2003), aff’d, 879 A.2d
146 (Pa. 2005); see Durbin v. Workers’ Compensation Appeal Board (Pennsylvania
Hospital of the University of Pennsylvania Health System) (Pa. Cmwlth., No. 289
C.D. 2016, filed November 21, 2016). Upon review, the record and the WCJ’s
findings of fact demonstrate that the outcome would not have changed had the WCJ
properly placed the burden of proof on Employer because Employer presented
rebuttal evidence, which the WCJ credited. Specifically, Employer’s expert, Dr.
Senter, testified that Claimant had fully recovered from her work-related injury as
of his examination on February 9, 2017. Based upon this testimony, the WCJ found
that, as of February 9, 2017, Claimant no longer suffered from “any impairment or
disability from a work[-]related aggravation of her pre-existing condition” and that
“her symptoms were now related to that pre-existing condition only.” F.F. No. 15.
Although the WCJ erred by placing the burden on Claimant to prove an ongoing
15
disability, the WCJ’s misplacement of the burden was harmless under the
circumstances here because Employer had otherwise presented rebuttal evidence
that Claimant had fully recovered from her work injury. The question remaining is
whether Employer’s evidence was legally competent to satisfy its burden.
B. Competent Medical Evidence
Although Claimant concedes that the misapplication of the burden of
proof may constitute harmless error, Claimant contends that Employer’s evidence
was not legally competent to support the suspension of benefits for her ongoing
physical disability or the denial of her Review Petition to include a psychological
disability. The reason, Claimant asserts, is that Dr. Senter did not recognize or
accept all of her established work injuries in rendering his opinion of full recovery.
In fact, Dr. Senter specifically rejected that she sustained a work-related aggravation
of her preexisting degenerative joint disease. Consequently, his testimony is
insufficient evidence to prove full recovery from all work-related injuries that
Employer admitted by virtue of its untimely Answer, which was necessary to rebut
the presumption of her ongoing disability.
Employer again complains that Claimant’s competency argument,
which is premised on the Yellow Freight issue, was not raised until March 23, 2018.
Employer notes that no competency objection was made during Dr. Senter’s
deposition taken on September 6, 2018, when the deposition was offered into
evidence, or at the conclusion of the WCJ’s proceedings.
It is well settled that “‘in a claim [petition] proceeding, the employee
bears the burden of establishing a right to compensation and of proving all necessary
elements to support an award,’ . . . and that an employer’s failure to file a timely
16
answer does not automatically satisfy the claimant’s burden of proof.” Rite Aid, 709
A.2d at 449 (quoting Inglis House v. Workmen’s Compensation Appeal Board
(Reedy), 634 A.2d 592, 595 (Pa. 1993)). As discussed above, where the claimant
alleges necessary facts to support an award, and the employer has admitted those
allegations, the claimant is entitled to a “rebuttable presumption which will sustain
her burden of proof of a continuing disability from the last date the answer should
have been filed throughout the pendency of the ligated matter, thus satisfying the
claimant’s burden under Inglis House . . . .” Heraeus, 697 A.2d at 609 n.10
(emphasis added). It is the employer’s burden of proving any changes in disability
“after the last date its answer to the claim petition could have been timely filed.” Id.;
accord Rite Aid, 709 A.2d at 449.
When an employer seeks a termination of benefits, the employer must
prove that the claimant’s work injury has ceased.8 Udvari v. Workmen’s
Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997); Marks
v. Workers’ Compensation Appeal Board (Dana Corp.), 898 A.2d 689, 693 (Pa.
Cmwlth. 2006). An employer may satisfy this burden by presenting unequivocal
and competent medical evidence of the claimant’s full recovery from her work-
related injuries. Westmoreland County v. Workers’ Compensation Appeal Board
(Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008); GA & FC Wagman, Inc. v.
8
Although Employer did not file a termination petition, our analysis as to whether the WCJ
and Board properly terminated Claimant’s benefits is the same as if Employer had filed a
termination petition. See Frontini v. Workers’ Compensation Appeal Board (Parks Moving &
Storage), 702 A.2d 8 (Pa. Cmwlth. 1997) (holding that employer need not file a termination
petition when claimant is on notice that the employer is seeking termination of benefits); see also
Durbin v. Workers’ Compensation Appeal Board (Pennsylvania Hospital of the University of PA
Health System) (Pa. Cmwlth., No. 289 C.D. 2016, filed November 21, 2016) (holding employer’s
burden of proof to terminate benefits, whether by filing a termination petition or rebutting an
established ongoing disability in the context of a claim petition, is the same).
17
Workers’ Compensation Appeal Board (Aucker), 785 A.2d 1087, 1091 (Pa. Cmwlth.
2001). The employer’s medical expert must, at a minimum, acknowledge an
accepted or established work injury. Sarmiento-Hernandez v. Workers’
Compensation Appeal Board (Ace American Insurance Co.), 179 A.3d 105, 110-11
(Pa. Cmwlth. 2018). “[A] medical expert’s opinion will not support a termination if
that medical expert does not acknowledge the accepted work injuries and does not
opine full recovery from those injuries”). Hall v. Workers’ Compensation Appeal
Board (American Service Group), 3 A.3d 734, 740 (Pa. Cmwlth. 2010); see also
Gillyard v. Workers’ Compensation Appeal Board (Pennsylvania Liquor Control
Board), 865 A.2d 991, 997 (Pa. Cmwlth. 2005) (holding termination petition based
“solely on testimony that failed to acknowledge the established work injury” was
insufficient to support a termination petition); Central Park Lodge v. Workers’
Compensation Appeal Board (Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998)
(holding that where the employer’s medical expert failed to address one of
claimant’s injuries, his testimony was insufficient, as a matter of law, to terminate
benefits).
As a result of Employer’s deemed admissions under Yellow Freight,
Claimant’s disability for cervical, lumbar spine, and left knee injuries and an
aggravation of preexisting degenerative joint disease was established and presumed
to be ongoing. For Employer to rebut this presumption, Employer was required to
offer evidence that Claimant had fully recovered from all work-related injuries.
Employer’s rebuttal evidence fell short of its burden. Dr. Senter opined
that Claimant sustained a work-related injury in the nature of a cervical sprain and
strain, from which she fully recovered. R.R. at 213a-15a. However, Dr. Senter did
not accept, and, in fact, specifically rejected, that Claimant had suffered an
18
aggravation of her preexisting condition of degenerative joint disease. R.R. at 215a-
16a. When asked whether her work activity between February 2012 and August
2013 aggravated her preexisting condition, Dr. Senter opined:
Not specifically that work activity, but it’s the nature of
degenerative disc disease to progress absent the nature of
the work. . . . So I don’t think that it’s reasonable for
somebody who had education, training and experience
specifically in treating cervical degenerative disc disease
for anyone who has those three pillars to say that sitting at
a computer moving a mouse specifically accelerates
already symptomatic and already radiographically present
cervical degenerative disc disease. . . . There’s no
neurosurgical study that has ever shown that sitting at a
desk using a mouse accelerates already present cervical
degenerative disc disease. That is just factually and
medically not a correct medical statement.
R.R. at 215a-17a. Dr. Senter further testified that the February 2012 work incident
would not cause a herniated disc. R.R. at 219a. Dr. Senter opined that Claimant’s
February 2012 injury and continuing work activity did not “aggravate, accelerate or
exacerbate her pre-existing condition.” R.R. at 220a.
Ultimately, Dr. Senter did not accept that Claimant had sustained an
aggravation of a preexisting condition even though that allegation was set forth in
the Claim Petition and was deemed admitted by Employer. Employer was barred
from presenting evidence to rebut the facts deemed admitted. Heraeus, 697 A.2d at
608; Straub, 538 A.2d at 967. The WCJ specifically found as fact that Claimant had
sustained an aggravation of a preexisting degenerative condition.
By refusing to accept that Claimant sustained an aggravation of a
preexisting degenerative condition, it was not possible for Dr. Senter to give an
opinion that Claimant had fully recovered from that injury. See Hall, 3 A.3d at 740;
GA & FC Wagman, Inc., 785 A.2d at 1091. Dr. Senter’s testimony that Claimant
19
had fully recovered from a cervical sprain and strain is not sufficient evidence upon
which to conclude that Claimant had fully recovered from the aggravation of her
preexisting degenerative condition. Consequently, Employer did not succeed in
rebutting the presumption of ongoing disability. Thus, we conclude that the WCJ
erred by finding that Claimant had fully recovered from her work injury as of
February 9, 2017, limiting the award of compensation to a closed period, and
terminating Claimant’s benefits effective February 9, 2017.
As for Claimant’s Review Petition, the WCJ denied the Review Petition
on the basis that Claimant had fully recovered from all work-related physical injuries
and, as a result, her psychiatric problems could not be related to her work injury.
Specifically, the WCJ found that, although Claimant “appears” to “have a
psychological impairment due to the physical symptoms she is experiencing . . . that
impairment cannot be related to the work injury” because Claimant “fully recovered
from that work injury as of February 9, 2017.” F.F. No. 16. Because there is no
competent support for the WCJ’s finding that Claimant fully recovered from her
established work injury, the WCJ’s finding that Claimant’s psychological
impairment is not related to the work injury fails by extension.
Although both Drs. Breisinger and Wettstein opined that Claimant has
a psychological impairment as a result of her ongoing physical symptoms, the WCJ
did not make specific credibility determinations regarding their testimony or
findings regarding the nature of her mental impairment and relation to the work
injury. We, therefore, find it necessary to remand to the WCJ to render necessary
findings of fact and conclusions of law regarding Claimant’s Review Petition.
20
IV. Conclusion
For the foregoing reasons, we conclude that the WCJ properly applied
Yellow Freight by deeming admitted all the facts alleged in Claimant’s Claim
Petition, including that she sustained an ongoing disability in the nature of an
aggravation of preexisting degenerative joint disease. However, the WCJ erred by
improperly placing the burden on Claimant to prove the continuing nature of her
disability and by relying on incompetent medical evidence in determining that
Claimant had fully recovered from her work injury as of February 9, 2017. Thus,
we conclude that the WCJ erred by limiting the award of the Claim Petition to a
closed period ending February 9, 2017.
In addition, the WCJ erred by denying Claimant’s Review Petition
seeking to include a psychological impairment to her injury on the basis that she had
fully recovered from any physical disability related to her work injury. Because the
WCJ did not make necessary findings of fact and conclusions of law regarding the
Review Petition to allow meaningful appellate review, a remand is necessary.
Accordingly, we reverse the Board’s decision insofar as it affirmed the
WCJ’s award of Claimant’s Claim Petition limited to a closed period of disability
and terminated her benefits effective February 9, 2017. We vacate the Board’s
decision insofar as it affirmed the WCJ’s denial of Claimant’s Review Petition, and
we remand this matter to the Board with instructions to further remand to the WCJ
to reconsider Claimant’s Review Petition and render necessary findings of fact and
conclusions of law and issue a new decision in accordance with the foregoing
opinion.
__________________________________
MICHAEL H. WOJCIK, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joanne DeSue, :
:
Petitioner :
:
v. : No. 151 C.D. 2021
:
Bank of America (Workers’ :
Compensation Appeal Board), :
:
Respondent :
Bank of America, :
:
Petitioner :
:
v. : No. 183 C.D. 2021
:
Joanne DeSue (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 21st day of April, 2022, the January 29, 2021 order of
the Workers’ Compensation Appeal Board (Board) is REVERSED IN PART
insofar as it affirmed the Workers’ Compensation Judge’s (WCJ) award of Joanne
DeSue’s (Claimant) Claim Petition limited to a closed period of disability and
terminated her benefits effective February 9, 2017, and VACATED IN PART
insofar as it affirmed the WCJ’s denial of Claimant’s Review Petition. This matter
is REMANDED to the Board with instructions to further remand to the WCJ to
reconsider Claimant’s Review Petition and to render necessary findings of fact and
conclusions of law and issue a new decision in accordance with the foregoing
opinion.
Jurisdiction is relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge
2